(2018) 2 African Human Rights Yearbook
67
The Resolution on Border Disputes confirms the continuity of
colonial boundaries in principle. It is very similar to the principle uti
possidetis juris adopted in Latin America in the wake of the Spanish
Empire and its internal administrative divisions. However, the
Resolution does not erase the existing agenda of disputes. It does not
affect demarcation disputes, or frontiers in dispute in colonial times, or
frontiers in dispute before the colonial intervention. New states
inheriting an obscure or an un-demarcated colonial alignment just have
to face the said boundary problems, but no more.54 It does not seem
that the Resolution was originally binding on member states. At least
Somalia and Morocco did not consider themselves bound by it and
appeared to have expressed reservations.55 At that time Somalia was
still dreaming of ‘Greater Somalia’ and Morocco of ‘Greater Morocco’.
Over time, however, by its general acceptance and repeated reference to
it by states, the resolution has evolved into a binding legal principle.56
The resolution came to be considered through the conduct of, and
repeated pronouncements by, African states and the continental
Organisation as embodying the principle according to which frontiers
do not lapse when decolonisation or secession takes place. The
principle is now enshrined in the basic constitutional text of the AU and
in the treaty on peace and security in Africa.
The principle of territorial integrity protects the territorial
framework that is legally that of a state. It is secured by a series of
consequential rules, namely, rules prohibiting interference or
intervention in matters which are essentially within the domestic
jurisdiction of any state, rules prohibiting the threat or use of force
against the territorial integrity and political independence of any state,
rules imposing respect for borders as of the date of independence, and
the rule of obligatory non-recognition of territorial changes brought
about in breach of international law.
The territory of each African state consists of the spatial area it
inherited from colonisation. In most cases the alignment would have
been described and delimited (even if imprecisely) or demarcated as an
international boundary by the relevant colonial powers. In some other
cases it would have been defined as an intra-colonial boundary of the
units of a larger territory of the colonial power, it becoming
international on achievement of independence. The Constitutive Act of
the AU proclaims the defence of the territorial integrity of its members
as one of its objectives (article 3(b)). But this simply has to do with the
relations between the Organisation and its members. It has nothing to
do as between AU members inter se or between such a member and a
non-member or between a member and component parts of its
territory. It has nothing to do with what happens within a given state
because the principle of territorial integrity is relevant only as regards
54
55
56
Brownlie (n 53) 11.
Brownlie (n 53) 11.
C Anyangwe ‘International law and the acquisition of colonial territories in Africa’
(2005) 37 Zambia Law Journal 21; T Maluwa ‘International law-making in the
Organisation of African Unity: an overview’ (2000) 12 African Journal of
International and Comparative Law 201.