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Applying this basic principle, and digging through lots of historical documents from France’s colonial administration, the Court decided to draw the boundary at the river’s most navigable channel, because that was where the local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.