ICJ settles boundary dispute between Burkina Faso and Niger

On 16 April 2013, the principal judicial organ of the United Nations, the International Court of Justice (the "ICJ"), issued a judgment determining the course of the frontier between Burkina Faso and Niger.

This decision has settled a decades-old dispute between Burkina Faso and Niger, with the governments of both West African nations expressing satisfaction with the outcome. It therefore demonstrates the important role that the ICJ can play in resolving boundary disputes in Africa.

Background

By a joint letter of notification dated 12 May 2010, Burkina Faso and Niger filed a Special Agreement pursuant to Article 36(1) of the Statute of the ICJ. By virtue of this Special Agreement they agreed to submit to the ICJ a frontier dispute over a substantial section of their 650km boundary between the astronomic marker of Tong-Tong (14º 24’ 53.2" N, 00º 12’ 51.7" E) in the north and the Boutou bend in the south (12º 36’ 19.2" N, 01º 52’ 06.9" E).

The dispute between these two nations, which were both part of French West Africa until they gained independence in 1960, dates back as far as 1927 when an arrêté was adopted by the Governor-General of French West Africa with a view to "fixing the boundaries of the Colonies of Upper Volta and Niger" (the "1927 Arrêté").

By agreements dated 23 June 1964 and 28 March 1987, the Governments of the two countries agreed to demarcate their common boundary and created a Joint Technical Commission on Demarcation of the Frontier (the "Joint Technical Commission"). Under the 1987 agreement it was further agreed that the 1927 Arrêté, as clarified by an Erratum of 5 October 1927, would be applied for the delimitation of the boundary and that if the 1927 Arrêté and Erratum did not suffice then the course would be shown on the 1960 edition of the 1:200,000 topographic map series by the Institut Géographique National ("IGN").

In the light of the work of the Joint Technical Commission, Burkina Faso and Niger agreed in 2009 on the demarcation of the northern and southern sections of the boundary: from Tong-Tong to the heights of N'Gouma (the Mali tri-point) and from the Boutou bend to the River Mekrou (the Benin tri-point). However, the two states were unable to reach consensus on how the 1927 Arrêté should be interpreted in respect of the remaining sections of their boundary. Faced with continuing tension in the area caused by incursions of security forces and customs officials on both sides, the states filed the Special Agreement submitting the dispute to the ICJ and promising to abide by the court's decision.

Following public hearings held in October 2012, the key issues to be decided by the ICJ were:

• whether to include the course of the frontier agreed by the parties following the work of the Joint Technical Commission in the operative part of its judgment; and
• how to determine the course of the sections of the frontier which remained in dispute between the parties.

Decision

Parties' agreement on the results of the work of the Joint Technical Commission

Burkina Faso requested the court to adjudge and declare that its frontier with Niger followed the course which had been demarcated in 2009 by the Joint Technical Commission and to include this course in the operative part of its judgment so that the parties would be bound by it, in the same way that they would be bound with regard to the frontier line in the sections that remained in dispute. Niger, however, was of the opinion that there was no need to include a reference in the operative part of the judgment as agreement had already been reached between the parties.

The ICJ noted that Burkina Faso's request did not correspond with the terms of the Special Agreement which only requested the ICJ to "place on record the Parties' agreement" to the conclusions of the Joint Technical Commission. Accordingly, the ICJ unanimously declined the request, holding that it was not compatible with its judicial function.

Course of the sections of the frontier remaining in dispute

The ICJ then proceeded to consider what course the sections of the frontier which remained in dispute between the parties should take.

During the hearings, Burkina Faso argued that the delimitation of the boundary should be based on the 1927 Arrêté. However, Niger contended that this was not precise enough to define the frontier in certain areas and asked the ICJ to use the 1960 IGN map, as adjusted with factual evidence of territorial sovereignty.

In this respect the court noted that the 1927 Arrêté was the instrument to be applied for the delimitation of the boundary, but that where the 1927 Arrêté did not suffice the course would be shown on the 1960 IGN map, applying also the principle of the intangibility of boundaries inherited from colonization. On this basis the court demarcated the boundary between Burkina Faso and Niger in four sections between the Tong-Tong astronomic marker and the Botou bend in the south.

Due to the large population of nomadic herders in the north of the disputed territory, the ICJ also expressed its wish that the parties would have due regard to the needs of nomadic populations and the difficulties which may arise for them because of the frontier.

Comment

Since African countries gained independence, colonial boundaries have been a frequent cause of conflict on the continent. The African Union Border Programme, which was established to prevent and resolve border-related disputes and to promote regional and continental integration, has therefore encouraged African states to clearly define their borders.

Following the decision of the ICJ, representatives from both Burkina Faso and Niger have expressed satisfaction with the ruling. Niger's Justice Minister, Marou Amadou, has stated "I think that the court sliced up the territory fairly... We gain a little in the north, we lose a bit in the south. Both countries win out because there's no more border dispute." This decision therefore demonstrates the importance of the ICJ in resolving boundary disputes in Africa and may result in an increase in referrals of such disputes to the court in the future.

However, it is important to note that even after an ICJ judgment has been issued, significant political will is required to ensure that boundaries are successfully demarcated. This is demonstrated by the fact that it took over four years to implement the 2002 ICJ decision of Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening).

In the present case, the Special Agreement specifies that the two states will begin demarcation of the boundary on the ground within 18 months of the ICJ decision. Moreover, at the request of Burkina Faso and Niger, the ICJ has agreed to identify three experts to assist the parties with the process of demarcating the boundary. It is hoped that this, in conjunction with the indication of both parties that they will refrain from any acts of provocation, will lead to a swift and peaceful implementation of the court's decision, creating a more stable investment climate for companies operating in the vicinity of the affected frontier.

Frontier Dispute (Burkina Faso/Niger)

For further information, please contact Dominic Roughton, Partner,  Andrew Cannon, Senior Associate or your usual Herbert Smith Freehills contact.