British Institute of International and Comparative Law

The Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali): Uti Possidetis in an
African Perspective
Author(s): Gino J. Naldi
Source: The International and Comparative Law Quarterly, Vol. 36, No. 4 (Oct., 1987), pp. 893-903

Published by: Cambridge University Press on behalf of the British Institute of International and
Comparative Law
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OCTOBER 1987] Council of Europe: Juristic Activity 893
while the Council of Europe has been moving slowly, deliberately and unobtru-
sively, in the same direction.72
FRANK
DOWRICK*

THE CASE CONCERNING THE FRONTIER DISPUTE

(BURKINA FASO/REPUBLIC OF MALI): UTI POSSIDETIS
IN AN AFRICAN PERSPECTIVE

IN the Frontier Dispute (Burkina Faso/Mali) case1 the Chamber of the Inter-
national Court of Justice (ICJ),2 in demarcating the boundary between these
neighbouring north-west African States, stated that an apparent contradiction
exists between the principles of uti possidetis juris and self-determination.3 This
article examines briefly the implications of this pronouncement.

A. Subjectof the Dispute

The special agreement of 1983 submitting the dispute to the Chamber of the ICJ
asked it to delimit the common frontier between Burkina Faso (formerly Upper
Volta) and the Republic of Mali in an area consisting of a band of territory
extending from the sector Koro (Mali) Djibo (Burkina Faso) up to and including
the region of the Beli.4 This 100-mile stretch of land is known as the Agacher
strip and is reputedly rich in mineral resources.
The origins of the dispute lie in the colonial past. The territories of Burkina
Faso and Mali formed part of the French colonies known as French West Africa,
in particular the colony of Upper Senegal and Niger. In 1919 a separate colony
with the name of Upper Volta was established from it. The remaining territories
became the French Sudan in 1920, and Niger became an independent colony in
1922. In 1959 the French Sudan became the Sudanese Republic and achieved
independence as the Federation of Mali in June 1960. In August 1960 the
Republic of Mali was created following the dissolution of the Federation of Mali.
On the other hand, the colony of the Upper Volta was abolished in 1932 and
incorporated into neighbouring territories, including Niger and the French

72. The authorwishesto place on recordhis appreciationof the substantialadviceand

encouragementhe has received in composingthese reportsfrom, at the centre of the
Councilof Europe, Dr FritsHondius(now Deputy Directorof Legal Affairs)and Peter
Leuprecht(Directorof HumanRights)and, for recenteditorialassistance,MikeWilders-
pin, his colleaguein the Universityof Durham.
* The BritishInstituteof Internationaland ComparativeLaw notes with
greatsadness the deathof FrankDowrickon 20 Aug. 1987.
1. [1986]I.C.J. Rep. 554.
2. The Chamberwas composed of Judge Bedjaoui, President;Judges Lachs
and Ruda;and JudgesLuchaireand Abi-Saabad hoc.
3. [1986]I.C.J.Rep. 554, 567.
4. Idem, pp.557-558.
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894 International and Comparative Law Quarterly [VoL. 36

Sudan. Upper Volta was reconstituted in 1947 with boundaries corresponding to

those that existed prior to 1932. It became independent in August 1960,5 and in
1984 adopted the name of Burkina Faso.
Burkina Faso's claim to the disputed region is based upon the frontier de-
limited by the French colonial administration and upon recognition of the prin-
ciple of uti possidetis, that is, that the frontiers inherited from colonial times are
deemed not to be subject to alteration. Burkina Faso relies upon old colonial
maps, rather than official legal documents, which it considers to be the only
truly objective texts. It believes Mali's claim to be ill-founded in law as it
challenges the principle of uti possidetis and would thus subvert the stability of
the African continent.
Mali's claim is based on the assertion that the disputed region had geographi-
cally and historically formed part of French Sudan. According to Mali the only
valid texts are existing legal documents, and not maps which are often self-con-
tradictory and which conflict with the legal documents. Furthermore, it is
argued that the inhabitants of the area are ethnically Malian.6
The demarcation of the frontier has been disputed since independence. How-ever,
both States entered negotiations with a view to resolving the matter from the outset.
Such talks proved unsuccessful and in 1974 armed hostilities broke out. As a result a
Mediation Commission under the auspices of the Organization of African Unity
(OAU) was established to seek a solution to the frontier dis-pute. However, the
Commission was unable to fulfil its mandate and in 1983 the dispute was submitted
by mutual agreement to the ICJ for binding adjudication. While the Chamber was
seised of the case further hostilities broke out on Christ-
mas Day 1985, allegedly as a result of a Burkinabe violation of Malian sover-
eignty. After a few days' fighting a cease-fire was arranged and a troop
withdrawal was implemented. The Chamber, in indicating an interim measure
of protection, ordered both States to disengage from the conflict.7

B.TheJudgmentof the Court

In determining the common frontier the Chamber first had to consider a number of
preliminary issues. In the light of the parties' express request that the dispute be
settled on the basis of the principle of uti possidetis the Chamber found that it could
not disregard this principle.8 The Chamber's pronouncements on the prin-ciple of
uti possidetis are considered in greater detail in section C infra.
The Chamber proceeded to consider the question whether equity could be
invoked. It found that it could not decide the case ex aequo et bono because the
parties had not so authorised it but it could "have regard to equity infra legem,
that is, that form of equity which constitutes a method of interpretation of the

5. Brownlie, African Boundaries:A Legal and

DiplomaticEncyclopaedia(1979), pp.45, 427-430.
6. Day (Ed.), Borderand TerritorialDisputes(1982),p.144.
7. [1986] I.C.J. Rep. 3 (provisional measures, order of 10 Jan. 1986). For comment see
Naldi, "Case Concerning the Frontier Dispute between Burkina Faso and Mali: Pro-
visional Measures of Protection" (1986) 35 I.C.L.Q. 970.
8. [1986] I.C.J. Rep. 554, 556.
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OCTOBER1987] The Burkino Faso/Mali Case 895
law in force, and is one of its attributes".9 The Chamber thus resorted to
equity in dividing a frontier pool into equal halves in the absence of any special
circum-stances. 10
Since both States had formed part of French West Africa the boundaries de-
limiting the French colonies had been defined by French law. Both parties there-
fore acknowledged that the delimitation of the frontier had to be appraised in
the light of French colonial law. However, the Chamber doubted the suitability
of French colonial law because international law, and in particular the principle
of uti possidetis, applied as from the accession of independence and had no
retroactive effect. It stated that international law does not effect any renvoi to
.
the law of the colonising State which plays "a role not in itself . . but only as one
factual element among others, or as evidence indicative of what has been
called the 'colonial heritage' "."
The Chamber then had to consider the question of acquiescence. Burkina
Faso had argued that Mali could not challenge the frontier because in 1975 it
had accepted as binding the proposals of the OAU Mediation Commission. If the
Chamber accepted the Burkinabe submission the case would proceed no further.
The Mediation Commission had established, inter alia, a Legal Sub-Commission
which drafted an outline solution and, while both parties had expressed a
willingness to solve their dispute, a technical committee entrusted with the task
of delimiting the frontier was unable to fulfil its mandate because of Malian
inflexibility. Both parties agreed that the Commission was not compe-tent to
take legally binding decisions and had never actually completed its work.
Nevertheless, Burkina Faso argued that Mali had acquiesced to the Com-
mission's proposals on the grounds that the President of Mali had declared that
Mali would comply with the Commission's decision, and that Mali had
acquiesced in certain legal principles adopted by the Legal Sub-Commission as
applicable for delimiting the frontier.
However, the Chamber found that there was no intention on Mali's part to
create a legal obligation through a unilateral act, and stated that with regard to
a unilateral declaration not directed to any particular recipient the Chamber
must be very cautious in inferring a legal undertaking.12 On the facts the
Chamber held that Mali had never made a binding agreement to accept the
Mediation Commission's conclusions. With regard to the second argument the
Chamber stated that the dispute must be decided on the basis of international
law and that the legal position adopted by the parties was irrelevant, given in
particular that the parties had not requested otherwise.'3
The Chamber then proceeded to consider the problem posed by the disputed

9. Idem, pp.567-568. See also the Fisheries Jurisdiction Case [1974] I.C.J. Rep. 3, 33.
Equityis a generalprinciplerecognisedby internationallaw, see e.g.
Tunisia/LibyaConti-nentalShelf Case[1982]I.C.J. Rep. 18, 60, wherethe
Courtstated,"Equityas a legal con-cept is a direct emanation of the idea of justice."
10. [1986]I.C.J. Rep. 554, 633.
11. Idem, p.568.
12. On declarations creating legal obligations see the Nuclear Test Cases [1974] I.C.J.
Rep. 253, 267 and 457, 472 respectively where the Court held that the French govern-
ment's unilateral declarations were conveyed to the world at large.
13. [1986] I.C.J. Rep. 554, 570-575.
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896 International and Comparative Law Quarterly [VoL. 36

eastern border meeting Niger, the so-called "tripoint". Mali submitted that the
tripoint could not be determined without Niger's agreement. Burkina Faso, on
the other hand, considered that the Chamber had to perform the task entrusted
to it by the special agreement and therefore had to determine the tripoint. The
Chamber stated that its jurisdiction was not restricted simply because the dis-
puted area was adjacent to a third State which was not a party to the proceed-
ings. In the absence of compelling considerations the Chamber had to exercise
jurisdiction to its fullest. Niger's rights were protected by Article 59 of the Stat-
ute of the ICJ which provides that a decision of the Court is binding only on the
parties to the case.
The Chamber drew a distinction between the determination of a land boun-
dary and the delimitation of the continental shelf since in the latter instance the
Court could decline jurisdiction in a case relating to areas in which third States
have claims under international law.14 However, the Chamber acknowledged
that if it had to fix the tripoint the consent of all the States concerned would be
needed but in fact what was asked of it was to ascertain how far the frontier
they had inherited from the colonial power extended. Such a finding implied
that the territory of the third State lies beyond the end-point and that the
parties have exclusive sovereign rights up to that point."5 If Niger's sovereignty
were com-promised by this question it could have invoked Article 62 of the
Statute and requested to intervene in the case.
The Chamber proceeded to examine the evidence submitted by the parties,
specifically legislative and regulatory texts, administrative documents and carto-
graphic material. The Chamber noted that maps do not constitute a territorial title in
themselves; they are generally extrinsic evidence of varying reliability which might

be used with other evidence of a circumstantial kind to establish the real facts.16
Despite the wealth of evidence submitted there were a number of inconsistencies and
shortcomings which made the case decidedly complex. After detailed consideration of
all the evidence the Chamber fixed a frontier line by drawing a series of straight lines
from the western end to Niger's frontier which was to be demarcated by the parties
with the assistance of three experts
appointed by the Court."7
While the judges ad hoc generally agreed with the decision of the Chamber they
were compelled to make certain separate observations. Judge Luchaire would have
given greater consideration to the statements and attitudes of the parties and would
have had recourse to the concept of estoppel.18 While agree-ing with the Chamber's
general analysis on the status of maps Judge Abi-Saab considered that the Chamber
had failed to apply in practice what it had stated as
a general principle. In his view the colonial boundary had been only vaguely defined
and yet the Chamber had relied unduly on historic material without adequate
reference to equitable considerations in drawing the lines. The reason for this was to
satisfy a particular conception of the uti possidetis principle which

14. North Sea Continental Shelf Cases [1969] I.C.J. Rep. 3, 20; Libya/Malta
Continental Shelf Case [1985] I.C.J. Rep. 13, 26.
15. [1986] I.C.J. Rep. 554, 575-580.
16. Idem, pp.580-583.
17. Idem, pp.648-650.
18. Idem, pp.654-655.
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OCTOBER 1987] The Burkino Faso/Mali Case 897

in his view was not an absolute but a relative principle, to be interpreted in the
light of its function within the international legal order. 19

C. Uti Possidetis v. Self-determination

The special agreement specifically requested the Chamber to take account of the
principle of the intangibility of frontiers inherited from colonial times in deter-
mining the common frontier. In view of its importance to the parties and to Afri-
can States as a whole, the Chamber considered it necessary to emphasise the
general scope of the principle of uti possidetis.
As has already been stated the principle of uti possidetis confirms the perma-
nence of frontiers inherited from colonial times. The principle first emerged in
Latin America in the early nineteenth century as a consequence of the indepen-
dence of the ex-Spanish colonies. It sought to avoid, somewhat unsuccessfully,
disputes among the successor States by preserving the status quo upon indepen-
dence. It sought to ensure that no territory in the continent was to be considered
as terra nullius and thus potentially open to further colonisation. It has been
des-cribed thus:
When the Spanishcolonies of Centraland South Americaproclaimedtheir inde-
pendence,in the seconddecadeof the nineteenthcentury,they adopteda principle of
constitutionaland internationallaw to whichthey gave the nameof utipossidetis
jurisof 1810,with the effect of establishingthatthe boundariesof the newlyconsti-tuted
republicswould be the boundariesof the Spanishprovinceswhich they replaced.This
generalprincipleofferedthe advantageof layingdown an absolute rule that thereis not,
in law, any territoryin the formerlySpanishAmericawithout
a master;althoughthere were numerousregionswhichhad not been occupiedby
the Spaniardsand numerousunexploredregions,or regionsinhabitedby uncivi-
lised aborigines,such regionswere consideredto belong rightfullyto each of the
republicswhichhad succeededto the Spanishprovinceto whichthe said territories
were attachedin view of old royalordinancesof the mothercountry,Spain.Those
territories,althoughnot in fact occupied,were by commonaccordconsideredas
occupiedlegally, from the firstmomentby the new republics.Encroachmentsand
inopportuneattemptsat colonisationfromthe other side of the frontier,as well as
de facto occupations,became meaninglessor without legal consequences.This
principlealso had the advantageof eliminating,it was hoped, boundarydisputes
amongthe new States. Finallythis principleexcludedthe attemptsof the
European colonisingStates on territorieswhich they might have tried to
proclaimres nul-lius.20

It has therefore been said that initially the principle was essentially a political
one.21 The so-called Monroe Doctrine, which declared that the American conti-
nent was not subject to colonisation by the European powers, could be said to be
a version of the principle of uti possidetis. Its existence, if not precisely its scope,
has been judicially recognised for many years.
In the Colombia/Venezuela Boundary Arbitration the Swiss Federal Council
recognised and applied the principle of uti possidetis.22 In the Guatemala/Hon-
19. Idem, pp.660-663.
20. Colombia/VenezuelaBoundaryArbitration(1922), in Hackworth,Digest of
Inter-national Law (1940), Vol.I, pp.733-736.
21. Beagle ChannelArbitration (1978) 17 I.L.M. 632, para.9.
22. Hackworth,loc. cit. supran.20.
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898 International and Comparative Law Quarterly [VOL.36

duras Boundary Arbitration the arbitral tribunal had difficulty in determining

precisely the doctrine of uti possidetis and referred to other criteria to fill the
lacunae. It stated that the principle of uti possidetis was applicable only in a
general sense and that the important factor was that of actual possession. In its
view the test was one of administrative control held prior to independence.23
However, in the present case the Chamber said that one of the aspects of the
principle is the pre-eminence accorded to legal title over effective possession as
the basis of sovereignty.24 The principle was also discussed in the Beagle Chan-
nel Arbitration (Argentina/Chile) although the arbitral tribunal did not find it
persuasive in that case.25 Despite a certain ambiguity as to whether the proper
definition is uti possidetis juris or facto the principle was originally recognised
as a regional custom.26
Nevertheless, the principle has not been confined to Latin America but has
become of universal application. It was adopted by the newly emancipated Afri-
can States. It has been invoked in disputes between Asian States.27 It has also
found expression in Europe, in Principle III of the Helsinki Final Act 1975.28
And it has been recognised by international agreements of a universal character,
namely Article 62, paragraph 2(a) of the Vienna Convention on the Law of
Treaties 1969 and Article 11 of the unratified Vienna Convention on Succession
of States in Respect of Treaties 1978. There was therefore some justification for
the Chamber stating that uti possidetis is a general principle.
As has already been indicated the African States have adopted the principle
of uti possidetis. Given that the delimitation of Africa's political boundaries took
no account of ethnic and tribal considerations it is hardly surprising that
modern African States chose to apply it. As the Chamber put it, "Its obvious
purpose is to prevent the independence and stability of new States being
endangered by fratricidal struggles provoked by the challenging of frontiers
following the with-drawal of the administering power."'29
The principle has been given implied recognition in the OAU Charter.
According to Article 3, paragraph 3, member States solemnly affirm the prin-
ciple of respect for the sovereignty and territorial integrity of every State. It was
felt necessary to emphasise this principle further and the following year the
OAU Assembly of Heads of State and Government adopted the Resolution on
the Intangibility of Frontiers where the principle of uti possidetis was expressly
23. (1933-34) 7 A.D. 115, 117-118; Munkman, "Adjudication and Adjustment-Inter-
national Judicial Decision and the Settlement of Territorial and Boundary Disputes"
(1972-73) 46 B.Y.I.L. 1, 50-54.
24. [1986]I.C.J. Rep. 554, 566.
25. (1978) 17 I.L.M. 632, paras.21-23.
26. On regional customs of international law, see the Asylum case [1950] I.C.J. Rep.
266.
27. Templeof Preah VihearCase (Merits)[1962]I.C.J. Rep. 6; Rann of
KutchArbi-tration (1968) 7 I.L.M. 633.
28. (1975) 14 I.L.M. 1292. In their dissenting opinions in the Sovereignty over Certain
Frontier Lands [1959] I.C.J. Rep. 209, 240 and 255, Armond-Ugon and Moreno Quintana
JJ, both LatinAmerican,statedthatthe principleof utipossidetiswas applicableto a
fron-tier dispute between Belgium and the Netherlands. Note that in furtherance of the so-
called "Ostpolitik" in the 1970s, West Germany concluded a number of treaties recognis-
ing the permanence of Eastern Europe's post-war frontiers.
29. [1986] I.C.J. Rep. 554, 565.
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OCTOBER 1987] The Burkino Faso/Mali Case 899

affirmed.30 By it the member States reaffirmed the principle enshrined in Article

3, paragraph 3, of the Charter and pledged themselves to respect the frontiers
existing on the achievement of national independence. This resolution did not
meet with universal approval as Morocco and Somalia, irredentist claims to
neighbouring territories outstanding, refused to be bound by it. Indeed, Mor-
occo had reserved its position with regard to Article 3, paragraph 3, of the
Charter.31 It would seem that the initial reluctance to incorporate explicitly the
principle of uti possidetis may be attributable to the influence of the pan-
African movement and an anxiety that any approval of the principle should not
be con-strued as an endorsement of colonialism.32
Nevertheless, it can safely be asserted that by 1963 the African States had
accepted the frontiers imposed by the colonial powers as being legally valid.
However, the principle of uti possidetis was reinterpreted in one major respect;
in Africa the principle encompasses the principle of territorial integrity.33This
is apparent from, inter alia, the wording of Article 3, paragraph 3, of the
Charter, the Resolution on the Intangibility of Frontiers, and State practice with
respect to the secession of Katanga and Biafra.
It was the Chamber's view that African States have recognised and confirmed
the principle of uti possidetis, a legal principle which they consider to be one of
the most important. That principle was applicable to the present case despite the
fact that when Burkina Faso and Mali achieved independence in 1960 the OAU
did not yet exist, and that the Resolution on the Intangibility of Frontiers dates
from 1964.34 This conclusion is acceptable if it can be established that the prin-
ciple was a customary rule of international law at that time. Given State practice
it is not unreasonable to assert that this may have been the case. However, if this
were not the case the Chamber's statement would appear to take little account
of the rule of intertemporal law.35
The question then arose as to the relation of uti possidetis with other prin-ciples of
international law, in particular that of self-determination. The Chamber stated that
an apparent conflict existed between the two principles but that African States have
decided that maintenance of the territorial status quo is the wisest policy. In
interpreting the principle of self-determination account has always been taken of the
principle of uti possidetis. Regrettably the Chamber did

30. AGH/Res.16(1). For text see Brownlie, Basic Documents on African Affairs
(1971), pp.360-361.
31. The legalityof this reservationis doubtful.Customaryinternationallaw, as
estab-lished by the ICJ in the Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide [1951] I.C.J. Rep. 15, maintains that to be valid a
reservation has to be compatible with the object and purpose of the convention (see also
Art.19(c) of the Vienna Convention on the Law of Treaties 1969 which, however, is
inapplicable as it does not have retroactive effect). However, to the contrary, Art.20(3) of
the Vienna Conven-tion provides that when a treaty is a constituent instrument of an
international organis-ation a reservation requires the acceptance of the competent organ of
that organisation. It is possible that the OAU might be deemed to have consented impliedly
to the Moroccan reservation.
32. Shaw, Title to Territoryin Africa (1986), p.183.
33. Idem, pp.186-187.
34. [1986] I.C.J. Rep. 554, 567.
35. On intertemporal law, see Elias, "The Doctrine of Intertemporal Law" (1980) 74
A.J.I.L. 285.
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900 International and Comparative Law Quarterly [VOL.36

not elaborate further, saying that for the purposes of the case before it there
was no need to show that uti possidetis is a firmly established principle of inter-
national law where decolonisation is concerned.36 It is perhaps unfortunate
that the Chamber did not grasp the opportunity to clarify the relationship
between these principles which has long been a source of controversy.
What are the implications of the Chamber's statement that a prima facie con-
flict exists between the principles of uti possidetis and self-determination? A
preliminary point worth observing is the Chamber's assumption that self-deter-
mination is a legal right.37This follows from the Court's opinion in the Western
Sahara case.38 While the precise scope of the right of self-determination may be
in some doubt it is beyond question that it applies to colonial situations. In this
context the colonial entity has long been recognised as the basis of the emergent
State. This is apparent from various important international texts.39 However,
the interesting proposition that emerges from the Chamber's statement is the
implication that self-determination may transcend colonial boundaries. This
surely is the only interpretation that can be given to the view that both
principles may sometimes conflict. If the right of self-determination were to take
effect solely within defined colonial boundaries no clash with the principle of uti
possi-detis would occur. Indeed, the two principles would be mutually
compatible. It is interesting to note that the "inalienable right to self-
determination" is guaran-teed by Article 20, paragraph 1, of the African
Charter on Human and Peoples' Rights 1981, whereas the principle of uti
possidetis is not expressly enshrined although it appears to be implied in.Article
23, paragraph 1.4? It would appear, however, that Article 20, paragraph 1, does
not legitimise secession neither does it authorise the impairment of the
territorial integrity or national unity of a sovereign State.41
Judge Luchaire addressed himself to this problem in his separate opinion.42
He warned first against automatically equating decolonisation with indepen-
dence since other alternatives are envisaged. He said that the exercise of the
right of self-determination does not necessarily lead to the independence of a
new State with the same frontiers as the former colony.43 Referring to General
Assembly resolution 648 (VII) 1952 he stated that the exercise of the right of
self-determination could lead to various different scenarios: independence
within the colonial frontiers; integration with the administering power or a

36. [1986]I.C.J. Rep. 554, 565.

37. Idem, p.567.
38. [1975]I.C.J. Rep. 12, 31-33.
39. GA res. 1541(XV) 1960and 2625 (XXV) 1970,Declarationon Principlesof
Inter-nationalLawconcerningFriendlyRelationsandCo-operationamongStatesin
accordance with the Charterof the United Nations.
40. This provisionstates, interalia, that "the principlesof solidarityand friendlyrela-tions
implicitlyaffirmedby the Charterof the UnitedNationsandreaffirmedby thatof the
Organizationof African Unity shall govern relations between States". The African
Charterenteredinto force on 21 Oct. 1986.Both BurkinaFaso and Malihave ratifiedit.
41. Gittleman,"The AfricanCharteron Humanand Peoples'Rights;A Legal
Analy-sis" (1982) 22 Virginia J. Int. L. 667, 678-680.
42. [1986] I.C.J. Rep. 554, 652-653.
43. For example,West Irianwhichwas incorporatedwith Indonesia.For a
detailedlist see Crawford,TheCreationof Statesin InternationalLaw (1978), App.3.
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OCTOBER 1987] The Burkino Faso/Mali Case 901

neighbouring State; or voluntary association with an administering power (or a

neighbouring State). He therefore concluded, correctly, that the frontiers of an
independent State emerging from colonisation may differ from the frontiers of
the colony it replaces. It is surprising that Judge Luchaire did not refer to the
more authoritative General Assembly resolutions 1541 (XV) 1960 and 2625
(XXV) 1970, Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations, which contemplate the possibilities of indepen-
dence, association or integration. Indeed, the latter envisages any other political
status without defining it. In the WesternSahara case the ICJ approved of these
methods, emphasising the need to take account of the wishes of the people con-
cerned.44
The view, therefore, that the exercise of the right of self-determination is not
necessarily confined to the colonial entity also raises interesting questions regarding
the relationship between the principles of self-determination and ter-ritorial integrity.
The relationship between these principles, and particularly which, if either, takes
precedence, has long been a controversial question. Para-graph 6 of General
Assembly resolution 1514 (XV) 1960, Declaration on the Granting of Independence to
Colonial Countries and Peoples, expressly seeks to qualify the right of self-
determination enunciated in paragraph 2 thereof by stat-ing that it shall not
endanger the national unity and territorial integrity of a country. The Declaration on
Principles of International Law is somewhat more precise stating that the right of
self-determination "shall not be construed as authorising or encouraging any action
which would dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States". A detailed discussion of this
interesting question is beyond the scope of this article but it suffices to say that the
principle of territorial integrity generally overrides claims to self-determination by
peoples residing in an independent sovereign State.45 In so far as decolonisation is
concerned, the right of self-determination takes precedence.46 This follows from,
inter alia, the ICJ's opinion in the Western Sahara case.47 In this context, the right of
self-determi-nation has been deemed to be exercisable solely within the colonial
frontiers. However, the Chamber is seemingly suggesting that this is not necessarily
the case. The exercise of the right of self-determination may violate the principle of
territorial integrity. The Chamber did not state whether this refers to the integ-rity of
the colonial entity or a sovereign State. As has been stated, the right of

44. [1975]I.C.J. Rep. 68. See also NagendraSinghJ at 81, Boni J at 173-174and
Dil-lardJ at 122-123.
45. Crawford, op. cit. supra n.43, at pp.221-222; Buccheit, Secession: The Legitimacy of
Self-Determination (1978), pp.86--87; Umozurike, Self-Determination in International
Law (1972), pp.225-270; White, "Self-Determination: Time for Reassessment?" (1981)
28 NetherlandsInt.L.Rev. 147, 159-166. However, cf. Cassesse, "The
HelsinkiDeclar-ation and Self-Determination",in Buergenthal(Ed.),
HumanRights,InternationalLaw and the Helsinki Accord (1977), p.83.
46. Crawford, op. cit. supra n.43, at pp.380-384; Blay, "Self-Determination versus Ter-
ritorialIntegrityin DecolonisationRevisited"(1985) 25 IndianJ.Int.L. 386. This
would particularly be the case if self-determination is a norm of jus cogens, see Brownlie,
Prin-ciples of Public International Law (1979), pp.513, 515.
47. See supra n.44.
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902 International and Comparative Law Quarterly [VOL. 36

self-determination in this sense would appear to be inapplicable to sovereign

States. With regard to colonial entities the principle of territorial integrity seeks
to prevent the dismemberment of the colony before the exercise of the right of
self-determination. In this respect there is no incompatibility. The choices avail-
able to peoples exercising their right of self-determination may mean, as Judge
Luchaire indicated, that they will opt for a status other than independence. In
this situation the right of self-determination, which is the paramount consider-
ation, conflicts with, and overrides, the principle of territorial integrity. This
may take place, for example, where the peoples of different parts of a former
colonial territory choose a different status after decolonisation; one part opting
for independence, and another association with a former colonial territory.48
However, this possibility is envisaged by the relevant international documents.
Such a situation may conflict also with the principle of uti possidetis given that
the colonial frontiers are not observed. However, it may be that no such conflict
exists. It has been suggested that uti possidetis in Africa relates only to States
that have achieved independence, and not to colonial entities.49 It is only when
the right of self-determination has been exercised that the principle becomes
operational. The Chamber makes this point saying that the principle applies to
the new States not with retroactive effect, but immediately and from that
moment onwards "the principle of uti possidetis freezes the territorial title; it
stops the clock, but does not put back the hands".50Consequently no incompati-
bility exists between the two principles. Alternatively, it could be argued that a
regional custom has emerged in Africa which subordinates the right of self-
determination to the principle of utipossidetis and territorial integrity, although
this presupposes that the right of self-determination is not a form of jus cogens.

D. Conclusion
The Chamber's dicta must be treated with some caution given that the question
was not discussed in any detail. Nevertheless the following observations may be
made. Uti possidetis is a principle of universal application which in Africa
encompasses the principle of territorial integrity. The principle of African uti
possidetis seeks to qualify the right of self-determination by restricting it to the
colonial context, i.e. that only a non-self-governing territory is entitled to exer-
cise that right and that upon independence its frontiers are deemed to be perma-
nent.
However, general international law may only be modified by regional custom
subject to the norms of jus cogens, of which arguably self-determination is one.
If this is the case no derogation from the right of self-determination is permiss-
ible. Yet the Chamber's statement implies that this is not so. Thus a clash
between the principles of uti possidetis and self-determination occurs if self-
48. See the examplesof FrenchTogolandwhichbecamethe republicsof Rwandaand
Burundi upon independence,and British Cameroons,South Cameroonsjoining the
Republicof CameroonandNorthCameroon,joiningNigeria;see Crawford,op. cit. supra
n.43, at p.427.
49. Emerson,"Self Determination"(1971) 65 A.J.I.L. 459, 464; Frankand Hoffman,
"The Right of Self-Determinationin Very SmallPlaces"(1976) 8 N.Y.J.Int.L. and Pol.
331, 370. This is also apparentfromthe resolutionon the Intangibilityof Frontiers.
50. [1986]I.C.J. Rep. 554, 568.
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OCTOBER 1987] The Burkino Faso/Mali Case 903

determination is a universal right with general application, and if uti possidetis

applies to colonial entities before they acquire independence. If the converse is
true the two principles are mutually compatible.
GINO J. NALDI

LANGUAGE AND EDUCATION RIGHTS IN THE UNITED

STATES AND CANADA

To what extent is there in the United States and Canada a constitutionally pro-
tected right to receive an education in a language other than English? Despite its
complex linguistic heritage the US, unlike Canada, provides no clearly defined
"right to language"; rather, the language question surfaces in confusing and
sometimes contradictory federal and Supreme Court cases.' Even in Canada,
only recently has the concept of an "official language" received legal recog-
nition.2 In this article I shall first briefly outline the chief social forces
explaining the persistent legal pre-eminence of the English language in the US,
despite earlier recognition of other languages, and show how and why the US
never developed into a true multilingual nation. Then I shall discuss the very
different meaning that bilingual education has in the US and Canada.

A. TheChiefSocial ForcesExplainingthe PersistentPre-eminenceof

the EnglishLanguagein the UnitedStates
As compared to Canada, these social forces are related to the number of
speakers and the resulting political strength of the British settlers. In 1790 the
white population of the US was 76 per cent English-speaking. Even as late as
1860, 53 per cent of the foreign-born in the US came from the British Isles.3 In
contrast, the 60,000 or so French who were abandoned to the English by the
Treaty of Paris in 1763 outnumbered the English-speakers in what was even-
tually to become Canada. It was not until the mid-1800s that French-speakers
became a minority, and not until the 1871 census that they comprised only 31.1
per cent of the total population.4 Currently French-speaking Canadians com-
prise slightly over a quarter of the total population.5
In the US, non-English colonial languages had the best opportunity of com-
peting with English when they were spoken by large, cohesive populations that

1. See generally Bill Piatt, "TowardDomestic Recognitionof a Human Right

to Language"(1986)23 Hous.L.Rev.
2. WilliamTetley, "Languageand EducationRightsin Quebec and
Canada"(1982) Law & Contemp.Probs. 179, 180.
3. Nancy Faires Conklin and Margaret A. Lourie, A Host of Tongues (1983), pp.64-65.
4. Ronald Wardhaugh, Language and Nationhood (1983), pp.21, 63.
5. 1981 Census of Canada. The Canadian Census defines "mother tongue" as "the
first language learned and still understood by an individual". Employing this definition,
61.3 per cent of Canadians are English-speakers, where they are the majority linguistic
group in nine of Canada's ten provinces. French-speaking Canadians comprise 25.5 per
cent of the total Canadian population and are primarily located in Quebec, where they are
over 80 per cent of the population. Canadians who speak neither English nor French com-
prise 13.2 per cent of the population.
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