3 Inconsistent definition
6 Changing the starting point
The reliance on third party settlement suggests that continued reference to the ‘intangibility principle’ may be dissuading African governments from clarifying their international boundaries through bilateral dialogue. The lack of attention to defining more clearly the ambiguous and inconsistent boundaries inherited at independence suggests that this term has been taken far too literally, and may be providing African governments with political coverage for choosing not to engage with neighbouring states.88 Simply because two neighbouring states accept that a hundred year-old colonial instrument delimits their boundary does not ensure that disputes will not arise over interpretation of that agreement. As Anthony Allott states succinctly: ‘It is one thing, however, to declare respect for the border;
85 interests, it must also dismiss any possibility of resorting to equity contra legem. Nor will the Chamber apply equity praeter legem. On the other hand, it will have regard to equity infra legem, that is, that form of equity which constitutes a method of interpretation of the law in force, and is one of its attributes.’ Burkina Faso/Mali (n 23 above) para 28.
86 Although not explicitly stated, the possible political motivation for Ethiopia’s position was that the line could be altered around Badme at the demarcation phase. See the Request for Interpretation, Correction and Consultation’ Submitted by the Federal Democratic Republic of Ethiopia, 13 May 2002 and the subsequent Decision of the EEBC regarding this request on 24 June 2002. http://www.pca-cpa.org/upload/files/Decision 24June2002.pdf (accessed 29 June 2010).
87 J Klabbers ‘No more shifting lines?’ (1994) 43 International and Comparative Law Quarterly 908 - 910.
88 The lack of commitment to boundary definition may also indicate of deeper problems of lack of adequate governance, as Jackson and Rosberg have argued that for post-colonial African governments ‘their sovereignty derives more from right than from fact’
indicating a prioritisation of juridical over empirical statehood. RH Jackson and C Rosberg ‘Sovereignty and underdevelopment’ (1986) 24 Journal of Modern African Studies 2 - 4.
it is another thing to determine where it runs.’89 Nor does the principle of intangibility prevent states from further clarifying, or even changing the position of their boundary, as long as they do so by agreement. If a colonial boundary is vague or unclear, it is not simply the right but surely the responsibility of neighbouring states to address that lack of clarity, otherwise the stability of their respective territorial titles is undermined by the possibility of overlapping territorial claims.
With international courts and tribunals usually handicapped by the application submitted to them by neighbouring states for resolution, and with African governments reluctant (until recently)90 to make a concerted effort to address the geographic clarity of their international boundaries, it is perhaps time to reconsider the underlying legal tenets. In his masterful review of uti possidetis, Ratner suggests that perhaps post-independence governments should return to the original meaning of uti possidetis which he describes as the exercise:
to preserve the status quo only until states can resolve their competing claims, rather than apply the gloss from decolonisation whereby states effectively presumed independence-day lines to be permanent.91
Uti possidetis certainly does not prevent states from modifying their boundaries by agreement, but the popular use of the term ‘intangibility’
with regards to African boundaries may have encouraged governments to take an overly literal interpretation of the concept, reinforcing the geographic assumptions imbedded in the 1964 Cairo Declaration. Taking this original meaning of uti possidetis as a starting point, rather than a more restrictive sense of ‘intangibility,’ Ratner suggests:
The most immediate consequence of this starting point is an admittedly heavy burden on decision makers, whether national diplomats or international commissions or courts: to deal directly with the location of international borders, rather than retreat behind the simple, but anachronistic, decolonisation form of uti possidetis. To date, states, courts and scholars have agreed on the unexceptionable proposition that there is no universal rule for arriving at an ideal line to divide territory – whether by adopting linguistic boundaries, natural frontiers or uti possidetis. But rather than looking for the ideal line, we must set more modest goals.92
Ratner’s key point is that uti possidetis should be seen as the starting point
89 A Allott ‘Boundaries and the law in Africa’ in WG Widstrand (ed) African Boundary Problems (1969) 17.
90 A number of declarations and initiatives law legal proposed to the OAU and the African Union to promote clarification of African boundaries dating back to 1981. See
‘Summary Note on the African Union Border Programme and its Implementation Modalities’ Conference of African ministries in charge of border issues, 4 - 7 June 2007 (2007) African Union BP/EXP/2 (II), paras 6 - 11.
91 Ratner (n 19 above) 617.
92 Ratner (n 19 above) 618.
rather than the end point for the definition of boundaries.93 Many post-independence African governments have simply stated that their international boundaries are defined by unclear and outdated colonial instruments, rather than undertake the difficult political and technical work of addressing the many ambiguities embedded in those boundary definitions. This may result in modifying the line, but, given the deep ambiguities of many original colonial instruments, it may be impossible for either side to discern exactly how much is ‘gained’ or ‘lost.’ Removing the ambiguities would provide greater stability to the respective titles by removing the possibility of overlapping territorial claims and resultant disputes.
7 Conclusion
As the history of the DRC-Zambia boundary indicates, colonial administrations in Africa tended to clarify boundaries with precision when the land involved was of demonstrable economic ‘value.’ Colonial administrations in Africa had different procedures for land registry within their territories, dependent on the nature of the activity taking place on a specific area of land. The inconsistency of inter-colonial boundary practices illustrates that land in colonial Africa was often viewed subjectively by colonial administrations according to its relative economic value. In this respect, defining boundaries with geographic clarity was a subjective tool, used largely when it suited the interests (often economic) of the colonial administrations.
Although several current international land boundary disputes in Africa involve an economic element (such as oil practices in Lake Albert), many others have arisen in areas with no significant ‘economic’ interests.
There were no disputed mineral or oil resources involved along the disputed sections of the Burkina Faso/Mali boundary. Although it does attract a modest amount of tourist interest, Kasikili-Sedudu Island is submerged by the Chobe river throughout the flooding season. There are no known valuable resources around the village of Badme or on the Doumerah peninsula.94 With such a variety of tensions channelled into boundary disputes, it seems important that African governments should define their international boundaries objectively, along the full course, in order to eliminate any ambiguities that could provoke a dispute.
93 It is worthwhile noting that the Canada-USA International Boundary Commission updates information about the boundary on an annual basis. It is subject to numerous treaties and depicted on 256 official boundary maps http://www.international boundarycommission.org/products.html (accessed 29 June 2010) Compare this with the single map attached to the 1900 Abyssinian-Italian boundary agreement that defined much of the central section of the Eritrea-Ethiopia boundary. EEBC (n 29 above) paras 4.8 - 4.9.
94 The position of the land boundary terminus on Ras Doumeirah may change after sovereignty claims over Doumeirah Island and the subsequent maritime boundary, but it is unclear if any mineral or hydrocarbon deposits are involved in the maritime area.
In a recent article an experienced official from the British Land Registry, Charlie Beeden, provided some informal thoughts about private land boundary disputes which are remarkably applicable to international boundaries. Drawing on his years dealing with private boundary disputes in the UK, Beeden concludes that: ‘Boundary disputes are about territory, ownership, principle and saving face – to many people more precious than money.’95 He suggests that boundary disputes are often the result of underlying personal issues between two neighbours ‘until a boundary irregularity provides a convenient outlet.’96 As with the ambiguities in colonial boundary treaties, Beeden notes that these irregularities are often created when in reviewing the private land deeds, ‘the title deed provides the definitive extent, but the interpretation of this on the ground all too often fails.’ Beeden suggests that the resolution of a private property boundary dispute should involve a coordinated approach, with both solicitors (lawyers) and surveyors assessing the boundary situation on-site:
If a solicitor who has never been on site cannot be fully knowledgeable about it, it is also true that a surveyor who knows the site is unlikely to have all the legal expertise the dispute requires. Consequently, I believe that a site visit by a team of lawyer and surveyor (representing the crucial ingredients of resolution), preferably acting in a joint capacity, offers the best chance of a speedy and lasting solution.97
Although focused on private land registration, Beeden’s recognition that law and geography are the ‘crucial ingredients’ to resolving a boundary dispute also applies to international boundaries. Unfortunately, a literal interpretation of the intangibility principle by diplomats and international lawyers often discounts the geographical element in boundary definition as simply technical matters of survey and demarcation.
The interpretation of the negotiated location on the ground and laying down the infrastructure for the administration of the boundary are often too readily relegated in importance as mere technical matters, only to re-emerge as issues of major political importance, the settlement of which is essential to avoiding conflict.98
Ratner’s suggestion for reinterpreting uti possidetis can be interpreted as encouraging a de-mystification of boundaries, to encourage states to see boundaries as an administrative responsibility rather than a diplomatic contest. Once engaged in an international boundary dispute, there is an almost instinctive Hegelian response from neighbouring governments, whereby territory becomes a contest with a zero-sum result. Although certainly preferable to conflict, the resolution of African international
95 C Beeden ‘War or Peace?’ The Land Journal (2010) 18.
96 Beeden (n 95 above) 18.
97 Beeden (n 95 above) 19.
98 R Adler ‘Geographic information in delimitation, demarcation and management of international land boundaries’ (2001) 3 IBRU Boundary and Territory Briefing 3.
boundary disputes through third party adjudication and arbitration has tended to reinforce a confrontational approach that Gathii described in the context of the 1999 Botswana-Namibia judgment of the ICJ as
‘geographical Hegelianism.’99 This in turn tends to encourage governments to view boundaries from a small-scale perspective, where all the nuances of the line on the ground become generalised and local border issues become absorbed into national discourses.
The division of land by fixed and linear boundaries was linked with the commodification of property and developed in a densely-populated Europe as a replacement for the multiplicity of land tenure rights that had marked the feudal system. The European positivism of the nineteenth century,100 which formed the basis of modern international law, is rooted in the notion of exclusive sovereign equality, which prima facie suggests that boundaries divide neighbouring states who hold homogeneity of legal rights and responsibilities. Exclusive sovereignty now appears as more of a myth that has never existed, even in Europe, indicating that states/
political entities had always been restrained to some extent by political alliances or other agreements. In addition, boundaries themselves do not necessarily dictate a total exclusivity of rights on either side, as there are numerous ways of sharing specific territorial rights, the importance being that they are undertaken by agreement.
While certainly linked with the commodification of land, the drawing of boundaries is primarily an administrative exercise in the resolution and prevention of disputes. Whether dividing adjacent private property plots, a private property plot from a communal area, a nature reserve from a mining concession, one administrative district from another or the territorial sovereignty of two neighbouring states, legal boundaries are inherently an attempt to eliminate the potential for overlapping claims and confusion over the spatial extent of rights that could give rise to dispute and conflict. Neighbouring states or land holders are unlikely to share rights in an area of overlapping claims until a boundary is determined. The frontier zones that divided precolonial Africa states may have been misunderstood and abruptly severed by the modernist boundaries imposed by the European colonial powers, but as population density rises and the pressures on land increases, peripheral zones of ill-defined jurisdiction cause confusion and dispute in post-independence Africa.
This chapter has tried to emphasise that the clear geographic definition of boundaries must accompany the legal validity of territorial title in order
99 JT Gathii ‘Geographical Hegelianism in territorial disputes involving non-European land relations’ (2002) 15 Leiden Journal of International Law 581.
100 Shaw asserts that the imperial division of the African continent occurred at ‘the high point of the exclusivity concept of the State in international law as fostered by nineteenth century positivism’ dominated by ‘the view that the organised tribes of peoples of non-European lands had no sovereign right over their territories and thus no sovereign title by means of effective occupation’, Shaw (n 5 above) 32.
for a boundary to fulfil its primary function in preventing disputes. The colonial period saw the inconsistent imposition of modern boundaries in a subjective manner, whereby geographic clarity was wielded as a tool only to be used by and for more powerful actors. The key lesson is that geographic clarity should no longer be considered simply a technical exercise reserved for specific land use. Instead clear geographic definition of land, on the ground at local scale, should be considered an integral aspect of defining boundaries objectively to provide more secure titles that are less likely to cause future disputes.
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