Malabo, Equatorial Guinea
The Hague: The International Court of Justice (ICJ) ruled that Equatorial Guinea owns three islands—Mbanié/Mbañe, Cocotiers/Cocoteros, and Conga—in its dispute with Gabon. The final ruling voids Gabon’s 1974 agreement, upholds a 1900 colonial treaty, and resolves a colonial-era conflict over borders and sea resources.
The case began with a Special Agreement signed by Gabon and Equatorial Guinea on 15 November 2016, submitted to the ICJ on 5 March 2021. The Court was tasked with determining which documents, treaties, or international laws—termed “legal titles”—are valid for defining their shared land and sea borders and island ownership. Legal titles, as defined under Article 38 of the ICJ Statute, the Vienna Convention on the Law of Treaties, and precedents like Frontier Dispute (Burkina Faso/Mali) and Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), are sources of a country’s rights, not limited to formal treaties. This framework allowed the Court to assess historical claims beyond modern agreements. The ICJ was not asked to delimit borders or directly assign ownership, but to evaluate the legal weight of cited documents. It rejected Equatorial Guinea’s reliance on administrative acts (effectivités) or the principle of inherited colonial borders (uti possidetis juris) as legal titles, as these were not properly raised in final submissions.
A pivotal issue was the “Bata Convention,” signed on 12 September 1974, which Gabon claimed was a treaty establishing borders and island ownership. By a 14-1 vote, the ICJ ruled it non-binding, as the parties showed no intent to be legally bound. The Court cited ambiguous clauses, such as Article 7 and a nota bene requiring future agreements that never materialised, and consistent conduct undermining its validity: both nations ignored the convention in negotiations from 1979 to 2003, and Gabon’s 1999 protest note against Equatorial Guinea’s maritime claims omitted any reference to it. Gabon’s 2004 attempt to register the convention with the United Nations, using retyped copies due to illegible originals, further eroded its credibility, as did Equatorial Guinea’s immediate objection to the registration.
Unanimously, the Court held that the Special Convention of 27 June 1900, signed by France and Spain, the colonial powers of Gabon and Equatorial Guinea, establishes the land border. Negotiated through extensive diplomatic correspondence, this treaty set a stable border from the Atlantic coast to the Muni Estuary, inherited by Gabon on its independence on 17 August 1960 and by Equatorial Guinea on 12 October 1968. It defines the land border’s endpoint, which marks the sea border’s start. Both countries acknowledged the treaty but disputed modifications in the Utamboni and Kie River regions. The ICJ found no valid changes: in Utamboni, a 1901 Boundary Commission’s proposals lacked formal approval, and France protested Spanish encroachments in 1927 and 1953; in Kie River, a 1919 agreement was provisional and lacked authority to alter the 1900 treaty. Post-independence actions, such as a 2007 bridge-building agreement, did not amend the border, reinforcing the 1900 treaty’s enduring legal force.
By a 13-2 vote, the Court ruled that Equatorial Guinea owns the islands—Mbanié/Mbañe (0.07 sq km at high tide, larger at low tide), Cocotiers/Cocoteros (0.003 sq km), and Conga (0.003 sq km)—inheriting Spain’s rights from 1968. Spain’s pre-1900 control was rooted in the 1778 Treaty of El Pardo, which ceded Corisco and adjacent islets to Spain, and was evidenced by the 1843 Declaration of Corisco, the 1846 Record of Annexation, and the 1846 Spanish citizenship charter granting rights to Corisco’s inhabitants. France acknowledged Spain’s control in diplomatic exchanges from 1886 to 1891, and the 1900 treaty’s reference to Corisco as Spanish territory supported this claim. Post-independence, Gabon’s 1962 agreement allowing Spain to maintain signals on Cocotiers/Cocoteros and Equatorial Guinea’s 1970 UN declaration claiming the islands, circulated without Gabon’s objection, solidified Equatorial Guinea’s title. Located in Corisco Bay, 5-6 nautical miles from Equatorial Guinea’s Corisco Island and 10-18 nautical miles from both countries’ coasts, these uninhabited islands are strategically vital for claiming maritime zones and resources like oil and gas.
Unanimously, the Court held that the 1900 treaty determines the land border’s endpoint, marking the sea border’s start, and that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides rules for maritime delimitation, not land title. The principle that land ownership determines sea rights was not a legal title under the Special Agreement’s terms, though the islands’ ownership strengthens Equatorial Guinea’s maritime claims under UNCLOS.
The judgment prompted diverse judicial opinions, though all judges supported the 1900 treaty’s role for the land border. Judge Yusuf agreed with the operative clauses but criticised the Court’s use of colonial-era terms, like Spain’s control “à titre de souverain,” as rooted in outdated European legal frameworks from the 1800s. He argued for modern terminology to reflect post-colonial sovereignty and independence. Judge Xue, dissenting on the island ruling, contended that colonial records, including the 1778 and 1900 treaties, do not conclusively link the islands to Corisco, as they were insignificant during colonial times. She emphasised their modern economic value for maritime zones under UNCLOS and noted that colonial borders, drawn without regard for local ethnic or geographical realities, often fuel disputes, urging Gabon and Equatorial Guinea to negotiate further. Judge Aurescu underscored that the Bata Convention’s existence was unproven, citing International Law Commission guidance that modifying boundary treaties requires clear, authoritative evidence. Judge Tladi argued the Court exceeded its mandate by analysing administrative acts, which fell outside the Special Agreement’s focus on identifying legal titles. Judge ad hoc Wolfrum supported the majority, highlighting the Bata Convention’s ambiguous clauses and UNCLOS’s role in guiding maritime delimitation. Judge ad hoc Pinto dissented on the Bata Convention’s status and the island ownership ruling.
Gabon and Equatorial Guinea, located on Central Africa’s west coast, share a land border, with Equatorial Guinea’s mainland (Río Muni, 26,000 sq km) and islands like Bioko and Annobón, separated by 350 nautical miles. The dispute, stemming from colonial boundaries drawn by France and Spain, reflects broader challenges in resolving inherited borders across Africa and beyond. The Bata Convention’s failure illustrates the complexities of post-independence agreements, as both nations struggled to formalise their borders after 1960 and 1968.
This ruling strengthens Equatorial Guinea’s sovereignty over the islands and its potential maritime resource claims, particularly for oil and gas, while Gabon must rely on the 1900 treaty, limiting its position. Judge Yusuf’s critique highlights the enduring influence of colonial agreements, raising questions about adapting international law to modern contexts. Judge Xue’s focus on the islands’ economic significance under UNCLOS underscores their strategic value, as maritime zones extend from these tiny landmasses. The judgment provides a legal foundation for future negotiations, though, as Xue suggested, both countries must actively engage to fully resolve the dispute. For African nations and the global community, the ruling reinforces the stability of inherited colonial borders, as endorsed by the Organisation of African Unity, but sparks debate on whether international law should evolve to address post-colonial realities more equitably.
– global bihari bureau
