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Yenga Border Dispute Sierra Leone/Guinea

Sierra Leone and Guinean officials ponder over map in 2003

Sierra Leone and Guinean officials ponder over map in 2003

This article seeks to examine the border dispute between Sierra Leone and Guinea and the problems associated with the demarcation of a section of the boundary between the two West African countries along the left bank of the Moa/Makona river in the eastern Kailahun district of Sierra Leone.  It highlights the significance of state practice and the jurisprudence of the ICJ (International Court of Justice) in the peaceful resolution of border disputes, and in the process explores the origin of uti possidetis as an international doctrine, explaining its primary justification in minimising threats to peace and stability.  The article also evaluates the legal function and practical application of uti possidetis in the African context and its role in the respect for the intangibility of frontiers inherited from colonization.
The origin of the border dispute between Sierra Leone and Guinea lies in their colonial past and is basically one of treaty interpretation.  Long before the two countries gained their independence, the former colonial powers, Britain and France began the process of identifying and delimiting the boundaries of both countries.  This process culminated in the 1912 Protocol signed by the commissioners appointed by both colonial powers, which finally delimited the boundary between Sierra Leone and Guinea.  In September 1913, Britain and France exchanged further notes confirming their acceptance of the 1912 Protocol.  However, although the two West African countries agree that the key instrument defining their common border is the 1912 Protocol, Guinea has over the years contended the interpretation of Article 7 of the Protocol and the attached map to the extent that both countries now believe that a different line on the map represents the boundary.
In essence, Article 7 explains that the frontier follows the left bank of the Moa from cairn No. XV and terminates at cairn No. XV1 on the Dandogbia river at the Liberian border.  Cairn No. XV1 is not, however, definitively fixed, except that it is marked by a stack of stones.  It has proved problematic to reconstruct this cairn as it is the point where the borders of Sierra Leone, Guinea and Liberia meet.
The claim put forward by Guinea over the disputed section of the boundary is that the external red line shown on the left bank of the Moa/Makona river of the map attached to the Protocol represents the frontier.  Sierra Leone, however, strictly regards the internal red line shown on the map from cairn No. XV to cairn No. XV1 along the left bank of the Moa/Makona river as representing the frontier.  Indeed, the 1913 exchange of notes refers to the demarcation of the boundary between Sierra Leone and Guinea, and there can be no doubt that the boundary passes through cairn No. XV, which can be located on the left bank of the Moa, but there is no indication in the 1912 Protocol that the boundary is marked on the map.  There is also no clear definition on the map, which is hand-drawn, to show that a particular line on the left bank of the Moa represents the boundary.  The Protocol and the attached map therefore fail to provide any concrete geographical evidence of the true boundary line along the disputed section of the frontier between Sierra Leone and Guinea. 
It is this inadvertent failure which now lies at the heart of the boundary dispute.
Considering the rejection by Guinea to the introduction of any other map other than the attached 1912 map, the dispute becomes even more controversial.  However, although in recent case law, courts have relied to an increasing extent on maps, this form of evidence does not constitute a territorial title since maps are generally “extrinsic and corroborative evidence” of varying reliability.  As such, their role is not of significant importance, resulting in maps being used with other evidence of a circumstantial nature in order to establish the real facts.
Given the contentious claims put forward by both countries, from a geographical perspective, the position taken by Guinea that the external red line delimits the boundary seems very problematic as this line coincides with the millennium flood line situated well inside Sierra Leonean territory.  Admittedly, my knowledge of the physical geography of the area and the hydrology of the Moa/Makona river is not up to scratch.  But demarcating the boundary at the level where the Moa river floods once every one thousand years as is being argued by Guinea represents an extraordinary interpretation of the concept of a river bank boundary, and is hardly consistent with the ordinary meaning of the term ‘bank’ that international law requires us to adopt when interpreting treaties.  On the other hand, however, the position taken by Sierra Leone that the internal red line located close to the river channel represents the bank of the Moa river, and that this line delimits the boundary is more in keeping with the ordinary meaning of the terms of the treaty in context, object and purpose.
In 1998, the border dispute between Sierra Leone and Guinea emerged into prominence when following years of the bloody RUF (Revolutionary United Front) tribal rebel war which seriously affected Kailahun district, Guinean troops occupied the border town of Yenga and its environs.  But the occupation of Yenga by heavily armed Guinean troops was seen in the light of a military strategy designed to forestall cross-border incursions by RUF rebels into Guinean territory.  In essence, Guinean troops entered Sierra Leone not as an invasion force but as an ally.  However , since the rebel war officially ended in January 2002, Guinean troops supported by tanks, armoured personnel carriers and heavy support weapons still occupy Yenga, a situation which has developed into the government of Guinea claiming jurisdiction over Yenga.  This sad and unfortunate episode is reminiscent of the days of empire when land was acquired by states through the use of force.  But the bigger picture that should never be forgotten is that Sierra Leone and Guinea are two friendly states with strong linguistic ties and a long history stretching far beyond the era of European colonization.
In spite of the difficulties associated with resolving the Yenga issue, Sierra Leone and Guinea have made several diplomatic attempts in trying to arrive at a consensual and peaceful resolution of their border dispute.  In 2005, for instance, a memorandum of understanding was signed between the two countries, with President Kabbah declaring the issue resolved, only for it to disappointingly resurface again in 2009.  But recent talks held in Freetown between the two countries under the auspices of the skilful leadership of President Ernest Bai Koroma may provide the basis for a peaceful resolution of the Yenga issue.
However, in international law and relations, ownership of territory is significant as sovereignty defines what constitutes a state.  As such, it is reasonable to suggest that since the border dispute between Sierra and Guinea is based on treaty interpretation and originates from the 1912 Protocol, which was confirmed by both Britain and France, the International Court of Justice offers a welcoming opportunity for a peaceful and binding adjudication of the dispute.  No doubt, the ICJ has since its inception acquired extensive knowledge of relevant state practice and has considerable experience in the peaceful resolution of international boundaries both on land and at sea.  But it is essential that pursuant to a special arrangement by compromis, both Sierra Leone and Guinea stipulate that the International Court of Justice resolves the dispute with regard to the principle of uti possidetis, which provides that states emerging from decolonization shall presumptively inherit the colonial administrative borders that they held at the time of independence.
The term uti possidetis originated from Roman law during the republican period, as one of a series of edicts issued by a praetor or administrator of justice at the initial stage of litigation between two contesting parties claiming ownership over real property.  The edict granted provisional possession of the property to the possessor during the litigation, rather than finally determining the disposition of the property.  This gave an advantage to the possessor, and the edict was summarised in the phrase Uti possidetis, ita possidetis: “As you possess, so may you possess”.  However, the early scholars of international law critically altered the doctrine of uti possidetis by changing the scope of its application from private land claims to the territorial sovereignty of nation states, and transforming its provisional status into one of permanency.
Given that the dispute should be resolved with regard to the principle of uti possidetis, the settlement by the ICJ must be based in particular on respect for the principle of the intangibility of frontiers inherited from colonization.  The application of this principle emerged during the decolonization of Latin America, which meant that the new republics of South America and Central America inherited the administrative boundaries of the Spanish colonial power at the moment of independence in the 1980s.  The doctrine moved from Latin America to Africa where the political and historical situation was different, as unlike Latin America, seven European powers were involved in the colonization of Africa, beginning from the 18th century.  The mode of establishing boundaries was also different as geometric lines predominated, without regard for the social and linguistic groupings of the local inhabitants, and with little knowledge of the local geography.  The main purpose of the European powers in the allocation of territories in Africa was simply to reduce armed conflicts among themselves.
Prior to decolonization, Africa was faced with two clear options: either to undertake a wholesale restructuring of borders in order to rectify past injustices or accept existing lines of demarcation as the basis for new states.  In spite of strong opposition from the Pan-Africanist Movement, the European powers together with the indigenous elites decided to maintain extant lines as the most feasible way of achieving speedy independence.  So since the 1950s, European colonies in Africa, and South Asia had started inheriting the administrative boundaries of their former colonial powers at the moment of independence.  By 1963 when the OAU (Organisation of African Unity) was formed most of the colonies in the continent had gained independence.  Article 3 of the 1963 OAU Charter contains the principle of uti possidetis juris in an implicit sense, but the 1964 Cairo Declaration deliberately stresses and affirms the principle of uti possidetis juris, and all the Member states of the organisation, including Sierra Leone and Guinea solemnly pledged “to respect the frontiers existing on their achieving of national independence”.  This development achieved two purposes.  Firstly, it prevented territorial claims by states, which could have the potential for armed conflicts.  Secondly, it discouraged secessionists demands from ethnic minorities to further divide states or adjust borders.  Thus, in spite of the apparent contradiction in its application, the principle of uti possidetis has been able to withstand the new approaches to international law as expressed in Africa.
Although uti possidetis is not a norm of jus cogens, in Latin America, Africa and Asia state practice has resulted in uti possidetis being regarded as a customary norm.  Its meaning in international law was stated in the 1922 Arbitral Award of the Swiss Federal Council in the Colombia/Venezuela Boundary Arbitration that each of the disputant parties admitted the applicability of the principle of uti possidetis juris and that the boundaries between them must be identical with the boundaries as laid down by Spain prior to their independence.  Uti possidetis has found expression in Europe in Principle 111 on the Inviolability of Frontiers of the Helsinki Final Act of 1 August 1975, and has been recognised by international agreements of a universal character, such as the 1969 Vienna Convention on the Law of Treaties.  The principle has also been reaffirmed in the Charter of Paris of 21 November 1990.
In the case concerning the Frontier Dispute (Burkina Faso/Mali), the Chamber of the International Court of Justice emphasised the exceptional importance of the principle of uti possidetis for the African continent, and in its jurisprudential expansion of the principle, stated in dictum that “the principle is not a special rule which permits solely to one specific system of international law.  It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs”.  The Chamber noted that African countries have judiciously consented “to the respecting of colonial frontiers” because of the need for stability and development, and in order to consolidate their independence.  African countries have therefore decided that maintenance of the territorial status quo is the wisest course, and have continued to apply the principle of uti possidetis “to prevent the independence and stability of new states being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administrative power”.  This is hardly surprising, considering the fact that the delimitation of political boundaries in Africa took no account of ethnic and tribal considerations.
According to the Chamber, African states recognised and respected the legality of existing frontiers, and even reinterpreted the principle of uti possidetis to encompass the principle of territorial integrity.  The Chamber went on to explain that the fact that newly emerging African countries have respected the administrative boundaries and frontiers established by the colonial powers should not only be regarded in the light of an emerging practice of a principle of international customary law that is limited in its impact to Africa, but should also be seen as a rule of general scope.  As such, the acceptance of the colonial borders by African governments and by the OAU did not in any way create a new rule nor did it extend to Africa any original rule that had been previously applied in another continent.  Instead, this development constitutes the recognition and confirmation of an existing principle, the application of which resulted in administrative boundaries being transformed into international frontiers in the full sense of the term.
Although it has not been possible to unquestionably establish from colonial documentation which of the two red lines shown on the attached map to the Protocol constitutes the relevant boundary line, there is still ample evidence of the historic course of the disputed border.  This being the case, it is essential that both Sierra Leone and Guinea agree that territorial claims of equity based on the unacceptable nature of the border as a result of such issues as ethnic, geographical or administrative problems should not be applied in the modification of the existing border, as such claims could be unjustified and unnecessary because of the obvious deficiencies of many African borders inherited from the colonial period.  Moreover, the application of equity in order to achieve an equitable result, as required by international law, is not necessarily a method for delimiting a boundary, but rather an aim that should be borne in mind in effecting the delimitation.  It is therefore necessary that Sierra Leone and Guinea express that the border dispute is not decided ex aequo et bono.
In the Frontier Dispute, The ICJ Chamber observed that it would have regard to equity infra legem, which as a legal concept “is a direct emanation of the idea of justice”.  But the Chamber noted the difficulties associated with resorting to the concept of equity in order to modify an established frontier in the African context, as explained above.  However, the Chamber had cause to resort to equity infra legem in order to divide the frontier pool between Burkina Faso and Mali as the evidence before the Court lacked any indication of the historic course of the boundary line.  All the same, the Frontier Dispute is described as the most important pronouncement with regard to the role of uti possidetis in Africa.
Within the context of decolonization, however unsatisfactory a frontier may be, it still possesses the authority of uti possidetis, which has no retroactive effect and is in full conformity with contemporary international law.  In essence, what uti possidetis does is “to freeze the territorial title; it stops the clock but does not put back the hands”, that is, it gives the “photograph of the territory” as it existed at the moment of independence, which is the critical date.  The starting point of examining any claims relating to the boundary line is therefore this photograph, which provides a prima facie territorial situation at the moment of independence.
According to the ICJ, the obligation to respect pre-existing international frontiers in the event of a state succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis.  This explains why, for instance, the majority of the Chamber in the Libya/Chad case resolved the dispute in a simple and straight-forward manner through the application of the law of treaties, as Libya was formerly an Italian colony, while Chad was formerly French.  The Chamber concluded that the relevant Franco-Libyan Treaty of 1955 which established the colonial boundary between Chad and Libya determined the permanent frontier between the two states.  The Chamber emphasised that a boundary established by a treaty achieved a permanency which the treaty itself did not necessarily enjoy.  Thus, a treaty can cease to be in force without in any case affecting the legal authority of the boundary.
Furthermore, in the absence of an explicit agreement, a newly independent state that chooses not to object to an existing boundary or expressly declines otherwise by affirming the territorial status quo, in effect succeeds to a legal situation created and continued by custom.  In fact, it could be argued that in the African context, acquiescence plays a significant role as is exemplified in the acquiescence of Egypt, for instance, which enabled Sudan to claim territorial jurisdiction over a region that lay beyond the boundary established along the 22nd parallel by the Anglo-Egyptian Treaty of 19 January 1899.  It therefore follows that the Cairo Declaration, for instance, can be regarded not as an affirmation of uti possidetis, but as a waiver of the right to object to inherited territorial arrangements of the colonial powers. With regard to the maintenance of the status quo, it should be borne in mind that there are two distinct versions of uti possidetis, namely, uti possidetis juris, which refers to the new state’s legal title at the time of independence; and uti possidetis de facto, which refers to its territorial jurisdiction at the time of independence.  From this standpoint, although the border dispute between Sierra Leone and Guinea concerns the applicability of uti possidetis juris, considering the two versions of the principle, Guinea’s claim of territorial jurisdiction over Yenga can hardly be justified.  In the African context, territorial title rests more on substantive, rather than deemed possession.  No doubt, the argument is strongly in favour of Sierra Leone, which possessed not only the legal title at the time of independence but also demonstrated factual and effective possession and territorial jurisdiction over Yenga.
Article written by:
Lieutenant Colonel (Rtd) Sim Turay, HCBS, BA Combined Hons, MA, LLM.
Former Head of Military Intelligence, Republic of Sierra Leone Armed Forces.
Contact: Simturay@sky.com

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