“Good fences make good neighbors” — the old saying takes on new meaning as increasing demands on dwindling natural resources require transboundary sharing regimes. Other questions about “good fences” arise with globalization and the attendant need for international regulation of national policies for managing the trans-border movement of goods, services, capital and, of course, people. Even more challenging for the traditional notion of sovereignty are questions concerning the normative constraints on the delineation of boundaries and on boundary regimes. One of the most sensitive questions is how much weight states should assign to the human factor, namely to the needs of populations affected by the delimitation of the boundary. In April 2013, the International Court of Justice demonstrated acute sensitivity to the human factor. In a delimitation dispute between Niger and Burkina Faso, the court offered fresh insights on how to integrate the human factor into states’ boundary delimitation agreements and the regulation of cross-border movement of people affected by the borders. This sensitivity may reflect more generally the court’s increased willingness to intervene in the exercise of sovereign discretion.
“Due Regard” for Human Needs
The human factor is often present in boundary delimitation. At times, an agreement will specifically take the interests of the local populations into account and even ensure cross-border movement to allow access to pastureland or water resources. But when an agreement ignores peoples’ needs, its implementation may impel those who live in villages that straddle colonial borders to relocate, and others may be cut off from lands they have cultivated or rivers they have relied upon for their subsistence. Will the law intervene to protect those individuals and secure what are no doubt internationally recognized human rights? Thus far the human factor has lost to considerations of certainly and stability at the inter-state level. In 2002, in Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) the ICJ found that it had no authorization to modify the course of the boundary as established by colonial-era instruments. Hence “if it should prove that the village of Turu has spread into Nigerian territory beyond the watershed line, it would be up to the Parties to find a solution to any resultant problems” (par. 107, also par. 123). For the same reason, the fact that Nigerian villagers used to cultivate land lying on the Cameroonian side was of no consequence (par. 124). This position was rightly criticized by Gbenga Oduntan as “not [in] accord with the demands of natural justice and only lead[ing] to the creation of future conflicts and severe hardship on native populations.”
In its April 2013 judgment, the ICJ demonstrates a welcome attention to the human factor. In Frontier Dispute (Burkina Faso v. Niger) the court was tasked with drawing a line based on pre-independence documents that had delineated the boundaries between the then-French colonies (Niger and Upper Volta). In their pleadings both parties consistently invoked either the principle of the intangibility of boundaries inherited from colonization or the uti possidetis juris principle, neither of which offered room for considering affected populations. But in response to requests from the bench, the parties also furnished information about the population potentially affected by the delimitation and expressed willingness to take their interests into account. This information shed light on two matters: first, the concern that the boundary might cut off villagers from a river on which they depend, and second, the impact of the delimitation on the seasonal migration of nomadic and seminomadic populations from one side of the border to the other in search of pasturage and watering points for their livestock.
As to the first question, the court had recourse to a text which described the boundary as being located along “the River Sirba at Bossébangou”(par. 100). In fact, the village of Bossébangou is situated a few hundred meters from the Sirba River, so the text left the interpreters with the discretion to set the boundary on the river or between the river and the village, in which case the villagers would have had to cross the border to reach the only source of water in the area. In opting for the first option, the court reasoned:
“[t]here is no evidence before the Court that the River Sirba in the area of Bossébangou was attributed entirely to one of the two colonies. In this regard, the Court notes that the requirement concerning access to water resources of all the people living in the riparian villages is better met by a frontier situated in the river than on one bank or the other.” (par. 101)
As to the question of tranhumance, the court stopped short of imposing a transit regime on the parties. Such a matter was clearly outside of its jurisdiction. Nevertheless, the court
“… expresse[d] its wish that each Party, in exercising its authority over the portion of the territory under its sovereignty, should have due regard to the needs of the populations concerned, in particular those of the nomadic or semi-nomadic populations, and to the necessity to overcome difficulties that may arise for them because of the frontier.” (par. 112)
The court also “note[d]” the cooperation that has already been established on a regional and bilateral basis between the Parties in this regard, and “encourage[d]” them to develop it further.(id.)
“States Have Human Ends”
This effort to “humanize” the delimitation of boundaries is even more pronounced in the opinions of some of the judges. Judge Cançado-Trindade’s opinion is strikingly general in its emphasis on the human factor in delimitation, which is grounded in a general theory of state sovereignty. He begins by stating his purpose, namely
“[t]o demonstrate and sustain that people and territory are related to each other, that they go together, that the tracing of the frontier in the present context cannot be made in abstracto. To this end, the consideration of the local populations and of the surrounding villages in the frontier zone is necessary and suffices. The determination of the frontier line is thus to take into account the transhumant movement of persons across the border, so as to secure its freedom. Frontier line fixing and free movement of persons, in the present African context, do not exclude each other.”(par. 30)
This approach is based, according to judge Cançado-Trindade, on the principle of solidarity. He notes that the principle of solidarity is recognized by the two parties, and also by the local populations themselves. He cites Burkina Faso’s observation that
“The resources shared by herders are never appropriated by one community to the detriment of another. All depend on the rainfall and its vagaries; no one knows in advance when fodder resource conditions will fail. A system of solidarity, of tontine (mutual assistance) exists, where each welcomes the other when the conditions are better in his area, in the certainty of being welcomed in turn in other areas when nature is more favourable there.” (par. 88)
The principle of solidarity, according to judge Cançado-Trindade, is also embedded in the Jus Gentium. This is an opportunity for him to present his general outlook (developed further here):
“95. Working in a hectic and short-sighted milieu of droit d’étatistes, who can only behold State sovereignty (without knowing what it exactly means), I feel that some words of caution and serenity are here called for, in the light of the circumstances and lessons of the cas d’espèce. In historical perspective, may I recall herein that the “founding fathers” of the law of nations (in the XVIth and XVIIth centuries) propounded a universalist outlook (encompassing totus orbis), in a world marked by diversification (of peoples and cultures) and by pluralism (of ideas and cosmovisions), seeking thereby to secure the unity of the societas gentium.
96. The jus gentium they conceived was for everyone, — all peoples, individuals and groups of individuals, as well as States (then, only then, emerging), all “fractions” of humankind. They endeavoured to pave the way for the prevalence of a true jus necessarium, transcending the traditional limitations of the jus voluntarium. The gradual and felicitous encounter of scholastic knowledge with humanism propitiated further perennial insights. […]
97. Thus, one of the most learned of the “founding fathers” of the law of nations (droit des gens), Francisco Suárez, in book II (on ‘The Eternal Law, the Natural Law, and the Jus Gentium’) of his masterful De Legibus, Ac Deo Legislatore (1612), in upholding the unity of the human kind (wherefrom jus gentium emanates), singled out the “natural precept” (praeceptum naturale) of mutual “affection and mercy” [solidarity] (mutui amoris et misericordiae), applying to everyone. There was awareness of sociability and mutual interdependence as limits to State sovereignty, to the benefit of the populations concerned, who stood in need of each other and could hardly live (or survive) in an isolated way.
105. The fact remains that States, in turn, are not perennial entities, not even in the history of the law of nations. States were conceived, and gradually took shape, in order to take care of human beings under their respective jurisdictions, and to strive towards the common good. States have human ends. Well beyond State sovereignty, the basic lesson to be extracted from the present case is, in my perception, focused on human solidarity, pari passu with the needed juridical security of frontiers.”
Similarly, Judge Bennouna notes in his Declaration that “the search for peace among States also entails ensuring human security, namely respect for the fundamental human rights of the persons concerned and their protection, including by international justice.” In his view,
“[t]he exercise of sovereignty has thus become inseparable from responsibility towards the population. This new approach to sovereignty should certainly be present when the Court rules on the course of boundaries between States.”
The ICJ as Trustee of Humanity?
Judge Cançado-Trindade interprets the court’s judgment as marking a turning point in the history of territorial delimitation of boundaries: “[t]he age of resolving territorial disputes in the abstract, not taking into account the needs of local populations, is fortunately over”(par. 101).
In the court’s eyes, for fences to be “good” they should be more than clearly delimited; they are “good” only if they also respect the interests of the affected populations – both one’s own population and the population in the neighboring state. The court rightly commended Burkina Faso and Niger for their commitment to set up the “human” boundary regime as the court outlines: good neighbors make good boundaries.
What is striking in this judgment is not only the asserted sensitivity to the human factor in a delimitation case, but also the willingness of the court to go beyond the subject matter under its jurisdiction and address a separate issue, namely the regime of transhumance. This expansive understanding of the court’s jurisdiction is in line with its 2011 Order of Provisional Measures of Protection in the case of the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), where the court, clearly concerned about threats to life and the important temple, which is a cultural heritage site, went beyond the request to stop cross-border incursions and beyond the subject matter of the dispute (see the dissents by President Owada, Judge Xue and Judge Donoghue), by creating a demilitarized zone around the temple. The Order simply stated that “it is for the Court to ensure […] that no irreparable damage is caused to persons or property in that area pending the delivery of its Judgment on the request for interpretation” (par. 61).
But Judge Cançado-Trindade’s Separate Opinion went significantly further:
“The State is not, and has never been, conceived as an end in itself, but rather as a means to regulate and improve the living conditions of the societas gentium, keeping in mind the basic principle of humanity, amongst other fundamental principles of the law of nations, so as to achieve the common good. Beyond the States, the ultimate titulaires of the right to the safeguard and preservation of their cultural and spiritual heritage are the collectivities of human beings concerned, or else humankind as a whole.” (par. 114)
It is possible to trace in the ICJ’s past jurisprudence an implicit attention to the human dimension and to the function of states as “trustees of humanity” (see here at pp. 322-323). What seems to be novel and encouraging in this recent judgment is the willingness of the court to venture out of its “safety zone” of legal formalism and explicitly embrace the human factor as an integral part of the parties’ exercise of discretion in one of the most central facets of the traditional notion of sovereignty.
Arguably, the judgment reflects sensitivity not only to the human aspect of political boundaries, but more generally to the limits of sovereignty. The proposition that borders and border regimes should be subjected to human concerns – and, one might add, to human rights – opens up important avenues that subject sovereign discretion to the need to weigh other-regarding considerations. The ICJ indicates that it has a role to play in this regard. Obviously, the court is still heavily influenced by “droit d’étatistes,” as its 2012 judgment in Jurisdictional Immunities Of The State (Germany V. Italy: Greece Intervening) demonstrates, but the fact that the competing visions are getting their day in court may be of consequence for the future evolution of the law.