<p><p><p><p><p><p><p><p><p><p><p><p><p><p><p><p><p>International Court of Justice (ICJ) decides the Case Concerning the Frontier Dispute (Benin/Niger)</p></p></p></p></p></p></p></p></p></p></p></p></p></p></p></p></p>
On Tuesday, 12 July 2005, the International Court of Justice (ICJ) announced its decision in the Frontier Dispute (Benin/Niger) case. This long-standing dispute between the West African States of the Republic of Benin (formerly known as the Republic of Dahomey) and the Republic of Niger concerns the entire territorial boundary between to the two States. The ICJ received the case, which the parties submitted jointly, on 3 May 2002. The ICJ's principal task in the case was to determine the definitive delimitation of the whole boundary between Benin and Niger. Sketch-Map No.1, from the ICJ's decision, illustrates the location of both Benin and Niger in West Africa (click on image for detailed view).[1]
I. Background: Factual and Procedural History
Since their independence from French colonial rule, Benin and Niger have disputed the entire course of their shared boundary. The disputed boundary is divided into two sectors: the Mekrou River sector and the Niger River sector. In the Niger River sector, Benin argues the boundary is the left bank of the river, keeping all navigable waters within the territory of Benin. Niger contends, however, that the true boundary is the middle line of the Niger River. In the Mekrou River sector, Niger contends the river and certain land beyond are the territory of Niger. Benin argues the Mekrou River's median line is the true boundary. Sketch-Map No. 2 provides a general view of the boundary region in question (click on image for detailed view).[2] Additionally, Niger and Benin hold disputed claims over a number of islands along both the Mekrou River and Niger River, especially the island of Lété (covering approximately 40 sq km with 2,000 inhabitants).[3]
Historically, the frontier dispute between Benin and Niger dates back to the "accession to independence of the territories that were formerly part of French West Africa...." Both Benin and Niger became independent States in August 1960. A long unresolved matter, two Dahomey-Niger joint commissions met in 1961 and 1962, seeking a friendly settlement of their dispute. A focal point of the Parties disagreement focused on the island of Lété, and both parties agreed in 1965 that nationals of both States could inhabit the island until resolution of the frontier dispute. Further attempts to resolve the dispute occurred from 1995-2000, including six meetings of a joint commission created in April 1994. These efforts also failed to produce a negotiated solution. This commission, however, did suggest bringing "the dispute before the International Court of Justice by Special Agreement."[4]
A Special Agreement between Benin and Niger to jointly-submit the matter to a special chamber of the ICJ was signed on 15 June 2024 and entered into force 11 April 2002. On 3 May 2024 the parties filed the Agreement with the Registry of the ICJ. The ICJ retained jurisdiction over the case under article 26 of the Statute of the Court, which permits the formation of a special chamber of the Court for particular cases.[5] The Special Agreement asked the Court to determine "the course of the whole boundary between Benin and Niger and to specify to which State each of the islands in the River Niger sector belongs, and in particular the island
of Lété."[6]
II. Applicable International Law
The Court, and the Special Agreement between Benin and Niger, recognized that the principle of uti possidetis juris should be applied in resolving the boundary dispute.[7] The "essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved." In Burkina Faso v. Mali, the Court noted that uti possidetis "freezes the territorial title" and strives to present a "photograph of the territory" at "the critical date" of independence.[8] To uphold the principle of uti possidetis juris in the present dispute, the ICJ recognized that it must determine "the boundary that was inherited from the French administration" at the moment of independence. This boundary was determined by French colonial law, known as "doit d'outre-mer". The Court recognized, however, that when reference is made to domestic law, like French colonial law, such law does not apply "in itself (as if there were a sort of continuum juris, a legal relay between such law and international law), but only as one factual element among others, or as evidence indicative of . . . the 'colonial heritage.'"[9] Additionally, the Court recognized that when applying the principle of uti possidetis juris, post-colonial effectivités "should not necessarily be excluded."[10] Effectivités meaning the conduct of Benin or Niger, respectively, as proof of effective exercise of territorial sovereignty.
III. The ICJ's Analysis: Resolving the Frontier Dispute
Before reaching the specific task of boundary creation, the Court provides a detailed colonial history of both Benin and Niger. Additionally, relevant colonial documents and maps are presented by the Court.[11]
The Court then considers the boundary in the Niger River sector and then specifies "to which Party each of the islands in the river belongs."[12] The Court first considers evidence presented by both Benin and Niger, which attempts to establish the boundary on the basis of colonial documents and decrees. After evaluating the evidence, the Court "concludes that neither of the Parties has succeeded in providing evidence of title on the basis of regulative or administrative acts during the colonial period." To determine the boundary, the Court then examines any evidence of effectivités during the colonial period.[13] On the basis of the exercise of administrative authority during the colonial period, the Court determines "the boundary between Benin and Niger follows the main navigable channel of the River Niger as it existed at the dates of independence."[14] From this decision, the Court presents a list of 154 geographic coordinates, based on latitude and longitude, providing the exact location of the boundary. Using this boundary-line, the Court determines the ownership of the islands within the Niger River (the island of Lété is deemed the territory of Niger).[15]
Next, the ICJ chamber considers the course of the boundary in the Mekrou River sector. After evaluating several colonial decrees, the Court finds a 1927 decree defined the colonial boundary at the date of independence to be the Mekrou River. Based on this finding, and the fact the Mekrou River is not navigable, the Court concludes the median line of the Mekrou River to be the boundary between Benin and Niger.[16]
III. Significance of the Frontier Dispute
(Benin/Niger) Case
The Frontier Dispute (Benin/Niger) represents the ICJ's ability to resolve territorial disputes between States, utilizing the special jurisdiction provisions provided by the Statute of the Court. This case also upholds the principle of uti possidetis juris, especially when the boundaries of former colonial territories are being considered.
[1]. Frontier Dispute (Benin v. Niger), 2005 I.C.J. 19 (July 12) (opinion available online at ICJ homepage).
[2]. Id. at 20.
[3]. Id. at 18.
[4]. Id. at 21.
[5]. Statute of the International Court of Justice, June 26, 1945, art. 26, 59 Stat. 1031.
[6]. Frontier Dispute (Benin v. Niger), 2005 I.C.J. at
17.
[7]. Id. at 21-22 (citing Frontier Dispute (Burkina Faso/Republic of Mali), 1986 I.C.J. 565-66, 586-87).
[8]. Id.
[9]. Id. at 23.
[10]. Id.
[11]. Frontier Dispute (Benin
v. Niger), 2005 I.C.J. at 25-32.
[12]. Id. at 32.
[13]. Id. at 39-45.
[14]. Id. at 45.
[15]. Id. at 47-52.
[16]. Id. at 59-60.