This work is dedicated to my mother NamondoIkome Lydia and to my son Samuel NjomePippie
Many people contributed to the success of this thesis and it will be difficult to thank them all, but I owe them immense gratitude for their contribution. I am highly indebted to my supervisor Dr. Sone Patience Munge for her relentless effort and patience in correcting my work. Her mastery in legal research and conflict resolution really helped in the realization of this work.
I thank all the lecturers of the department of law, university of Buea such as prof. Jonnie Fonyam, prof. Samalang, Dr. Ekome, prof. Boma, for providing me with the knowledge and moral support I need to be able to face my future.
I reserve special appreciation to my LLM classmates such as; Pontus, Ayamba, Nadia, Bella Ernest, Tonga, Akwe Ray, Ruddy and Akame for their encouragement.
I appreciate the contributions of my family member such as my mother Lydia Namondo, my elder sister Agnes Njome, my elder brother Monoke Andy, my younger ones (Isabelle and Raoul) for their moral and material support through my postgraduate studies at the University of Buea.
Special thanks goes to my love Ebob for all her prayers and encouragement.
The continent of Africa has been highly susceptible to intra and interstate border disputes. This has prompted the insinuation that Africa is the home of border disputes and instability. Most pathetic about these conflagrations is that they have defied any meaningful solution and their negative impacts have retarded growth and development in Africa while an end to them seems obscure. What then are the causes of border disputes in Africa? How far have these causes retarded growth and development? What are the mechanisms put in place to overcome this monster? And how effective are the mechanisms? Answers to these questions form the bone of contention of this thesis.
The aim of this research is to critically examine the resolution of interstate border disputes in Africa, the mechanisms used, and how effective they are. A general analyses of this will not bring out particular features, the more reason why the selected disputes of Ethiopia/Eritrea over Badme and Sudan/South Sudan over Abyei and Heglig are used as a case study. The foundation of this thesis is the theory of perpetual peace. This theory runs throughout the work. The main proponent of this doctrine is I Kant. According to them, perpetual peace implies a movement from a state of nature which is full of violence to a world governed by rational beings. This work uses the doctrinal research method to demonstrate the effectiveness of the mechanisms used in resolving border disputes. In this regard, the research is qualitative in nature. That is an in-depth analyses of both primary and secondary data. The key terms here are; resolution, interstate and border disputes.
LIST OF CASES
Corfu Channel case 1949 ICJ Rep3)
United States of America v. Mexico 1902(Pious Fund of the California)
France v. Great Britain 1911(Savarkar Case)
Belgium v. the Netherlands 2005(Iron Rhine Case)
Eritrea v. Ethiopia 2009(Eritrea-Ethiopia Claim Commission)
Eritrea v. Yemen 1999 (Award of Arbitral Tribunal in the first stage of proceedings) 22 RIAA, p.268, para.239
Croatia v. Slovenia 2017
Sudan v. South Sudan 2009(Abyei Arbitration)
Egypt v. Israel 1988(UN Report of International Arbitral Awards on location of Boundary Marks in Taba)
India v. Pakistan 1965(the Rann of Kutch)
Nicaragua v. United States 1980 (US Diplomatic and Consular Staff in Tehran) ICJ Reports 1980
LIST OF STATUTES.
The Statute of the International Court of Justice 1945
The Charter of the United Nations 1945
The African Charter on Human and Peoples’ Rights 1981
The Universal Declaration of Human Rights
The International Covenant on Civil and Political Rights 1966
The International Covenant on Economic, Social and Cultural Rights 1966
The International Convention on the Elimination of All Forms of Racial Discrimination 1965
The United Nations Convention Against Torture 1984
TABLE OF CONTENTS
LIST OF CASES iv
LIST OF STATUTES. v
1.1 Background to the study
1.2 STATEMENT OF THE PROBLEM
1.3 RESEARCH QUESTIONS
1.4.1 GENERAL OBJECTIVE
1.5 RESEARCH METHODOLOGY
1.6 REVIEW OF LITERATURE
1.7 SCOPE OF THE STUDY
1.8 JUSTIFICATION OF STUDY
1.9 SIGNIFICANCE OF STUDY
1.10 THEORETICAL FRAMEWORK
1.11 DEFINITION OF KEY TERMS
1.12 SYNOPSIS OF CHAPTER
CAUSES AND EFFECTS OF THE RESOLUTION OF INTERSTATE BORDER DISPUTESIN AFRICA
2.1 OVERVIEW OF INTERSTATE BORDER DISPUTES IN AFRICA
2.2 ETHIOPIA AND ERITREA BORDER DISPUTE OVER BADME
2.2.1MAJOR CAUSES OF THE DISPUTE
2.2.2 EFFECTS OF THE DISPUTE OVER BADME ON BOTH COUNTRIES
2.3 SUDAN AND SOUTH SUDAN BORDER DISPUTE OVER ABYEI AND HEGLIG
2.3.1 MAJOR CAUSE OF THE ABYEI AND HEGLIG DISPUTES
2.3.2 EFFECTS OF THE BORDER DISPUTES IN ABYEI AND HEGLIG ON THE BOTH COUNTRIES
2.4 GENERAL CAUSES OF INTERSTATE BORDER DISPUTES IN AFRICA
LEGAL INSTRUMENTS AND INSTITUTIONS USED IN THE RESOLUTION OF INTERSTATE BORDER DISPUTES IN AFRICA
3.1 LEGAL INSTRUMENTS USED IN THE RESOLUTION OF INTERSTATE BORDER DISPUTES IN AFRICA
3.1.1 CHARTER OF THE UNITED NATIONS
3.1.2 THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
3.1.3 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
3.1.4 THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
3.2 INSTITUTIONS USED IN THE RESOLUTIONS OF INTERSTATE BORDER DISPUTES IN AFRICA
3.2.1 THE INTERNATIONAL COURT OF JUSTICE (ICJ)
3.2.2 PERMANENT COURT OF INTERNATIONAL JUSTICE (PCIJ)
3.2.3 PERMANENT COURT OF ARBITRATION. (PCA)
3.2.4 THE UN SECURITY COUNCIL
3.2.5 THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
3.2.6 THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
3.2.7AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS
MECHANISMS USE IN THE RESOLUTION OF INTERSTATE BORDER DISPUTES IN AFRICA AND THEIR EFFECTIVENESS
4.1 MECHANISMS USED TO RESOLVE INTERSTATE BORDER DISPUTES IN AFRICA
4.1.1 ADMINISTRATIVE MECHANISMS
4.1.3 LEGAL MECHANISM (ADJUDICATION)
4.2MECHANISM USED TO RESOLVE THE BADME BORDER DISPUTE
4.3MECHANISM USED TO RESOLVE THE ABYEI AND HEGLIG BORDER DISPUTES
4.4 THE EFFECTIVENESS OF THE MECHANISMS ADOPTED IN THE BADME DISPUTE
4.5 THE EFFECTIVENESS OF THE MECHANISM ADOPTED IN THE ABYEI AND HEGLIG DISPUTES
4.6 THE ROLE AND EFFECTIVENESS OF THE ICJ IN THE RESOLUTION OF INTERSTATE BORDER DISPUTES IN AFRICA
SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS
5.1 SUMMARY OF FINDINGS
1.1 Background to the study.
Africa as a continent is covered with a lot of interstate border disputes. It is true that international law has always considered as one of its fundamental purposes the maintenance of peace1. Disputes are inevitable and no matter their nature, they are often accepted as a regular part of human relations. The major problem is always how to resolve them. The history of the African continent is characterized by interstate border disputes, which usually occurs around the border between two states, but also involve many other states. Most of the interstate disputes occur after the states become independent, when each becomes eager to know and secure its territorial boundaries with neighbours2.
A number of studies have shown that border disputes revolve around the existence of artificial, permeable, poorly demarcated and delimited borders created by the colonial powers and imposed on Africans3.
Such unconsolidated borders arise from government’s negligence in not setting up judicious institutions to cater for their territories, and this has turned out to be a good basis for external intrusion and a vital source of disputes between states4. Interstate border disputes have impelled many scholars to observe that the regularity of disputes in Africa has become one of the distinct characteristics of the continent, and this can lead to the conclusion that Africa is the home of border disputes5. However, this research equally points out that besides the African continent, some western nations are also riddled with border disputes. In Europe, countries such as Bosnia, Serbia and Turkey are entangled in interstates border disputes. There is also Cambodia and Burma in Asia. In the Middle East we have Iraq and Iran just to name but a few.
Although the existing literature holds the colonial factors as the major cause of interstate border dispute in Africa due to the unclear and porous borders created during colonial times, the researcher here argues that besides the colonial factors, most of the disputes revolve around securing economic interest, political rivalry, increasing population and neglect. This can preclude peaceful coexistence with neighbouring states and also plays a critical role in fueling disputes in Africa.
These factors demonstrate why countries such as Sudan and south Sudan as well as Ethiopia and Eritrea which are the focus of this research - have had long tussles over their various disputed areas.
In addition, the methods of resolving the disputes differ given the fact that some of them have certain peculiarities that separate them from the others.
Many of the conflicts are resolved through bilateral negotiations, as seen in the cases of Mali and Mauritania, and Cameroon and Nigeria. Others have been resolved through regional mediation efforts, such as Malawi and Tanzania, while some have been resolved through the intervention of the International Court of Justice (ICJ). This was demonstrated in the border disputes between Libya and Chad in 1994, Eritrea and Ethiopia in 2000, and Cameroon and Nigeria in 2002.
Border dispute resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending of a border dispute. Dispute resolution offers viable outcomes for disputes since the process helps to convert the dispute into a shared problem6.
Here, both parties willingly consent to the resolution process in order to begin a new relationship. Some of the methods involve negotiation, mediation and litigation, as demonstrated in the selected interstate border disputes examined here. However, some disputing parties are reluctant to consent to declaring peace, and even if a solution is arrived at, its implementation can prove to be very difficult. It is important for states to know the exact location of their borders because this indicates the extent of their territory and governmental authority; any external intrusion may spark a conflict between the territories bordering the two states. Most of the border disputes in Africa have arisen since the late 1950s, when most African states gained independence. Some of the disputes involve two or three states in one region or across regions on the continent.
1.2 STATEMENT OF THE PROBLEM.
Disputes are bound to occur, taking into account the heterogeneous nature of human beings and their diverse interest over a given situation. What is germane is how disputes between states parties can be resolved in order for it not to degenerate into violence and disrupt peace.
There are a couple of interstate border disputes scattered all over Africa. One thing is certain, and it’s that these disputes are all undergoing resolution processes. The major challenge is the effectiveness of these resolutions. It is evident that most of the mechanisms put in place to resolve these disputes are ineffective and thatexplains why the disputes are still ongoing, a case in point is the Sudan and South Sudan border dispute. The ICJ which is the body charged with handling border disputes itself cannot be exempted from the scough of settling border dispute. The ICJ has been successful in the settlement of international dispute due to its long life span as compared to the Permanent Court of International Justice (PCIJ). But the ICJ has been facing a series of challenges, one of which is the issue of jurisdiction. Jurisdiction is sine qua non7 for the exercise of judicial power over a subject. Despite the use of various methods of resolution, peace is still non-existent in many areas, and the citizens of the disputing states still experience human rights violations from their counterparts8. Does this means the disputes are not properly resolved, or that the implementation of these decisions is inadequate to facilitate the protection of human rights among states?
It is said that the jurisdiction of the ICJ is compulsory, but in principle it is not the case. States that have accepted the ICJ compulsory jurisdiction still rejects the jurisdiction of the court. A practical example is the Bakassi Case in which Nigeria rejected ICJ jurisdiction even though it had accepted the ICJ compulsory jurisdiction in 19659.
According to Cohen, Africans have been depending more on foreign intervention such as the UN peacekeeping forces and the Western countries including, former colonial masters, while failing to realize that these bodies have been resolving African disputes superficially regardless of their intensity, especially if they have no interest in any of the disputing states10.
Most often, they do not focus on the root causes of the issue or the concern of the disputing parties; instead they merely separate the warring parties and request that they sign an agreement to terminate the dispute. This is the case with the two case studies that will be discussed in the following chapters namely; the Sudan and South Sudan border dispute and the Ethiopia and Eritrea border disputes where the UN and its peacekeeping forces and those that intervened where only interested in the parties to sign peace agreements. If the root cause(s) of a dispute are not eradicated then it cannot be guaranteed that the dispute will not reoccur in the near future, especially if both parties have a strong interest incontrolling the territory in contract. There is also a high probability that the dispute between Ethiopia and Eritrea will re-emerge because they are both very interested in controlling Badme, in addition to the fact that Ethiopia has refused to respect the ICJ ruling. Presently, despite the ICJ decision, both countries are in a state of no war no peace11.
Another major problem with the resolution of interstate border disputes in Africa is centered around the fact that Africans depend mostly on foreign bodies. African leaders lack the statesmanship to face or resolve their crises independently. This is why president Mkape of Tanzania urged African leaders at the First Summit of the International Conference on the Great Lakes Region to take up the challenge and responsibility to establish a roadmap towards improving peace and stability on the continent. He reiterated that Africans must realize that most of the states have been independent for a long time – thus, the leaders have a duty to rectify negative colonial legacies by working harmoniously towards peaceful coexistence and the development of Africa12.
Despite this urging, some states still lack the spirit of cooperation and threaten security in the regions. This is the case with the border skirmishes between Burundi and Rwanda over the Akayaru/Kanyar and Karega/Nyabarongo rivers.
1.3 RESEARCH QUESTIONS.
Based on the above problems, the following research questions are
Answered in the course of this thesis.
Main research question.
How effective are the laws and mechanisms put in place to resolve interstate border disputes in Africa?
- What are the causes and effects of interstate border disputes in the two selected cases?
- What are the legal instruments (text) and institutions use to resolve border disputes?
- What are the mechanisms used in resolving interstate border disputes in the selected cases and how effective are they?
1.4.1 GENERAL OBJECTIVE.
The purpose of this research is to critically examine the resolution of interstate border disputes in Africa. In doing so, the disputes between Sudan and South Sudan over the Abyei and Heglig zones and the dispute between Ethiopia and Eritrea over Badme will be the main focus of the study.
1.4.2 SPECIFIC OBJECTIVE.
The specific objectives of this study are:
- To analyze the root causes and effects of the interstate border disputes in two selected cases.
- To examine the legal instruments (text) and institutions used in resolving border disputes.
- To analyze the various mechanisms used in the resolution of interstate border disputes in the two cases and their effectiveness.
- To make policy recommendations to properly resolve the border disputes.
1.5 RESEARCH METHODOLOGY
The research method used is purely doctrinal, adopted to deal with the salient legal issues raised in the statement of the problem, research questions and objectives. In this regard, the research is qualitative in nature. That is an in depth critical analyses of primary and secondary data are employed in this study.
Primary data are from case laws and statutes relevant to the research such as the Vienna Convention of the law of Treaties, the statute of the ICJ, the UN charter and decided cases. Secondary data embodies textbooks, newspapers, decided cases, journal articles, reports, magazines and websites.
1.6 REVIEW OF LITERATURE.
Some scholars have written on the resolution of interstate border disputes in Africa. Sone Patience13 for instance examines interstate border disputes in Africa: their resolution and implication to peace and human rights. She argued that poor colonial boundaries left by colonial masters is one of the major causes of interstate border disputes in Africa.
Achankeng14 examined conflict and conflict resolution in Africa. His study reveals conflict resolution styles in Africa.
Cohen15 on his part looked at conflict management in Africa. He argues that conflict in Africa cannot be stopped, but can be managed because conflict is an inherent part of the African man. Ikome Francis Nguendi16 examines Africa’s international borders as potential sources of conflict and future threat to peace and security.
SonaMukete17 examines the role of the ICJ in the settlement of international disputes: the case between Cameroon and Nigeria over the Bakassi peninsula. He tried to examine the effective role played by the ICJ to address the Bakassi crisis.
There have equally been some writing on the resolution of the crisis in Badme and Abyei and Heglig within theAfrica continent.On the Sudan and South Sudan disputes, Abraham for instance has written on the South Sudan Abyei now or never, in the Sudan Tribune on the 3rd of March 2007. He however gave his personal opinion as to the invasion of Abyei by the South. He went further to talk about the importance of Abyei to South Sudan. Vall, M. equally wrote on how the Abyei region divide over oil. He explained the extent of the division between the Sudan’s over the oil rich region of Abyei.
The above scholars however overlooked the root causes and effects of the above mentioned interstate border disputes. This made their works wanting in one way or the other. This research has to fill that gap by giving thorough discussion and elucidation on the various stages that lead to the Sudan and South Sudan dispute and the Ethiopia and Eritrea disputes respectively. Specifically, this research discussed in detail the role of the ICJ and other institutions in the resolution of the two selected cases to wit: stages, origin, root cause and major causes of the disputes.
1.7 SCOPE OF THE STUDY.
This research work examines interstate border disputes in Africa and their resolutions. Due to the plethora of border disputes scattered all over Africa, this work will limit itself to two main border disputes; first the Sudan and South Sudan border dispute because it is ongoing and the Ethiopia and Eritrea border dispute because it is the main dispute in the horn of Africa. Abyei is an area of about 10,546km2 situated within the Muglad Basin in-between Sudan and South Sudan, with an estimated population of 124.390 as at 2004. It has a capital the Abyei Town. Heglig is a small town found in-between South Sudan’s Unity and Sudan’s South Kordofan states, rich in oil. Badme is a town in Eritrea, which forms part of its Gash-Barka zone, with an estimated population of about 1,563 as at 2005. With a population growth rate of approximately 20% per year the population is estimated as a 2016 to stand at 4,863. This notwithstanding, inspiration will be drawn from other border dispute around Africa due to the fact that some scholars hold Africa as the home of border dispute.
1.8 JUSTIFICATION OF STUDY.
Owing to the fact that Africa is considered to be the home of border disputes, and also taking into account the fact that disputes have existed from time immemorial many of which escalated recording loss of many human lives and property damage, it becomes incumbent on the researcher to examine the effectiveness of administrative and judicial mechanisms set up by the UN in resolving border disputes especially in Africa.
This research is influenced by some articles on interstate border disputes in Africa: their resolutions and implications to peace and human rights, and also by Judge Koroma’s assertion that: ‘’Nowhere is the category of the peaceful settlement of disputes more imperative than in territorial and boundary disputes between neighbouring states, given the potential for such disputes to escalate with destructive consequences for the states concerned.’’18 It is therefore necessary to examine the resolution of a border dispute such as the Abyei, Heglig and Badme disputes, to showcase the lack of statesmanship and the shortcoming of international institutions put in place to resolve border disputes.
This research is also embarked on reason being that the dispute over Badme plays a central role in relationship between Eritrea and Djibouti at the horn of Africa. Whereas the Heglig Crisis came about due to the richness in oil resource in the region.
This research discusses the weaknesses of the judicial and administrative mechanisms put in place to resolve border disputes in Africa. In this light, the study is justified in that it makes timely and relevant contributions that may bring about changes in this area of settlement of international disputes, in order to eliminate border disputes in Africa which has preoccupied many Africans for the past decades.
1.9 SIGNIFICANCE OF STUDY.
The outcome of this research will be beneficial in that, it gives thorough elucidation on the Abyei and Heglig dispute in Sudan and the Badme dispute at the horn of Africa. This work explores, interprets and evaluates the mechanisms used to resolve border disputes in Africa and recommends measures to address the flaws of the mechanisms. This work will therefore be beneficial to relevant stakeholders such as the legal scholars, international law students, and the government of Sudan, South Sudan, Ethiopia, Eritrea and the ICJ.
From an academic point of view, legal scholars will benefit from this work in that it will serve as a point of reference to those who will like to write on this area of the law. The discussions in this work will be beneficial to international law students in that, it will widen their knowledge of international law, the various mechanisms in resolving border disputes in Africa.
The loopholes of the ICJ discussed in this thesis and most especially the ones identified in the Badme, Abyei and Heglig cases and the recommendations made will be beneficial to the UN, or better still ICJ in that it will call their attentions to the challenges they face and as such enable them to effect changes in the present system by adopting the recommendations in the work.
The settlement of the selected disputes would be important in the management of conflict and future peace in Africa. The peaceful settlement of the conflict surrounding Badme served as a quintessence of resolving conflicts to other parts of the world where people live in acrimony, fear, terror, despair or suspicion as a result of human crisis with a kind of enchantment that peace is an illusion. In this way, African states will be encouraged to submit future disputes to the ICJ rather than resort to war so as to ensure perpetual peace.
1.10 THEORETICAL FRAMEWORK.
This research is based on the theories of perpetual peace, the realist theory, and the declaratory theory.
a) The theory of perpetual peace
The theory of perpetual peace was advocated by Kant. According to Kant, perpetual peace implies a movement from the state of nature which is full of violence to a world governed by rational beings. According to him, this can only be realize and maintained by the free choice of all those politicians governing the Republics19. Kant in his perpetual peace argues that man is conflict prone by nature. He maintains that peace is therefore bought or constructed to help in harmonizing a society through justice. Hence, peace usually is not a natural attribute of man. In proposition to the possibility of world justice and peace, he proposed three definitive articles20 as conditions necessary in order to realize long lasting and sustainable peace. Kant argues that lasting peace cannot be achieved without a common peace agreement among sovereign states. Consequently, this theory is relevant to this work because it will help the researcher better analyze the selected interstate border disputes from a perspective of the existence of war to a propose stability. He has been criticized by Neo- Realist schools in international politics such as Carr21. Carr strongly opposes the view that harmony of interest could guarantee peace in the world. In his book ‘’Twenty Years Crisis’’ Carr criticizes Kant and other Liberals for the institution of the League of Nations as a toothless arbitrator to the crisis within the international community. He argues that the league cannot succeed since crisis at the international level is not as a result of lack of understanding among states but is consequence upon various irreconcilable ideas and interests which can only be rectified through ‘’balance of power’’.22
Kant’s position that lasting peace cannot be achieved without a common agreement fits in the Badme case. This is true if we consider the Algiers Peace Agreement of December 12th 2000 between Ethiopia and Eritrea, which finally brought the dispute to an end.
Alexander Hamilton23 fiercely condemns perpetual peace in totality. To him, immediate interest has a more active and imperious control over states conducts than policies and justice. The problem with his argument is that he failed to give an alternative approach through which peace could be realized in the world.
The ICJ existence justifies the theory of perpetual peace. As earlier pointed, the ICJ was created by the UN to maintain peace in the world. This is the position of article 1 (1) of the UN Charter. The ICJ thus guarantees this peace by resolving international disputes across the globe.
b) The realist theory
The realist theory is a vital theory in this research. Its main advocate is Machiavelli24. The realist holds that states are always engaged in the struggle for power. They advocate the use of power to fulfil the interest of a nation. National power comprises of geographical, economical and natural resources which could be well situated in the Abyei and Heglig case. Thomas Hobbes, one of the scholars of the realist theory asserts that man is naturally wicked and egoistic25. He seeks only his interest. In the same light Morgenthau26 considers the state in the same identical position like man who seeks self-interest.
Some realists connect state’s interest to the compliance problem facing International Organizations. Mearsheimer27 argues that international organizations are viewed as instruments with which states pursue their interest as best as they can and in which political processes primarily reflects the interests of the most powerful states.
Nevertheless, one cannot undermine the importance of institutions such as the ICJ in helping to resolve global problems. This view is reiterated by neoliberals who argue that international institutions facilitates policy making and encourage more cooperation at local, national and international levels by helping to resolve global and regional problems. This theory demonstrate one of the causes of border disputes in Africa which is that of inept leadership.
c) The Declaratory theory.
The declaratory theory of the judicial process is also relevant in this work. The declaratory theory is to the effect that judges do not make the law. Sir Matthew Hale28, a proponent of this theory opines that:
The decisions of courts do….. not make a law properly so-called (for that only the King and Parliament can do); yet they have a great weight and authority in expounding, declaring and publishing what the law of this kingdom is, especially when such decisions hold a consonance and congruity with resolutions and decisions of former times, and though such decisions are less than a law, yet they are a greater evidence thereof than an opinion of many private persons, as such, whatsoever29.
He examined the declaratory theory in the same context like Lord Mansfield that is in the context of England. According to Mansfield, ‘’the law of England would be a strange science if indeed it were decided upon precedents only’’31. This view was supported by Justice Joseph Story of the United States, who remarked that ‘’in the ordinary use of language, it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws’’. Lord Esher echoes the same view. He notes that there is in fact no such thing as judge-made law, for the judges do not make the law though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable. Lord Delvin is of the view that judicial lawmaking is unacceptable because it is undemocratic.
Although in the common law legal system, judges do make law on the bases of judicial precedents, it is important to point out here that the principle of judicial precedents by judges does not hold in the ICJ as per article 59 of the Statute of the ICJ, making the declaratory theory relevant here. This is so because the ICJ statute provides clearly that the decision of the court has no binding effect or force except between the parties and in respect of that particular case. The judges are only guided by the Statute of the International Court of Justice.
1.11 DEFINITION OF KEY TERMS.
A. Border dispute.
A border dispute is when two governments or more do not agree on the location of the border between their lands30. Black’s law Dictionary circumscribes dispute as a conflict or controversy, especially one that has given rise to a particular lawsuit.
The notion of a ‘border’ or ‘boundary’ reflects a line separating two pieces of land. When the line runs between two countries, it is defined as international. Legally, such a boundary or borderline marks the legal termination of the territory of one state or its political unit and the start of another territory, within which the states exercise their jurisdiction. According to Sumner in international law a border relates to ownership of territory and this is significant because sovereignty over land defines what constitute a state. Boundary or territorial disputes are often related to the possession of natural resources such as rivers, fertile farmland, mineral or oil resources although the disputes can also be driven by culture, religion and ethnic nationalism.
Interstate border dispute is a dispute that involve two or more states which are both members of the international community, who use their national forces in the course of the disputes31.
This is the putting to and end something that been going for a considerable period of time32. Dispute resolution is settlement of an existing conflict of dispute through any of the mechanisms put in place by the United Nations.
1.12 SYNOPSIS OF CHAPTER.
This thesis is made up of five chapters. Chapter one is general introductory chapter that explains the statement of the problem, research question, research objectives, justification and the significance of the research. It also raises the definition of key terms of the study, the theoretical frameworks, literature review and the scope of the study.
Chapter two which is consider the heart of the thesis dwells on the two selected interstate border disputes in Africa which acts as the case study. This chapter traces the origin of the selected border disputes by expounding on the causes and effects of the disputes. It further dwells on the general causes and effects of border disputes in Africa.Chapter three focuses on the legal instruments (text) and institutions put in place for the resolutions of border disputes in Africa. Chapter four dwells on the various mechanisms used in the resolution of border disputes in Africa and their effectiveness. Here, the administrative and legal mechanisms are explicitly elaborated upon.
Chapter five is dealing with summary of findings, the conclusion and recommendations. In the conclusion, findings arrived at with regards to the research questions and objectives are presented.
CAUSES AND EFFECTS OF THE RESOLUTION OF INTERSTATE BORDER DISPUTESIN AFRICA.
This chapter deals with the first research question and by so doing, dwells on the first specific objective. It shall in this regard give a description of the two selected interstate border disputes. In so doing, the root causes and effects of the disputes are well analyzed.
2.1 OVERVIEW OF INTERSTATE BORDER DISPUTES IN AFRICA.
Africa as many scholars will hold is considered as the home of border disputes. Man in his human nature is prone to conflict (disagreement), consequently, man cannot live in a society void of disputes.
Disputes are an inevitable part of international relations33 and it is hardly denied that, among international disputes, territorial and territorial-related disputes are the most complicated ones. Undoubtedly, these disputes have been the primary source of the growing tensions in relations among States which are likely to lead to armed conflicts or eventual wars34 when they are not settled amicably and peacefully. The sanctity of the territorial issue to the peoples in question – nationalism and associated passions – have made these disputes extremely difficult to resolve. Furthermore, these disputes are further complicated by historical, cultural, political, military and economic phenomena. Nevertheless, states are required under international law, to resolve their international disputes by peaceful means and in conformity with the principles of justice and international law so that international peace, security, and justice will not be breached.
It is important for states to know the exact location of their borders because this indicates the extent of their territory and governmental authority; any external intrusion may spark a conflict between the territories bordering the two states.35 Most of the border disputes in Africa have arisen since the late 1950s, when most African states gained independence. Some of the disputes involve two or three states in one region or across regions on the continent.
For their selfish, economic, political and strategic calculations, the imperialist capitalist powers (colonial powers) in the 19th century partitioned and divided African territories and people among themselves without considering the languages, social and cultural infirmities of the African people. In many instances, the same ethnic nationality found itself divided into two or more colonial territories and ruled by different colonial masters.
Interstate border disputes have impelled many scholars to observe that the regularity of disputes in Africa has become one of the distinct characteristics of the continent. However, not just the African continent is covered with interstate border disputes. We equally have some Western nations who are also riddled with border disputes. In Europe, we have countries like Bosnia, Serbia, Turkey and Ireland who are all entangled in interstate border disputes. There is equally Cambodia and Burma in Asia, Iraq and Iran in the Middle East.
We have Peru, Mexico, Argentina and Chile in Central and South America.
Although existing literature holds the colonial factors as the major cause of interstate border disputes in Africa due to the unclear and porous borders created during colonial times, the researcher here argues that besides the colonial factors, most of the disputes revolve around securing economic interests (searching for vital economic resources), expansionist policies, political rivalry, increasing population, land grasp and continental drift (water). This can preclude peaceful coexistence with neighbouring states and also plays a critical role in fueling interstate border disputes in Africa. This factors demonstrate why countries such as Ethiopia and Eritrea and Sudan and South Sudan-which are the focus of this research, have had long tussles over their various disputed area.
In addition, the methods of resolving the disputes differ given the fact that some of them have certain peculiarities that separate them from the others. Despite the use of various methods of resolution, peace is still far fetch.
There are a couple of border disputes scattered all over Africa, some of which include;
In North Africa, some of the disputes include:
- Algeria and Morocco over the Atlas Mountains area (1963-70);
- Tunisia and Libya over the Continental Shelf (1978-82);
- Egypt and Libya over Sallum (1977);
- Sudan and South Sudan over the Abyei and Heglig zones (1979-ongoing)
- Morocco and Mauritania over the Polisario Front (1975-91)
In West Africa, some of the disputes are as follows:
- Cameroon and Nigeria over the oil rich zone of the bakassi peninsula (1994-2002)
- Benin, Niger and Nigeria over the Hausaland (1960-87)
- Mali and Mauritania over the Hodh region (1960-63)
A number disputes have arisen in East Africa, such as:
- Somalia and Ethiopia over the Ogaden desert region (1964-78);
- Eritrea and Ethiopia over Badme (1998-2000);
- Malawi and Tanzania over Lake Nyasa (1964-68)
- Malawi and Zambia over the 600-km frontier (1981-86)
In Central Africa, a couple of border disputes are still ongoing:
- Cameroon and Equatorial Guinea over the River Ntem (2000- ongoing)
- Gabon and Equatorial Guinea over the islands of Mbanie, cocotiers and congas (2003- ongoing)
In Southern Africa, the contestation between Namibia and South Africa over the Orange River border is one of the oldest border disputes in the world. Other disputes include:
- Botswana, Zimbabwe and South Africa’s bush war/border war 1966-89
- Lesotho and South Africa over the boundary of Basotholand 1966-90
A number of disputes have also occurred across African regions, for example.
- Chad and Libya over the Aouzou strip. (1987-94)
- Uganda and the Democratic Republic Congo over Rukwanzi Island in Lake Albert and other areas along the Semliki River (1960-2004)
The finding of the researcher generally reveals that although colonialism failed to create tangible territorial borders in Africa, the struggle to control vital natural resources in combination with political rivalry, expansionist policy and the lack of statesmanship cannot be overstated as major causes of the disputes all over Africa. Some scholars have argued that the majority of the interstate border disputes in Africa are as a result of the artificial boundaries drawn by colonial powers during the scramble for Africa36. This came about as a result of the Berlin Conference in 1884, where the Europeans divided Africa into colonial territories and commenced full-scale conquest and occupation of them. These European powers only cared about protecting their own interest, rather than the interest of those they claimed to be ‘civilizing’. Modern African states meanwhile have developed and embraced a greed for natural resources which along with political rivalries have rendered them conflictual.
The peculiarity of the Badme dispute between Ethiopia and Eritrea and the Abyei and Heglig crises between Sudan and South Sudan in the continent of Africa made this researcher to focus on them in the course of this thesis.
More so due to the fact that the Sudan and south Sudan crises is still ongoing, the research wishes to explore the reasons why the dispute has not been solved until now. Again, much has been said on the Bakassi peninsula border dispute between Cameroon and Nigeria and the researcher here find the other disputes lacking in research.
2.2 ETHIOPIA AND ERITREA BORDER DISPUTE OVER BADME.
Ethiopia and Eritrea are both situated at the horn of Africa. Interstate disputes, compared to the rampant intra state disputes are very rare in the horn of Africa. When they do take place, however, they give rise to devastating effects to human life, property and environment. A major interstate border dispute that took place at the horn of Africa after the Ethiopia and Somalia war of 1964 and 1977-78, took place between Ethiopia and Eritrea over Badme from 1998 to 2000.
The area of what is now Eritrea came into existence in 1890, when the Italians made their first colonial conquest in the horn of Africa and occupied the territory north of Ethiopia. The Ethiopians evaded colonial occupation by defeating the Italians in the 1896 Battle of Adowa. After Italy’s defeat, Ethiopia and Italy negotiated and signed a series of agreements in 1900, 1902, and 1908with regards to the Ethiopian border with Eritrea. However, in 1935, Italy again invaded Ethiopia and occupied it for four years before the British freed both Ethiopia and Eritrea from Italian occupation at the end of World War II.
In 1952, the United Nation (UN) gave Eritrea to Ethiopia as a protectorate, and Ethiopia added Eritrea as a province in 1962. This annexation set off a bloody war that finally ended after a group of insurgent forces in Ethiopia united with Eritrean insurgency factions and overcame the government of Ethiopian dictator MengistuHailemarian in 1991. The Ethiopian government allowed Eritreans to determine whether to remain part of Ethiopia through a referendum in 1993. The two countries separated amicably when 99.8% of Eritreans voted instead for independence.
Badme is a town that is the focus of a territorial dispute between Ethiopia and Eritrea. It is claimed by both Eritrea, which considers Badme to be part of Gash-Barka Zone, and Ethiopia, which considers Badme part of the SemienMi’irabaw Zone of the Tigray Region.
Badme is located in Eritrea but is being administered by Ethiopia due to their rejection of the international court’s ruling in 2002.
The boundaries of the Ethiopia and Eritrea follow a frontier defined by the Ethiopian-Italian Treaty of 1902, which ruled Eritrea as a colony at the time. However, the frontier near Badme was poorly defined in the treaty, and since Eritrea became a separate nation in 1993 each nation disputed where the boundary actually runs. As at the 2005 the Central Statistical Agency of Ethiopia conducted a census and the estimated population of the region was 1.563 of whom 834 where men while 729 where women.
2.2.1MAJOR CAUSES OF THE DISPUTE.
The dispute between the two states actually broke out in May 1998. It came as a shock to many observers as well as citizens of both countries. The shock derived from the unexpected turn of events that were until the last minutes, at least to an external observer, completely undetected because the relation between the two governments following the end of the first Ethiopia- Eritrea war of 1961- 1991 appeared to stand on firm ground. After this first war, which saw the defeat of the Dergue Regime, the two parties that rose to power in the two states namely the Ethiopian People’s Revolutionary Democratic Front (EPRDF) of Ethiopia and the Eritrean People’s Liberation Front (EPLF) of Eritrea respectively were all comrades in arms during the liberation struggle against the Dergue regime.
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2 Sone P , interstates border disputes in Africa: their resolutions and implicationto human rights and peace . African Security Review journal 2017 vol. 26, Pg. 325-339.
3 Jennings, R., “The Acquisition of Territory in International Law, (Manchester: Manchester University Press, 1963).
4 Sone P , interstates border disputes in Africa: their resolutions and implication to humanrights and peace . African Security Review journal 2017 vol. 26, Pg. 325-339.
6 Francis N. Ikome, ‘the inviolability of Africa’s Colonial Boundaries: lessons from Cameroon and Nigeria border conflict . Institute of Global dialogue West Africa 2004, vol 47.
7 Something that is absolutely needed. (www.merrian webster.com/dictionary, visited 26/02/2018.
8 Up cit
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12 This advice was echoed by President Barrack Obama during AU Summit in Addis Ababa on 28th July 2015.
13 Sone P , interstates border disputes in Africa: their resolutionsand implication to human rightsand peace . African Security Review journal 2017 vol. 26, Pg. 325-339.
14 AchankengFonkem, Conflict and conflict Resolution in Africa: Engaging Colonial Eactors . African journal Resolution 2013 vol, 13, No. 2. Pg 11-37
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17 Sona M. Gerald, ‘the role of the ICJ in the settlement of international disputes: the case between Cameroon and Nigeria over the Bakassi Peninsula’. Thesis submitted to the department of law university of Buea July 2015 for the award of masters of law (LLM) degree in international Law.
18 Dissenting opinion of Judge Koroma in the case concerning the land and maritime boundary between Camerron and Nigeria.
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36 Sone .P. 2017, op cit