Analysis of ICJ's Jurisprudence on Boundary and Territorial Claims

This essay provides a comprehensive analysis of the International Court of Justice (ICJ)'s jurisdiction in resolving boundary and territorial disputes. It delves into the significance of territorial disputes in international law, emphasizing their connection to state sovereignty and international harmony. The essay examines how the ICJ determines its jurisdiction, focusing on the sources of law outlined in Article 38 of the Statute of the ICJ, particularly treaty law. It explores the ICJ's tripartite hierarchical approach, which prioritizes treaty law, followed by Uti Possidetis, and then effective control. Through case studies like the Territorial Dispute between Libya and Chad and the Frontier Dispute between Burkina Faso and Mali, the essay illustrates how the ICJ applies these principles. It also discusses the role of effective control, considering the duration and degree of control, as seen in the Minquiers and Ecrehos case. The essay highlights the complexities of territorial claims, emphasizing the importance of historical evidence, cultural factors, and the application of legal principles in resolving these disputes.

SPECIAL ASSIGNMENT FOR CRITICAL ESSAY
(MERGED MID-TERM & END TERM EXAMINATION, JAN-APR, 2021)
B.A. LL.B. (Hons.)
SEMESTER IV
PUBLIC INTERNATIONAL LAW
SUBMITTED TO: -
Dr. Mohammad Atif Khan
Faculty of- Public International Law
SUBMITTED BY: -
Yashovardhan Agarwal
183
Sec-C
1920192104
HIDAYTULLAH NATIONAL LAW UNIVERSITY
NAYA RAIPUR, CHATTISGARH
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SACE 1
INDEX
INTRODUCTION-------------------------------------------------------------------------- Page No.2.
DETREMINING ICJ’S JURISDICTION TO BOUNDARY AND TERRITORIAL
CLAIMS-------------------------------------------------------------------------------------- Page No.2.
ANALYZING ICJ’s BOUNDARY DISPUTE JURISPRUDENCE (THE TRIPARTITE
HEIRARCHY) THROUGH CASE RELATED NUANCES----------------------- Page No.5.
EVALUATING THE IMPLICATIONS OF ICJ’s TRIPARTITE
HEIRARCHY----------------------------------------------------------------------------------------------
--------------Page No.11.
CONCLUSION----------------------------------------------------------------------------- Page
No.12.
INTRODUCTION
Under international law, the topic of territorial dispute is hotly discussed. This argument is
significant in international society because of its connection to fundamental rights, state
sovereignty, and international harmony. Territorial disputes promote wars and terrorism
because states attempt to impose control over a certain territory. The use of force to maintain
control over a territory is condemned by international organizations. Article 2 (4) of the
United Nations Charter states that governments should not use external force against a state
or territory in order to undermine a nation's sovereignty and political independence. In
International legal framework, territory ownership holds paramount importance as
sovereignty defines the existence of a state. In a modern state, defined borders are very
essential for the functioning of the modern state.
DETREMINING ICJ’S JURISDICTION TO BOUNDARY AND TERRITORIAL
CLAIMS
SCOPE OF CLAIMS WHICH CAN FALL WITHIN THE PURVIEW OF ICJ
The ICJ being an Independent Subsidiary organ entertains cases which come by referral
through a compromis between two or more states, through relevant provisions of any treaty
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which provide for ICJ’s compulsory jurisdiction or by any treaty provision “committing
disputes arising under the treaty to the court”.1 The scope of the cases court can consider must
comply with sources of law enlisted under the Article 38 of the Statute of International Court
of Justice.2 The Boundary/Territorial claims which appear before the ICJ essentially fall
within the four categories enlisted in Article 38 of instant Statute.
The most hassle-free claims are those which fall under the category of treaty law because it is
easier to prove the existence of a treaty than the existence of any pre-existing custom or
highly enigmatic general principles of law. Because both of these categories require evidence
to prove their existence. That is why the court in its tripartite hierarchal approach takes into
accord a treaty if there is any and then moves ahead with any other recourse.
In the event of absence of treaty law, the court goes ahead with the other three categories, or
to political claims if any or nonlegal claims. The most common nine categories of
justifications for territorial claims are described as follows;
THE 9 MOST COMMON CATEGORIES OF CASES
 Treaty Law
Treaty law is recognized under Article 38 as a source of law and thus holds supreme
importance when it comes to justification for sovereignty over a disputed piece of land. The
treaty serves as a contract to which both sovereign states under question are part of and thus
have to abide by.3 The role of ICJ then only limits to the interpretation of treaty and
ascertaining who has the better claim.
 Economy
These type of claims by a state is to assert as to how much the disputed land is “necessary to
the viability or development of the state.”4 For instance, the territory under question might be
the source of high revenue for a state holding a significant share in its economy.
1 Article 36 of Statute of International Court of Justice
2 Article 38 of Statute of International Court of Justice includes the following sources of law;
a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
3 MARVIN A. CHIRELSTEIN, CONCEPTS AND CASE ANALYSIS IN THE LAW OF CONTRACTS 1 (4th
ed. 2001).
4 Professor Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225 (1973).
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 Geography
Territorial jurisprudence heavily relies on this to determine the claim over the piece of land
by parties. Factors of geographical origins such as mountain ranges and rivers act as a natural
boundary in most of the cases but such factors often lead to altercation as it gives leeway for
problems in delimitation, demarcation or both.5 Natural Boundaries, owing to their nature,
can be difficult to mark.6 The natural boundaries by the force of nature can alter over time
and can give rise to problematic situations. The principal question around such claim, as
pointed out by Andrew Burghardt, is two- fold –
 Effective Control
In this type of claim, the party claims a land on the basis that it has effective control and “the
group has "uncontested the land and its resident population”7 The natural boundaries by the
force of nature can alter over time and can give rise to problematic situations. The principal
question around such claim, as pointed out by Andrew Burghardt, is two- fold –
“(1) what constitutes an abandonment of the land by the last governing entity, and
(2) what constitutes administration of the land.”8
 Culture
The ethnic nation argument which justifies the creation of border on basis of cultural
characteristics like religion, language etc. forms the cultural justification defining a territory
according to the group of people living in there.9
 History
The principles of duration and priority comes into play under this category in which the state
needs to provide historical evidence showcasing its possession over a territory in order to
assert its claim. This indicates the priority. Similarly, proof for duration of such possession
5Bradford L. Thomas, International Boundaries: Lines in the Sand (and the Sea), in REORDERING THE
WORLD: GEOPOLITICAL Perspectives on the Twenty-First Century 87, 94 (George J. Demko & William B.
Wood eds., 199
6 Beth Simmons, See You in "Court"? The Judicial Legal Processes in the Settlement of Territorial Disputes, in
A Territorial Dimensions of International Conflict 205.
7 Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225(1973) p. 228.
8 Supra 11
9 Donald l. Horowitz, Ethnic groups in conflict 219–24.
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lays ground of it being under that state for a considerable amount of time.10 They are mostly
related to cultural claims as duration translates to insertion of the culture of the holding state
in that territory.
 Elitism
As these claims are considered to be against the democratic ideals11, they have become rarer
over time. Under this claim, conquerors who termed themselves as having divine rights to
rule over a certain territory after the annexation, contend that a “particular minority has the
right or duty to control certain territory.” Uti Possidetis
A principle mostly used in context of countries in Asia, Latin America and Africa12 to define
postcolonial boundaries; is a doctrine according to which the pre-independence boundaries
set by the former colonial power is inherited by the newly independent states.13 This principle
has led to a lot of criticism as it is argues that colonial borders were vaguely drawn14 and does
not really reflect the inhabitant’s wants. It is also argued that the reliance on the principle in
itself has given birth to may border dispute cases.15
 Ideology
Often considered as the antithesis of uti possidetis claim16, this ideological justification argues
that colonial borders are not appropriately demarcated on the grounds of legal or moral
reasons. These types of justification are often termed as ideological imperialist as it contains
“exclusivist overtones”17 based on “unique identification with the land”.
ANALYZING ICJ’s BOUNDARY DISPUTE JURISPRUDENCE (THE TRIPARTITE
HEIRARCHY) THROUGH CASE RELATED NUANCES
10 Supra note 11 at p. 238.
11 Supra note 11 at p. 239.
12 P. Mweti Munya, The International Court of Justice and Peaceful Settlement of African Disputes: Problems,
Challenges and Prospects, 7 J. INT'L L. & PRAC. 159,215 (1998).
13 Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90 Am. J. Int'l L. 590
(1996).
14 Supra note 10 at 114-115.
15 Supra note 10 at 24,31,155.
16 Supra note 10, p.239-240.
17 Supra note 13, p.234.
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The ICJ analysis the competing territorial claims on the basis of tripartite hierarchal approach
wherein it firstly looks for presence of treaty law, then to Uti Possidetis, then to effective
control.
1. DIPOSITIVE NATURE OF A PRE-EXISTING TREATY (TREATY LAW)- The
International Court of justice considers any prior boundary treaty or any other
document which showcases an interstate agreement with regards to boundary
limitation or delimitation is considered as dipositive (Settling the issue). This notion
has even extended by the ICJ in cases wherein a mutual interstate agreement existed
but had certain unclear terms in it but an element of state consent existed. The prime
instance of this was the case of Territorial Dispute between Libya and Chad.18
Territorial Dispute (Libya/Chad), 1994
 The dispute between the two countries was concerning Aozou Strip (a
Purported source of Uranium). The conflict initiated in the year of 1973
when Colonel Mohammar Qaddafi of Libya claimed the strip from Chad.
The matter was taken into the court’s consideration and further the parties
submitted their respective sides relying on the principles of “Uti
Possidetis”, Ideology and elitism.
 The Chad representatives submitted that there existed a treaty known as
the Franco-Libyan Treaty of Friendship and Good Neighbourliness,
1955 and further submitted that Article 8 of the instant treaty most
certainly defined the boundaries which shows that State of chad had
consented. But the Libyan side was apprehensive to recognize that the
1955 treaty defined any boundaries or not because the provisions were
unclear. The court took former sides argument into accord and held that
“when interpreted in good faith with ordinary meanings imputed to its
terms, the 1955 Treaty left no boundaries undefined.”19
 It can be clearly observed here that the court relied on the treaty solely
even when one side was of the opinion that the treaty was unclear to
certain extent. It can also be observed that the court didn’t question the
merits of the instant treaty, which the court also portrayed through its
statements to be unclear on certain terms.
18 Territorial Dispute (Libya/Chad), 1994 I.C.J.
19 Ibid at 21-26
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 The court further relying on the 1955 Treaty found the application of the
principle of “Uti Possidetis” to be unnecessary as there was already a
treaty in existence and held the decision in favour of Chad.
2. PRESENCE OF COLONIAL ERA LIMITATIONS (UTI POSSIDETIS)- When there
exists no substantial interstate treaty which deals with boundary limitations. The court
in this case goes to the next dispositive basis which in this case is the principle of “Uti
Possidetis”, if applicable. But the sole application of this principle rarely comes into
play when the court decides any international boundary dispute, as it’s considered
unlikely that colonial boundary limitations were not recorded in any kind of
instrument. But, in the cases of dispute arising with regards to internal boundaries this
principle can play a major role because it is possible that might exist a mere domestic
understanding of the boundary and was set through certain authorized practices or just
be documented on a local level. This can be observed in the case of Frontier Dispute
between Burkina Faso and Mali.20
Frontier (Upper Volta) Dispute (Burkina Faso/Mali), 1986
 The dispute was concerning a strip land near the Beli River of the Dori
region. This particular area was very fertile and had temporary
watercourse which made this land suitable for agriculture. The notion of
“Uti Possidetis” was considered in this case because the particular region
was a part of French West Africa colonies. The later decolonization in
1960 raised these Boundary issues.
 The parties claimed their share through “assertions of sovereignty and
administrative control”. The court denied these bases for the claim and
steered its observation towards the locational traces of the boundary during
the colonial period. But the court was not able to find the “Colonial
Effectivites”21 which could clear out the title dispute.
 Consequently, the court went ahead with boundary limitations which
existed during the period of 1932 as that was the period when French
colonies prevailed and there also existed certain evidences with this
regard. Hence the court based its judgment on “Uti Possidetis”, as
20 Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J.
21 Effectivités are administrative activities that demonstrate jurisdiction over territory; most frequently, they
include deed registration, tax collection, and licensing of professions
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“France, in 1947, set the border at its December 1932 limits, which
included the former colony Upper Volta.”22
 The court later, divided the disputed property into half as there existed
inconsistencies and gaps in the said French records. But at a later stage the
court was essentially denied to pass a judgment on the basis of ex aequo et
bono23.
3. EFFECTIVE CONTROL- When the case is not concerning any pre-existing treaty or
and post-colonial limitation then the rule of effective control which is the ultimate
part of the ICJ’s tripartite jurisprudence concerning boundary disputes. In these cases,
the court in lieu to determine the merit of the base of effective control takes into
consideration the “Duration” and “Degree” of the control as this essentially makes the
claimant state’s exercise of the right public. For instance;
Minquiers and Ecrehos (France/United Kingdom)
 The instant group of disputed islands are located in the English Channel
between Jersey (UK) and the French Mainland. Both the parties made their
respective claims on the basis of treaty law, history and effective control.
The court denied the arguments based on treaty law and history as the
parties referred to the fisheries agreement and feudal grants. Both of these
didn’t substantially specify boundary limitations or as the court observed
both if these lacked was a clear explanation as to “which islands were held
by the Kings of England and France respectively.”24
 The court considered the parties claims on the basis of Effective control,
the court was the view that;
“a decision based on solid effective control is analogous to a common law
property award based on adverse possession, whereby the claimant’s
possession must be actual, open and notorious, exclusive, continuous,
adverse or hostile, and extant for a certain period of time.25 Although the
22 Supra Note 3 at 586-587
23 "according to the right and good" or "from equity and conscience"
24 Minquiers and Ecrehos, 1953 I.C.J. at 54.
25 JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY § 1.4.2.1 (2001),
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international formulation is somewhat different, effective control claims
are also based in law”26
 The court relied on acts of sovereignty and jurisdiction exercised by the
British Government through their local administration acts/statutes
regulating
“the handling of corpses, levying taxes, licensing commercial boats,
registering deeds to real property, and conducting census enumerations
and customs affairs.”27 Hence deciding in favour of the UK.
In cases where both treaty law and effective control are present which will prevail?
Sovereignty over Certain Frontier Land (Belgium/Netherlands)
 The case was pertaining to the determination of sovereignty exercised over
border plots marked by several enclaves around Baerle-duc, Belgian
Commune and Baarle-Nassau, Dutch Commune28 by the kingdoms of
Belgium and Netherlands. The claims were made on the basis of Treaty
Law and Effective Control.
 The Belgian side had sovereignty over the plots according to the 1843
Boundary Convention but was inefficient in exercising its right. Because
of which the Dutch asserted their rights over the plots by “acquiescence in
acts of sovereignty”.
 The court took into consideration the 1843 Boundary Convention which
was responsible for establishing the border between Belgium and
Netherlands.29 This particular convention was derived from the 1842
Boundary Convention which set up a mixed commission for determining
the limitations by keeping in mid the administrative status quo.30 The
instant Convention described the plots to be a part of the Baerle-Duc
(Belgian Commune).
 The Dutch were apprehensive of this observation and claimed that the
instant convention was not able to reflect common interest and the Belgian
sovereignty was uncalled for. The court firmly rejected the Dutch claims
26 NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL LAW AND RELATIONS 25 (1945)
27 Supra Note 7 at 65-69
28 Sovereignty over Certain Frontier Land (Belg./Neth.), 1959 I.C.J. at 212-213
29 Supra note 11 at 222
30 Ibid at 212-213
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and in lieu to resolve the instant tension created a justification hierarchy,
the court stated,
“This is a claim to sovereignty in derogation of title established by treaty.
Under the Boundary Convention, sovereignty resided in Belgium. The
question for the Court is whether Belgium has lost its sovereignty, by non-
assertion of its rights and by acquiescence in acts of sovereignty alleged to
have been exercised by the Netherlands at different times since 1843.”31
 The court decided in the favour of Belgium. In the instant case it can be
clearly observed that Treaty law prevailed. The Belgians were non-
efficiently asserted their rights over the plots but the court was of the view
that inefficient assertion of rights does not mean the state has ceased to
assert its rights.32
 This similar observation was applied in the case of Land and Maritime
Boundary (Cameroon v. Nigeria)33. The court opined that “effective
control was subsidiary to any international agreement fixing the border.”34
EQUITY INFRA LEGEM
The role of equity infra legem comes to play when the tripartite hierarchy fails to guide the
court. The court through this measure “halves the difference between the litigants’ position”,
this notion was specifically observed by the court in the case pertaining to Frontier Dispute
(Burk. Faso/Mali), “It is clear that the Chamber . . .. 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”35
Preference for Effective Control Justification over Equity Infra Legum
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)
 The issue was regarding the sovereignty over the island groups of Ligitan
and Sipadan, off the coast of Borneo. Both the sides relied on treaty law,
history, effective control, and uti possidetis.
31 Ibid at 227
32 Ibid at 229
33 Land and Maritime Boundary (Cameroon v. Nig.: Eq. Guinea intervening), 2002 I.C.J.
34 Ibid at 353
35 1986 I.C.J. 554, 567–68.
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 The court however found that all the relied upon basis except effective
control were not applicable in the present case hence the court went with
examining the competing claim of effectivités as the sole basis of judgment.
 The court found the case in favour of Malaysia. The court observed that,
“Malaysia’s regulation of the commercial collection of turtle eggs and
establishment of a bird sanctuary on the islands were sufficiently
administrative to demonstrate effective control. The court thus found the
effectivités arguments a sufficient basis for its decision.”36
EVALUATING THE IMPLICATIONS OF ICJ’s TRIPARTITE HEIRARCHY
Firstly, the court in view of stabilizing border disputes systematically basis its decisions on
treaty laws. Since they are stable and predictable. But this might work the other way around.
Breach of treaties is a very common occurring in an international scene and especially when
treaties lack strong provisions and directly affect into the heart of any pre-existing cultural or
historical viewpoint of a territory.37 The court needs to understand that a boundary set by a
particular treaty does not make the relationship between two countries pertaining to that area
more stable.38
Secondly, Applying the notion of Uti Possidetis does not inevitably stabilizes the territorial
conflicts or make it more predictable. The notion of Uti Possidetis is essentially more of a
success in regions like Africa, Asia and Latin America. Because these regions were majorly
affected by colonization and trends of colonial limitation of boundaries have been observed
in various instances. But despite this the instant doctrine was not able to effectively resolve
the underlying boundary disputes in these areas to an end but merely surfaced the conflict to a
dead end and delayed it.39
Thirdly,“ The application of the doctrine of acquisition by effective control is even more
unpredictable than Uti possidetis; moreover, effective control is subject to abuse. In fact,
because it is a general principle of law, it might, in a worst-case scenario, encourage
territorial imperialism and a new wave of colonialism.”
36 Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), 2002 I.C.J. at 674-678, 684.
37 Andrew T. Guzman, The Cost of Credibility: Explaining Resistance to Interstate Dispute Resolution
Mechanisms, 31 J. LEGAL STUD. 303 (2002)
38 Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CAL. L. REV. 1823, 1873 (2002).
39 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Maritime Delimitation and Territorial
Questions (Qatar/Bahrain), Land and Maritime Boundary (Camaroon/Nigeria).
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The ICJ being a court of law have to be biased towards treaties and various other legal
justifications. As it bound to consider certain sources outlined in the Article 38 of its Statute.
Among which the first is Treaty law. The statute although does not itself assign relative
weight to a particular source but it is accepted notion to consider international agreements as
an authority.40 Similarly, the principle of Uti Possidetis and effective control are also
considered legally authoritative.“A systemic bias toward legal justifications is not
inconsistent with a preference for decisions based on equity infra legem over those based on
political considerations, because there is a basis in international law for decisions based on
equity.41”
CONCLUSION
This study discusses territorial justification categories such as treaties, geography, and
economic, to name a few. It also examined the International Court of Justice's doctrine on
territory disputes. The International Court of Justice has given greater recognition to the
concepts of treaties, uti possidetis, effective control and equity infra legum.
40 MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 46–47 (4th ed. 2003).
41 Frontier Dispute (El Salvador/ Honduras: Nicaragua Intervening), 1986 I.C.J.
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