China has been actively seeking international support for its position that the South China Sea dispute with the Philippines should be resolved exclusively by negotiations among the parties directly concerned and thus should not have been submitted to arbitration. Among the 40 states that support China are several African countries, including Burundi, Mozambique, Niger, and Togo. China is also seeking the support of Cameroon, Côte d’Ivoire, and Senegal. Beijing believes that China and Africa should support each other on issues concerning their vital interests, since they had all been “victims of colonization.”
Some Western experts have dismissed these states as “small, poor and inconsequential.” They allegedly support China because they receive massive Chinese assistance. Niger’s oil industry is said to be almost totally dependent on Chinese enterprises and the CNPC (China National Petroleum Corporation). It is true that Mozambique declared its support during a state visit of its president to China, when the two states agreed to establish a Strategic Partnership for Comprehensive Cooperation and China promised to assist in Mozambique’s industrialization and modernization. Nevertheless, as China’s spokesperson rightly pointed out on March 25, 2016, the dismissive attitude is “permeated with arrogance, prejudice and snobbishness… all countries, big or small, rich or poor, should be respected as equals… [It is] particularly preposterous to judge right and wrong based on the size and wealth of a country.”
In that same spirit, China could and should learn a lesson or two from the African countries in the area of peaceful dispute settlement. More and more African states now accept the principle of international adjudication, i.e., dispute settlement through international courts, and actually submit specific disputes to the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS). Moreover, the actual conduct at the ICJ of three African states whose support China is seeking — Burundi, Senegal and Niger — is exactly the opposite of that of China in the Philippines v. China arbitration.
African States Accept International Adjudication
The consent of states parties to a dispute is required before an international court can hear their dispute. A dispute may be submitted to the ICJ if states have given their consent in advance under Article 36(2) of its Statute, through a special agreement, or through a treaty on another subject. States parties to the 1982 UN Convention on the Law of the Sea may also give their consent in advance to submission of their disputes to ITLOS, created by the Convention.
States prefer to resolve their disputes by negotiation, mainly because they believe that they remain in control of the process without the intervention of third parties. In addition, socialist states believe that international law is a tool of capitalism; for developing countries, it was an instrument of imperialism. At present only 72 UN members (less than one-third of the total), have given their consent to dispute settlement by the ICJ under Article 36(2) of the Statute.
As a socialist state, China is viscerally opposed to dispute settlement by international courts. In contrast, the attitudes of developing countries, in particular the African states, have evolved considerably since the 1980s. Before that time only 12 African states had recognized the Court’s compulsory jurisdiction: Botswana, Egypt, Gambia, Kenya, Liberia, Malawi, Mauritius, Somalia, Sudan, Swaziland, Togo, and Uganda. Since then they have been joined by Cameroon, Côte d’Ivoire, Djibouti, Democratic Republic of Congo, Guinea, Guinea-Bissau, Lesotho, Madagascar, and Nigeria, bringing the number to 22 (out of 72 UN members from around the world). This group includes four of the states that officially support China: Cameroon, Côte d’Ivoire, Senegal, and Togo.
African states now constitute the second largest group of states that have recognized the Court’s compulsory jurisdiction, second only to the group of European states (27). The number of Asian states that have done so (six, including the Philippines and Japan, but not China) has not increased at all since the 1980s. Understandably, Africa’s role in reconciling the Third World with the ICJ has been described as “considerable.”
Of the 22 African states on the list, eight (Cameroon, Democratic Republic of the Congo, Guinea-Bissau, Kenya, Nigeria, Senegal, Somalia, and Uganda) have been involved in eight cases. Seven cases involving ten African states (Benin, Botswana, Burkina Faso, Chad, Libya, Mali, Namibia, Niger, Republic of the Congo, and Tunisia) have been heard on the basis of a special agreement, while five disputes in which five African states were parties were submitted on the basis of a treaty (Burundi, DRC, Djibouti, Libya, and Rwanda). A total of 21 African states have thus been involved in 19 out of 83 cases heard by the Court since 1980. The figures might seem very low but Asian states are arguably even more wary of international courts. Since 1980 the Court has heard only two “Asian” cases, in which three Asian states (Indonesia, Malaysia, and Singapore) were parties.
As for ITLOS, 36 states, out of 167 parties to the 1982 Convention, have accepted its jurisdiction. Six African states (Angola, Cape Verde, DRC, Madagascar, Tunisia, and Tanzania) make up the second largest group, together with the Latin American and Caribbean group, that has accepted the Court’s jurisdiction, after the European group.
None of the six has been a party to any of the 23 inter-state cases that have been heard by ITLOS, but five other African states have appeared before it. Ghana and Côte d’Ivoire concluded a special agreement requesting that the Tribunal delimit their maritime boundary. Ghana and three other states (Guinea, Seychelles, and Guinea-Bissau) have appeared in five cases relating to the release of vessels.
Beyond the statistics, the conduct at the ICJ of three African states whose support China is seeking – Burundi, Senegal, and Niger – vividly demonstrates the great differences between Chinese and African attitudes toward international courts.
African States Appear Before the ICJ
Burundi has not accepted ICJ jurisdiction and thus may not be forced to appear before it. Yet when a case was filed against it, it did not boycott the Court. Senegal, which has accepted ICJ jurisdiction, cannot anticipate when and over what issue another state may bring a case against it. If the issue is sensitive, Senegal might still challenge the Court’s jurisdiction. Nevertheless, it chose to appear before the Court when Guinea-Bissau filed two cases against it. Niger, which gave its consent by special agreement, could not predict the outcomes of the cases, but accepted the risk of unfavorable outcomes after decades of negotiations with two neighbors had failed.
In 1999, Burundi was accused of aggression by the Democratic Republic of the Congo (DRC), which had accepted ICJ jurisdiction. Aggression is one of the gravest violations of international law that may be made against a state. International law prohibits the use of force in international relations, and the UN’s fundamental aim is to maintain international peace and security. No state, big or small, wishes to be accused of aggression. The conduct of Burundi in this case should be instructive to China. As Burundi had not given its consent to ICJ jurisdiction, it could have boycotted the proceedings. Yet Burundi appointed an agent to represent it in the case; attended a consultation with the DRC and the ICJ over the procedure; and complied with the deadline set by the Court for submission of its written arguments. The case was terminated when the DRC discontinued it in 2001.
Senegal, which accepted ICJ jurisdiction in 1985, was implicated between 1985 and 1995 in a less dramatic, but more protracted, process: it was a party to three proceedings before two international tribunals over one issue, maritime delimitation with Guinea-Bissau, which accepted ICJ jurisdiction in 1989. In the first case, an arbitral tribunal held that a 1960 exchange of letters between France and Portugal, the then colonial powers, had determined the boundary between Senegal and Guinea-Bissau, but that it did not delimit their EEZs (Exclusive Economic Zones). In the second and third cases, Guinea-Bissau, which was dissatisfied with the tribunal’s award (judgment), requested that the ICJ declare that the award was null and void and delimit the maritime boundaries between the two states. It was arguably not in Senegal’s interest to participate in the second case, since the tribunal’s award was partly favorable to its theses. But both had accepted ICJ jurisdiction.
Senegal’s conduct in this case could not be more different from that of China in the Philippines v. China arbitration. Senegal appointed an agent to represent it in the case; participated in consultations on the procedure; submitted its written arguments by the deadline; and took part in all oral proceedings. Senegal denied that Guinea-Bissau’s case was admissible. The ICJ did not agree with Senegal, but it ruled that the award was valid and binding for the two states. The ICJ’s judgment paved the way for negotiations between the two states to delimit all maritime areas and the withdrawal of the third case in 1995.
Niger, which has not given its consent to ICJ dispute settlement, has been party to two frontier disputes before the Court, which heard them on the basis of special agreements. Niger and the two other states involved could not have predicted the outcome of the cases; notwithstanding the uncertainty they turned to the ICJ because decades of negotiations following independence from France in 1960 had not yielded any solution. This conduct again contrasts sharply with that of China, which insists on bilateral negotiations despite the fact that they have failed over many years.
Niger’s dispute with Benin (2002-05) concerned 25 border islands situated on the delta of the Niger and Mekrou Rivers between them. Although incidents had occurred in 1960, 1993, and 1998, joint commissions meeting in 1961, 1963 and between 1995 and 2000 failed to delimit the border. The two states finally signed an agreement in 2001 to submit the dispute to the ICJ.
African observers believe that the Court’s judgment represented a balanced settlement. In one sector of the boundary, the Court accepted Niger’s thesis; in another sector, it was Benin’s thesis that was followed. Benin thus had title to nine islands situated between the boundary and the right bank of the Niger River, while Niger was granted title to 16 islands situated between the boundary and the river’s left bank.
In the Niger-Burkina Faso (2010-13) dispute, commissions meeting in 1964, 1988, and 1991 had been unable to demarcate the border. In February 2009, the two states finally concluded a special agreement to submit the dispute to the Court. African assessments believe that the Court’s judgment split the difference between the two states. It rejected Burkina Faso’s request for delimitation in two sectors in the North and the South, while at the same time rejecting Niger’s request to modify slightly the delimitation around two localities. The Court’s judgment attributed 786 square kilometers of territory occupied by Niger to Burkina Faso, which acquired 14 villages; 277 square kilometers of Burkina territory were returned to Niger, which received four villages. A Burkina source implies that Burkina Faso obtained a slight advantage over Niger by being granted greater access to the River Sirba, an affluent of the Niger River, than Niger would have wanted. Yet Niger’s Minister of Justice declared that the two states were winners, because there would be no more disagreement regarding the border. It would seem, then, that the risk of submitting the dispute to the Court was worth running, because the Court gave reasons for satisfaction to both states.
It is sad that China should have to be reminded of the conduct of African states at the ICJ. Based on its own assertions of equality, China cannot dismiss African countries’ attitudes to and conduct before international courts, alleging that their disputes have low stakes and that they are small countries. China would do well to stop canvassing their support for its position and emulate their conduct.
Dr. Alfredo C. Robles, Jr. is an academic based in the Philippines. This is an abridged version of a paper originally published by the Philippine Foreign Service Institute (FSI) here.