Legal View on OCP-South Africa incident: South Africa is not entitled to delimit the Territory of a Foreign State

By African Bulletin on July 26, 2017

Shoji Matsumoto

Professor of African Law systems

Sapporo Gakuin University

South Africa is a third State in the Western Sahara Conflict. In the UN, the conflicting parties are only Morocco and the Polisario That State should remain to be a third State. Any State organs, including the courts, of South Africa are not entitled to decide the territory of a foreign State like Morocco.

Agreements on the territory and boundary have been called ‘dispositive treaties.’ And they have been held valid erga omnes, opposable to third parties, and effective permanently.

“Real rights in international law had been defined as those which were attached to territory and which were in essence valid erga omnes.”( UN, Yearbook of International Law Commission 1972 i, 1974, 250.). In 1998, Eritrea-Yemen Arbitral Tribunal has rendered an award as below:

Boundary and territorial treaties between two parties are res inter alios acta vis-à-vis third parties. But this special category of treaties also represents a legal reality which necessarily impinges upon third states. If State A has title to territory and passes it to State B, then it is legally without purpose for State C to invoke the principle of res inter alios acta, unless its title is better than that of A (rather than of B).( Eritrea v Yemen (Phase one), 1998, Report of International Arbitral Award (RIAA), 1998 xxii, para.153.)

The International Law Commission (ILC) states that the “issues of territorial status have frequently been addressed in erga omnes terms, referring to their opposability to all States. Thus, boundary and territorial treaties have been stated to represent a legal reality which necessarily impinges upon third States,” citing the above-cited award. ( ILC, Conclusion of the Work of the Study Group on the Fragmentation of International Law, UN Doc A/61/10, 2006, para.251.)

The concept of effective erga omnes is confirmed by the principle of respect for the territorial integrity of a State, and further supported by more general entitlements of non-injured third States to invoke the responsibility of a State for an internationally wrongful act under the Draft Articles on Responsibility of States.( ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries 2001, UN Publications, 2008, art.48.)

A dispositive treaty has a permanent character. Case Concerning the Territorial Dispute (Libya/Chad) (Merits) is illustrative. One of its main issues was the permanence of the legal effect of the Treaty of Friendship and Good-Neighbourliness between France and Libya. The ICJ observes as follows:

A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary. In this instance the Parties have not exercised their option to terminate the Treaty, but whether or not the option be exercised, the boundary remains. This is not to say that two States may not by mutual agreement vary the border between them; such a result can of course be achieved by mutual consent, but when a boundary has been the subject of agreement, the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed. (ICJ Rep 1994, paras.72-73.)

As such agreements are effective erga omnes, so non-agreement on territory or border is also valid erga omnes. Any third States are not entitled to delimit the territory or boundary of other States frivolously. Thus, the State organs of South Africa should refrain from deciding on the attribution of the Territory.

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