Tuesday, July 12, 2005

ICJ Watch: Niger Wins (Sort of)

A Chamber of the ICJ issued a decision today (only the summary is available so far) in the long-running border dispute between Niger and Benin. The Court awarded Niger 16 out of 25 disputed islands, including the largest island, lying in the Niger River on the border between the two countries. The two countries have been squabbling over the islands, sometimes in violent clashes, since they both gained independence from France in 1960. Compliance seems assured because both countries have already announced they will comply.

This case is a great example of the ICJ acting in its classic role as a special arbitration commission. Both Benin and Niger agreed in 2002 to submit this dispute to the ICJ by special agreement rather than by simply acceding to the compulsory jurisdiction of the Court. Moreover, each country appointed one member of the 5-member chamber (not surprisingly, the Benin-appointed judge dissented on almost the whole judgment). By sending it to a chamber, the two countries also probably saved themselves some time as the ICJ managed to issue its decision about three years after the initial case was filed.

The Court's decision is highly technical and it draws heavily on traditional international law governing boundaries. In particular, it follows the somewhat controversial principle of uti possidetis juris, whose “primary aim" (according to the Court) "is . . . securing respect for the territorial boundaries at the moment when independence is achieved”. In other words, this principle instructs international lawyers to respect the boundaries largely created by the colonial administrations rather than attempting to go back to pre-colonial claims. It's somewhat controversial because, of course, the colonial boundaries were often drawn for colonial administrative purposes rather than as a reflection of pre-existing cultural, political, or geographic units.

Applying this basic principle, and digging through lots of historical documents from France's colonial administration, the Court decided to draw the boundary at the river's most navigable channel, because that was where the local authorities (e.g. French colonial administrators) seemed to draw the line in the past. Of course, the full judgment is a lot more complicated than that, but this is the gist of the decision from what I can tell.

I think this is another example of how international law and international courts can be very useful. Although the moral attractiveness of using French colonial practice to draw a line between two sovereign states is somewhat questionable, it is usually better to have some rule rather than no rule. Moreover, the ICJ served a very useful purpose here, providing a relatively speedy and effective resolution of an international dispute that seems acceptable to both sides.

9 Comments:

Anonymous Anonymous said...

Niger won when they gave Wilson(being run by -oo-operations officer Plame) the 'red herring' yellow cake and sent them on a path to destroy the Bush non foreign poicy of WMD, which involves the 'training of Bush' by Dr. WMD herself,Mrs. Rice(I think I know what happended at the mansion now). This opened up the CIA OO training the Universities that provide the training to the oos. Bush hired the Presidents of those universities as an 'I'm sorry' for allowing Rice to destroy the CIA WMD training program. 'Rice's degree must be important.' The Russians found it real important to compromise all the OOs, including Plame who used her five year (can't touch this) return form operations rule to destroy the White House. Rule one WAS never do this. Bush is'nt there, its Hillary and its okay......

7/13/2005 5:16 PM  
Blogger A.R. said...

Interesting to see what the determinative underlying issue is. This isn't the first time that the ICJ has addressed post-colonial border issues based on the incongruousness of prior administrative borders and certainly not the last.

Perhaps most interesting is the Court's presumed gentle tip-toe of decisions by a colonial power as to boundaries. It has previously avoided this, basing its ruling on the Hawar Islands in Qatar v. Bahrain on a ruling by a British affirmation of the award of those islands to the Sheikh of Bahrain in 1939. But the original award had been in 1936, and the reasons for that award, the Dissent points out, is evidence of a deal between the Sheikh of Bahrain and Foreign Agent for the islands so that the Sheikh could reach his pledged amount of oil. In other words, the Court seems to reason that suspect reasons for a delineation of a border should be set aside for more pragmatic, and procedural, reasons.

Another instance was in Botswana v. Namibia. There the border was indeterminate because of a poorly written treaty between Germany and Great Britain. The border had been defined by the German standard of thalweg, or the deepest part of the river. The problem is that the river forks around Kasikili and Sedudu island in the CHobe River. In this decision, rather than turning to procedure, the Court simply turns to thalweg.

A third instance is the dispute between Nigeria and Cameroon over its river boundary between Lake Chad and the Bakissi Peninsula. Nigeria's intentions in the dispute are clearly predatory - the Bakissi peninsula is an extraordinary reserve of untapped oil. The court here does not base its argument of uti possidetis juris, but on the rationale, holding that the borders had been delimited between the colonial powers in 1931.

The most interesting thing about these three decisions is that none of them state or base their rationale on uti possidetis juris. Yet this decision in Niger v. Benin does. This is a big deal - post-colonial borders are increasingly coming under attack within the academic community. Moreover, with the growth of terrorism, NGOs, and cross-border problems (AIDS, human trafficking), borders are increasingly being questioned.

Closer inspection of the decision will uncover the reasons why. But the prior three decisions mentioned above seemed to show a discomfort within the court as to how to address post-colonial border disputes, and how actively they should rule on them. Before, the resolution was, what was shall stand. Now, it seems, they are willing to make a few more corrections for sake of posterity.

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