Territory of States

Abstract

The Parties have argued at length over how the present dispute is to be classified in terms of a distinction sometimes made by legal writers between “frontier disputes” or “delimitation disputes”, and “disputes as to attribution of territory”. According to this distinction, the former refer to delimitation operations affecting what has been described as “a portion of land which is not geographically autonomous” whereas the object of the latter is the attribution of sovereignty over the whole of a geographical entity. Both Parties seem ultimately to have accepted that the present dispute belongs rather to the category of delimitation disputes, even though they fail to agree on the conclusions to be drawn from this. In fact, however, in the great majority of cases, including this one, the distinction outlined above is not so much a difference in kind but rather a difference of degree as to the way the operation in question is carried out. The effect of any delimitation, no matter how small the disputed area crossed by the line, is an apportionment of the areas of land lying on either side of the line. In the present case, it may be noted that the Special Agreement, in Article I, refers not merely to a line to be drawn, but to a disputed “area”, which it defines as consisting of a “band” of territory encompassing the “region” of the Béli. Moreover, the effect of any judicial decision rendered either in a dispute as to attribution of territory or in a delimitation dispute, is necessarily to establish a frontier. It is not without interest that certain recent codifying conventions have used formulae such as a treaty which “establishes a boundary” or a “boundary established by a treaty” to cover both delimitation treaties and treaties ceding or attributing territory (cf. Vienna Convention on the Law of Treaties, Art. 62; Vienna Convention on Succession of States in respect of Treaties, Art. 11). In both cases, a clarification is made of a given legal situation with declaratory effect from the date of the legal title upheld by the court. This clarification is itself a new element; it was because the parties wished to see that element introduced that they went to court at all. If there had been no dispute or uncertainty, they would not have wished to do so. Hence it is not so much the nature and qualification of the present dispute as the Statute of the Court and the terms of the Special Agreement which must determine the nature and extent of the Chamber’s task and functions in this case.

Frontier Dispute, Judgment (Burkina Faso/Republic of Mali) I.C.J. Reports 1986, p. 554