Beyond formalism and uti possidetis The International Court of Justice and boundary disputes in Africa

Abstract

Africa’s encounter with the “wider world” is the subject of intense debate and broad literature. That encounter and its entanglements are vital in understanding boundary disputes arising from the continent. This is also important for other aspects of international law as it creates a vantage point to interrogate international law, as seen in the jurisprudence of the International Court of Justice (ICJ). There is often a formalist focus in international law—with notions of international law from “civilized nations,” propped up as neutral and universal principles to the world. This chapter suggests a different interpretive approach illuminated by the history of international law cannon—namely, that a more deliberate historical analysis of the international law on boundary disputes in Africa will yield a richer jurisprudence. The ICJ should bring a more incisive jurisprudential lens to boundary disputes in Africa, so as to see norms beyond the well-worn paths of formalism and historical linearity—from the Hague to the whole world. International law tribunals should be circumspect in giving judicial and quasi-judicial imprimatur to legal approaches, norms, and instruments with known temporal, structural, and geographical power unevenness. This is especially so when interpreting norms and principles forged on the anvil of colonialism.