|
[p7]
The Court,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 31 August 1990, the Government of the Great Socialist People's Libyan
Arab Jamahiriya (hereinafter called "Libya"), referring to Article 40,
paragraph 1, of the Statute of the Court, filed in the Registry a
notification of an agreement entitled "Framework Agreement [Accord-Cadre] on
the Peaceful [p9] Settlement of the Territorial Dispute between the Great
Socialist People's Libyan Arab Jamahiriya and the Republic of Chad"
(hereinafter referred to as the "Accord-Cadre"), done in the Arabic and
French languages at Algiers on 31 August 1989. A certified copy of the
Accord-Cadre was annexed to that notification.
2. The text of the Accord-Cadre, registered with the Secretariat of the
United Nations under Article 102 of the Charter, and notified to the
Organization of African Unity, is as follows:
"The great Socialist People's Libyan Arab Jamahiriya and the Republic of
Chad,
On the basis, on the one hand, of the resolutions of the Organization of
African Unity (OAU), in particular resolution AHG/Res.6 (XXV) on the
Libya/Chad territorial dispute and, on the other hand, of the fundamental
principles of the United Nations, namely:
� the peaceful settlement of international disputes;
� the sovereign equality of all States;
� non-use of force or threat of force in relations between States;
� respect for the national sovereignty and territorial integrity of each
Slate;
� non-interference in internal affairs;
Resolved to settle their territorial dispute peacefully,
Hereby decide to conclude this agreement:
Article I. The two Parties undertake to settle first their territorial
dispute by all political means, including conciliation, within a period of
approximately one year, unless the Heads of State otherwise decide.
Article 2. In the absence of a political settlement of their territorial
dispute, the two Parties undertake:
(a) to submit the dispute to the International Court of Justice;
(b) to take measures concomitant with the judicial settlement by
withdrawing the forces of the two countries from the positions which they
currently occupy on 25 August 1989 in the disputed region, under the
supervision of a commission of African observers, and to refrain from
establishing any new presence in any form in the said region;
(c) to proceed to the said withdrawal to distances to be agreed on;
(d) to observe the said concomitant measures until the International Court
of Justice hands down a final judgment on the territorial dispute.
Article 3. All prisoners of war shall be released.
Article 4. The great Socialist People's Libyan Arab Jamahiriya and the
Republic of Chad reiterate their decisions concerning the cease-fire
established between them and undertake further to desist from any kind of
hostility and, in particular, to:
(a) desist from any hostile media campaign;
(b) abstain from interfering directly or indirectly, in any way, on any
pretext and in any circumstance, in the internal and external affairs of
their respective countries;[p10]
(c) refrain from giving any political, material, financial or military
support to the hostile forces of either of the two countries;
(d) proceed to the signature of a treaty of friendship, good-neighbourliness
and economic and financial co-operation between the two countries.
Article 5. The two Parties decide to establish a Mixed Commission to be
entrusted with the task of making the necessary arrangements for the
implementation of this Agreement and ensuring that all necessary measures
are taken to this end.
Article 6. The Ad Hoc Committee of the Organization of African Unity on the
Libya/Chad dispute shall be requested to monitor the implementation of the
provisions of this Agreement.
Article 7. The great Socialist People's Libyan Arab Jamahiriya and the
Republic of Chad undertake to give notice of this Agreement to the United
Nations and the Organization of African Unity.
Article 8. This Agreement shall enter into force on the date of its
signature."
3. In its notification to the Court, the Libyan Government staled, inter
alia, the following:
"The negotiations referred to in Article 1 of the Accord-Cadre have failed
to resolve the territorial dispute between the Parties . . . and no
decision by the respective Heads of State has been reached to vary the
procedures established by the Accord.
Accordingly Libya is bound, following the expiry of the year referred to in
Article 1, to implement its obligation under Article 2 (a) '. . . �
soumettre le differend au jugement de la Cour internationale de Justice'.
For the purposes of the Rules of Court, the dispute {'differend') submitted
to the Court is their territorial dispute ('leur differend territorial')
referred to in the Accord-Cadre, and the question put to the Court may be
defined in the following terms:
'In further implementation of the Accord-Cadre, and taking into account the
territorial dispute between the Parties, to decide upon the limits of their
respective territories in accordance with the rules of international law
applicable in the matter."�
4. Pursuant to Article 39, paragraph 1, of the Rules of Court, a certified
copy of the notification and its annex was communicated forthwith to the
Government of the Republic of Chad (hereinafter referred to as "Chad") by
the Deputy-Registrar.
5. On 3 September 1990, the Government of Chad filed in the Registry of the
Court an Application instituting proceedings against Libya, the text of
which had previously been communicated to the Registry by facsimile on I
September 1990 and to which was attached a copy of the Accord-Cadre. In its
Application, Chad stated, inter alia, that the Heads of State of the two
Parties had, "during the summit meeting held in Rabat on 22-23 August 1990,
decided to seise the International Court of Justice immediately" and that
the Application had been '"drawn up pursuant to that decision and to
Article 2 (a) of the Accord-Cadre of 31 August 1989" ; it relied, as a basis
for the Court's jurisdic-[p11]tion, principally on Article 2 (a) of the
Accord-Cadre and, subsidiarily, on Article 8 of a Franco-Libyan Treaty of
Friendship and Good Neighbourliness of 10 August 1955; and it requested the
Court to
"determine the course of the frontier between the Republic of Chad and the
Libyan Arab Jamahiriya, in accordance with the principles and rules of
international law applicable in the matter as between the Parties".
6. Pursuant to Article 40, paragraph 2, of the Statute and Article 38,
paragraph 4, of the Rules of Court, the Registrar transmitted forthwith to
the Libyan Government a certified copy of the Application.
7. By a letter dated 28 September 1990, received in the Registry the same
day by facsimile, and the original of which was received on 5 October 1990,
the Agent of Chad informed the Court, inter alia, that his Government had
noted that "its claim coincides with that contained in the notification
addressed to the Court on 31 August 1990 by the Libyan Arab Jamahiriya" and
considered that
"those two notifications relate to one single case, referred to the Court in
application of the Algiers Agreement, which constitutes the Special
Agreement, the principal basis of the Court's jurisdiction to deal with the
matter";
a copy of this letter was addressed to the Agent of Libya by the
Deputy-Registrar on 1 October 1990.
8. At a meeting held by the President of the Court on 24 October 1990 with
the Agents of the Parties, pursuant to Article 31 of the Rules of Court, it
was agreed between the Agents, first that the proceedings had in effect been
instituted by two successive notifications of the Special Agreement
constituted by the Accord-Cadre of 31 August 1989 � that filed by Libya on
31 August 1990, and the communication from Chad filed on 3 September 1990,
read in conjunction with the letter from the Agent of Chad of 28 September
1990 � and secondly that the procedure in this case should be determined by
the Court on that basis, pursuant to Article 46, paragraph 2, of the Rules
of Court.
9. By an Order dated 26 October 1990, the Court decided accordingly that
each Party would file a Memorial and Counter-Memorial, within the same
time-limits, and fixed 26 August 1991 as the time-limit for the Memorials.
10. Pursuant to Article 40, paragraph 3, of the Statute and Article 42 of
the Rules of Court, copies of the notifications and of the Special Agreement
were transmitted to the Secretary-General of the United Nations, the Members
of the United Nations and other States entitled to appear before the Court;
a copy of the Order dated 26 October 1990 was also communicated to them.
11. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them exercised its right under Article 31, paragraph 3,
of the Statute to choose a judge ad hoc to sit in the case: Chad designated
Mr. Georges Abi-Saab, and Libya designated Mr. Jose Sette-Camara.
12. The Memorials of the Parties having been duly filed within the
time-limit fixed for that purpose, the President, by an Order dated 26
August 1991, fixed 27 March 1992 as the time-limit for the filing, by each
of the Parties, of a Counter-Memorial; the Counter-Memorials were duly filed
within the time-limit so fixed.
13. By an Order dated 14 April 1992, the Court decided to authorize the
pres-[p12]entation by each of the Parties of a Reply, within the same
time-limit, namely 14 September 1992; the Replies were duly filed within the
time-limit so fixed.
14. On 9 February 1993, after the closure of the written proceedings, the
Deputy-Agent of Chad communicated to the Registry new documents under cover
of a letter in which he requested the Court, if Libya did not give its
consent to the presentation of these documents, to authorize their
presentation under Article 56, paragraph 2, of the Rules of Court; Libya did
not object to the production of the documents.
15. In accordance with Article 53, paragraph 2, of the Rules, the Court
decided to make the pleadings and annexed documents accessible to the public
as from the dale of the oral proceedings.
16. The Parties having been duly consulted pursuant to Articles 31 and 58,
paragraph 2, of the Rules of Court, public hearings were held between 14
June and 14 July 1993, in the course of which the Court heard the oral
arguments and replies of the following:
For Libya: H.E. Mr. Abdulati Ibrahim El-Obeidi,
Mr. Derek W. Bowett, C.B.E., Q.C, F.B.A.,
Mr. Kamel H. El Maghur,
Sir Ian Sinclair, K.C.M.G., Q.C,
Mr. Walter D. Sohier,
Mr. Luigi Condorelli,
Mr. Philippe Cahier,
Mr. James R. Crawford,
Mr. Rudolf Dolzer.
For Chad: Mr. Abderahman Dadi,
Mr. Alain Pellet,
Mrs. Rosalyn Higgins, Q.C,
Mr. Jean-Pierre Cot,
Mr. Thomas M. Franck,
Mr. Antonio Cassese,
Mr. Malcolm N. Shaw,
Mr. Jean-Marc Sorel.
At the hearings, a Member of the Court put a question to one Parly who
answered in writing; this reply having reached the Registry at the close of
the oral proceedings, the other Party submitted written comments upon it in
accordance with Article 72 of the Rules of Court.
17. In the course of the proceedings, the following submissions were
presented by the Parties:
On behalf of Libya,
in the Memorial, the Counter-Memorial and Reply and at the hearing of 8 July
1993 (mutatis mutandis identical texts):
"Having regard to the various international treaties, agreements, accords
and understandings and their effect or lack of effect on the present
dispute, as set out in Libya's Memorial, Counter-Memorial, Reply and oral
pleadings;
In view of the other facts and circumstances having a bearing on this case,
as discussed above, and in Libya's pleadings;
In the light of the conduct of the Parties, of the conduct of other State
s[p13] or political, secular or religious forces, whose conduct bears on
the rights and titles claimed by the Parties, and of the conduct of the
indigenous peoples whose territories are the subject of this dispute;
In application of the principles and rules of international law of relevance
to this dispute;
May it please the Court, rejecting all contrary claims and submissions:
To adjudge and declare, as follows:
1. That there exists no boundary, east of Toummo, between Libya and Chad by
virtue of any existing international agreement.
2. That in the circumstances, therefore, in deciding upon the attribution of
the respective territories as between Libya and Chad in accordance with the
rules of international law applicable in this matter, the following factors
are relevant:
(i) that the territory in question, at all relevant times, was not terra
nullius;
(ii) that title to the territory was, at all relevant times, vested in the
peoples inhabiting the territory, who were tribes, confederations of tribes
or other peoples owing allegiance to the Senoussi Order who had accepted
Senoussi leadership in their fight against the encroachments of France and
Italy on their lands;
(iii) that these indigenous peoples were, at all relevant times,
religiously, culturally, economically and politically part of the Libyan
peoples;
(iv) that, on the international plane, there existed a community of title
between the title of the indigenous peoples, and the rights and titles of
the Ottoman Empire, passed on to Italy in 1912 and inherited by Libya in
1951;
(v) that any claim of Chad rests on the claim inherited from France;
(vi) that the French claim to the area in dispute rested on 'actes
interna-tionaux" that did not create a territorial boundary east of Toummo,
and that there is no valid alternative basis to support the French claim to
the area in dispute.
3. That, in the light of the above factors, Libya has clear title to all the
territory north of the line shown on Map 105 in Libya's Memorial, on Map
LC-M 55 in Libya's Counter-Memorial and on Map LR 32 in Libya's Reply, that
is to say the area bounded by a line that starts at the intersection of the
eastern boundary of Niger and 18� N latitude, continues in a strict
south-east direction until it reaches 15� N latitude, and then follows this
parallel eastwards to its junction with the existing boundary between Chad
and Sudan."
On behalf of Chad,
in the Memorial, the Counter-Memorial and the Reply, and at the hearing of
14 July 1993 (identical texts):
"The Republic of Chad respectfully requests the International Court of
Justice to adjudge and declare that its frontier with the Libyan Arab
Jama-hiriya is constituted by the following line:
� from the point of intersection of the 24� of longitude east of Greenwich
[p14] with the parallel of 19� 30' of latitude north, the frontier shall
run as far as the point of intersection of the Tropic of Cancer with the 16�
of longitude east of Greenwich;
� from that latter point it shall follow a line running towards the well of
Toummo as far as the fifteenth degree east of Greenwich."
18. The Court has been seised of the present dispute between Libya and Chad
by the notifications of the special agreement constituted by the
Accord-Cadre of 31 August 1989, the text of which is set out in paragraph 2
above. The Accord-Cadre described the dispute between the Parties as "their
territorial dispute" but gave no further particularization of it, and it has
become apparent from the Parties' pleadings and oral arguments that they
disagree as to the nature of the dispute. Libya, in its notification of the
Accord-Cadre to the Court filed on 31 August 1990, explained the
"territorial dispute" by stating as follows:
"The determination of the limits of the respective territories of the
Parties in this region involves, inter alia, a consideration of a series of
international agreements although, in the view of Libya, none of these
agreements finally fixed the boundary between the Parties which,
accordingly, remains to be established in accordance with the applicable
principles of international law."
On this basis, Libya defined the question put to the Court by requesting it:
"In further implementation of the Accord-Cadre, and taking into account the
territorial dispute between the Parties, to decide upon the limits of their
respective territories in accordance with the rules of international law
applicable in the matter."
Chad, on the other hand, in its initial communication to the Court filed on
3 September 1990, indicated that in its view there was a frontier between
Chad and Libya, the course of which "was not the subject of any dispute
until the 1970s", and stated that
"The object of the present case is to arrive at a firm definition of that
frontier, in application of the principles and rules applicable in the
matter as between the Parties."
On this basis, Chad requested the Court:
"to determine the course of the frontier between the Republic of Chad and
the Libyan Arab Jamahiriya in accordance with the principles and rules of
international law applicable in the matter as between the Parties".
19. Thus Libya proceeds on the basis that there is no existing boundary,
and asks the Court to determine one. Chad proceeds on the basis that there
is an existing boundary, and asks the Court to declare what that boundary
is. Libya considers that the case concerns a dispute regard-[p15]
ing attribution of territory, while in Chad's view it concerns a dispute
over the location of a boundary.
20. Chad in its submissions has indicated the position of the line which it
claims constitutes its frontier with Libya. Libya, while maintaining in its
submissions that in the region in question "there exists no boundary...
between Libya and Chad by virtue of any existing international agreement",
also submits that it "has clear title to all the territory" north of a
specified line, constituted for much of its length by the 15th parallel of
north latitude. Sketch-map No. 1 on page 16 hereof shows the line claimed by
Chad and the line claimed by Libya. The area now in dispute, between those
two lines, has been referred to by Libya in this case as the Libya-Chad
"Borderlands".
21. Libya bases its claim to the Borderlands on a coalescence of rights and
titles: those of the indigenous inhabitants, those of the Senoussi Order (a
religious confraternity, founded some time during the early part of the
nineteenth century which wielded great influence and a certain amount of
authority in the north and north-east of Africa), and those of a succession
of sovereign States, namely the Ottoman Empire, Italy, and finally Libya
itself. Chad claims a boundary on the basis of a Treaty of Friendship and
Good Neighbourliness concluded by the French Republic and the United Kingdom
of Libya on 10 August 1955 (hereinafter referred to as "the 1955 Treaty").
In the alternative, Chad claims that the lines delimiting the zones of
influence in earlier treaties, referred to in the 1955 Treaty, had acquired
the character of boundaries through French effectivites; it claims finally
that, even irrespective of treaty provisions, Chad can rely on those
effectivites in regard to the area claimed by it.
22. Both Parties accepted the jurisdiction of the Court on the basis of the
Accord-Cadre. However, Chad has added that, subsidiarily, the jurisdiction
of the Court is also based upon Article 8 of the 1955 Treaty which provides
that
"Such disputes as may arise from the interpretation and application of the
present Treaty and which may prove impossible to settle by direct
negotiations shall be referred to the International Court of Justice at the
request of either Party, unless the High Contracting Parties agree upon some
other method of settlement."
Since however the jurisdiction to deal with the present dispute conferred by
the Accord-Cadre has not been disputed, there is no need to consider the
question of an additional ground of jurisdiction under the Treaty.
*[p16]
Sketch-Map No. 1 - Claims of the
Parties
[p17]
23. Libya, which had been a colonial territory of Italy, was, after the
termination of hostilities in World War II, administered by the Four Allied
Powers (France, the United Kingdom, the United States and the Union of
Soviet Socialist Republics), and became a sovereign State on 24 December
1951 pursuant to resolution 289 (IV) of the General Assembly of 21 November
1949. Chad had been a French colony, then a "territoire d'outre-mer",
appertaining in both cases to French Equatorial Africa. It became a member
of the French Community from 1958 to 1960. Chad acceded to independence on
11 August 1960.
24. The dispute between the Parties is set against the background of a long
and complex history of military, diplomatic and administrative activity on
the part of the Ottoman Empire, France, Great Britain and Italy, as well as
the Senoussi Order. This history is reflected in a number of conventions,
numerous diplomatic exchanges, certain contemporary maps and various
archival records, which have been furnished to the Court. The Court will
first consider this documentation, and will enumerate those of the
conventional instruments which appear to it to be relevant.
25. At the end of the nineteenth and beginning of the twentieth century,
various agreements were entered into between France, Great Britain and,
later, Italy, by which the parties purported to divide large tracts of
Africa into mutually recognized spheres or zones of influence. The
agree-ments described the limits of the areas in question, with reference to
points on the ground, where such points were known and identifiable, and to
lines of latitude and longitude. With the increasing influence and presence
of these Powers in the region, they also entered into treaties regarding the
boundaries of the territories they claimed, both between themselves and with
the Ottoman Empire, already present in the region.
26. Alongside that Ottoman presence was the Senoussi Order, already referred
to. The Senoussi established at many points within the region a series of
zawiyas which, inter alia, fostered trade, regulated caravan traffic,
arbitrated disputes and functioned as religious centres. These centres
comprised mosques, schools and guesthouses for travellers, and also
sometimes had in residence a qadi or judge. The sheikhs of the zawiyas were
confirmed in their positions by the Grand Senoussi, the head of the Order.
27. French colonial expansion into the Chad area took place from the south,
the west and the north. There was an expedition from the south in the
direction of Lake Chad during the period from 1875 to 1897. From the west,
another moved towards Lake Chad in the period from 1879 to 1899; and from
Algiers in the north a further expedition advanced on the Lake from 1898 to
1900. Consequent on this expansion, large tracts of African territory were
later grouped together in what were designated as French West Africa and
French Equatorial Africa.
28. Towards the end of the nineteenth century France and Great Britain
entered into two successive agreements, in the form of an Exchange of
Declarations signed at London on 5 August 1890, and a Convention [p18]
concluded at Paris on 14 June 1898, as a result of which (inter alia) each
party recognized certain territories in Africa as falling within the
"sphere" of the other (1898 Convention, Art. IV). By a subsequent
Declaration signed at London on 21 March 1899, it was agreed that the fourth
article of the 1898 Convention should be completed by certain provisions,
and in particular it was recorded that "it is understood, in principle, that
to the north of the 15th parallel the French zone shall be limited by" a
specified line, described in the text. No map was attached to the
Declaration, but a few days after its adoption the French authorities
published a Livre jaune including a map, a copy of which is attached to this
Judgment (see paragraph 58 below).
29. Exchanges of letters took place between the French and Italian
Governments, relating to their interests in Africa, on 14-16 December 1900,
and 1-2 November 1902, in the course of which Italy was reassured that "the
limit to French expansion in North Africa ... is to be taken as
corresponding to the frontier of Tripolitania as shown on the map annexed to
the Declaration of 21 March 1899". As indicated below (paragraph 61), the
reference could only have been to the Livre jaune map. Similar assurances
were given to Italy by the British Government in an exchange of letters of
11-12 March 1902.
30. On 19 May 1910, a Convention was concluded between the Tunisian
Government and the Ottoman Empire defining the frontier between the Regency
of Tunis and the Vilayet of Tripoli. In 1912 Italian sovereignty was
established over the Turkish provinces of Tripolitania and Cyrenaica
(Treaties of Ouchy and Lausanne, 15 and 18 October 1912). Certain rights and
privileges were however reserved to the Sultan by the Treaty of Lausanne.
31. On 8 September 1919, France and Great Britain concluded a Convention
expressed to be supplementary to the Declaration of 21 March 1899 additional
to the Convention of 14 June 1898 (paragraph 28 above), recording (inter
alia) an interpretation of the 1899 Declaration defining the limits of the
French zone. On 12 September 1919 an arrangement in the form of an exchange
of letters was concluded between France and Italy for the fixing of the
boundary between Tripolitania and the French possessions in Africa west of
Toummo.
32. The Treaty of Lausanne of 24 July 1923 re-established peace between
Turkey and the other signatory parties (including France, Great Britain and
Italy); it included a provision that Turkey recognized the definitive
abolition of all rights and privileges which it maintained in Libya under
the 1912 Treaty of Lausanne. By a Protocol dated 10 January 1924, approved
by an Exchange of Notes of 21 January 1924, France and Great Britain defined
the boundary between French Equatorial Africa and the Anglo-Egyptian Sudan.
Similarly, an Exchange of Notes of 20 July 1934 between Egypt, Great Britain
and Italy defined the boundary between Libya and the Sudan.
[p19]
33. On 7 January 1935 a Treaty was concluded between France and Italy for
the settlement of questions pending between them in Africa. That Treaty
included a definition of a boundary between Libya and the adjacent French
colonies east of Toummo. Although ratification of the treaty was authorized
by the parliaments of both parties, instruments of ratification were never
exchanged, and the treaty never came into force; for convenience, it will be
referred to hereafter as "the non-ratified Treaty of 1935".
34. After the conclusion of World War II, the Treaty of Peace with Italy was
signed on 10 February 1947. By Article 23 of this Treaty, Italy renounced
all right and title to its territorial possessions in Africa, i.e., Libya,
Eritrea and Italian Somaliland. The final disposal of these possessions was
to be determined jointly by the Governments of the Four Allied Powers; if
those Powers were unable to agree within one year on the final disposal of
the territories the matter was to be referred to the General Assembly of the
United Nations for a recommendation. The four Powers undertook in advance to
accept that recommendation. There being no agreement between the four
Powers, the General Assembly was seised and, by resolution 289 (IV) of 21
November 1949, recommended that "Libya, comprising Cyrenaica, Tripolitania
and the Fezzan, shall be constituted an independent and sovereign State".
The independence of Libya was proclaimed on 24 December 1951, and recognized
on 1 February 1952 by General Assembly resolution 515 (VI). With
independence, Libya entered into treaties with the United Kingdom and the
United States, which provided inter alia for a military presence in Libya.
**
35. Negotiations opened at the beginning of 1955 between Libya and France,
and led to the conclusion of the 1955 Treaty, i.e., the Treaty of Friendship
and Good Neighbourliness between the French Republic and the United Kingdom
of Libya of 10 August 1955. In the preceding November, Libya had informed
France that it did not intend to renew a provisional military arrangement of
24 December 1951 under which French forces remained stationed on Libyan
territory, in the Fezzan. The French Government wished to maintain its
military presence there, but the Libyan Parliament had made it clear that it
had no intention of accepting an agreement leaving French forces in the
Fezzan. Among other matters which were the subject of negotiation were
military matters (including the non-substitution of other foreign troops for
the French troops, and French access to airstrips and certain caravan
routes), and the question of boundaries. France possessed extensive
territories in Africa which bordered Libya on the west and on the south.
French authority in parts of those territories had been challenged and a
settled border was essential. This was so particularly to the west of
Toummo.[p20] East of Toummo, on the other hand, there was, in France's
view, an existing frontier resulting from the Anglo-French Agreements of
1898, 1899 and 1919 (paragraphs 28, 31 above), but there had been
long-standing disagreement between France and Italy in that respect.
Obtaining Libyan acceptance of those agreements, which entailed recognition
of the inapplicability of the non-ratified Treaty of 1935, was important to
the French.
36. It is recognized by both Parties that the 1955 Treaty is the logical
starting-point for consideration of the issues before the Court. Neither
Party questions the validity of the 1955 Treaty, nor does Libya question
Chad's right to invoke against Libya any such provisions thereof as relate
to the frontiers of Chad. However, although the Treaty states that it has
been entered into "on the basis of complete equality, independence and
liberty", Libya has contended that, at the time of the Treaty's conclusion,
it lacked the experience to engage in difficult negotiations with a Power
enjoying the benefit of long international experience. On this ground, Libya
has suggested that there was an attempt by the French negotiators to take
advantage of Libya's lack of knowledge of the relevant facts, that Libya was
consequently placed at a disadvantage in relation to the provisions
concerning the boundaries, and that the Court should take this into account
when interpreting the Treaty; it has not however taken this argument so far
as to suggest it as a ground for invalidity of the Treaty itself.
37. The 1955 Treaty, a complex treaty, comprised, in addition to the Treaty
itself, four appended Conventions and eight Annexes; it dealt with a broad
range of issues concerning the future relationship between the two parties.
It was provided by Article 9 of the Treaty that the Con-ventions and Annexes
appended to it formed an integral part of the Treaty. One of the matters
specifically addressed was the question of frontiers, dealt with in Article
3 and Annex 1. The appended Conventions were a Convention of Good
Neighbourliness, a Convention on Economic Co-operation, a Cultural
Convention, and a "Particular Convention" dealing with the withdrawal of
French forces from the Fezzan.
38. The Court will first consider Article 3 of the 1955 Treaty, together
with the Annex to which that Article refers, in order to decide whether or
not that Treaty resulted in a conventional boundary between the territories
of the Parties. If the 1955 Treaty did result in a boundary, this furnishes
the answer to the issues raised by the Parties: it would be a response at
one and the same time to the Libyan request to determine the limits of the
respective territories of the Parties and to the request of Chad to
determine the course of the frontier. The Court's initial task must
therefore be to interpret the relevant provisions of the 1955 Treaty, on
which the Parties have taken divergent positions.
39. Article 3 of the Treaty reads as follows:
[Translation by the Registry]
"The two High Contracting Parties recognize that the frontiers between the
territories of Tunisia, Algeria, French West Africa and [p21]French
Equatorial Africa on the one hand, and the territory of Libya on the other,
are those that result from the international instruments in force on the
date of the constitution of the United Kingdom of Libya as listed in the
attached Exchange of Letters (Ann. I)."
The Treaty was concluded in French and Arabic, both texts being authentic;
the Parties in this case have not suggested that there is any divergence
between the French and Arabic texts, save that the words in Arabic
corresponding to "sont celles qui resultent" (are those that result) might
rather be rendered "sont les frontieres qui resultent" (are the frontiers
that result). The Court will base its interpretation of the Treaty on the
authoritative French text.
40. Annex I to the Treaty comprises an exchange of letters which, after
quoting Article 3, reads as follows:
"The reference is to [Il s'agit de] the following texts:
� the Franco-British Convention of 14 June 1898;
� the Declaration completing the same, of 21 March 1899;
� the Franco-Italian Agreements of 1 November 1902;
� the Convention between the French Republic and the Sublime Porte, of 12
May 1910;
� the Franco-British Convention of 8 September 1919;
� the Franco-Italian Arrangement of 12 September 1919.
With respect to this latter arrangement and in conformity with the
principles set forth therein, it was recognized by the two delegations that,
between Ghat and Toummo, the frontier traverses the following three points,
viz., the Takharkhouri Gap, the Col d'Anai and Landmark 1010 (Garet Derouet
el Djemel).
The Government of France is ready to appoint experts who might become part
of a Joint Franco-Libyan Commission entrusted with the task of marking out
the frontier, wherever that work has not yet been done and where either
Government may consider it to be necessary.
In the event of a disagreement in the course of the demarcation, the two
Parties shall each designate a neutral arbitrator and, in the event of a
disagreement between the arbitrators, they shall designate a neutral referee
to settle the dispute."
It has been recognized throughout the proceedings that the Convention
referred to as of 12 May 1910 is actually that of 19 May 1910 mentioned in
paragraph 30 above.
41. The Court would recall that, in accordance with customary international
law, reflected in Article 31 of the 1969 Vienna Convention on the Law of
Treaties, a treaty must be interpreted in good faith in accordance with the
ordinary meaning to be given to its terms in their context
[p22] and in the light of its object and purpose. Interpretation must be
based above all upon the text of the treaty. As a supplementary measure
recourse may be had to means of interpretation such as the preparatory work
of the treaty and the circumstances of its conclusion.
42. According to Article 3 of the 1955 Treaty, the parties "recognize
[reconnaissent] that the frontiers . . . are those that result" from certain
international instruments. The word "recognize" used in the Treaty
indicates that a legal obligation is undertaken. To recognize a frontier is
essentially to "accept" that frontier, that is, to draw legal consequences
from its existence, to respect it and to renounce the right to contest it in
future.
43. In the contention of Libya, the parties to the 1955 Treaty intended to
recognize only the frontiers that had previously been fixed by the
international instruments: where frontiers already existed (as between
Tunisia and Libya), they were confirmed by the 1955 Treaty, but where there
was no frontier (as in the south), the treaty did not create one. The Court
is unable to accept this view; it has no difficulty either in ascertaining
the natural and ordinary meaning of the relevant terms of the 1955 Treaty,
or in giving effect to them. In the view of the Court, the terms of the
Treaty signified that the parties thereby recognized complete frontiers
between their respective territories as resulting from the combined effect
of all the instruments listed in Annex I; no relevant frontier was to be
left undefined and no instrument listed in Annex I was superfluous. It
would be incompatible with a recognition couched in such terms to contend
that only some of the specified instruments contributed to the definition of
the frontier, or that a particular frontier remained unsettled. So to
contend would be to deprive Article 3 of the Treaty and Annex I of their
ordinary meaning. By entering into the Treaty, the parties recognized the
frontiers to which the text of the Treaty referred; the task of the Court is
thus to determine the exact content of the undertaking entered into.
44. Libya's argument is that, of the international instruments listed in
Annex I to the 1955 Treaty, only the Franco-Ottoman Convention of 1910 and
the Franco-Italian arrangement of 1919 had produced frontiers binding on
Libya at the time of independence, and that such frontiers related to
territories other than those in issue in this case. In the view of Libya,
the 1899 Franco-British Declaration merely defined, north of the 15th
parallel, a line delimiting spheres of influence, as distinct from a
territorial frontier; neither the 1919 Franco-British Convention nor French
effectivites conferred on that line any other status; furthermore the latter
instrument was never opposable to Italy. The 1902 Franco-Italian exchange of
letters, in Libya's view, was no longer in force, either because Italy
renounced all rights to its African territories by the 1947 Peace Treaty
(paragraph 34 above), or for lack of notification under Article 44 of that
Treaty.[p23]
45. The Court does not consider that it is called upon to determine these
questions. The fixing of a frontier depends on the will of the sovereign
States directly concerned. There is nothing to prevent the parties from
deciding by mutual agreement to consider a certain line as a frontier,
whatever the previous status of that line. If it was already a territorial
boundary, it is confirmed purely and simply. If it was not previously a
territorial boundary, the agreement of the parties to "recognize" it as such
invests it with a legal force which it had previously lacked. International
conventions and case-law evidence a variety of ways in which such
recognition can be expressed. In the case concerning the Temple of Preah
Vihear, a map had been invoked on which a line had been drawn purporting to
represent the frontier determined by a delimitation commission under a
treaty which provided that the frontier should follow a watershed; in fact
the line drawn did not follow the watershed. The Court based its decision
upholding the "map line" on the fact that "both Parties, by their conduct,
recognized the line and thereby in effect agreed to regard it as being the
frontier line" (Temple of Preah Vihear, Merits, I.C.J. Reports 1962, p. 33).
46. In support of its interpretation of the Treaty, Libya has drawn
attention to the fact that Article 3 of the Treaty mentions "the frontiers"
in the plural. It argues from this that the parties had in view delimitation
of some of their frontiers, not that of the whole of the frontier. The use
of the plural is, in the view of the Court, to be explained by the fact that
there were differences of legal status between the various territories
bordering on Libya for whose international relations France was at the time
responsible, and their respective frontiers had been delimited by different
agreements. Tunisia was a protectorate at the time; Algeria was a groupe de
departements; and French West Africa and French Equatorial Africa were both
groupes de territoires d'outre-mer. In this context the use of the plural is
clearly appropriate, and does not have the significance attributed to it by
Libya. Moreover, it is to be noted that the parties referred to a frontier
between French Equatorial Africa and Libya.
47. The fact that Article 3 of the Treaty specifies that the frontiers
recognized are "those that result from the international instruments"
defined in Annex I means that all of the frontiers result from those
instruments. Any other construction would be contrary to the actual terms
of Article 3 and would render completely ineffective the reference to one or
other of those instruments in Annex I. As the Permanent Court of
International Justice observed, in its Advisory Opinion of 21 November
1925, dealing with a provision of the Treaty of Lausanne "intended to lay
down the frontier of Turkey" (emphasis in original),
"the very nature of a frontier and of any convention designed to establish
frontiers between two countries imports that a frontier must constitute a
definite boundary line throughout its length" (Inter-[p24]pretalion of
Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925,
P.C.I.J., Series B, No. 12, p. 20, emphasis added).
It went on to say that
"It is . . . natural that any article designed to fix a frontier should, if
possible, be so interpreted that the result of the application of its
provisions in their entirety should be the establishment of a precise,
complete and definitive frontier." (Ibid.)
Similarly, in 1959 in the case concerning Sovereignty over Certain Frontier
Land, the Court took note of the Preamble to a Boundary Convention as
recording the common intention of the parties to "fix and regulate all that
relates to the demarcation of the frontier" and held that
"Any interpretation under which the Boundary Convention is regarded as
leaving in suspense and abandoning for a subsequent appreciation of the
status quo the determination of the right of one State or the other to the
disputed plots would be incompatible with that common intention." (I.C.J.
Reports 1959, pp. 221-222.)
48. The Court considers that Article 3 of the 1955 Treaty was aimed at
settling all the frontier questions, and not just some of them. The
manifest intention of the parties was that the instruments referred to in
Annex I would indicate, cumulatively, all the frontiers between the
parties, and that no frontier taken in isolation would be left out of that
arrangement. In the expression "the frontiers between the territories . .
.", the use of the definite article is to be explained by the intention to
refer to all the frontiers between Libya and those neighbouring territories
for whose international relations France was then responsible. Article 3
does not itself define the frontiers, but refers to the instruments
mentioned in Annex I. The list in Annex I was taken by the parties as
exhaustive as regards delimitation of their frontiers.
49. Article 3 of the 1955 Treaty refers to the international instruments "en
vigueur" (in force) on the date of the constitution of the United Kingdom
of Libya, "tels qu'ils sont definis" (as listed) in the attached exchange of
letters. These terms have been interpreted differently by the Parties. Libya
stresses that only the international instruments in force on the date of the
independence of Libya can be taken into account for the determination of
the frontiers; and that, as the agreements mentioned in Annex 1 and relied
on by Chad were, according to Libya, no longer in force on 24 December 1951,
they could not be taken into consideration. It argues also that account
could be taken of other instruments, relevant and in force, which were not
listed in Annex I.
50. The Court is unable to accept these contentions. Article 3 does not
refer merely to the international instruments "en vigueur"(in force) on the
date of the constitution of the United Kingdom of Libya, but to the
international instruments "en vigueur" on that date "tels qu'ils sont
definis" [p25] (as listed) in Annex I. To draw up a list of governing
instruments while leaving to subsequent scrutiny the question whether they
were in force would have been pointless. It is clear to the Court that the
parties agreed to consider the instruments listed as being in force for the
purposes of Article 3, since otherwise they would not have referred to them
in the Annex. The contracting parties took the precaution to determine by
mutual agreement which were the instruments in force for their purposes.
According to the restrictive formulation employed in Annex I, "il s'agit des
textes" enumerated in that Annex. This drafting of Article 3 and Annex I
excludes any other international instrument en vigueur, not included in the
Annex, which might have concerned the territory of Libya. A fortiori is this
the case of the non-ratified Treaty of 1935, which was never en vigueur and
is not mentioned in the Annex. The Court may confine itself to taking
account of the instruments listed in the Annex, without having to enquire
whether those instruments, listed by agreement between France and Libya,
were in force at the date of Libya's independence, or opposable to it.
51. The parties could have indicated the frontiers by specifying in words
the course of the boundary, or by indicating it on a map, by way of
illustration or otherwise; or they could have done both. They chose to
proceed in a different manner and to establish, by agreement, the list of
international instruments from which the frontiers resulted, but the course
for which they elected presents no difficulties of interpretation. That
being so, the Court's task is clear:
"Having before it a clause which leaves little to be desired in the nature
of clearness, it is bound to apply this clause as it stands, without
considering whether other provisions might with advantage have been added to
or substituted for it." (Acquisition of Polish Nationality, Advisory
Opinion. 1923. P.C.I.J. Series B. No. 7, p. 20.)
The text of Article 3 clearly conveys the intention of the parties to reach
a definitive settlement of the question of their common frontiers. Article 3
and Annex I are intended to define frontiers by reference to legal
instruments which would yield the course of such frontiers. Any other
construction would be contrary to one of the fundamental principles of
interpretation of treaties, consistently upheld by international
jurisprudence, namely that of effectiveness (see, for example, the
Lighthouses Case between France and Greece, Judgment, 1934, P.C.I.J. Series
A/B. No. 62, p. 27; Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), I.C.J. Reports 1971, p. 35, para. 66; and
Aegean Sea Continental Shelf. I.C.J. Reports 1978, p. 22, para. 52).
52. Reading the 1955 Treaty in the light of its object and purpose one
observes that it is a treaty of friendship and good neighbourliness
concluded, according to its Preamble, "in a spirit of mutual understanding
and on the basis of complete equality, independence and liberty". The
parties stated in that Preamble their conviction that the signature of the
[p26] treaty would "serve to facilitate the settlement of all such
questions as arise for the two countries from their geographical location
and interests in Africa and the Mediterranean", and that they were
"Prompted by a will to strengthen economic, cultural and good-neighbourly
relations between the two countries". The object and purpose of the Treaty
thus recalled confirm the interpretation of the Treaty given above, inasmuch
as that object and purpose led naturally to the definition of the territory
of Libya, and thus the definition of its boundaries. Furthermore the
presupposition that the Treaty did define the frontier underlies Article 4
of the Treaty, in which the parties undertake to take "all such measures as
may be necessary for the maintenance of peace and security in the areas
bordering on the frontiers". It also underlies Article 5 relating to
consultations between the parties concerning "the defence of their
respective territories". More particularly Article 5 adds that "With regard
to Libya, this shall apply to the Libyan territory as defined in Article 3
of the present Treaty". To "define" a territory is to define its frontiers.
Thus, in Article 5 of the Treaty, the parties stated their own
understanding of Article 3 as being a provision which itself defines the
territory of Libya.
53. The conclusions which the Court has reached are reinforced by an
examination of the context of the Treaty, and, in particular, of the
Convention of Good Neighbourliness between France and Libya, concluded
between the parties at the same time as the Treaty. The Convention refers,
in Article 1, to the "frontiers, as defined in Article 3 of the Treaty of
Friendship and Good Neighbourliness". Title III of the Convention concerns
"Caravan traffic and trans-frontier movements", and it begins with Article
9, which reads as follows:
"The Government of France and the Government of Libya undertake to grant
freedom of movement to nomads from tribes that traditionally trade on
either side of the frontier between Algeria, French West Africa and French
Equatorial Africa, on the one hand, and Libya, on the other, so as to
maintain the traditional caravan links between the regions of Tibesti,
Ennedi, Borkou, Bilma and the Ajjers, on the one hand, and those of Koufra,
Mourzouk, Oubari, Ghat, Edri and Ghadames, on the other."
This provision refers specifically to (inter alia) the frontier between
French Equatorial Africa and Libya; and it is clear from its terms that,
according to the parties to the Treaty, that frontier separates the
French-ruled regions of Tibesti, Ennedi and Borkou (indicated on sketch-map
No. 1 at p. 16 above), which are sometimes referred to as "the BET", on the
one hand, and the Libyan regions of Koufra, Mourzouk, etc. on the other.
54. Article 10 of the Convention of Good Neighbourliness establishes a zone
open to caravan traffic "on both sides of the frontier". This zone is
bounded as follows: [p27]
"On French territory: by a line which, leaving the frontier to the west of
Ghadames, runs through Tinfouchaye, Timellouline, Ohanet, Fort-Polignac,
Fort-Gardel, Bilma, Zouar, Largeau, Fada and continues in a straight line
as far as the Franco-Sudanese frontier.
On Libyan territory: by a line which, leaving Sinaouen, runs through Derj,
Edri, El Abiod, Ghoddoua, Zouila, Ouaou En Namous, Koufra, and continues in
a straight line as far as the Libyo-Egyptian frontier."
Libya has therefore expressly recognized that Zouar, Largeau and Fada lie in
French territory. The position of those places is indicated on sketch-map
No. 1, on page 16 above. Article 11 of the Convention stipulates that
"caravan traffic permits shall be issued . . . [in] French territory [by
the] administrative authorities of. . . Zouar, Largeau, Fada"; and in
"Libyan territory [by the] administrative authorities of . . . Mourzouk,
Koufra and the Oraghen Touareg". According to Article 13, nomads bearing a
caravan traffic permit may "move freely across the frontier". The following
expressions are also found in the Convention: "on either side of the
frontier", "frontier zone" (Art. 15); "cross the frontier" (Art. 16); "the
French and Libyan frontier authorities" (Arts. 17 and 20); "cross-border
transit" (Art. 18). The use of these expressions is consistent with the
existence of a frontier. In the view of the Court, it is difficult to deny
that the 1955 Treaty provided for a frontier between Libya and French
Equatorial Africa, when one of the appended Conventions contained such
provisions governing the details of the trans-frontier movements of the
inhabitants of the region.
55. The Court considers that it is not necessary to refer to the travaux
preparatoires to elucidate the content of the 1955 Treaty; but, as in
previous cases, it finds it possible by reference to the travaux to confirm
its reading of the text, namely, that the Treaty constitutes an agreement
between the parties which, inter alia, defines the frontiers. It is true
that the Libyan negotiators wished at the outset to leave aside the question
of frontiers, but Ambassador Dejean, Head of the French Delegation at the
negotiations held in Tripoli in July-August 1955, insisted "that it was not
possible to conclude the treaty without an agreement on the frontiers". On
28 July 1955, according to the Libyan minutes of the negotiations, the
Libyan Prime Minister stated:
"that the question [of the frontiers] was not free from difficulty since the
Italians had occupied many centres behind the existing frontier".
Ambassador Dejean stated "that Italy had exploited France's weakness during
the last war" and "that it [Italy] had crossed over the borders which had
been agreed upon under the Agreement of 1919 which were still valid . . .".
The Libyan Prime Minister then proposed [p28]
"that the question of the frontiers be deferred at the present time until
the Libyan side had had time to study the subject, and then experts could be
despatched to work with French experts to reach an agreement on demarcation
and he asked that it be considered sufficient to say that the Agreement of
1919 was acceptable and that the implementation of it be left to the near
future".
56. It is clear from these minutes that the Libyan Prime Minister expressly
accepted the agreement of 1919, the "implementation" of the agreement to be
left "to the near future"; and in this context, the term "implementation"
can only mean operations to demarcate the frontier on the ground. The Prime
Minister spoke also of an agreement on "demarcation", which presupposes the
prior delimitation � in other words definition � of the frontier. Use of
the term "demarcation" creates a presumption that the parties considered the
definition of the frontiers as already effected, to be followed if necessary
by a demarcation, the ways and means of which were defined in Annex I.
*
57. Having concluded that the contracting parties wished, by the 1955
Treaty, and particularly by its Article 3, to define their common frontier,
the Court must now examine what is the frontier between Libya and Chad (in
1955, between Libya and French Equatorial Africa) which results from the
international instruments listed in Annex I, the text of which is set out in
paragraph 40 above. It should however first be noted that, as already
indicated (paragraph 50 above), the list in Annex I does not include the
non-ratified Treaty of 1935. That Treaty provided in detail for a frontier
made up of nine sectors (straight lines/crest lines, etc.) from Toummo to
the intersection of the line of longitude 24� east of Greenwich with the
line of latitude 18� 45' north; this line is shown on sketch-map No. 2 on
page 29 hereof, together with the 1919 Anglo-French Convention line
(paragraph 59 below). Of the treaties prior to 1955 bearing upon a boundary
line in this region, the non-ratified Treaty of 1935 was thus the most
detailed. Yet it was not mentioned in Annex I. The omission is all the more
significant inasmuch as, in February 1955, a few months before the execution
of the 1955 Treaty in August, a Franco-Libyan incident which occurred at
Aouzou had focused attention on the area lying to the south of the line of
the 1919 Anglo-French Convention and to the north of the line of the
non-ratified Treaty of 1935.
*[p29]
Sketch-Map No. 2 1935 Treaty
Line-1919 Convention Line
[p30]
58. The first instrument mentioned in Annex I, the Franco-British Convention
of 14 June 1898, bears no direct relation to the present dispute; it is
mentioned in Annex I on account of the Additional Declaration of 21 March
1899. This Declaration of 1899, which complements the Convention of 1898,
defines a line limiting the French zone (or sphere of influence) to the
north-east in the direction of Egypt and the Nile Valley, already under
British control, and is therefore relevant. The 1899 Declaration recites
that "The IVth Article of the Convention of 14 June 1898 shall be completed
by the following provisions, which shall be considered as forming an
integral part of it". Among these provisions is paragraph 3:
"It is understood, in principle, that to the north of the 15th parallel the
French zone shall be limited to the north-east and east by a line which
shall start from the point of intersection of the Tropic of Cancer with the
16th degree of longitude east of Greenwich (13� 40' east of Paris), shall
run thence to the south-east until it meets the 24th degree of longitude
east of Greenwich (21� 40' east of Paris), and shall then follow the 24th
degree until it meets, to the north of the 15th parallel of latitude, the
frontier of Darfur as it shall eventually be fixed."
The text of this provision is not free from ambiguities, since the use of
the words "in principle" raises some question whether the line was to be
strictly south-east or whether some leeway was possible in establishing the
course of the line. Different interpretations were possible, since the point
of intersection of the line with the 24th degree of longitude east was not
specified, and the original text of the Declaration was not accompanied by
a map showing the course of the line agreed. As noted above (paragraph 28),
a few days after the adoption of that Declaration, the French authorities
published its text in a Livre jaune including a map; a copy of that map is
attached to this Judgment. On that map, a red line, solid or interrupted,
coupled with red shading, indicated, according to the map legend, the
"limite des possessions fran�aises, d'apres la convention du 21 mars 1899".
The red line was continuous where it reflected boundaries defined in that
Convention, and a pecked line where it indicated the limit of the "French
zone" defined in paragraph 3 of the Convention. The pecked line was shown as
running, not directly south-east, but rather in an east-south-east
direction, so as to terminate at approximately the intersection of the 24�
meridian east with the parallel 19� of latitude north. The direct south-east
line and the Livre jaune map line are shown for purposes of comparison on
sketch-map No. 3 on page 32 hereof (together with the line defined in the
Convention of 8 September 1919, dealt with below).
59. For the purposes of the present Judgment, the question of the position
of the limit of the French zone may be regarded as resolved by [p31] the
Convention of 8 September 1919 signed at Paris between Great Britain and
France. As stated in the Convention itself, this Convention was
"Supplementary to the Declaration signed at London on March 21, 1899, as an
addition to the Convention of June 14, 1898, which regulated the Boundaries
between the British and French Colonial Possessions and Spheres of Influence
to the West and East of the Niger."
It specified the boundary between Darfour and French Equatorial Africa, and
contained various provisions relating to the possible extension eastwards of
the French sphere, beyond the 24th degree of longitude. However, its
concluding paragraph provided:
"It is understood that nothing in this Convention prejudices the
interpretation of the Declaration of the 21st March, 1899, according to
which the words in Article 3 '... shall run thence to the south-east until
it meets the 24th degree of longitude east of Greenwich (21� 40' east of
Paris)' are accepted as meaning '. . . shall run thence in a south-easterly
direction until it meets the 24th degree of longitude east of Greenwich at
the intersection of that degree of longitude with parallel 19� 30' degrees
of latitude'."
This provision meant that the south-easterly line specified by the 1899
Declaration was not to run directly south-east but in an east-south-east
direction so as to intersect with the 24th degree of longitude at a point
more to the north than would a direct south-easterly line. This Convention,
in thus accepting an east-south-east line rather than a strict southeast
line, was in effect confirming the earlier French view that the 1899
Declaration did not provide for a strict south-east line, and was in fact,
as to the eastern end-point, stipulating a line even further north than the
line shown on the Livre jaune map. Sketch-map No. 3, attached below, shows,
for ease of comparison, the relative positions of the three lines � the
strict south-east line, the Livre jaune line and the 1919 line.
60. There is thus little point in considering what was the pre-1919
situation, in view of the fact that the Anglo-French Convention of 8
September 1919 determined the precise end-point of the line in question, by
adopting the point of intersection of the 24th degree of longitude east with
the parallel 19� 30' of latitude north. The text of the 1919 Convention
presents this line as an interpretation of the Declaration of 1899; in the
view of the Court, for the purposes of the present Judgment, there is no
reason to categorize it either as a confirmation or as a modification of the
Declaration. Inasmuch as the two States parties to the Convention are those
that concluded the Declaration of 1899, there can be no doubt that the
"interpretation" in question constituted, from 1919 onwards, [p32]
Sketch-Map No. 1919 Convention
Line-Livre jaune Map Line-Strict South-East Line
[p33] and as between them, the correct and binding interpretation of the
Declaration of 1899. It is opposable to Libya by virtue of the 1955 Treaty.
For these reasons, the Court concludes that the line described in the 1919
Convention represents the frontier between Chad and Libya to the east of the
meridian 16� east.
61. The Court now turns to the frontier west of that meridian. The
Franco-Italian exchange of letters of 1 November 1902 refers both to the
Anglo-French Declaration of 1899 and to the Franco-Italian exchange of
letters of 1900 (paragraph 29 above). It states that
"the limit to French expansion in North Africa, as referred to in the above
mentioned letter . . . dated 14 December 1900, is to be taken as
corresponding to the frontier of Tripolitania as shown on the map annexed to
the Declaration of 21 March 1899".
The map referred to could only be the map in the Livre jaune which showed a
pecked line indicating the frontier of Tripolitania. That line must
therefore be examined by the Court in determining the course of the frontier
between Libya and Chad, to the extent that it does not result from the
Anglo-French agreements of 1898, 1899 and 1919.
62. The Convention between the Tunisian Government and the Ottoman
Government of 19 May 1910 (paragraph 30 above) concerns only the frontier
between the Vilayet of Tripoli (which is now a part of Libya) and the
Regency of Tunis (i.e., present-day Tunisia); and consequently, while
appropriate for inclusion in Annex I to the 1955 Treaty, it has no bearing
on the dispute between Libya and Chad. Similarly, since the Franco-Italian
Arrangement of 12 September 1919 governs only the sector between Ghadames
and Toummo, and thus does not directly concern the frontier between Chad and
Libya, the Court finds it unnecessary to take it further into consideration
here.
*
63. The Court will now indicate how the line which results from the combined
effect of the instruments listed in Annex I to the 1955 Treaty is made up,
as far as the territories of Chad and Libya are concerned. It is clear that
the eastern end-point of the frontier will lie on the meridian 24� east,
which is here the boundary of the Sudan. To the west, the Court is not asked
to determine the tripoint Libya-Niger-Chad; Chad in its submissions merely
asks the Court to declare the course of the frontier "as far as the
fifteenth degree east of Greenwich". In any event the Court's decision in
this respect, as in the Frontier Dispute case, "will . . . not be opposable
to Niger as regards the course of that country's frontiers" (I.C.J. Reports
1986, p. 580, para. 50). Between 24� and 16� east of Greenwich, the line is
determined by the Anglo-French Convention of 8 September 1919: i.e., the
boundary is a straight line from the point of intersection of the meridian
24� east with the parallel 19� 30' north to the [p34] point of intersection
of the meridian 16� east with the Tropic of Cancer. From the latter point,
the line is determined by the Franco-Italian exchange of letters of 1
November 1902, by reference to the Livre jaune map: i.e., this line, as
shown on that map, runs towards a point immediately to the south of Toummo;
before it reaches that point, however, it crosses the meridian 15� east, at
some point on which, from 1930 onward, was situated the commencement of the
boundary between French West Africa and French Equatorial Africa.
64. Confirmation of the line just described may be found in the Particular
Convention annexed to the 1955 Treaty, which makes provision for the
withdrawal of the French forces stationed in the Fezzan. Among the matters
dealt with are the routes to be followed by the military convoys of French
forces proceeding to or from Chad. Article 3 of the Particular Convention
deals with the passage along Piste No. 5 of military convoys, and Annex III
to the Treaty defines Piste No. 5 as the itinerary which, coming from the
region of Ramada in Tunisia, passes certain specified points "and penetrates
into territory of Chad in the area of Muri Idie". The available maps of the
area reveal at least four different places with names which, while varying
from one map to another, resemble Muri Idie, but two of these are situated
well within undisputed Libyan territory, nowhere near what might in 1955
have been regarded as "territory of Chad". The other two are located to the
south of the relevant part of the line on the Livre jaune map, west of the
16� meridian east. One, the Mouri Idie water-hole (guelta), is immediately
to the south of that line; the other, the Mouri Idie area (deriving its name
from the water-hole), is around 30 kilometres to the south. What is called
Muri Idie in Annex III must therefore be identified as being either of these
two places, thus confirming that the parties to the 1955 Treaty regarded the
Livre jaune map line as being, west of the 16� meridian east, the boundary
of "territory of Chad".
65. Chad, which in its submissions asks the Court to define the frontier as
far west as the 15� meridian east, has not defined the point at which, in
its contention, the frontier intersects that meridian. Nor have the Parties
indicated to the Court the exact co-ordinates of Toummo in Libya. However,
on the basis of the information available, and in particular the maps
produced by the Parties, the Court has come to the conclusion that the line
of the Livre jaune map crosses the 15� meridian east at the point of
intersection of that meridian with the parallel 23� of north latitude. In
this sector, the frontier is thus constituted by a straight line from the
latter point to the point of intersection of the meridian 16� east with the
Tropic of Cancer.
*
66. Having concluded that a frontier resulted from the 1955 Treaty, and
having established where that frontier lay, the Court is in a position to
consider the subsequent attitudes of the Parties to the question of fron-[p35]tiers. No subsequent agreement, either between France and Libya, or
between Chad and Libya, has called in question the frontier in this region
deriving from the 1955 Treaty. On the contrary, if one considers treaties
subsequent to the entry into force of the 1955 Treaty, there is support for
the proposition that after 1955, the existence of a determined frontier was
accepted and acted upon by the Parties. The Treaty between Libya and Chad of
2 March 1966, like the Treaty of 1955, refers to friendship and neighbourly
relations between the Parties, and deals with frontier questions. Articles
1 and 2 mention "the frontier" between the two countries, with no suggestion
of there being any uncertainty about it. Article 1 deals with order and
security "along the frontier" and Article 2 with the movement of people
living "on each side of the frontier". Article 4 deals with frontier permits
and Article 7 with frontier authorities. If a serious dispute had indeed
existed regarding frontiers, eleven years after the conclusion of the 1955
Treaty, one would expect it to have been reflected in the 1966 Treaty.
67. The Agreement on Friendship, Co-operation and Mutual Assistance
concluded between Chad and Libya on 23 December 1972 again speaks in terms
of good relations and neighbourliness, and stresses adherence to the
principles and objectives of the Organization of African Unity, and in
Article 6 the parties undertake to make every effort to avoid disputes that
may arise between them. They also pledge themselves to work towards the
peaceful resolution of any problems that may arise between them, so as to
accord with the spirit of the Charters of the Organization of African Unity
and the United Nations. A further agreement was concluded between the two
States on 12 August 1974, at a time when the present dispute had reached the
international arena, with complaints having been made by Chad to the United
Nations. While friendship and neighbourliness are again mentioned, Article
2 states that the
"frontiers between the two countries are a colonial conception in which the
two peoples and nations had no hand, and this matter should not obstruct
their co-operation and fraternal relations".
The Treaty of Friendship and Alliance that the Parties concluded on 15 June
1980 is one of mutual assistance in the event of external aggression: Libya
agrees to make its economic potential available for the economic and
military rehabilitation of Chad. The Accord between Libya and Chad of 6
January 1981 also implies the existence of a frontier between those States,
since it provides in Article 11 that:
"The two Parties have decided that the frontiers between the Socialist
People's Libyan Arab Jamahiriya and the Republic of Chad shall be opened to
permit the unhindered and unimpeded freedom of movement of Libyan and
Chadian nationals, and to weld together the two fraternal peoples."[p36]
68. The Court now turns to the attitudes of the Parties, subsequent to the
1955 Treaty, on occasions when matters pertinent to the frontiers came up
before international fora. Libya achieved its independence nearly nine years
before Chad; during that period, France submitted reports on this territory
to the United Nations General Assembly. The report for 1955 (United Nations
doc. ST/TRI/SER.A/I2, p. 66) shows the area of Chad's territory as 1,284,000
square kilometres, which expressly includes 538,000 square kilometres for
the BET. Moreover United Nations publications from 1960 onward continued to
state the area of Chad as 1,284,000 square kilometres (see for example
Yearbook I960, p. 693, App. 1). As will be clear from the indications above
as to the frontier resulting from the 1955 Treaty (paragraph 63), the BET is
part of the territory of Chad on the basis of that frontier, but would not
be so on the basis of Libya's claim. Libya did not challenge the territorial
dimensions of Chad as set out by France.
69. As for Chad, it has consistently adopted the position that it does have
a boundary with Libya, and that the territory of Chad includes the "Aouzou
strip", i.e., the area between the 1919 and 1935 lines shown on sketch-map
No. 2 on page 29 hereof. In 1977 Chad submitted a com-plaint to the
Organization of African Unity regarding the occupation by Libya of the
Aouzou strip. The OAU established an ad hoc committee to resolve the dispute
(AHG/Dec. 108 (XIV)). Chad's complaint was kept before it for 12 years prior
to the referral of the matter to this Court. Before the OAU, Libya's
position was, inter alia, that the frontier defined by the Treaty of 1935
was valid.
70. In 1971, Chad complained in a statement to the United Nations General
Assembly that Libya was interfering in its internal and external affairs. In
1977 it complained that the Aouzou strip had been under Libyan occupation
since 1973. At the General Assembly's thirty-third session, in 1978, Chad
complained to the Assembly of "the occupation by Libya of Aouzou, an
integral part of our territory". In 1977 and 1978, and in each year from
1982 to 1987, Chad protested to the General Assembly about the encroachment
which it alleged that Libya had made into its territory.
71. By a communication of 9 February 1978, the Head of State of Chad
informed the Security Council that Libya had "to this day supplied no
documentation to the OAU to justify its claims to Aouzou" and had in January
1978 failed to participate at the Committee of Experts (the Ad Hoc
Committee) set up by the OAU. The Permanent Representative of Chad requested
the President of the Security Council to convene a meeting as a matter of
urgency to consider the extremely serious situation then prevailing. Chad
repeated its complaints to the Security Council in 1983, 1985 and 1986.
Libya has explained that, since it considered that the Security Council,
being a political forum, was not in a position to judge the merits of the
legal problems surrounding the territorial dispute, [p37] it did not
attempt to plead its case before the Council. All of these instances
indicate the consistency of Chad's conduct in relation to the location of
its boundary.
*
72. Article 11 of the 1955 Treaty provides that:
"The present Treaty is concluded for a period of 20 years.
The High Contracting Parties shall be able at all times to enter into
consultations with a view to its revision.
Such consultations shall be compulsory at the end of the ten-year period
following its entry into force.
The present Treaty can be terminated by either Party 20 years after its
entry into force, or at any later time, provided that one year's notice is
given to the other Party."
These provisions notwithstanding, the Treaty must, in the view of the Court,
be taken to have determined a permanent frontier. There is nothing in the
1955 Treaty to indicate that the boundary agreed was to be provisional or
temporary; on the contrary it bears all the hallmarks of finality. The
establishment of this boundary is a fact which, from the outset, has had a
legal life of its own, independently of the fate of the 1955 Treaty. Once
agreed, the boundary stands, for any other approach would vitiate the
fundamental principle of the stability of boundaries, the importance of
which has been repeatedly emphasized by the Court (Temple of Preah Vihear,
I.C.J. Reports 1962, p. 34; Aegean Sea Continental Shelf I.C.J. Reports
1978, p. 36).
73. 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.
**
74. The Court concludes that the 15� line claimed by Libya as the boundary
is unsupported by the 1955 Treaty or any of its associated instruments. The
effect of the instruments listed in Annex I to the 1955 Treaty may be summed
up as follows:
� A composite boundary results from these instruments; it comprises two
sectors which are separately dealt with in instruments listed in [p38]
Annex I: a sector to the east of the point of intersection of the Tropic of
Cancer with the 16th degree of longitude east of Greenwich, and a sector to
the west of that point. This point is hereinafter referred to for
convenience as point X, and indicated as such on sketch-map No. 4 on page 39
hereof.
� The eastern sector of the boundary is provided by the Anglo-French
Convention of 8 September 1919: a straight line between point X and the
point of intersection of the 24th degree of longitude east of Greenwich with
parallel 19� 30' of latitude north; this latter point is indicated on
sketch-map No. 4 on page 39 hereof as point Y.
� The western sector of the boundary, from point X in the direction of
Toummo, is provided by the Franco-Italian Accord of 1 November 1902. This
sector is a straight line following the frontier of Tripolitania as
indicated on the Livre jaune map, from point X to the point of intersection
of the 15� meridian east and the parallel 23� north; this latter point is
indicated on sketch-map No. 4 on page 39 hereof as point Z.
� Four instruments listed in Annex I � the Convention of 14 June 1898
coupled with the Declaration of 2] March 1899, the Accord of 1 November 1902
and the Convention of 8 September 1919 � thus provide a complete frontier
between Libya and Chad.
**
75. It will be evident from the preceding discussion that the dispute before
the Court, whether described as a territorial dispute or a boundary dispute,
is conclusively determined by a Treaty to which Libya is an original party
and Chad a party in succession to France. The Court's conclusion that the
Treaty contains an agreed boundary renders it unnecessary to consider the
history of the "Borderlands" claimed by Libya on the basis of title
inherited from the indigenous people, the Senoussi Order, the Ottoman Empire
and Italy. Moreover, in this case, it is Libya, an original party to the
Treaty, rather than a successor State, that contests its resolution of the
territorial or boundary question. Hence there is no need for the Court to
explore matters which have been discussed at length before it such as the
principle of uti possidetis and the applicability of the Declaration adopted
by the Organization of African Unity at Cairo in 1964.
76. Likewise, the effectiveness of occupation of the relevant areas in the
past, and the question whether it was constant, peaceful and acknowledged,
are not matters for determination in this case. So, also, the question
whether the 1955 Treaty was declaratory or constitutive does not call for
consideration. The concept of terra nullius and the nature of Senoussi,
Ottoman or French administration are likewise not germane to the issue. For
the same reason, the concepts of spheres of influence and of the hinterland
doctrine do not come within the ambit of the Court's enquiry in
[p39]
Sketch-Map No. 4 Boundary Line
Determined by the court's Judgment
[p40] this case. Similarly, the Court does not need to consider the rules
of intertemporal law. This Judgment also does not need to deal with the
history of the dispute as argued before the United Nations and the
Organization of African Unity. The 1955 Treaty completely determined the
boundary between Libya and Chad.
***
77. For these reasons,
The Court,
By 16 votes to I,
(1) Finds that the boundary between the Great Socialist People's Libyan Arab
Jamahiriya and the Republic of Chad is defined by the Treaty of Friendship
and Good Neighbourliness concluded on 10 August 1955 between the French
Republic and the United Kingdom of Libya;
(2) Finds that the course of that boundary is as follows:
From the point of intersection of the 24th meridian east with the parallel
19� 30' of latitude north, a straight line to the point of intersection of
the Tropic of Cancer with the 16th meridian east; and from that point a
straight line to the point of intersection of the 15th meridian east and
the parallel 23� of latitude north;
these lines are indicated, for the purpose of illustration, on sketch-map
No. 4 on page 39 of this Judgment.
In favour: President Sir Robert Jennings; Vice-President Oda; Judges Ago,
Schwebel. Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar
Mawdsley, Weeramantry, Ranjeva, Ajibola, Herczegh; Judge ad hoc Abi-Saab.
Against: Judge ad hoc Sette-Camara.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this third day of February, one thousand nine
hundred and ninety-four, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Great Socialist People's Libyan Arab Jamahiriya and the Government of the
Republic of Chad, respectively.
(Signed) R. Y. Jennings,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar. [p41]
Judge AGO appends a declaration to the Judgment of the Court.
Judges Shahabuddeen and Ajibola append separate opinions to the Judgment of
the Court.
Judge ad hoc Sette-Camara appends a dissenting opinion to the Judgment of
the Court.
(Initialled) R.Y.J.
(Initialled) E.V.O. [p42]
[Map]
[p43]
Declaration of judge Ago
[Translation]
My own view is still the conviction that, at the time of the independence
of the new State of Libya, the southern frontier of that country with the
French possessions of West Africa and Equatorial Africa, between Toummo and
the frontier of the Anglo-Egyptian Sudan, had not yet been the subject of a
treaty delimitation between the parties then directly concerned. I recognize
however that by concluding the Treaty of 10 August 1955 with France, the
Government of Libya, which was primarily interested in other aspects of the
body of questions to be settled, implicitly recognized, with regard to that
southern frontier, the conclusions which the French Government deduced from
the instruments mentioned in Annex I to that Treaty.
It is for that reason that I have decided to add my vote to those of my
colleagues who have pronounced in favour of the Judgment.
(Signed) Roberto Ago.
[p44]
Separate opinion of judge Shahabuddeen
The case at bar recalls a world now left behind. In telling flashes, it
illuminates an age when international law tended to develop as a legal
construct supportive of the global projection of the power of a single
region; when in important respects it was both fashioned and administered
by leading members of a select community; when that community, by itself
called the international community, bore little resemblance to the world as
it then stood, and even less to the world as it stands today. The record of
the Court speaks of those days; it is not easy to recover the various
standpoints of the period. Both Parties, however, correctly accepted that
the legal manners of the times were not on trial. Thus, if it were necessary
to examine some of the issues bequeathed by the past to the present, it is
possible that it is the law as it then was which would still govern.
As it has turned out, there is no need to do so. This is because,
interesting and important as those issues are, they stand foreclosed by the
answer which the Court has returned to what both sides agreed was the
threshold question, that is to say, whether the boundary claimed by Chad is
supported by the 1955 Franco-Libyan Treaty. The Court's answer is, I think,
inevitable. It results from the application of the normal principles of
interpretation to the wording of Article 3 of the Treaty, as set out in
paragraph 39 of the Judgment. The first part of the Article, up to the words
"on the other", necessarily implies that the Parties (Chad claiming through
France) recognize the existence of frontiers separating all of the territory
of Libya from all of the French territories mentioned, inclusive of the
territory of Chad. As to what those frontiers are, the Article refers the
reader to the international instruments listed in Annex I to the Treaty.
Absent compelling reasons to the contrary, those instruments must
accordingly be construed so as to produce a comprehensive definition of the
frontiers, including a frontier separating the territory of Libya from the
territory of Chad, consistently with the above-mentioned recognition,
impliedly made by the Parties, that frontiers exist in relation to all such
territories.
A difficulty which I do, however, have concerns the principle of stability
of boundaries, to which the Judgment refers: is the principle germane to the
issue whether the 1955 Treaty can be considered to be a treaty establishing
a boundary between Libya and Chad? The principle (by whatever name called)
is of wide application in the field of boundary delimitation. Its utility is
clear in considering the question, examined in paragraph 72 of the Judgment,
concerning the permanence of a bound-[p45]ary established by treaty. But
how far, if at all, does it aid in resolving a problem of interpretation as
to whether a treaty can be considered to be a treaty establishing a specific
boundary, and more especially a boundary of substantial length as in this
case? As is pointed out in paragraph 46 of the Judgment, the use of the word
''frontiers" in the plural in Article 3 of the 1955 Treaty is
"to be explained by the fact that there were differences of legal status
between the various territories bordering on Libya for whose international
relations France was at the time responsible, and their respective frontiers
had been delimited by different agreements".
I agree with the Court that that provision of the 1955 Treaty is
nevertheless to be interpreted as meaning that it was "aimed at settling
all the frontier questions, and not just some of them". The one small
question which occurs to my mind is whether the principle of stability of
boundaries helps to establish that interpretation (see paragraphs 47 and 48
of the Judgment).
The operation of the principle in this case has to be considered within the
framework of the Court's Judgment, which rests on the 1955 Treaty, and not
on effectivites or any other ground. Libya accepts that the 1955 Treaty is a
boundary treaty as to some parts of its territory, but not as to all; in
particular, it denies that the Treaty was intended to establish a boundary
between its territory and that of Chad. That is the short issue before the
Court: did the 1955 Treaty in one way or another establish such a boundary?
It could only do so if it was intended to settle comprehensively the
boundary between Libya and all adjacent French territories, which then of
course included the territory of Chad. So the real question presented by
recourse to the principle of stability of boundaries in proof of that
proposition is whether the principle creates a presump-tion that a boundary
treaty is intended to settle comprehensively all the boundaries between the
contracting parties (see CR 93/32, pp. 18-20 and 31, Professor Cot, for
Chad; and cf. CR93/27, p. 29, Sir Ian Sinclair, Q.C., for Libya).
The principle of stability of boundaries, as it applies to a boundary fixed
by agreement, hinges on there being an agreement for the establishment of a
boundary; it comes into play only after the existence of such an agreement
is established and is directed to giving proper effect to the agreement. It
does not operate to bring into existence a boundary agreement where there
was none. Libya says that the 1955 Treaty was not a boundary treaty as
between its territory and that of Chad; that, in effect, it made no boundary
agreement relating to the territory of Chad. It begs the question so raised
to seek to answer it by pleading the principle that parties to a boundary
agreement are presumed to intend to establish a definite, complete and
continuous boundary. Parties to what boundary agreement? Whether there was
ever such an agreement is itself the issue. [p46]
In Sovereignty over Certain Frontier Land the Court first noted the
existence of the Convention of 8 August 1843, and in particular the
preamble thereof which recorded the common intention of the two States "to
fix and regulate all that relates to the demarcation of the frontier
between" them (I.C.J. Reports 1959, p. 221). It was in the light of the
existence of this agreement for comprehensive demarcation of the frontier
between the two kingdoms that the Court proceeded to consider the question
whether the Mixed Boundary Commission established by the Convention could
properly leave in suspense the issue of the right of either party to certain
plots of land. An affirmative answer was excluded, as it would leave
undemarcated part of the territory which the Convention required to be
demarcated. The situation here is different: Libya denies that any agreement
exists for the delimitation of its territory from that of Chad, let alone
any agreement for demarcation.
Paragraph 47 of the Judgment quotes from the Advisory Opinion of the
Permanent Court of International Justice in the Interpretation of Article 3,
Paragraph 2, of the Treaty of Lausanne case the words:
"It is . . . natural that any article designed to fix a frontier should, if
possible, be so interpreted that the result of the application of its
provisions in their entirety should be the establishment of a precise,
complete and definitive frontier." (P.C.I.J., Series B, No. 12, p. 20;
emphasis added.)
The second part of that statement, relating to "the establishment of a
precise, complete and definitive frontier", turns on the words in the first
part "any article designed to fix a frontier"; it relates to the application
of the provisions of an article which is designed to fix a frontier. It is
only if it is first established that the article is "designed to fix a
frontier" that the principle of stability of boundaries, referred to in the
second part, begins to operate. The question here is whether Article 3 of
the 1955 Treaty was an "article designed to fix a frontier" between Libya
and Chad; the second part of the statement concerning the principle of
stability of boundaries does not help to answer that preliminary question.
On the contrary, that question must first be answered, and answered in the
affirmative, before the principle can come into play.
To invoke the principle of stability of boundaries where the issue is
whether the 1955 Treaty was a treaty which was intended to establish a
boundary between Libya and Chad is really to make it say that every boundary
treaty is to be interpreted as intended to delimit the entirety of the
adjoining territories of the Parties. The Treaty of Lausanne case does not
say that. There, Article 3, paragraph 2, of the Treaty read:
"From the Mediterranean to the frontier of Persia, the frontier of Turkey is
laid down as follows:
(1) With Syria: [p47]
frontier described in Article 8 of the Franco-Turkish Agreement of October
20th, 1921;
(2) With Iraq:
The frontier between Turkey and Iraq shall be laid down in friendly
arrangement to be concluded between Turkey and Great Britain within nine
months.
In the event of no agreement being reached between the two Governments
within the time mentioned, the dispute shall be referred to the Council of
the League of Nations.
The Turkish and British Governments reciprocally undertake that, pending the
decision to be reached on the subject of the frontier, no military or other
movement shall take place which might modify in any way the present state of
the territories of which the final fate will depend upon that decision."
(P.C.I.J., Series B, No. 12, pp. 18-19.)
The main question for advice was this:
"What is the character of the decision to be taken by the Council in virtue
of Article 3, paragraph 2, of the Treaty of Lausanne � is it an arbitral
award, a recommendation or a simple mediation?" (Ibid, p. 6.)
In other words, failing a consensual determination of the boundary between
Turkey and Iraq, which was to be made by Turkey and Great Britain within
nine months, could the Council of the League of Nations itself determine the
boundary? Or could it only make a recommendation or act by way of mediation?
The Court was of opinion that
"the intention of the Parties was, by means of recourse to the Council, to
insure a definitive and binding solution of the dispute which might arise
between them, namely, the final determination of the frontier" (ibid., p.
19).
The first supporting reason which the Court gave was that Article 3 of the
Treaty, as it clearly stated, "intended to lay down the frontier of Turkey
from the Mediterranean to Persia" (original emphasis). As between the two
undisputed terminal points thus established by the Treaty itself, the
frontier necessarily had to be "continuous and definitive". It could be
neither continuous nor definitive if any gaps left by failure of Turkey and
Great Britain to agree on its course here and there could not be filled by a
determination made by the Council. It was in these circumstances that the
Court said:
"Not only are the terms used ('lay down', fixer, determiner), only to be
explained by an intention to establish a situation which would be
definitive, but, furthermore, the very nature of a frontier and of any
convention designed to establish frontiers between two countries [p48]
imports that a frontier must constitute a definite boundary line throughout
its length." (P.C.I.J.. Series B, No. 12, p. 20.)
These remarks were directed to ascertaining the character of the function
which fell to be performed by the Council of the League of Nations. They
were not intended to suggest that every frontier agreement between parties
was to be presumed to extend to the entirety of their adjacent territories.
The Court was not concerned with any question as to what was the overall
length of the agreed boundary. It was merely concerned with the mechanism
for ensuring that, throughout its undisputed length, "From the Mediterranean
to the frontier of Persia", the frontier should be definitive and
continuous. This explains the terminal words "that a frontier must
constitute a definite boundary line throughout its length", i.e., throughout
whatever that length was under the agreement providing for the fixing of the
frontier. In other words, the case was not about overall length, but about
gaps within an undisputed overall length. By contrast, the issue here
concerns not gaps within an overall length, but overall length itself: did
this, or did this not, include the specific and very long frontier between
Libya and Chad?
Nor is the foregoing reasoning at variance with the Jaworzina, also cited by
Chad. There three pieces of territory were in dispute between Poland and
Czechoslovakia. The settlement procedures involved a Decision given on 27
September 1919 by the Supreme Council of the Principal Allied and Associated
Powers acting under enabling treaty provisions. The Decision delimited the
three territories with a view to the settlement of the dispute through the
holding of a plebiscite. The plebiscite was not held and recourse had to be
made to other settlement procedures. Poland contended that the delimitation
lost all value once it had been decided to abandon the plebiscite.
Distinguishing between the delimitation as a first step in the application
of the settlement procedures and the remainder of the settlement procedures,
the Permanent Court of International Justice held
"that the Decision of September 27th, 1919, determined once and for all the
territories in dispute and that the successive decisions taken with a view
to the settlement of this very dispute must be considered as relating to the
territories thus determined" (P.C.I.J., Series B, No. 8, p. 23).
Poland did not deny that the Decision of 27 September 1919 effected a
delimitation; the issue which it raised was whether that delimitation was
still in force. To resolve this point, the 1919 Decision could be helpfully
construed on a footing consistent with the principle of stability of
boundaries. Here, by contrast, Libya is not raising any question as to the
continuance in force of a boundary agreement, if there was one; it is
saying that there was simply no boundary agreement. The Jaworzina does not
[p49]help to answer the question raised by Libya as to whether the 1955
Treaty was a boundary treaty in relation to its southern territories.
More to the point is the Monastery at Saint-Naoum, in which the Permanent
Court of International Justice found that the London decision of 11 August
1913 had fixed certain parts of the Albanian frontier, but not the part
relating to the frontier in the region of Saint-Naoum, which it found "had
indeed remained undetermined . . ." (P.C.I.J., Series B, No. 9. p. 20). In
reaching that conclusion the Court did not seek to beg the question by
commencing the task of interpretation on the basis that the principle of
stability of boundaries required the decision of 11 August 1913 to be
interpreted as having been intended to fix all of the frontiers of Albania.
Had it started out with any such presupposition, its conclusion might well
have been different.
This understanding of the case-law is not at variance with the observation
of this Court in the Temple of Preah Vihear:
"In general, when two countries establish a frontier between them, one of
the primary objects is to achieve stability and finality." (I.C.J. Reports
1962, p. 34.)
The principle of stability of frontiers applies "when two countries
establish a frontier between them". Libya says that France and Libya made
no agreement establishing any frontier between Libya and Chad. It is only
after it has been proved that Libya and France did make an agreement
establishing such a frontier that the principle of stability of frontiers
will apply. It will then apply so as to give due effect to the agreement
establishing the frontier, and not in proof of the existence of the
agreement. Also, in the Temple of Preah Vihear the question was, not what
was the overall length of the boundary, but where was the boundary in a
specific sector of its agreed overall length. The observation of the Court
quoted above is not the same thing as saying:
"In general, when two countries establish a frontier between them, one of
the primary objects is that it shall extend throughout all of their adjacent
territories."
If there are elements which show that a treaty was intended to achieve a
comprehensive delimitation, they can be taken into account to the extent
admissible in the course of applying the normal canons of treaty
interpretation, without the need to encumber the process of interpretation
with any presupposition that the principle of stability of boundaries
requires the treaty to be interpreted as intended to achieve a
comprehensive delimitation. It is easy to think of cases in which the
adjoining areas are so extensive as to make it both practical and sensible
for parties to agree a boundary for some particular sector only. It would
introduce an unnecessary complication if such an agreement had to be
construed on [p50] the basis of a presumption that the boundary was
intended to be comprehensive. The other legal authorities cited by counsel
for Chad do not overthrow this conclusion and I do not propose to deal with
them.
The principle of stability of boundaries is a valuable one. But where, as
here, it is invoked in relation to a boundary said to be fixed by treaty,
its proper use is in the interpretation and application of the treaty if it
exists, and not in proof of the existence of the treaty. Apart from
questions concerning the course of an agreed boundary in particular
sectors, the principle may no doubt assist in resolving a question as to
the precise location of the end-points of an agreed boundary; but, where the
distances are on the scale of those involved in this case, it is not
credible to assert that the argument is about the precise location of an
end-point of an agreed boundary. The question raised by Libya is one as to
whether there is any agreement establishing any boundary at all between its
territory and that of Chad. The principle of stability of boundaries cannot
be used to prove the existence of the contested agreement; that proof must
be made in other ways.
As it happens, it is clear that there is a treaty relating to the boundary
between Libya and Chad. This is because, as mentioned above, the text of the
1955 Treaty shows that the parties to the Treaty intended to establish a
complete delimitation as between Libya and all adjacent French territories,
including the territory of Chad. It is neither relevant nor necessary to
import the principle of stability of boundaries to reach that conclusion;
the normal principles of treaty interpretation suffice. To adapt the words
used by Charles De Visscher on the subject of extensive or restrictive
interpretations, to begin with a presumption that every boundary treaty is
intended to be territorially comprehensive "c'est anticiper sur les
resultats du travail interpretatif . . ." (Charles De Visscher, Problemes
d'interpretation judiciaire en droit international public, 1963, p. 87).
(Signed) Mohamed Shahabuddeen.
[p51]
Separate opinion of judge Ajibola
I. Introduction
(i) Delimitation or Attribution
1. I am generally in agreement with the Judgment of the Court, especially
with its finding that the Treaty of Friendship and Good Neighbourliness
between the French Republic and the United Kingdom of Libya of 10 August
1955 in effect determines the boundary dispute between the Great Socialist
People's Libyan Arab Jamahiriya (hereinafter called "Libya") and the
Republic of Chad (hereinafter called "Chad"). Primarily, this finding
definitively settles the initial but funda-mental differences between the
Parties as to whether this is a case of delimitation or of attribution.
2. Libya, in its notification to the Court, urged it
"to decide upon the limits of their respective territories in accordance
with the rules of international law applicable in the matter" (emphasis
added);
while Chad in its own notification asked the Court to
"determine the course of the frontier between the Republic of Chad and the
Libyan Arab Jamahiriya, in accordance with the principles and rules of
international law applicable in the matter as between the Parties" (emphasis
added).
3. In effect, while Chad requested the Court to resolve a boundary or
frontier dispute, Libya urged it to decide a territorial dispute. In the
recent Land, Island and Maritime Frontier Dispute case (El
Salvador/Honduras: Nicaragua intervening) (I.C.J. Reports 1992, p. 351),
where no boundary had been determined in several areas of the land territory
concerned, the Chamber of the Court dealt with the conflicting territorial
claims of the parties first and subsequently carried out a delimitation
exercise as a normal judicial assignment. By a similar progression the Court
in the present case first eliminated the dispute of territorial attribution
by deciding that the Parties were bound by the Treaty of 1955, then
concluded without difficulty that the case was not one of attribution of
territory but one of the delimitation of a boundary. [p52]
4. In this regard, I share the view of Professor AllotFN1 when he remarked
that:
---------------------------------------------------------------------------------------------------------------------
FN1 Boundaries and the Law in Africa: African Boundary Problems, 1969, p. 9.
---------------------------------------------------------------------------------------------------------------------
"I feel that one can very easily lose one's way in a discussion on political
problems in Africa, minority problems, territorial disputes, imperialism,
etc. What we should be talking about is boundary disputes, not territorial
disputes; in other words, disputes about the boundaries, about where the
line is to be drawn. It is quite true that, as a consequence of a
territorial dispute or a dispute over a minority, a re-drawing of a boundary
may be required, but this is a secondary consequence of that particular
dispute."
5. A cardinal consequence of that finding of the Court was the conclusion
that Article 3 of the 1955 Treaty, with the Annex I attached thereto, in
fact served to establish the frontier which was the subject-matter of the
dispute between the Parties. I share the Court's interpretation of this
particular Article; however, I shall have some further comments to make.
6. This separate opinion of mine is thus essentially supportive of the
Court's Judgment and is meant to deal only with some peripheral but not
unimportant aspects of the case. The Court has already dealt with the
substantial issues of facts and law involved in the dispute. I, therefore,
wish to make certain observations which I consider to be pertinent to this
important case, in order to emphasize my individual point of view regarding
the main issues placed before the Court and some of the reasoning which led
me to support the Judgment.
(ii) African Boundary Problems
7. For about a century, perhaps since 1885 when it was partitioned, Africa
has been ruefully nursing the wounds inflicted on it by its colonial past.
Remnants of this unenviable colonial heritage intermittently erupt into
discordant social, political and even economic upheavals which, some may
say, are better forgotten than remembered. But this "heritage" is difficult,
if not impossible to forget; aspects of it continue, like apparitions, to
rear their heads, and haunt the entire continent in various jarring and
sterile manifestations: how do you forget unhealed wounds? One aspect of
this unfortunate legacy is to be seen in the incessant boundary disputes
between African States.
8. The colonial penchant for geometric lines (as exemplified by Lord
Salisbury's "horseshoe"-shaped Tripolitanian hinterland), has left Africa
with a high concentration of States whose frontiers are drawn with little or
no consideration for those factors of geography, ethnicity, economic
convenience or reasonable means of communication that have played a [p53]
part in boundary determinations elsewhere. A writer on African boundary
problems has remarked:
"We find the Somalis distributed between Ethiopia, Somalia, Kenya and
Djibouti, the Yorubas in Dahomey and Nigeria, the Ewes in Ghana and Togo. On
the west coast of Africa we find a massive sandwich of French-speaking and
English-speaking states whose economic contacts almost completely disregard
the proximity of their borders. These examples can be multiplied." FN1
------------------------------------------------------------------------------------------------------------
FN1 Samuel Chime, Organization of African Unity and African Boundaries:
African Boundary Problems, 1969, p. 65.
------------------------------------------------------------------------------------------------------------
9. It is therefore important to bear in mind that most African frontiers are
purely artificial, and the boundary in dispute was no exception. In most
cases they are boundaries put in place by the colonial powers as a result of
agreements between them or with indigenous peoples or through conquest or
occupation. I hasten to add that boundaries the world over are, most of
them, artificial. But in Africa they are patently even more artificial than
elsewhere, since most of them are merely straight lines traced on the
drawing board with little relevance to the physical circum-stances on the
ground. As far back as 1890, Lord Salisbury said:
"We have been engaged ... in drawing lines upon maps where no white man's
feet have ever trod; we have been giving away mountains and rivers and
lakes to each other, but we have only been hindered by the small impediment
that we never knew exactly where those mountains and rivers and lakes were."
(Memorial of Libya, Vol. 1, p. 25, para. 3.01: quoted from The Times, 7
August 1890.)
10. Consequently, some African countries on gaining their independence,
especially in the 1950s and 1960s, began to question the ill-defined
boundaries that ignored so many human factors, whether social, political or
economic. Four countries then embarked upon irredentist policies, namely
Somalia, Morocco, Ghana and Togo. It is important to note that at the time
(i.e., before 1970) Libya was not among those countries. As a result of this
policy, which in effect questioned the existing "colonial" boundaries and
the resultant territorial partition, some major armed con-flicts erupted in
Africa between Somalia and Kenya, Ethiopia and Somalia, Togo and Ghana,
Morocco and Mauritania, Algeria and Morocco.
11. Professor C. G. Weeramantry in the chapter on "Legacies of Colonialism"
in his book Equality and Freedom: Some Third World Perspectives alluded to
the partition of Africa as a classic example of these "artificial
divisions" which ultimately resulted in "several dozen frontier
[p54] disputes" which have "flared up, some involving heavy fighting
between African Nations"FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 Equity and Freedom: Some Third World Perspectives, Hansa Publishers
Ltd., June 1976, at p. 46.
---------------------------------------------------------------------------------------------------------------------
12. Another writer on African boundary problems described the issue thus:
"One of the remarkable features of independent Africa today is the legacy of
ill-defined colonial boundaries. As Ian Brownlie has rightly observed, the
European expansion in Africa produced a territorial division which bore
little or no relation to the character and distribution of the populations
of the former colonies and protectorates. Thus, the international
boundaries now inherited by the newly independent African States were
arbitrarily imposed by ex-colonial European powers."FN2
------------------------------------------------------------------------------------------------------------
FN2A. Oye Cukwurah, "The Organisation of African Unity and African
Territorial and Boundary Problems, 1963-1973", Indian Journal of
International Law, Vol. 13, p. 178.
------------------------------------------------------------------------------------------------------------
It was against this background that Libya's claim fell to be understood.
II. Territorial Claim by Libya Examined
13. Libya's claim was premised on the thesis that at all the material times
relevant to this dispute, the borderlands were never terra nullius, even
before the arrival of France. Particularly in the "borderlands" to the south
of Libya, dividing it from Chad, there had never been a defined boundary,
either conventional or otherwise. Libya's other fundamental point was that
France never acquired any title to the borderlands, either by treaty, by
occupation or by conquest; and since Chad succeeded to France's territorial
titles, a fortiori Chad held no title from France. But that was not to say,
according to Libya, that title did not exist. It was at all time vested,
Libya claimed, in the indigenous tribes, the Senoussiya and, on the
international plane, in the Ottoman Empire, and it passed to Italy after the
Treaty of Ouchy in 1912. It was this same title that passed to Libya on 24
December 1951, the date of its independence.
14. Significantly, Libya's argument that territories inhabited by tribes or
peoples having social and political organizations are not to be regarded as
terra nullius echoes the Court's comment in the Western Sahara case that:
"in the case of such territories the acquisition of sovereignty was not
[p55]generally considered as effected unilaterally through 'occupation' of
terra nullius by original title but through agreements concluded with local
rulers" (I.C.J. Reports 1975, p. 39, para. 80).
15. Libya, having denied the existence of any established boundary to the
south, claimed in its submissions that it had title:
"to all the territory north of the line shown on map 105 in Libya's Memorial
. . . that is to say the area bounded by a line that starts at the
intersection of the eastern boundary of Niger and 18� N latitude, continues
in a strict south-east direction until it reaches 15� N latitude, and then
follows this parallel eastwards to its junction with the existing boundary
between Chad and Sudan" (CR 93/29, p. 72).
(i) Libya's Territorial Claim and "Litigation Strategy"
16. Libya's claim encompassed the regions of Borkou, Ennedi and Tibesti,
including Erdi, Kanem and Ounianga, or what Libya described as the
"borderlands":
"a handy geographical term of reference ... it is defined in the north by
the 1919 Anglo-French Convention line claimed by Chad, and in the south by
15� N latitude" (CR 93/16, p. 12).
17. In support of this claim to the entire "borderlands", Libya in its
Memorial and oral argument referred to economic, religious, geographic,
climatic and security factors. As to the economic factor, mention was made
of the Central Saharan trade routes from the Mediterranean coasts of
Cyrenaica and Tripolitania to the hinterlands. Examples were given of such
trade routes from Tripoli to Sokoto and Kano in Nigeria, via important
places like Nalut, Ghadames, Ghat and Agades; another from Misuratah to
Kuwka via Mourzouk and Bilma. A third ancient route started from Benghazi
and reached Manssenya in Baguirmi via Koufra, Tekro (in Ennedi) and Abeche.
It was the view of Libya that trade had since ancient times been the main
factor in the contacts and relationships between the peoples of the northern
and southern reaches of the Sahara.
18. Libya also suggested that geography provided a criterion for the Court
to consider especially the geographical features of the terrain. In that
connection it argued that the Court had the same discretion as a demarcation
commission to effect the establishment of a boundary de novo where none
existed, as allegedly in this case. As to religion, Libya placed much
emphasis on its connection with the Senoussi and the Muslim Ottoman Empire,
claiming that the northern part of Africa as well as [p56] the borderlands
were predominantly Muslim, whereas to the south Chad was populated by
Christians and animists. With regard to the climatic factor, Libya pointed
out that, while the entire area of the borderlands shared a desert climate
and vegetation with Cyrenaica and Tripolitania, the south of Chad enjoyed
the Sudan climate, which is tropical in nature.
19. On the issue of security, Libya was of the opinion that the Tibesti
Massif posed a potential danger to its petrochemical-industrial complex in
the Sirt Basin � hence from the viewpoint of Libya's national defence it was
of utmost importance that the Tibesti Massif and the adjacent border be
secure. Adducing the security consideration in support of its territorial
claim, Libya submitted that:
"In carrying out the task of attribution of territory and determining which
State has the better claim to title over territory falling within the
General Setting of this dispute, it is the view of Libya that the security
interests of each State in the light of all the facts are factors that
should not be overlooked. Attributing to Libya the regions described in its
submissions to which Libya claims to have clear title, would take full
account of Libya's security interests, while at the same time leaving an
extensive land area between such a Libyan frontier and the strategic and
economic heartland of Chad � what the French have called 'le Tchad utile'."
(Memorial of Libya, Vol. 1, p. 68, para. 3.110.)
20. The above arguments, derived from human and physical considerations,
may be seen as the first leg on which Libya's claim rested. The second leg
was of a diplomatic nature and concentrated on the Rome Treaty of 1935,
otherwise referred to as the Laval-Mussolini Treaty. This was the Treaty
between France and Italy which specifically defined the boundary between
Libya and the territories of French Equatorial Africa and French West Africa
east of Toummo.
21. The 1935 Treaty did not enter into force formally because Italy refused
to proceed with the exchange of the instruments of ratification. However,
the argument of Libya was that this did not diminish the Treaty's importance
or its relevance as an essential factor to be taken into consideration in
the settlement of the dispute before the Court. The Parties disagreed as to
who would have conceded territory to the other. The argument of Libya was
that Italy made such concessions to France in return for a promise that the
French would support the Italians' conquest of Ethiopia, and that it was the
French refusal to keep to that agreement that led to Italy's refusal to
exchange the instruments of ratification.
22. Chad claimed that it was France that in 1935 offered concessions of
territory to Italy, based on the "colonial concession" promised under
Article 13 of the London Treaty of 1915. However, that point is of less [p57] importance to the argument of Libya that the Court could take this
Treaty into consideration in arriving at a just and equitable decision.
23. Libya claimed that the 1935 Treaty was the only international instrument
which throughout the history of this dispute was intended to plot a line
defining once and for all the boundary in the area in dispute and which
actually would have attained its purpose but for the non-exchange of the
instruments of ratification. It was a Treaty, Libya claimed further, that
had been fully negotiated and concluded by two States which both effectively
exercised sovereignty over the territories to be delimited. Libya thus
asserted that valuable indications could be gleaned from a delimitation
treaty which reached the very brink of enforceability. Indeed, Libya
highlighted the ebb and flow of Franco-Italian negotiations between 1912
and 1935 as furnishing an equitable consideration in its favour. Chad might
well have suggested that the Accord-Cadre allowed the Court to operate
solely within the bounds of law, stricto sensu, but according to Libya:
"ce constat n'exclut nullement le recours � l'aequitas infra legem, qui au
contraire est toujours approprie, comme votre Cour l'a dit et repete tant �
propos des delimitations maritimes que des delimitations terrestres" (CR
93/20, p. 40).
24. A clear picture of Libya's claim has now emerged: that there was no
existing boundary between Libya and Chad, either through French conquests or
occupation or by virtue of the Treaty of 1955, particularly Article 3 with
the list of international instruments annexed thereto; that the Court was
therefore in a position to decide a territorial dispute rather than a
boundary dispute; that in doing so the Court should take into consideration
the Rome Treaty of 1935 even though the instruments of ratification had not
been exchanged; that the territory in dispute was at no time a terra nullius
but that at all material times title was vested in the indigenous peoples
and the Senoussi while on the international plane title was vested in the
Ottoman Empire, which eventually passed it to Italy. Hence Libya concluded
that its territorial claim should extend as far south as 15� N latitude.
25. There is little doubt that Chad was taken aback at the extent of Libya's
claim, which it had expected to be limited to the 1935 line that Libya had
relied upon since 1977 before the Security Council, the General Assembly
and the Organization of African Unity. Hence it asserted that:
"To get half of Chad would be splendid, but really Libya would be satisfied
with everything north of the 1935 line. That line could not be argued for as
such, because of the non-ratification of that Treaty. So the dispute would
be turned into one about territory rather than frontiers, large territorial
claims would be made, and [p58] then on the very last day of the oral
argument Libya would reinsert the 1935 line as a species of equity " (CR
93/21, p. 55, para. 63.)
26. Chad remarks that over the years Libya has not been consistent regarding
its territorial claim. Libya's submission to this remark is to the effect
that the past policies of its Government on this matter had little to do
with the present case, when only the pleadings and submissions before the
Court are relevant. I was not persuaded by this line of argument: on the
contrary, I am of the opinion that the converse is the position in
international law.
27. My view finds confirmation in the case-law of the Court. For example, in
the case concerning Maritime Delimitation in the Area between Greenland and
Jan Mayen (Denmark v. Norway), the Court, in interpreting very recently the
1965 Agreement between Norway and Denmark, took into consideration the text
which the Norwegian Government submitted for parliamentary debate in
1979-1980:
"This absence of relationship between the 1965 Agreement and the 1979
Agreement is confirmed by the terms of the official communication of the
latter text to Parliament by the Norwegian Government. Proposition No. 63
(1979-1980) to the Storting states that:
'On 8 December 1965 Norway and Denmark signed an agreement concerning the
delimitation of the continental shelf between the two States.
The agreement did not cover the delimitation of the continental shelf
boundary in the area between Norway and the Faroe Islands.'
Since, as noted above, the 1965 Agreement did not contain any specific
exclusion of the Faroe Islands area, or of any other area, this statement is
consistent with an interpretation of the 1965 Agreement as applying only to
the region for which it specified a boundary line defined by co-ordinates
and a chart, i.e., the Skagerrak and part of the North Sea." (I.C.J. Reports
1993, p. 51, para. 29.)
28. Another example that strongly confirms my view is to be found in the
Nuclear Tests cases in 1974 when the Court concluded that the statement of
the French Government that it would not carry out any further atmospheric
nuclear testing had legal implications.
(ii) The Salient Questions
That said, what Chad styled as Libya's "litigation strategy" (CR 93/21, p.
55, para. 64) deserved to be evaluated with the aid of four pertinent
questions: [p59]
1. How much reliance could Libya now place on the 1935 Rome Treaty?
2. How sound was the thesis of Libya that there was no boundary between it
and Chad?
3. Was Libya correct in its interpretation of the provision of Article 3
(with its Annex I) of the 1955 Treaty?
4. How strong were the claims and submissions of Libya regarding the BET
region?
(iii) The Rome Treaty and Equity
29. Among the conventional boundaries involved in this dispute the Rome
Treaty might have been regarded as the "second best", in the sense that the
Court would have been compelled to look more closely into it in the event of
the absence or invalidity of the 1955 Treaty. In such a situation, a
certain application of equitable "principles might have become a necessity,
but where equity has a role in a boundary dispute, that role is invariably
limited. Equity may be applied only to fill in a gap. It could be aequitas
infra legem or aequitas secundum legem but not aequitas praeter legem or
contra legem. Both Parties virtually agreed that this was the position in
international law. But since a conventional boundary had been recognized by
the 1955 Treaty and the Rome Treaty's instruments of ratification had not
been exchanged, equity had in fact no role to play in this matter; to apply
it would have been to apply equity extra legem � and in any case, equity
follows the law.
30. Even in maritime delimitation cases, where the Court has developed the
law considerably on this issue with regard to equitable principles and
equitable factors, equity does not operate contra, legem but infra legem. In
conclusion here, one can say that equity had no role to play in this
particular case and that the Rome Treaty, though of some historical
interest, was never in force and was therefore not applicable de jure.
(iv) Libya's "No Conventional Boundary" Thesis
31. This point is touched upon here in order to highlight the shifting
positions taken by Libya from the inception of the dispute. First there was
the period of silence and acquiescence, then the period of denial of
occupation of part of the Tibesti region, followed by a claim that Libya had
a right to such action under the Rome Treaty of 1935. Then before the Court
Libya argued that, while no boundary had been established, the Rome Treaty
ought to be taken into account from the standpoint of equitable
considerations. But no matter what justifications could be found for each of
those stances, the allegation of the non-existence of a [p60] conventional
boundary stood or fell with the interpretation of the 1955 Treaty.
(v) Libya's Interpretation of the 1955 Treaty
32. All that needs to be said here is that it appears to me that Libya
denied neither the validity of the 1955 Treaty nor the fact that it was
relevant to the present dispute. The Court has meanwhile found that it may
be applied so as to define a conventional boundary, a conclusion with which
I am in full agreement.
(vi) How Strong Was the Claim of Libya Regarding the BET Region?
33. Having decided that there is a conventional boundary established between
Chad and Libya, one might consider it redundant to examine this question.
Nevertheless it may not be entirely out of place to do so, because of the
importance of this case in Africa.
34. Assuming for a moment, therefore, that the Treaty of 1955 did not create
a boundary, it might still have been very difficult to find in favour of
Libya on the basis of the historic, religious, economic, geographic and
security considerations it placed before the Court. Earlier in this opinion,
I have expressed my view on this point, referring to the history of Africa
and its colonization. The colonial powers did not take all those factors
into consideration when the partitioning took place in the nineteenth and
twentieth centuries. Tribes and indigenous peoples are spread all over
Africa without regard for boundaries or the entity of States.
35. President Tsiranana, the then Head of State of Madagascar said in
1963FN1:
---------------------------------------------------------------------------------------------------------------------
FN1 ICAS Summit/Gen/Inf/14, p. 4; see also Boutros Boutros-Ghali, Les
conflits de frontieres en Afrique, 1972.
---------------------------------------------------------------------------------------------------------------------
"It is no longer either possible or desirable to modify the frontiers of
nations in the name of racial or religious criteria ... if we were to take
as a criterion of our frontiers either race, tribe, or religion certain
States in Africa would be wiped off the map." (Emphasis added.)
36. Take for example the Senoussi Order, whose grand patron hailed from
Algeria: the influence of this Order stretched across the whole of Northern
Africa, especially Algeria, Morocco and Egypt. The influence of the Order
also stretched to the south through the length and breadth of the present
Chad and beyond. As early as 1856 a Senoussi zawiya was established in Kuka
Bornou. The logical consequence of Libya's claim based on Senoussi title
alone could involve the integration of about eight nations altogether as one
State in Africa. So much for religious and cul-tural factors. Economic and
geographical considerations would present [p61] even more fluid and
unreliable guides. Besides, they would often conflict with findings drawn
from considerations of an ethno-cultural nature.
37. That is why I am in entire agreement with the view of the Chamber of the
Court in the case of the Frontier Dispute (Burkina Faso/Republic of Mali):
"The Chamber would however stress more generally that to resort to the
concept of equity in order to modify an established frontier would be quite
unjustified. Especially in the African context, the obvious deficiencies of
many frontiers inherited from colonization, from the ethnic, geographical or
administrative standpoint, cannot support an assertion that the modification
of these frontiers is necessary or justifiable on the ground of
considerations of equity." (I.C.J. Reports 1986, p. 633, para. 149; emphasis
added.)
38. To conclude, I found it difficult to support any of the submissions
presented to the Court by Libya in the present case.
III. Chad's Case
39. Chad's general submission on this case was that it concerned the
delimitation of the common boundary between the two Parties. As far as Chad
was concerned, the Franco-Libyan Treaty of 10 August 1955 defined the
frontier between it and Libya. In his opening address, the Agent for Chad
expressed the view of the Government of Chad as follows:
"In Chad's view, the Treaty of 10 August 1955 is the key to the dispute.
Libya negotiated, signed and ratified it freely. The Treaty cannot be
sidestepped, it is decisive. Its implementation suffices to settle the
dispute." (CR 93/21, p. 14.)
40. Chad put forward two subsidiary theses in support of this submission.
It contended that, even if the Franco-Libyan Treaty of 1955 had not been
concluded or were inapplicable, the frontier definition resulting from
certain international instruments would be the same. Alternatively Chad
argued that the same frontier line would result from French effectives in
the borderlands, assuming that the first two lines of contention failed.
Chad further buttressed its claim that a conventional boundary actually
existed with allegations of acquiescence and estoppel against Libya. The
issue of uti possidetis juris was also raised by Chad, referring to the
Cairo Declaration of the Organization of African Unity in 1964, and a part
of the decision of a Chamber of this Court in the case concerning the
Frontier Dispute (Burkina Faso/Republic of Mali) (I.C.J. Reports 1986, p.
554). [p62]
IV. The 1955 Treaty and the Stand of the Parties
41. Libya agreed with Chad that the starting point in this case should be
the Franco-Libyan Treaty of 1955 (hereinafter called "the 1955 Treaty").
Counsel stated on its behalf:
"'Article 3 of the 1955 Treaty is directly pertinent to resolving the
present dispute' (Reply of Libya, para. 5.04); and, indeed, Libya suggests
that 'The Court may well regard the 1955 Treaty as the logical starting
point in its consideration of how to resolve the territorial dispute in this
case' (ibid, para. 5.01). Since both Libya and Chad (although the latter
with some reservations) regard the 1955 Treaty as being of critical
importance to the resolution of the present dispute, Libya will begin by
analysing Article 3 of that Treaty." (CR 93/ 15, p. 15.)
42. Chad, for its part, made it clear at the opening of its oral arguments
that its most important thesis was that the Treaty of 1955 "quite
unambiguously identified a boundary line" (CR 93/21, p. 28). Counsel added:
"Let us begin at the beginning. And the legal beginning � and also the end �
is the Treaty of 10 August 1955 between France and Libya." (CR 93/21, p.
29.)
V. Interpreting the 1955 Treaty
43. The Judgment of the Court dealt adequately with the interpretation of
Article 3 of the 1955 Treaty which I need not repeat in this opinion, but I
shall only touch on some areas of it which I think are supportive of the
Judgment.
(i) Object and Purpose of the 1955 Treaty
In the interpretation of any treaty it is equally essential to look into its
actual object and purpose (cf. Article 31, paragraph 1, of the Vienna
Convention on the Law of Treaties).
44. As far as the 1955 Treaty is concerned, Libya's view on this point is
straightforward � its own object was to secure the removal of the French
army from Fezzan in order to give effective meaning to Libyan independence.
All other considerations were secondary and in fact un-important. To say the
least, Libya was not then interested in the delimitation of the southern
boundary, and would have preferred not to have anything to do with the issue
of delimitation of the frontier. Reference was made to the fact that Libya
was ill-equipped for such exercise in 1955, and in particular lacked
appropriate experts.
45. Mr. Kamel Maghur for Libya said that:
"When the negotiations that ultimately led to the 1955 Treaty [p63] started
in January 1955, I would estimate there were not more than five lawyers in
Libya. Only one lawyer, Mr. Fekini, fresh from law school in Tunisia, with
no experience of any kind, was assigned to assist the Libyan team . . . Like
Mr. Fekini, I knew nothing about matters of international law and
international boundaries when I graduated from law school." (CR 93/14, p.
67.)
46. It is alleged by Libya that France also was loath to go into the issue
of delimitation. Mention was persistently made of the letter of 2 May 1955
from the Governor-General of French Equatorial Africa to the Ministre de la
France d'Outre-Mer. The letter advised: "la necessite de faire reconna�tre
par ce pays [la Libye] les frontieres resultant de la declaration
franco-britannique de 1899" (Memorial of Libya, Vol. 1, p. 370, para.
5.437).
47. But the letter did not stop there. It went further to state clearly the
objective of France with regard to the southern frontier of Libya with Chad
at this crucial time, which was about four months before the signing of the
1955 Treaty. According to Libya, this corresponded to the French thesis that
had first been formulated and fully articulated in 1921-1922 in response to
the Italian protest against the 1919 Anglo-French Convention. Thus the
French thesis on the frontier, as explained in the letter, is said to be as
follows:
"� that Libya should be considered to be a successor State to Italy not to
Turkey;
� that Libya's southern boundaries were determined by the 1899 Anglo-French
Additional Declaration, as modified by the 1919 Anglo-French Convention;
� that Italy had formally recognized the 1899 Additional Declaration in the
1900-1902 Franco-Italian Accords; and
� that Libya could base no claim on the 1935 Treaty because these accords
'n'ont jamais ete executes'." (Ibid. ; emphasis added.)
48. The letter of 10 May 1955 which the French Embassy in London sent to the
British Foreign Office, and which Libya quoted in its Memorial, suggests
moreover that both parties took the same attitude towards delimitation, for
it states:
"Les deux gouvernements conviennent de s'en tenir, en ce qui concerne le
trace des frontieres separant les territoires fran�ais et libyen, aux
stipulations generales des textes internationaux en vigueur � la date de la
creation de l'Etat libyen." (Ibid., p. 375, para. 5.445.)
49. May one perhaps deduce therefrom that there was no disagreement as to
the object and purpose of the Treaty? Libya at the last moment agreed that
the boundary had been fixed by the international acts. Libya, mentions
that:[p64]
"Libya did, at the last moment, agree to this proposed rectification, under
considerable pressure from the French negotiators; and the text of what was
agreed by way of identification of these points was embodied in Annex I to
the 1955 Treaty." (CR 93/15, p. 38.)
50. What was the purpose and object of this 1955 Treaty according to Chad?
As far as Chad is concerned, it was a package deal to ensure peace and
stability within that region. In the eyes of Chad, it was a Treaty of
Friendship and Good Neighbourliness between France and Libya. As stated in
Chad's Counter-Memorial:
"it comes in the form of a body of provisions concerning a great variety of
subjects: the presence of French troops on Libyan territory, economic,
financial and cultural co-operation, frontier regime, etc. Its object is
very generally to facilitate relations between the parties and establish
co-operation between them." (Counter-Memorial of Chad, Vol. I, p. 505, para.
11.68.)
51. In the terms of the title, text and content of the Treaty, the view of
Chad seems to me to be the correct approach, even though each of the parties
could aim at a kind of quid pro quo. This was expressed in a letter of 5
January 1955 from the British Embassy in Paris to the Foreign Office in
London, based on the information provided by Mr. Jerbi, one of the members
of the Libyan delegation at the negotiations of the Treaty. According to the
letter:
"the French Government had taken the view at the outset of the January
negotiations that France was willing to withdraw its forces from Fezzan
provided certain related questions were settled at the same time, one of
them being that 'the frontier between Fezzan and French territory must be
properly delimited'" (Memorial of Libya, Vol. 1, p. 375, para. 5.446).
52. It should also be remembered that at this time between 1953 and 1954,
Britain and the United States of America had concluded agreements on
security and alliance with Libya, while France was left out.
53. Whatever may be the motive of the parties independently, there is no
doubt that the object and purpose of the 1955 Treaty was to ensure
friendship and good neighbourliness between the parties. The special rule of
interpretation of treaties regarding boundaries is that it must, failing
contrary evidence, be supposed to have been concluded in order to ensure
peace, stability and finality. Many multilateral conventions have
provisions safeguarding and ensuring stability and finality with regard to
boundary treaties. An example of such treaties is the 1978 Convention on the
Succession of States in Respect of Treaties (which I referred to above)
especially Article 11 therein, which stipulates that a succession of States
does not alter or affect a boundary established by a treaty, and neither
does it affect the obligations and rights established by such a treaty when
[p65] it involves the issue of boundaries. Similarly, in the 1969 Vienna
Convention on the Law of Treaties, Article 62, paragraph 2 (a), provides:
"A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty
(a) if the treaty established a boundary.'' (Emphasis added.)
54. Furthermore, Article 62, paragraph 2, of the 1986 Vienna Convention on
the Law of Treaties between States and International Organizations or
between International Organizations also created an exemption regarding
boundary treaties by stating that:
"A fundamental change of circumstances may not be invoked as ground for
terminating or withdrawing from a treaty between two or more States and one
or more international organizations if the treaty establishes a boundary."
(Emphasis added.)
55. The 1955 Treaty does not exclusively deal with the issue of boundaries,
nevertheless it is common ground that it is partially a boundary treaty in
view of Article 3 of the Treaty and Annex I thereto. Failing proof to the
contrary, this Article must be viewed as a provision inserted by both
parties to establish and ensure some degree of stability and finality with
regard to their boundary.
56. The jurisprudence of the Court in matters of conventional boundaries
lends firm support to the above analysis. The celebrated authority on this
point is the clear pronouncement of the Court in the case concerning the
Temple of Preah Vihear (Cambodia v. Thailand), decided in June 1962. The
Court in that case established the principle of stability and finality as
follows:
"In general, when two countries establish a frontier between them, one of
the primary objects is to achieve stability and finality. This is impossible
if the line so established can, at any moment, and on the basis of a
continuously available process, be called in question, and its rectification
claimed, whenever any inaccuracy by reference to a clause in the parent
treaty is discovered. Such a process could continue indefinitely, and
finality would never be reached so long as possible errors still remained to
be discovered. Such a frontier, so far from being stable, would be
completely precarious." (I.C.J. Reports 1962, p. 34.)
57. Perhaps this decision of the Court, with its judicial flavour of quieta
non movere, was aimed at ensuring finality and certainty on any dispute
presented to it, and thereby preventing protracted and endless litigation
which at times provoke hostilities and armed conflict. [p66]
58. The object and purpose of the 1955 Treaty as a whole was undoubtedly
multiple, since it was a Treaty with so many dimensions, containing inter
alia a particular convention on good neighbourliness spelling out how to
effect "good-neighbourly relations'", by, for example, ensuring the free
movement of citizens from one territory to the other; a convention on
economic co-operation; and also a cultural convention on education,
language, etc. It also contains many annexes to spell out the objects and
purposes of the Treaty comprehensively. But it is equally clear that a part
of the object and purpose of the Treaty was to establish once and for all
the Libyan southern boundary. This was in fact, to my mind, accomplished.
(ii) Integration Approach
59. While it is not my wish to treat the "intention approach" as a distinct
heading of interpretation in this opinion � if only because such an approach
may be over-subjective and thus undesirable (the Court has never followed
this approach either) � whatever substance, if any, can be derived therefrom
can easily be discussed and subsumed under the integration approach, which
may perhaps highlight the intention of both Parties. The integration
approach will equally deal adequately with the entire content of the 1955
Treaty in the way expressed thus in Article 31, paragraph 2, of the 1969
Vienna Convention on the Law of Treaties:
"The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with
the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty." (Emphasis added.)
60. Handling the interpretation of the 1955"Treaty under what is here
referred to as an integration approach cannot but touch on some of the
points earlier referred to under "object and purpose", which I do not intend
to repeat. Again, it must be observed that each Party, in the pres-entation
of its case to the Court, submitted volumes of diplomatic documents,
including correspondence, agreements, notes or proces verbaux, and maps.
These documents were effectively used during the oral proceedings. On the
diplomatic documents relating to the period from January to August 1955,
some important and pertinent observations can be made. It may be appropriate
to start from the Laval-Mussolini Treaty of 1935, which was in the limelight
between 1935 and 1955. That Treaty undoubtedly featured a boundary which
gave Libya some advantage or concession (even though this was disputed by
Libya). It went with a map which put the entire "Aouzou strip" within the
territory of Libya. Even [p67] though the Treaty was signed it was not
exchanged between the parties. Italy refused to do so because it accused
France of a breach of faith with regard to what was agreed on the concession
to be granted to Italy, in connection with its colonies in Eritrea and
Somalia.
61. This 1935 Treaty underlay a map that indicated the boundary which Italy,
and subsequently Libya, erroneously relied upon for some time and which
brought about a conflict of opinions between Italy and France before 1947,
and between Libya and France before the signing of the 1955 Treaty.
62. Thus, between 1935 and 10 August 1955, two incidents occurred which
clearly gave an indication of the stands of both parties with regard to the
boundary south of Libya. The incidents were the Jef-Jef incident in 1938 and
Aouzou incident on 28 February 1955. Even though the facts were disputed by
the Parties, it is obvious that while France was relying on the 1899/1919
frontier as Libya's boundary to the south with Chad, Italy still relied on
the 1935 line. These incidents are significant for two reasons. On the
Jef-Jef incident, there was a tacit understanding that Italy (and Libya for
that matter) could not rely on the 1935 Treaty, the ratification of which
was not exchanged. On the Aouzou incident, there was also a tacit
understanding that, since the 1935 line was no longer in place, the parties
agreed to revert to the 1899/1919 line.
63. Between January and 10 August 1955 (when the 1955 Treaty was signed)
there were as many as 64 documents dealing with negotiations on the draft
text or what should be the agreed context of the Treaty. Seventeen deal
with the Aouzou incident, while others deal with maps, controversies and
the movement of French troops from Fezzan. Even though there are conflicting
views and different interpretations attached to these documents by the
Parties, a reasonable formulation of what may be considered as a consensus
ad idem clearly emerged. On the Libyan side, the most important issue was
the movement of the French troops out of Fezzan, and it was equally
prepared to give "concessions" if this movement out of Fezzan could be
completed as soon as possible. Libya was also interested in any form of
assistance from France. France, for its part, made the issue of the Libyan
southern boundary a conditio sine qua non, and as far as it was concerned
the 1899/1919 lines had to be recognized as the frontier line.
64. Furthermore, contrary to the submission made during the oral proceedings
by Libya, France was not, in my opinion, absolutely happy about the 1955
Treaty. The situation and circumstances of that period gave a clear
indication that France just had to swallow a bitter pill by signing such an
agreement. Reading all the relevant documents, it is clear that what France
wanted at the material time was not a treaty of friendship and good
neighbourliness, but a treaty of alliance with Libya like the ones it signed
with Britain in 1953 and the United States of America in [p68]
1954. Take, for example, the Defence Committee of the French Union which,
while giving as part of its conditions for the ratification of the 1955
Treaty, stated as follows:
"1. Any Franco-Libyan agreement must, on account of its military and good
neighbourliness conventions, take the form of a treaty of alliance, so as to
constitute de jure recognition by the Libyan State of the sovereignty of
France over its African territories.
2. This treaty must recognize our right to bring Fezzan under military
occupation again in time of war or in the event of a crisis, the definition
of which will have to cover our African security in the vicinity of this
region." (Memorial of Libya, Vol. 6, Exhibit 76, p. 1051.)
65. In fact, the Assembly of the French Union expressed regret with regard
to the draft Treaty of 1955, when it expressed an opinion as follows:
"(a) that the insufficiency of Western solidarity has not allowed France to
preserve its position in Fezzan as would have been appropriate, such
shortcomings in solidarity being liable to compromise the Atlantic Alliance"
(ibid., p. 1050).
66. In the overall context of the Treaty, therefore, France did not, in
fact, achieve its aim, and a careful reading of what transpired in its
Parliament, especially during the debates of the meeting of 22 November
1955, will throw some light on this view. In his explanation to the National
Assembly of France on the Treaty, Mr. Daniel Mayer, the Chairman of the
Foreign Affairs Commission and Rapporteur, touched on what France would have
wanted from Libya, regarding such a Treaty, if it could have had its way:
"At the time, France sought to conclude with the new Federal Kingdom an
alliance that would have placed her, in Fezzan, in a situation analogous to
that of Great Britain in Tripolitania and Cyrenaica.
It was unfortunately impossible to accomplish that objective since the
Agreements signed in 1953 with Great Britain and the following year with the
United States, had amply provided our interlocutors with the resources they
needed and enabled them to disregard the very modest quid pro quo we were
able to propose to them in exchange for a right of permanent occupation of
Fezzan, where our troops had been stationed since 1942." (Ibid., Exhibit 71,
p. 5017; emphasis added.)
67. Mr. Mayer went further in his address to the French National Assembly,
lamenting the possible political and psychological consequences of the
failure of France to secure the best deal from Libya and its having to
content itself with the second best agreement � the 1955 Treaty:
[p69]
"Admittedly, this treaty can give rise to criticism and it involves, on our
part, concessions liable to hurt our pride in certain respects.
Since our troops covered themselves with glory in the Fezzan, our African
army will no doubt be sensitive to the withdrawal of our forces from there."
(Memorial of Libya, Vol. 6, Exhibit 71, pp. 5017-5018; emphasis added.)
68. There is no doubt that Fezzan was a very thorny issue in this Treaty,
when Libya was in fact prepared to pay the price to get rid of the French
troops (about 450 soldiers in all) from its territory and France was most
reluctant to leave Fezzan. To France, Fezzan was a strategic area of
importance with regard to its colonies in North Africa vis-�-vis Equatorial
Africa. France even considered that she was left out in the cold, because
while British and American troops were being welcomed into Libya, her own
troops were being asked to move out under this 1955 Treaty. But at the same
time France understood that it would be better to move out honourably and
free from Fezzan than:
"to evacuate it within a few weeks, perhaps within a few days, after being
condemned by a near-unanimous vote in the United Nations, where, it cannot
be denied, we would be very hard put to find any argument in support of our
continued occupation of the area . . ." (ibid., p. 5025).
69. In fact. Mr. Jacques Soustelle, in the National Assembly referred to the
1955 Treaty as follows: "Treaty of Friendship? What friendship is this?"
(Ibid, p. 5022.)
70. Nevertheless, it remained clearly expedient and desirable for France to
sign such an agreement with Libya. In the absence of an alliance, France
needed peace and good neighbourliness from Libya with its own new and
powerful "allies"� Britain and the United States of America. This was
clearly reflected in the debate at the French National Assembly:
"True, there is no more praiseworthy aim than that of establishing or
consolidating peace and good neighbourly relations in any part whatsoever of
areas containing so many hotbeds of violence." (Ibid., p. 5020; emphasis
added.)
71. It is therefore my view that in order to establish an atmosphere of
peace and stability between the two nations, a clear and distinct
delimitation of their respective boundaries was a conditio sine qua non.
Hence the importance of Article 3 with Annex I of the 1955 Treaty, which in
my opinion clearly established a frontier as agreed to and never denied
either by Libya or France until recently (by Libya). If, on the other hand,
one considers the entire content of the negotiations that took place between
France and Libya before the signing of the 1955 Treaty on 10 August, [p70]
there is no doubt whatsoever that both parties reached agreement to
establish a boundary between them as indicated in Article 3 of the Treaty.
72. As early as 2 January 1955, the Libyan negotiator, Mr. Mustapha Halim,
while discussing the question of negotiation with France, said:
"I am asking for the final and unconditional evacuation of Fezzan and I
shall not go back on what has already been said.
As you [France] are afraid that there may be disturbances on your frontier,
1 am resolved to conclude an agreement with you." (Reply of Libya, Vol. 3,
Exhibit 6.4, p. 2.)
73. The overall or general consideration which was to form the basis of
their negotiations and which ultimately led to the agreement of the 1955
Treaty, was thus made clear by Libya from the inception. One can see the
necessary element of quid pro quo between both parties. Another important
point prior to the commencement of this negotiation must also be kept in
view. The agreement that France signed with Libya on its independence (24
December 1951) with regard to the French troops on the soil of Libya (in
Fezzan) expired on 31 December 1954 and France was expected to evacuate its
troops from Fezzan.
74. The record of the initial negotiations between France and Libya of 8
March 1955 shows very clearly what each party agreed to. While France gave
an undertaking to: "withdraw its military forces currently stationed in
Fezzan within a period of 12 months after the entry into force of the
treaty" (ibid., "Negociations franco-libyennes � Projet de proces-verbal",
p. 2), this was qualified by Libya which considered that such evacuation
should be completed "by 31 December 1955 or, at the latest, ten months after
the signature of the treaty, which should be concluded as early as
possible" (ibid.).
75. The issue of the frontier was also dealt with in the same draft
agreement. In section IV of the same summary record of Franco-Libyan
negotiations, Libya definitively agreed with France as follows:
"The two Governments agree, so far as the frontier line between the French
and Libyan territories is concerned, to abide by the general provisions
contained in the international instruments in force on the date of the
establishment of the Libyan State." (Ibid., p. 5; emphasis added.)
76. There are some important points to be noted in the text of this
negotiation. In the first case, some of the words employed are similar, if
not the same, as those contained in the final text of Article 3 of the 1955
Treaty. Words like "frontier", "territories", "in force" and "international
instruments" are common to both texts, which clearly shows that Libya all
along desired to negotiate an agreement on the frontier issue. Furthermore,
Libya agreed to "abide by" the general provisions of the relevant
international instruments. This clearly indicates that even though Libya
might before then have been nursing some doubts about this particular
frontier, it then agreed to stand by it. It should also be [p71] observed
here that, unlike the final text of the 10 August 1955 Treaty, this draft
negotiation record referred to the "frontier line between the French and
Libyan territories", which is a clear and unambiguous reference to the
southern boundary of Libya. About this time, a letter from one of the French
High Commissioners in French Equatorial Africa, Mr. Chauvet, vividly
demonstrated the way France wished to couple the evacuation of French troops
from Fezzan to the delimitation of the boundary to the south of Libya. In
his letter he advised as follows:
"In order to anticipate any subsequent claim by Libya to the portion of
Tibesti then ceded to Italy, Mr. Colombani considers that the withdrawal of
the French troops from Fezzan, if this should be decided, should be made
conditional on the fixing and demarcation of the frontier line as defined
by the Franco-British Declaration of 21 March 1899." (Reply of Libya, Vol.
3, Exhibit 6.5, Letter of 10 February 1955, p. 1; emphasis added.)
77. By July 1955, the position of both parties was very clear, as may be
ascertained from the preliminary draft of the "Treaty of Friendship and Good
Neighbourliness" negotiated in Tripoli, which served as the basis of the
final text in August (ibid., Exhibit 6.6, p. 1).
78. In conclusion on this part, there is no doubt that both parties, just as
they agreed that France should evacuate its troops from Fezzan, equally and
undoubtedly agreed that the frontier to the south of Libya should be
delimited, and in fact, they carried out this intention within the context
of the Treaty.
(iii) Good Faith
79. The principle of good faith is a fundamental one in interpretation of
treaties. In this context good faith is essentially the good faith of all
the parties to the treaty. It is a principle that is closely interwoven with
the principle of pacta sunt servanda, as clearly stated in Article 26 of the
1969 Vienna Convention on the Law of Treaties which says that "every treaty
in force is binding upon the Parties to it and must be performed by them in
good faith" (emphasis added). In addition to this, certain provisions of
the United Nations Charter give very strong support to this principle. A
part of its preamble states that the United Nations would:
"establish conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be
maintained".
Furthermore, Article 2, paragraph 2, of the Charter enjoins:
"All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfil in good faith the obli-[p72]gations assumed by them in accordance with the present Charter."
(Emphasis added.)
80. Elias, in his book FN1referred to some of the arbitral and judicial
decisions on this point. Such an example is the North Atlantic Fisheries
caseFN2. In this case, after the Arbitral Tribunal had observed that the
principle of international law is that treaty obligations are to be
executed in good faith, it further held:
---------------------------------------------------------------------------------------------------------------------
FN1 T. O. Elias, The Modern Law of Treaties, 1974, p. 41.
FN2 United Nations, Reports of International Arbitral Awards (UNRIAA), Vol.
XI, p. 188.
---------------------------------------------------------------------------------------------------------------------
"But from the Treaty results an obligatory relation whereby the right of
Great Britain to exercise its right of sovereignty by making regulations is
limited to such regulations as are made in good faith, and are not in
violation of the Treaty."
81. The Permanent Court of International Justice also made many
pronouncements on the principle of good faith FN3. The Court applied it, in
the case concerning the Rights of Nationals of the United States of America
in Morocco, to the interpretation of Articles 95 and 96 of the Act of
Algeciras, pronouncing as follows: "The power of making the valuation rests
with the Customs authorities, but it is a power which must be exercised
reasonably and in good faith." (I.C.J. Reports 1952, p. 212.)
---------------------------------------------------------------------------------------------------------------------
FN3 Examples arc (1) Treatment of Polish Nationals and Other Persons of
Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 28; (2) Minority Schools in Albania,
Advisory Opinion, 1935, P.C.I.J., Series A/B. No. 64, pp. 19-20.
---------------------------------------------------------------------------------------------------------------------
82. If there is an obligation on the part of all the parties not to defeat
the object and purpose of a treaty prior to its entry into force (Article 18
of the Vienna Convention), the parties are a fortiori also under obligation
not to defeat such objects and purposes of a treaty when it has ultimately
entered into force. In fact, the original International Law Commission draft
of Article 18 of the Vienna Convention contained a provision, subsequently
discarded as unnecessary, that the parties to a treaty (after its execution)
must refrain from any act that may prevent its applicationFN4.
---------------------------------------------------------------------------------------------------------------------
FN4 Yearbook of the International Law Commission, 1952, Vol. II, p. 7.
---------------------------------------------------------------------------------------------------------------------
83. In final analysis, execution in good faith is essential to the
protection of the "considerations" mutually granted by and between the
parties in a treaty, to use a term from the Law of Contracts in Common Law.
"Good faith" implies that all parties to a treaty must comply with and
perform all their obligations. They may not pick and choose which
obligations they would comply with and which they would refuse to perform,
ignore or disregard. Treaties like any agreement may contain obligations
"beneficial" or "detrimental" to a particular party or parties, neverthe-[p73]
less, all the obligations, whether executory or not, must be performed.
Hence Elias remarked further:
"Accordingly, performance in good faith means not only mere abstention from
acts likely to prevent the due performance of the treaty, but also
presupposes a fair balance between reciprocal obligations." FN1
------------------------------------------------------------------------------------------------------------
FN1 Op. cit., p. 43.
------------------------------------------------------------------------------------------------------------
84. In order to sustain the necessary compromissory equilibrium, or what
Elias called "fair balance", in this case, each of the Parties must be seen
to carry out all its part of the obligations. Libya cannot pick and choose
which obligations it would perform, neither can France. The fun-damental
considerations in this Treaty of 1955, the quid pro quo, are the issue of
France's evacuation from Fezzan and the issue of Libya accepting that
Article 3, with Annex I, of the 1955 Treaty had recognized and established
the Libyan southern boundary with Chad. This is the fundamental basis of
the package deal, as joint and indivisible obligations opposable to both
parties. Rosenne, in one of his articlesFN2 remarked on good faith thus:
---------------------------------------------------------------------------------------------------------------------
FN2 "The Election of Five Members of the International Court of Justice in
1981", 76 American Journal of International Law, 1982, pp. 365-366.
---------------------------------------------------------------------------------------------------------------------
"It is a cardinal principle of interpretation that a treaty should be
interpreted in good faith and not lead to a result that would be manifestly
absurd or unreasonable. The interpretation by the Secretary-General and by
the Security Council of the provisions of the Statute on the filling of
casual vacancies in this case may be held up as an illustration of an
interpretation meeting this condition." (Emphasis added.)
85. A second look at the 1955 Treaty plainly indicates many obligations on
the part of France to be performed which are all quite beneficial to Libya
and which were in fact performed. Some of these obligations are contained in
the Convention on Economic Co-operation and also Annex V to the Treaty. In
Annex VIII, for example, France transferred to Libya:
"I. Those buildings, which were formerly Italian, together with the
buildings erected by the French forces (with the exception of the group of
buildings marked 'G' on the attached plan) shall be transferred to the full
ownership of the Libyan authorities." (Memorial of Libya, Vol. 2, Exhibit
28, p. 15.)
86. This content of Annex VIII was replied to by Mustapha Ben Halim on the
same date � 10 August 1955, confirming "that the Government of Libya is in
agreement with these proposals" (ibid). This [p74] is a clear example where
a part of the obligation and benefit contained in the Treaty had been
executed. One wonders why any other obligation contained in the same Treaty
should be treated differently. McNair describes good faith as follows:
"The performance of treaties is subject to an over-riding obligation of
mutual good faith. This obligation is also operative in the sphere of the
interpretation of treaties, and it would be a breach of this obligation for
a party to make use of an ambiguity in order to put for-ward an
interpretation which it was known to the negotiators of the treaty not to be
the intention of the parties." FN1 (Emphasis added.)
------------------------------------------------------------------------------------------------------------
FN1The Law of Treaties, 1961, p. 465.
------------------------------------------------------------------------------------------------------------
87. This, perhaps, summarizes the situation in this case, where negative
interpretation is now being placed on a part of an Article (Article 3 with
its Annex I) by Libya in this matter, while some aspects of it are
considered operative and effective. To interpret this Treaty, therefore, in
good faith one must treat all aspects of it and particularly Article 3, with
its Annex I, as equally valid, and as equally binding.
(iv) Travaux Preparatoires
88. In the interpretation of treaties, preparatory work and the
circumstances of their conclusion are considered as secondary or
supplementary means, either for confirming the primary meaning or for
determining the same when other means of interpretation lead to results
which are either obscure, or ambiguous, manifestly absurd or unreasonable.
This is stated in Article 32 of the Vienna Convention. For actually
determining the meaning, I doubt that there is any need at all to resort to
the travaux, firstly because the primary means of interpretation do not
leave any residue of ambiguity or absurdity, and secondly because the
voluminous items of correspondence, maps, negotiation documents, reports and
parliamentary debates presented to us as forming part of the travaux
preparatoires are themselves frequently subject to conflicting
interpretations.
(v) The Subsequent Acts of the Parties
89. In rounding off my opinion on the interpretation of the 1955 Treaty, I
must consider whether the situation or the acts of the Parties after the
Treaty had come into effect have any relevance. The need for this transpires
from paragraph 3 of Article 31 of the Vienna Convention on the Law of
Treaties of 1969 which states as follows:
"There shall be taken into account, together with the context:[p75]
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation."
90. Some international instruments were mentioned by the Parties, but given
different interpretations. The Agreement of 26 December 1956 took the form
of an exchange of letters concerning delimitation of the Franco-Libyan
frontier with regard to the boundary between Algeria and Libya. It amounted
to a modification or rectification of the boundary line established on 12
September 1919 between Italy and France. This boundary negotiation and the
subsequent Accord has nothing to do with the frontier in issue in this case.
91. The linkage of this Agreement with the 1955 Treaty is that the line of
September 1919, which is mentioned in the said letter of 26 December 1956
addressed to the Minister for Foreign Affairs of Libya, Mr. Ali Sahli by Mr.
Jacques Dumarcay, and positively replied to on the same date, is one of the
six frontier lines mentioned in Annex I to Article 3. This also is the
frontier line agreed to by both parties as establishing a boundary between
Libya and Algeria. If there is any conclusion to be deduced from this
Agreement at all, it may be considered as still somehow supportive of the
effective validity of the 1955 Treaty, otherwise this is an Agreement that
is clearly separate from the boundary in dispute. This fact is confirmed by
Libya in its Memorial thus:
"The 1956 Agreement concerned the Algerian-Libyan frontier between Ghadames
and Ghat. It is relevant to the territorial dispute between Libya and Chad
because it has an important bearing on the 1955 Treaty, just as does the
provision of Annex I ... of the Libyan frontier further south, between Ghat
and Toummo. Since neither frontier sector concerned the present frontier
area between Libya and Chad, the rectifications of these sectors of the
Libyan boundary are not part of the territorial dispute between Libya and
Chad." (Memorial of Libya, Vol. 1, p. 393, para. 5.485.)
92. The next international instrument to be considered is the 1966 Accord.
It is the Treaty of Good Neighbourliness and Friendship between the Republic
of Chad and the United Kingdom of Libya. It is significant to note that the
Parties entered into this Accord when both of them had secured their
independence, Libya on 24 December 1951 and Chad on 11 August 1960. It is
equally important to note that before and after Chad's independence and even
until the signing of this 1966 Accord, Libya had never challenged nor
protested the boundary line established in the 1955 Treaty, neither did it
claim that no boundary had been established. On the contrary, there are all
the indications in the 1966 Accord that lend credence to the idea that Libya
knew and accepted that the [p76] frontier between it and Chad had already
been established. For example, in the 1966 Accord the word "frontier" was
mentioned seven times. Reading through the Agreement as ratified, one finds
an unequivocal indication within the content of the Accord that both Parties
were aware of the establishment of their common frontier and that they
intended to keep to it where it had already been delimited. Articles 1 and 2
of the Accord throw sufficient light on this fact.
"Article 1
The Government of the Kingdom of Libya and the Government of the Republic of
Chad undertake to take all necessary measures to ensure the maintenance of
order and security along the frontier between their two countries through
contact and co-operation between their respective security authorities, such
measures not to affect the right of asylum as recognized in international
practice.
Article 2
The Government of the Kingdom of Libya and the Government of the Republic of
Chad undertake to facilitate the movement of people living on both sides of
the frontier between the two countries within the geographical area bounded
by the following points . . ." (Memorial of Libya, Vol. 2, Exhibit 32, p. 2;
emphasis added.)
93. Then this Article goes on to state specified places within the
territory of Libya as Koufra, Gatroun, Mourzouq, Oubari and Ghat and others
within Chadian territory as Zouar, Largeau and Fada. Whatever may be the
argument on the interpretation of the 1955 Treaty, it seems to me very clear
from this Article that both Parties are perfectly aware of the location and
establishment of their common boundary. Otherwise, if there is no frontier
or such frontier is unknown, it is apparently inconceivable that both
Parties would mention in the 1966 Treaty, the issue of "maintenance of order
and security" or undertaking "to facilitate the movement of people living on
both sides of the frontiers between the two countries". Even though Libya
tried to explain this fact in its Memorial, it admitted in paragraph 5.541
on page 416 thereof that "in dealing with these questions, the 1966 Accord
supports and confirms the 1955 Treaty without any doubt".
94. The last of the international acts is the notification of Chad to the
Court dated 3 September 1990. Here the argument of Libya is that since Chad
had included in it two other agreements, viz., the Protocol of 10 January
1924 and the Declaration of 21 January 1924, which were not included in
Annex I to Article 3 of the 1955 Treaty, the listing of such international
acts is not exclusive, and no boundary could possibly have been established.
This argument of Libya is contained in its Memorial at paragraph 5.475.
This, to me, is not an impressive argument at all. Whatever Chad may
attempt to add in a separate context to the list featured [p77] in Annex I,
cannot ex hypothesi form part of that Annex as attached to Article 3. It is
not necessary to read into Annex I or for that matter Article 3, what is not
contained therein. The Article as it stands, with the six international
instruments, sufficiently established the necessary boundaries as intended
by both parties. It is, therefore, not difficult for me to conclude on this
point that, notwithstanding contrary arguments, the subsequent acts of the
Parties support and confirm the frontiers as indicated in Article 3, with
its Annex I, of the 1955 Treaty.
95. I have now in support of the decision of the Court, concluded what I may
call my intrinsic interpretation of the 1955 Treaty, and in particular the
provision of Article 3, with Annex I thereof, and my view is that the Treaty
has inter alia established the frontier between Libya and Chad. What I now
wish to examine are other means of verification of my conclusion, and this I
have decided to call extrinsic interpretation. Before I conclude this
separate opinion, I therefore wish to examine the role that the principles
like acquiescence, estoppel, recognition and uti possidetis juris could
possibly play in this matter. The analogous concept of preclusion or
foreclusion may also be touched upon.
VI. Estoppel, Acquiescence, Preclusion and Recognition
96. Estoppel in international law is a developing principle that it may be
difficult to classify at this moment, either as forming part of customary
international law or as belonging to the general principles of
international law. It has its historic root, perhaps not only in the common
law but also in civil law systems, which also include among their concepts
"preclusion" or "foreclusion". Hence, in international arbitral or judicial
tribunals estoppel and preclusion have tended to be referred to
interchangeably or indiscriminately. In many instances they are bound up
with the doctrine of acquiescence, which is at times described as absence of
protest. MacGibbon, who considers acquiescence as an estoppel, said:
"The growing frequency with which use is made of arguments based upon the
principle of estoppel affords a valuable indication of the extent to which
the doctrine of acquiescence itself constitutes a precept for equitable
conduct in which considerations of good faith are predominant." FN1
------------------------------------------------------------------------------------------------------------
FN1 "The Scope of Acquiescence in International Law", British Year Book of
International Law, Vol. XXXI, 1954, p. 147.
------------------------------------------------------------------------------------------------------------
97. Judge Sir Hersch Lauterpacht also expressed the view that absence [p78]
of protest may in itself become a source of legal right in relation to
estoppel or prescriptionFN1.
---------------------------------------------------------------------------------------------------------------------
FN1 British Year Book of International Law, Vol. XXVII, 1950, pp. 395-396.
---------------------------------------------------------------------------------------------------------------------
98. In other words, acquiescence amounts to tacit or implied consent, which
may constitute an admission or recognition. This I believe to be apposite to
the present case. As an acquiescent State, Libya is precluded from denying
or challenging the validity of the boundary established by the 1955 Treaty.
What then, precisely, is estoppel in international law? McNair expressed the
principle in a simple way thus:
"It is reasonable to expect that any legal system should possess a rule
designed to prevent a person who makes or concurs in a statement upon which
another person in privity with him relies to the extent of changing his
position, from later asserting a different state of affairs. Allegans
contraria non est audiendus, or in the vernacular: 'You cannot blow hot and
cold.'"FN2
------------------------------------------------------------------------------------------------------------
FN2 The Law of Treaties, 1961, Chap. XXIX, p. 485.
-----------------------------------------------------------------------------------------------------------
Elias expressed a similar view thus:
"Equally, a state must be precluded from subsequently invoking any ground of
which he had become aware but in which it has acquiesced. This would amount
to what in certain legal systems is called estoppel by conduct."FN3
------------------------------------------------------------------------------------------------------------
FN3The Modern Law of Treaties, 1974, p. 141.
------------------------------------------------------------------------------------------------------------
99. In short, estoppel entails reliability, good faith, finality, stability
and consistency. As Judge Anzilotti once remarked, the silence maintained
by a State may mean consent after a situation has been notified or become
generally knownFN4. Verykios confirmed the statement of Anzilotti when he
also remarked that it is generally admitted that long silence maintained
without reason is equivalent to consentFN5.
---------------------------------------------------------------------------------------------------------------------
FN4 Cours de droit international, 1929, p. 344.
FN5 La prescription et droit international, 1934, p. 26.
---------------------------------------------------------------------------------------------------------------------
100. Recognition is also considered as an aspect of estoppel. It has
generally been admitted that every act of recognition creates an estoppel
FN6. There are also provisions in the Vienna Convention on the Law of
Treaties of 1969 which give sufficient indication as to the justification
and legitimacy of these principles. For example, Article 45 deals with the
loss of right to invoke a ground for invalidating, terminating, withdrawing
from or suspending the operation of a treaty.
---------------------------------------------------------------------------------------------------------------------
FN6 Schwarzenberger, "The Fundamental Principles of International Law",
Collected Courses of the Hague Academy of International Law, 1955, Vol. 87,
p. 253.
---------------------------------------------------------------------------------------------------------------------
101. Article 45 states that such a right may be lost if by reason of the
conduct of a State it can be considered that it has acquiesced in the
validity of the treaty or in its maintenance in force or in operation as
the case may be.[p79]
102. We may now ask what has been the attitude of both the Court and the
Permanent Court of International Justice regarding these principles. One
can say that there are about six such cases, mostly involving territorial
claims and one dealing with the procedural question of jurisdiction. I
shall now deal with some of these cases highlighting important aspects of
them with regard to estoppel, acquiescence, recognition, etc.
(i) Legal Status of Eastern GreenlandFN1
---------------------------------------------------------------------------------------------------------------------
FN1 Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B,
No. 53, p. 22.
---------------------------------------------------------------------------------------------------------------------
103. In 1933, the Permanent Court of International Justice had to decide on
the issue of the Danish claim of sovereignty over Greenland. The Court held
that Norway could not object to the Danish claim because the Norwegian
official had previously made a statement which is not consistent with such
claim. The pronouncement of the Court was clear:
"The Court considers it beyond all dispute that a reply of this nature given
by the Minister of Foreign Affairs on behalf of his Government in response
to a request by the diplomatic representative of a foreign power, in regard
to a question falling within his province, is binding upon the country to
which the Minister belongs." (P.C.I.J., Series A/B, No. 53, p. 71.)
104. The Court in its Judgment made it clear that even though the
undertaking given by Mr. Ihlen may not constitute a definitive recognition
of Danish sovereignty, but at least it did constitute an engagement obliging
Norway to refrain from occupying any part of Greenland which in effect is
tantamount to estoppel.
(ii) Fisheries case (United Kingdom v. Norway)FN2
---------------------------------------------------------------------------------------------------------------------
FN2 I.C.J. Reports 1951, p. 116. See also (1) Arbitral Award Made by the
King of Spain on 23 December 1906 (Honduras v. Nicaragua), I.C.J. Reports
I960, p. 192; (2) Nuclear Tests (Australia v. France), I.C.J. Reports 1974,
p. 253; (3) Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), I.C.J. Reports 1984, p. 246.
---------------------------------------------------------------------------------------------------------------------
105. It is in this case that the Court first pronounced on international
estoppel without actually saying so in 1951. Norway effected the
delimitation of its coastline along the North Sea which was objected to by
the United Kingdom, hence the filing of the Application by the latter. The
Court observed that Norway had consistently, for a period of over 60 years,
been exercising such a right of delimitation without any protest or the same
being contested by the United Kingdom, who must have had [p80] notice of
the same. The Court held that the United Kingdom's silence for such a long
period amounted to acquiescence hence Judgment was given in favour of
Norway. The Court held:
"The Court notes that in respect of a situation which could only be
strengthened with the passage of time, the United Kingdom Government
refrained from formulating reservations.
The notoriety of the facts, the general toleration of the international
community, Great Britain's position in the North Sea, her own interest in
the question, and her prolonged abstention would in any case warrant
Norway's enforcement of her system against the United Kingdom." (I.C.J.
Reports 1951, p. 139.)
(iii) Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) FN1
---------------------------------------------------------------------------------------------------------------------
FN1 I.C.J. Reports 1962, p. 6.
---------------------------------------------------------------------------------------------------------------------
106. In 1962, the Court also had the opportunity to pronounce on
international principles of estoppel in this case between Cambodia and
Thailand with regard to their boundary dispute. As a result of the
Agreement entered into in 1904 between the then French Indochina and Siam
(now Thailand), the surveyors produced 11 maps which were sent to the Thai
Government who never objected to them. Consequently, it was realized later
that the valuable and important Preah Vihear promontory together with the
Temple was on the Cambodian side of the frontier. The Court held that
Thailand's failure to object to the particular map when it ought to do so
compelled it to recognize the boundary as established. The conclusion of
the Court (which is similar to the situation in this case with regard to the
1955 Treaty), is very remarkable and impor-tant to note:
"The Court will now state the conclusions it draws from the facts as above
set out.
Even if there were any doubt as to Siam's acceptance of the map in 1908, and
hence of the frontier indicated thereon, the Court would consider, in the
light of the subsequent course of events, that Thailand is now precluded by
her conduct from asserting that she did not accept it. She has, for fifty
years, enjoyed such benefits as the Treaty of 1904 conferred on her, if only
the benefit of a stable frontier." (I.C.J. Reports 1962, p. 32.)
107. The Court established this principle of international estoppel
definitively for all time in the case quoted above as follows:
"In fact, as will be seen presently, an acknowledgment by conduct was
undoubtedly made in a very definite way; but even if it were [p81]
otherwise, it is clear that the circumstances were such as called for some
reaction, within a reasonable period, on the part of the Siamese
authorities, if they wished to disagree with the map or had any serious
question to raise in regard to it. They did not do so, either then or for
many years, and thereby must be held to have acquiesced. Qui facet
consentire vide tur si loqui debuisset ac potuisset." (I.C.J. Reports 1962,
p. 23.)
108. There are many awards of international tribunals also supporting the
principles of estoppel or acquiescence in the sense of silence or absence of
protest. To mention a few, one may refer to the Alaskan Boundary case, where
the occupation and possession of Alaska for over 60 years, first by Russia
and then by the United States of America, disentitled Great Britain to its
claim over the territory, since there was never any British objection or
protest at such occupation. In the Delagoa Bay Arbitration of 1875, the
Award was given in favour of Portugal against the Dutch and the Austrians,
because of Portugal's continued claims to sovereignty without any objection
or protest on the part of Austria or the Netherlands. The same result was
given in the Guatemala/Honduras Boundary Arbitration in favour of
Guatemala.
109. In 1909, in the Grisbadarna Arbitration between Sweden and Norway, the
Permanent Court of Arbitration in its award decided that Norway had
acquiesced in certain acts of Sweden; consequently, the claim of Sweden was
upheld. To complete this picture of international awards, mention must be
made of the celebrated Award of Judge Huber in the Island of Palmas
Arbitration, where the arbitrator adjudged that, as between the Netherlands
and the United States of America, the latter had a better title to the
disputed island, because of its continuous and peaceful display of State
authority during a long period of time, which Spain and others had
acquiesced in.
110. All these legal, judicial as well as arbitral references fortify my
view, based on the principle of estoppel, that the silence or acquiescence
of Libya from the date of signing the 1955 Treaty to the present time,
without any protest whatsoever, clearly militates against its claim.
111. There were many occasions, some of which I have referred to, when Libya
could have protested to Chad or even France (between 1955 and 1960) that the
Treaty was invalid or had failed to create the expected boundary, yet Libya
was silent. Since 1955, Libya had many opportunities to protest against
this frontier but it did nothing. Instead, it signed another Treaty with
Chad in 1966 without making mention of any defect or presenting a case of
nullity or even raising any objection whatsoever against the 1955 Treaty. On
the contrary, the Treaty of 1966 apparently [p82] confirmed the boundary
established by the 1955 Treaty because in 1966 it recognized that there was
a boundary in place. Another opportunity that knocked at the door of Libya
was in 1964, during the Cairo Conference of the Organization of African
Unity, when at least four nations, including Somalia and Morocco, protested
at the Cairo Declaration, but Libya did not. It did not oppose the
Declaration based by the Conference on the principle of intangibility of
frontiers.
112. Perhaps one should have started with 11 August 1960, when Chad secured
her independence. That was a unique opportunity for Libya to protest the
boundary of Chad as presented by France to the United Nations. But on the
contrary, all that Libya did was to welcome Chad into the fold of
independent States � there was no protest of any kind. Next, one may ask
what Libya did all the time that it was being repeatedly accused of
aggression before international and regional bodies? Chad, on many
occasions, presented its case against Libya before the General Assembly and
the Security Council. It also took its case before the Organization of
African Unity. But Libya continued either to flatly deny occupying Aouzou or
(at a later stage) claimed the 1935 Laval-Mussolini frontier, and. of
course, that is a line not accepted by both Parties, because the
ratifications were not exchanged. Chad started from the 1970s to take its
case to appropriate international bodies which dealt politically and legally
with inter-State disputes. But Libya did nothing.
113. Libya submits that Chad is estopped from claiming any longer the Aouzou
strip. But Chad kept protesting all along against what it considered an
illegal occupation by Libya. Chad, at the General Assembly of the United
Nations, accused Libya of acts of aggression in 1971, 1973 and 1974. It was
part of Chad's case that it made its complaint to the Organization of
African Unity in 1977 and kept the same before that body for 11 years, but
Libya's reaction, according to Chad, was merely evasive. It may be necessary
to quote Chad's list of protests, some of which Libya even confirmed:
"Of course, Chad, too, insisted that there was a frontier, the frontier
described by the 1955 Treaty and its annexed instruments, and it protested
Libya's violation of that line. Chad complained to the United Nations
General Assembly as early as 1971 that Libya harboured expansionist aims;
it had not actually arrived yet. Thereafter it protested vociferously
against Libya's invasion: at first to Libya, as we have seen from Professor
Sorel, then to the General Assembly in 1977, 1978, 1982, 1983, 1984, 1985,
1986 and 1987, and the Security Council in 1978, 1983, 1985 and 1986. It
stated that Libyan forces had crossed the 1955 line, that the invaders were
still there, [p83] and that they ought to be required to withdraw back
behind that frontier." (CR 93/31, p. 80.)
114. The sum total of my view on the issue of estoppel, acquiescence,
recognition, etc., is that while 1 do not agree with Libya's claim of
acquiescence against Chad over its (Libya's) occupation of Aouzou, I am
convinced that, by the silence and conduct of Libya, there is, without
doubt, a strong case for saying, in favour of Chad, that Libya is estopped
from denying the 1955 Treaty boundary since it has acquiesced in and in fact
recognized it.
VII. UTI POSSIDETIS
115. The term uti possidetis juris has its historical origin in Roman law.
It was designated as a formal order of the Praetor which forbade the
disturbance of any immovables between two individuals once it could be
proved that the possessor of such immovables was in peaceful possession
without use of force and had not clandestinely obtained permission given by
the claimant (n�� vi, n�� clam, n�� precario ab adversario). Niebuhr opined
that the origin of the procedure was to protect the occupants of the public
land even though they could not show original titles and hence could not
sustain an action in title or ownership. The writ is therefore designed to
give such people the recognition and sanction of the State. The possessor,
once issued with this award, was forever free from any molestation or claim
by the adversary because this interdict served as the possessor's title.
Soon it became an auxiliary process used in determining which of two
claimants had a better title. The Praetor framed the formula thus:
"Uti eas aedes, quibus de agitur, n�� vi n�� clam, n�� precario alter ab
altero possidetis, quominus ita possideatis, vim fieri veto. "
Standardly translated to mean:
"Whichever party has possession of the house in question, without violence,
clandestinely or permission in respect of the adversary, the violent
disturbance of his possession I prohibit." FN1
------------------------------------------------------------------------------------------------------------
FN1John Bassett Moore, Memorandum on Uti Possidetis, 1911, p. 6.
------------------------------------------------------------------------------------------------------------
116. The final text of the decree is formulated in a very elegantly worded
manner as follows "uti possidetis, ita possideatis" "as you possess, so may
you possess". This principle has, however, been developed in [p84]
international law not as a mere recognition of possession, but also as a
justification of territorial rights and sovereignty.
117. Nowhere in the world has the principle of uti possidetis been more
greatly developed than in Latin America, with regard to the settlement of
States' boundaries at the beginning of the nineteenth century, especially in
the former Spanish colonies in South and Central America.
118. The doctrine of uti possidetis in this region of the world is based on
the concept that there was nothing like terra nullius even during the
Spanish and Portuguese colonial rule and regardless of whether the
territory in question was physically occupied at the material time or not.
The assumption here, as a general principle, is that boundaries must remain
as they were in law at the declaration of independence, namely, 1810 with
regard to the Spanish colonies in South America and 1822 for those in
Central America. Before going further it must be observed that hitherto the
idea of uti possidetis used to be employed by international lawyers to
connote a method of determining the territorial changes that had occurred as
a result of an armed conflict. But it cannot be denied that it was in Latin
America that uti possidetis was given a definitive meaning and application
because of its apparent advantages. It was a convenient principle to apply
within such a region where all the emerging independent States (with the
exception of Brazil which was a former colony of Portugal) were formerly
under Spanish rule. Uti possidetis is based on constructive possession since
the Spanish administrative provinces were not effectively occupied to the
knowledge and understanding of the new independent States. A very clear
picture of this principle is reflected in the Colombia-Venezuela Arbitral
Award of 1922, where the Swiss Federal Council remarked:
"When the Spanish colonies of Central and South America proclaimed
themselves independent in the second decade of the nineteenth century, they
adopted a principle of constitutional and international law to which they
gave the name Uti Possidetis Juris of 1810, with the effect of laying down
the rule that the bounds of the newly created Republics should be the
frontiers of the Spanish Provinces for which they were substituted. This
general principle offered the advantage of establishing an absolute rule
that there was not in law in the old Spanish America any territory without a
master; while there might exist many regions which had never been occupied
by the Spaniards and many unexplored or inhabited by non-civilized
aborigines, these regions were reputed to belong in law to whichever of the
Republics succeeded to the Spanish Province to which these territories were
attached by virtue of the old Royal Ordinances of the Spanish Mother
Country. These territories although not occupied in fact were by common
consent deemed as occupied in law [p85]from the first hour by the new
Republic. Encroachments and untimely attempts at colonization on the part of
the adjacent State, as well as occupations in fact became without importance
and without consequence in law. This principle had also the advantage of
suppressing as it was hoped, disputes as to limits between the new states
..."FN1
------------------------------------------------------------------------------------------------------------
FN1 UNRIAA, Vol. I, p. 228, or Hyde, international Law, Vol. I, p. 503, note
16.
------------------------------------------------------------------------------------------------------------
119. Thus the doctrine formed part of the constitutional and international
law of the States in Latin America. However, at least in principle the
doctrine served many advantageous functions; it may be considered as an
extension of the Monroe Doctrine, in order to ward off possible
re-colonization of the territories by declaring there was no res nullius,
and it also served as a just and equitable foundation for the settlement of
all their boundary disputes. For example, in 1847 uti possidetis was by and
large accepted by the Latin American community as basis for the
delimitation of their boundaries, as reflected in the Treaty of
Confederation signed at the Congress of Lima that year. Article 7 of the
Treaty reads inter alia as follows:
"The Republics of the Confederation recognize, as a principle based on law,
the uti possidetis of 1810 for the determination of their respective
boundaries and in order to demarcate such limits, where they are not natural
and clear, agree that the Governments of the two Republics concerned will
name commissioners, who having examined the disputed territory, shall fix
the boundary between the two Republics according to the water-sheds, the
thalweg or other natural boundaries, as far as the terrain would permit . .
"FN2
------------------------------------------------------------------------------------------------------------
FN2 Footnote of Nederlands Tijdschrift voor Internationaal Recht, Vol. XX,
1973, p. 269.
------------------------------------------------------------------------------------------------------------
120. Nevertheless, there are two schools of thought on this principle at
least in its interpretation. There are those who argued that uti possidetis
must mean merely a juridical line or constructive occupation � uti
possidetis juris or "de jure". While the other, to which Brazil apparently
belongs hold the contrary view that the principle must be based on a
rightful and actual occupation of the territory � uti possidetis de facto.
121. It must however be observed that the uti possidetis juris doctrine is
not an exception in the field of international law. Similar principles are
shared with other norms of the law like the principle of terra nullius
already mentioned and as enunciated in the case of Western Sahara earlier
mentioned; the doctrine of hinterland of an occupied territory which as
reflected in this case led France to enter into treaties with Britain and
other powers to secure for themselves zones or spheres of influence.[p86]
It may also be mentioned that in the Greenland case, Denmark's claim to the
entire island was adjudged as recognized by Norway even though only part of
the island was then occupied by Denmark. With regard, therefore, to the
issue of delimitation or demarcation of boundaries between former colonies
of Spain in Latin America, it can be generally expressed, that they all
succeeded to the colonial territories devoid of any limitation based on
terra nullius on the basis of constructive rather than actual possession. It
was a kind of legal fiction, hence the use of the word "juris".
122. It must however be pointed out that the application of this principle
is not without its difficulties on the ground, especially where the
administrative boundaries are not clear, but at least it can be said that it
gave a definitive starting point. While there is no doubt that, at least, in
principle the doctrine of uti possidetis juris is applicable and applied
among all the former Spanish colonies, one cannot say so regarding
non-former Spanish territories. A case in mind is that of Brazil which is a
former Portuguese colony. Even though Brazil accepts in principle the
doctrine of uti possidetis her interpretation, as already mentioned, is that
there must be actual physical possession or occupation of the territory in
question. As a result it was the interpretation of this doctrine as accepted
by Brazil that was adopted in all the boundary dispute cases between it and
other former Spanish colonial countries in Latin America as reflected in
some Arbitral Awards � i.e., Argentina-Brazil in 1895. Furthermore, the
treaties which Brazil finally concluded with her Spanish-speaking neighbours
for the fixing of new boundaries were based on "the actual possession of the
respective countries when they acquire independence" FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 Hyde, International Law, Vol. I, p. 502.
---------------------------------------------------------------------------------------------------------------------
123. After giving a full background of the doctrine of uti possidetis it is
now essential to relate its relevance to this dispute between Libya and
Chad. Even though the Court did not consider it necessary to deal with this
doctrine and its bearing on the present case despite the fact that both
Parties mentioned it significantly in their arguments, I consider it
expedient to deal with it in this separate opinion, without in any way
detracting from my support for the Court's Judgment.
124. What then is the bearing and the relevance of uti possidetis to this
dispute? Is the doctrine of uti possidetis of universal application and
therefore applicable to all boundary disputes in Africa and therefore the
dispute herein? Is the issue of intangibility of frontiers existing at the
time of independence of African States mere political rhetoric with no [p87] legal effect in international law? In applying the principle of uti
possidetis to boundary disputes in Africa should it be de facto or de jure?
What role if any can effectivites play in this regard? What is the
significance of some of the recent case-laws on this doctrine? These
questions and more have to be examined with regard to this case.
125. First, there is need to examine the inroad of this doctrine into
Africa. There is no doubt that Africa is the most partitioned continent in
the entire world. It is, therefore, not surprising to learn that as early in
the history of the Organization of African Unity as 25 May 1963, by its
Charter, it solemnly declares the principle of respect for the sovereignty
and territorial integrity of each State and its inalienable right to
independent existence � Article II, paragraph 3. This was followed by the
Declaration adopted by the Assembly of the African Heads of State and
Government at the Cairo Conference on 17 July 1964, which states inter alia:
"Considering that border problems constitute a grave and permanent factor
of dimension,
Conscious of the existence of extra-African man�uvres aimed at dividing
African States,
Considering further that the borders of African States, on the day of their
independence, constitute a tangible reality,
Recalling the establishment in the course of the Second Ordinary Session of
the Council of the Committee of Eleven charged with studying further
measures for strengthening African Unity,
Recognizing the imperious necessity of settling, by peaceful means and
within a strictly African framework, all disputes between African States,
Recalling further that all Member States have pledged, under Article VI of
the Charter of African Unity, to respect scrupulously all principles laid
down in paragraph 3 of Article III of the Charter of the Organisation of
African Unity,
1. Solemnly reaffirms the strict respect by all Member States of the
Organisation for the principles laid down in paragraph 3 of Article III of
the Charter of the Organisation of African Unity;
2. Solemnly declares that all Member States pledge themselves to respect the
borders existing on their achievement of national independence." FN1
------------------------------------------------------------------------------------------------------------
FN1 Ian Brownlie, African Boundaries: A Legal and Diplomatic Encyclopaedia,
p. 11.
------------------------------------------------------------------------------------------------------------
126. Many Heads of State at the Cairo Conference explained in their
statements the reason why it is necessary for Africa to adhere to the
prin-[p88]ciple of intangibility of frontiers. Many of them stressed the
need for realism, stability and the desire to ensure finality on the issue.
They considered this principle as the only means of reducing incessant
disputes among the emerging nations of Africa. The Ethiopian Prime Minister
said:
"It is in the interest of all Africans now to respect the frontiers drawn on
the maps, whether they are good or bad, by the former colonizers."FN1
------------------------------------------------------------------------------------------------------------
FN1 McEwen, International Boundaries of East Africa, p. 24.
------------------------------------------------------------------------------------------------------------
The President of Mali gave a similar warning and advised thus:
"we must take Africa as it is, and we must renounce any territorial claims,
if we do not wish to introduce what we might call black imperialism in
Africa . . . African unity demands of each one of us complete respect for
the legacy that we have received from the colonial system, that is to say:
maintenance of the present frontiers of our respective states . . . Indeed,
if we take certain parts of Africa in the pre-colonial period, history
teaches us that there existed a myriad kingdoms and empires. .. which today
have transcended, in the case of certain states, tribal and ethnic
differences to constitute a nation, a real nation ... if we desire that our
nations should be ethnic entities, speaking the same language and having
the same psychology, then we shall find no single veritable nation in
Africa."FN2
------------------------------------------------------------------------------------------------------------
FN2 Ibid.
-----------------------------------------------------------------------------------------------------------
127. In their dissenting opinions in the case of Sovereignty over Certain
Frontier Land (Belgium/Netherlands) both Judges Armand-Ugon and Moreno
Quintana agreed that the uti possidetis principle should be treated as a
general principle of law. This stand has since been taken by the Chamber of
the Court in the Frontier Dispute case (Burkina Faso/Republic of Mali)FN3.
Considering the position of newly independent States anywhere in the world,
but particularly in Africa, the Chamber felt that the application of this
principle ought to be universal wherever it may occur. In support of this
view, one may add that it was supported in the Temple of Preah Vihear case
and Rann of Kutch Arbitration which are boundary disputes relating to
territories outside Africa, in the Indian subcontinent. The rationale behind
this decision, as was stated by the Chamber, is not far-fetched; to prevent
the independence and stability of the new States from incessant boundary
disputes and endless armed conflicts, once the colonial powers had left. It
is for this reason that it was thought desirable and in accord with
international law by the Chamber that the new Afri-[p89]can States should
respect and abide by the administrative boundaries established by their
former colonial power. In strongly supporting the view of the Chamber of the
Court in this case, the uti possidetis principle should no longer be viewed
as a principle limited in its application and scope to Latin America and
African States, but one of general scope and universality which has now
finally emerged as a principle of customary international law. Regardless of
whether some Members of the Organization of African Unity objected to this
principle in 1963 and after, it is now considered to be a principle of
general application to the entire boundary disputes in Africa in particular,
unless parties to any dispute of this nature specifically agree to the
contrary that the principle of uti possidetis should not be applied.
---------------------------------------------------------------------------------------------------------------------
FN3 I.C.J. Reports 1986, p. 554.
---------------------------------------------------------------------------------------------------------------------
128. It is argued that the principle of uti possidetis as applied in Latin
America � de jure � cannot be applied in Africa where effective occupation
is required. It is futile to enter into any controversy generally on this
argument and I shall not do so, but it may be sufficient to say that this is
not applicable to the case in hand. There is sufficient and at times
incontrovertible evidence of French effectivites from 1930 to 1943, from
1951 to 1954 and up to the time of the independence of Chad in 1960. The
effectivites continued up to 1971-1973 when Libya occupied the Aouzou area.
It can therefore be said that if the French effectivites was in doubt in
1912 it was not at all the material time, i.e., in 1951, when Libya had her
independence, in 1955 when France and Libya signed and ratified the Treaty
of Friendship and Good Neighbourliness, and 1960 when Chad gained her
independence. But does it matter seriously whether the principle is uti
possidetis juris or uti possidetis de facto with regard to its application
in Africa? In its Judgment on 22 December 1986, the Chamber of the Court
emphasized that what is paramount is the maintenance of the status quo at
the time of independence and the principle of respect for the boundaries
established as a result of treaties and those resulting from mere
administrative divisions. The Judgment undoubtedly gave preference to uti
possidetis juris as a legal right over actual or effective occupation as the
yardstick for title to a territory. Nevertheless it does not deny the fact
that effective occupation could be taken into consideration (see the case
of the Frontier Dispute (Burkina Faso/Republic of Mali), I.C.J. Reports
1986, pp. 565-566, paras. 22-24, and p. 586, para. 63). After the Chamber of
the Court had dealt extensively with the history, nature, purpose and
rationale of uti possidetis juris it went on to remark in this case thus:
"There is no doubt that the obligation to respect pre-existing [p90]international frontiers in the event of a State succession derives from a
general rule of international law, whether or not the rule is expressed in
the formula uti possidetis. Hence the numerous solemn affirmations of the
intangibility of the frontiers existing at the time of the independence of
African States, whether made by senior African statesmen or by organs of the
Organization of African Unity itself, are evidently declaratory rather than
constitutive: they recognize and confirm an existing principle, and do not
seek to consecrate a new principle or the extension to Africa of a rule
previously applied only in another continent" (I.C.J. Reports 1986, p. 566,
para. 24; emphasis added.)
129. There is another important argument put forward in this case. Since
Libya obtained her independence in 1951 and Chad in 1960 (the so-called
critical dates) could one expect a Declaration passed in 1963 and 1964 �
(four years later in the case of Chad and thirteen years later in the case
of Libya) � to be binding on them? How could one expect a subsequent act and
a declaration for that matter to alter the boundary situation of the
Parties. It should also be observed that that was about nine years after the
1955 Treaty. In fact Libya did mention this fact in its oral argument that
the Declaration was in effect already applied in advance:
"What Libya and France were doing in Article 3 of the 1955 Treaty was
precisely to apply in advance, in their mutual relations, the terms of the
Cairo Declaration to be adopted nine years later in 1964. That is why Libya
never had any problems with the Cairo Declaration; she had already accepted
the principles which it embodied in the 1955 Treaty with France." (CR 93/27,
p. 57.)
130. This approach must have been taken into consideration by the Chamber in
the Frontier Dispute case since Burkina Faso and Mali achieved independence
like Chad in 1960, before the adoption of the Organization of African Unity
Charter of 1963 and the Cairo Declaration of 1964. This point was
definitively referred to by the Chamber in this case under discussion as
follows:
"Thus the principle of uti possidetis has kept its place among the most
important legal principles, despite the apparent contradiction which its
coexistence alongside the new norms implied. Indeed it was by deliberate
choice that African States selected, among all the classic principles, that
of uti possidetis. This remains an undeniable fact. In the light of the
foregoing remarks, it is clear that the applicability of uti possidetis in
the present case cannot be challenged merely because in I960, the year when
Mali and Burkina Faso achieved independence, the [p91] Organization of
African Unity which was to proclaim this principle did not yet exist, and
the above-mentioned resolution calling for respect for the pre-existing
frontiers dates only from 1964." (I.C.J. Reports 1986, p. 567, para. 26;
emphasis added.)
131. The Chamber also considered another principle in international law that
conflicts with uti possidetis juris � the right of people to
self-determination, but observed that the overriding interest of preserving
the independence that has been achieved by much sacrifice and the
mainte-nance of the status quo in terms of African boundary should be seen
as the wisest course that was taken by African statesmen. The Chamber
remarked that:
"The essential requirement of stability in order to survive, to develop and
gradually to consolidate their independence in all fields, has induced
African States judiciously to consent to the respecting of colonial
frontiers, and to take account of it in the interpretation of the principle
of self-determination of peoples." (Ibid., p. 567, para. 25.)
132. Another issue to be considered here as it relates to the dispute is to
answer the question of what is the critical date. There are few important
dates to be considered. Libya achieved her independence on 24 December 1951;
as far as Libya is concerned that must be the critical date in this regard
and it is her argument that there was no boundary conventional or otherwise
on this date between her and Chad. The critical date for Chad is 1960 when
she obtained her independence. Since this is the last of the two dates can
one therefore consider this to be the critical date? This may be a very
persuasive argument since on this date the Treaty of 1955 had already
established a boundary to the south of Libya.
133. Only last year the Chamber of the Court further elucidated on the
principle of uti possidetis vis-a-vis subsequent treaties and the notion of
the critical date, in the case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) when the
Chamber held thus:
"There has also been some argument between the Parties about the 'critical
date' in relation to this dispute. The principle of uti possidetis juris is
sometimes stated in almost absolute terms, suggesting that the position at
the date of independence is always determinative; in short, that no other
critical date can arise. As appears from the discussion above, this cannot
be so. A later critical date clearly may arise, for example, either from
adjudication or from a boundary treaty." (I.C.J. Reports 1992, p. 401, para.
67.)
134. Thus it can be concluded that the 1955 Treaty accords with the
principle of uti possidetis and that the Parties to this dispute are bound
[p92] by it. Consequently, Article 3 with Annex I of the 1955 Treaty
established the frontier between the two Parties. The objective of the
principle uti possidetis is not in doubt; whether de facto or de jure the
methods of approach are similar in effect because its aim is to provide,
ultimately, a stable and permanent solution of boundary problems.
(Signed) Bola Ajibola.
[p93]
Dissenting opinion of judge Sette-Camara
I regret that I have been unable to agree with the Court's majority in the
present Judgment in its appraisal of the facts, in its reasoning and in its
conclusions, and therefore feel under the obligation to explain why I see
this case differently.
The disputed zone is the so-called Libya-Chad borderlands, bounded to the
north-east by the east-south-east line of the Anglo-French Convention of 8
September 1919, to the south by the 15� north latitude parallel, to the west
by the 24� E meridian and to the east by the 16� E meridian. It covers an
area of some 530,000 km2 and encompasses the Borkou-Ounianga, the Ennedi and
the Tibesti, what Chad refers to as the BET (excluding northern Kanem). The
population of the area is under 100,000, compared with Chad's population of
some 5.4 million, including the BET. The area contains 2 per cent of Chadian
local population and it is a poor, bare and inhospitable region.
In spite of the desertic nature of this zone, that we shall for convenience
continue to call the borderlands, it was never a terra nullius, open to
occupation according to international law. The two Parties concur as to
that, and echo herein the analogous finding of the Court in the Western
Sahara case. The land was occupied by local indigenous tribes,
confederations of tribes, often organized under the Senoussi Order.
Furthermore, it was under the distant and laxly exercised sovereignty of
the Ottoman Empire, which marked its presence by delegation of authority to
local people.
That was the background of the dispute: the human presence prior to its
beginning was constituted by the indigenous peoples and the Sublime Porte.
Although the cabinets of the great European Powers were engrossed with the
task of carving up Africa for the sake of their colonial designs, they did
not go beyond their distribution of future spheres or zones of influence,
since the non-existence of areas of terra nullius excluded the possibility
of occupation, short of outright conquest by armed forces.
The fact is, on the one hand, that it was not until the year following the
1912 Treaty of Ouchy, which put an end to the war between Italy and the
Ottoman Empire, that any French intrusion beyond the de facto boundary line
agreed upon with the Ottomans occurred. By 1913 France had not completed its
military action in the borderlands. And before 1919 there was nothing
resembling a civil administration. As far as Tibesti is concerned, it was
not even militarily occupied until 1930. France had abandoned the Tibesti in
1916. Anyway, even the French military pres-[p94]ence from 1913 to 1919 did
not extend north of the strict south-east line.
On the other hand, Italy, in spite of its long-standing ambitions over
Cyrenaica and Tripolitania � the subject of secret arrangements with France
in 1900 and 1902 � did not possess any actual hold on any territory in
North Africa until 1911.
Therefore the sovereignty over the whole region appertained to the Porte
which, furthermore, claimed, as Tripolitanian hinterland, vast expanses to
the south covering most of what is today Chad. The hinterland doctrine was
contested by the colonial Powers � which nevertheless made use of it
whenever it chimed with their interests (e.g., Algerian and Egyptian
hinterlands). But short of the hinterland, the sovereignty of the Ottoman
Empire over the present disputed area was beyond contention. So historic
title over the region belonged first to the indigenous peoples, tribes,
confederations of tribes, sometimes organized under the Senoussiya, and
eventually passed to the Ottoman Empire before the colonial Powers set foot
in the area.
But the European Powers did not wait long to implement their designs on the
African continent. The ambitious policies of France were to unite the French
territories of north, west and central Africa and to link the Atlantic Ocean
to the Red Sea by a continuous belt of French-dominated territories. France
had already conquered Algeria through a long war (1830-1871) and through the
Treaty of Bardo of May 1881 had made Tunisia a French protectorate. On its
side Great Britain had occupied Egypt in 1882, making it a protectorate,
against the wishes of France, traditionally interested in Egypt. The two
colonial Powers were also disputing the domination of the Sudanic countries
extending as far as west Africa.
In this scenario of colonial ambitions, frictions were bound to arise, and
they led to the Fashoda incident, which brought France and Great Britain to
the brink of war. To soften the shock of the confrontation of their
ambitions the Powers felt bound to negotiate conventional solutions.
In 1910 France and the Ottoman Empire reached agreement on the delimitation
of the western frontier of Tripolitania, contiguous to Tunisia, running
south from Ras Ajdir on the Mediterranean coast to Ghad-ames. The Convention
"fixant la frontiere entre la regence de Tunis et le vilayet de Tripoli" was
a very detailed delimitation agreement. It was demarcated by the emplacement
of 333 boundary pillars. The section of the western frontier of
Tripolitania, running from Ghadames in the direction of Toummo, corresponds
to the wavy dashed line considered to be the south-western frontier of the
Vilayet of Tripoli, which is represented on the Livre jaune map, and
referred to in the 1902 exchange of letters between France and Italy (the
Prinetti-Barrere Agreement). If one appraises the frontier situation in
1902, it is surprising that Chad should [p95] now try to upgrade a frontier
line agreed upon by France and Italy. Indeed the whole region comprised
within the wavy dashed line was under the sovereignty of the Ottoman Empire.
How could France, at the time still hundreds of kilometres south of
Tripolitania, and Italy, at the other side of the Mediterranean, conclude a
treaty that would establish a frontier between them? A treaty inter alios
acta? Moreover, the reference in the 1902 exchange of letters to the
frontier of Tripolitania is clearly to a limit to future French expansion,
not to any conventional frontier.
In fact, in the present case there were two key questions to be resolved:
1. Is there, or has there ever been, a conventional boundary between Libya
and Chad east of Toummo leading to the Sudanese frontier?
2. Are the Conventions listed in Annex I to the 1955 Libya-France Treaty of
Friendship and Good Neighbourliness actually boundary treaties to which the
provisions of the Cairo Declaration of 1964 and Article 11 of the 1978
Vienna Convention on Succession of States in Respect of Treaties apply, that
is to say, do they ipso facto escape the application of the tabula rasa
general rule?
As to the first question, I am convinced that there is not, nor has there
ever been, a boundary line conventionally established marking the southern
frontier of Libya east of Toummo. Neither Party has produced evidence of any
treaty or agreement covering that part of the Libyan frontier. The only
attempt at drawing a frontier described in detail from Toummo eastwards
towards the Sudan was the 1935 Laval-Mussolini Treaty. The fact that there
was no prior boundary east of Toummo was explicitly and clearly recognized
by the French Government when it presented its Expose cies motifs to the
French Parliament in relation to the ratification of the 1935 Treaty. That
1935 line could have been a real frontier according to the principles of
international law. But since the treaty in question never entered into force
for lack of ratification due to the political evolution of events at the
time, the line never became a conventionally agreed frontier, although it
still appears on many maps, some relatively recent, and is resorted to by
Chad itself as the southern limit of the so-called "Aouzou strip".
As to the second question, I am likewise convinced that the 1899 line of the
Additional Declaration tagged to Article 4 of the 1898 Franco-British
Convention was never considered as a boundary line. It was aimed at dividing
spheres of influence between the two big colonial Powers, France and Great
Britain. Furthermore, Lord Salisbury, Prime Minister and Minister for
Foreign Affairs of Great Britain, recognized that it was less than a
division of spheres of influence. It was merely a line establishing the
limits of the French expansion northwards and eastwards, [p96] laboriously
negotiated and agreed upon under the shadow of the Fashoda incident.
Therefore, according to him, it had a purely negative purpose, and it would
be difficult to consider it a boundary line � at that time or now � because,
as I submit, there is no question of any effectivites that could modify the
nature of the line so as to endow it with any such status.
As to the Convention of 8 September 1919, between France and Great Britain,
supplementary to the Declaration of 21 March 1899, it deals mostly with the
frontier between Chad and the Anglo-Egyptian Sudan, and not with the
Libya-Chad boundary. Hence the fact that it is known as the Wadai-Darfour
Convention. It is therefore more related to Article 2 of the 1899
Declaration than to its Article 3. Indeed, the Expose des motifs of the
draft law submitting to the French Parliament the text of the Agreement
calls it Traite de delimitation entre le Ouadai et le Darfour.
The only proviso that bears any relation to Article 3 of the 1899
Declaration is its final paragraph, which reads:
"It is understood that nothing in this Convention prejudices the
interpretation of the Declaration of the 21st March, 1899, according to
which the words in Article 3 '. . . shall run thence to the south-east until
it meets the 24th degree of longitude east of Greenwich (21 � 40' east of
Paris)' are accepted as meaning '. . . shall run thence in a south-easterly
direction until it meets the 24th degree of longitude east of Greenwich at
the intersection of that degree of longitude with parallel 19� 30' of
latitude."' (Memorial of Libya, "International Accords and Agreements
Annex", Vol. 2, No. 17, p. 165.)
The line of Article 3 of the 1899 Declaration, in following a strict
south-east direction � and that seems to have been the intention of the
negotiators in the light of the travaux preparatoires �, would intersect the
24� E meridian at 15� 35' N of latitude, approximately where it meets the
Wadi Howa. The same line as depicted on the Livre jaune map would meet the
24� E meridian at the latitude of 19� N. According to the 1919
Franco-British Convention, the intersection would occur at 19� 30' N, and
Chad maintains that it was never a strict south-east line, but an
east-south-east line. So there would be a substantive modification in the
course of the line, which would have been pushed northwards some four
degrees.
It is therefore not surprising that Italy protested against this
Convention, negotiated and concluded without its knowledge, which would
have amputated some 180,000 km2 of Libyan territory. Moreover, if the
paragraph opens with the statement that "nothing in this Convention
prejudices the interpretation of the Declaration of the 21st March, 1899",
it is obvious that the 1919 line has the same nature as the 1899 line,
namely both were intended to divide spheres of influence and by no means
could be interpreted as constituting international boundaries. [p97]
In the eyes of Chad, the Treaty of Friendship and Good Neighbourliness
concluded by France and Libya on 10 August 1955, which it considered the
most important and decisive document in the dossier, provided the evidence
of the southern frontier of Libya east of Toummo. The negotiations on the
Treaty took place in two stages: in Paris from 4 to 6 January 1955 and in
Tripoli from 9 July to 10 August of the same year. Prime Minister
Mendes-France and his Libyan counterpart, Mustapha Ben Halim, participated
in the Paris session and Ben Halim and Ambassador Dejean participated in the
second stage in Tripoli. The perusal of the existing minutes of these
encounters, which are far from complete, reveal the adamant positions of the
parties: France fighting for the establishment of the frontier line and
Libya insisting on the with-drawal of the French forces from the Fezzan.
Libya regarded that as having constituted the main objective of the Treaty,
described as an "evacuation treaty". At the end of the negotiations � and
the minutes do not explain how or with what arguments � the text of Article
3 of the Treaty was approved, according to which the frontiers were those
arising from the international acts in force at the date of Libya's
independence, which were listed in Annex I to the Treaty. The Annex, agreed
upon by exchange of letters, lists six international acts. During the oral
proceed-ings Chad reduced that list to three main instruments: the 1899
Additional Declaration, the 1902 Prinetti-Barrere Agreement and the 1919
Anglo-French Convention.
In spite of the Chadian arguments I still doubt whether any of these three
instruments can be considered a boundary treaty. The 1899 Declaration, as
has been said, divided the spheres of influence or. as Lord Salisbury, the
chief British negotiator, contended, not even that. The objective of the
line was a negative one, namely to mark the limits of the French expansion
northwards and eastwards. The 1902 exchange of letters between Prinetti and
Barrere, a follow-up of the 1900 exchange of letters between
Visconti-Venosta and the same Barrere, had little to do with the southern
frontier problem. It dealt with reciprocal respect for French interests in
Morocco and future Italian ambitions in Tripolitania and Cyrenaica. It
includes, nevertheless, a reference to the frontier of Tripolitania,
appearing as a wavy dashed line on the Livre jaune map, but only as a limit
to French expansion northwards. As to the 8 September 1919 Convention
between France and Great Britain, said to be "supplementary to the
Declaration of 21 March 1899", it should again be recalled that its last
proviso read: "nothing in this Convention prejudices the interpretation of
the Declaration of the 21st March, 1899". But this text is ambiguous: whose
interpretation? Besides, the 1919 Convention in adopting an east-south-east
line changed considerably the terminal point of the line. Furthermore, if
"nothing . . . prejudices the interpretation of the Declaration of the 21st
March, 1899", the consequence would be that the 1919 line also divided
spheres of influence and not frontiers. [p98]
On the other hand, the point whether the treaties listed in Annex I were en
vigueur also deserves examination. The 1902 Franco-Italian exchange of
letters, for one, besides being alien to the frontier problem, was a secret
agreement whose survival after the League of Nations' con-demnation of
secret treaties is, to say the least, doubtful. I have also doubts whether
originally secret agreements were ever accepted for registration with the
United Nations Secretariat.
My conclusion, therefore, is that none of the three treaties invoked by Chad
qualifies for international recognition as a frontier treaty or could
consequently benefit from the exceptional treatment enshrined in the Cairo
Declaration and in Article 11 of the 1978 Vienna Convention on Succession of
States in Respect of Treaties.
As to the 1955 Treaty, it had an agreed duration of 20 years, a duration
which was explicitly established by the parties for each of the concessions
made to France. Now, Article 54 of the Vienna Convention on the Law of
Treaties provides, inter alia, that the termination of a treaty takes place
in conformity with the provisions of the treaty. Therefore the 1955 Treaty
lapsed in 1975. The Parties were discreet in discussing its Article 11. But
the Chadian Counter-Memorial dealt with it, accepting the fact that the
Treaty lapsed in 1975, though only to contend that the provisions of Article
3 and Annex I survive the Treaty because the latter contains boundary
agreements and consequently benefits from the exception to the tabula rasa
rule reserved for dispositive and territorial treaties. But the character of
those provisions cannot be taken for granted, and their role in providing an
internationally recognized frontier remains to be proved.
It is important to recall that France made the ratification of the 1955
Treaty conditional on the conclusion of the 1956 Agreement on the
rectification of the Franco(Algerian)-Libyan frontier that would turn over
to France the oil field of Edjele. Indeed the French Parliament approved the
Isorni Amendment, that added the following article to the proposed law
authorizing ratification: "Les instruments de ratification seront deposes
lorsque sera intervenu l'accord fixant la frontiere entre le Royaume-Uni de
Libye et l'Algerie." (Memorial of Libya, Vol. 1, p. 398.)
That is why the 1955 Treaty was not ratified before 1957. And once the
rectification of the Libyan-Algerian border had been settled, France did not
bother to register the 1955 Treaty with the United Nations Secretariat
until 1991.
I now turn to the question of effectives, that is to say, to the peaceful
and continuous exercise of State power, to use the language of Max Huber in
the Island of Palmas arbitration. Until the Italo-Turkish war of 1911 and
the Treaty of Ouchy of 1912 there is no doubt that the colonial effectivites
in the disputed area were exercised by the Ottoman Empire, through a distant
and lax system based on the delegation of its powers to local
administrations. It is contended in the dossier that there was a shared
sovereignty between the Ottomans and the local indigenous peoples,
especially those organized and directed by the Senoussiya. Chad [p99]
contests the validity of these effectiviles, but the fact is that there was
no French presence in the area prior to the Treaty of Ouchy and the
withdrawal of the Ottomans. It was only afterwards, namely in 1913, that
the French incursions trespassed beyond the modus vivendi line established
with the Ottomans. In successive incursions the French occupied the key
points, attacked and destroyed zawiyas and tried to establish a domination
of the borderlands, especially of the BET. But the resistance of the local
tribes, and particularly of the Senoussi, never allowed the establishment
of the exercise of peaceful and continuous State power by France. It was
always a military occupation, and authority was exercised by military
officers. Even after the independence of Chad, French military were retained
in the administration of local oases. Moreover, Chad did not provide any
documentary proof of the exercise of peaceful State power. No documentation
appears in the dossier, in contrast to the case concerning the Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
in which volumes of certified documentation were provided as evidence of
the peaceful and continuous exercise of State power.
The fact is that no concrete evidence of effectiviles was presented in the
case-file, of either Ottoman, French or Italian effectivites and, of course,
still less of Senoussi effectivites. So I believe that any invocation of
effectiviles should simply be disregarded. Chad's suggestion that there
existed a sui generis type of effectivites, owing to the peculiar
geographical circumstances of a desertic and inhospitable area, is not
convincing. It does not match up to the famous criteria on the role of
effectivites enshrined in the Frontier Dispute (Burkina Faso/Republic of
Mali) case.
The Chadian Memorial quoted French documents which confirm that the
occupation of the BET was carried out for the enforcement of their hold on
the zones of influence, and not to effect an occupation such as could
underpin a peaceful and continuous exercise of State power. For instance, in
1913 the French forces occupied Zouar and Bardai, the main town of Tibesti.
But they withdrew as early as 1916 and did not come back until 1930. The
"reconnaissance patrols", tournees militaires, sporadically conducted with
long intervals, could not suffice to establish the existence of any genuine
effectivites.
Chad on various occasions invoked the Jef-Jef incident of 1938 and the
Aouzou-Moya incident of 1955 as evidence of French sovereignty in the area.
In fact, these were minor incidents whose importance was inflated on
purpose. In the first incident a few unarmed Italian workers drilling a well
were expelled by French troops. In the second a civilian Libyan group
accompanied by a few soldiers, escorting a United Nations statistics
specialist, were likewise forced to withdraw to the claimed French
frontier.[p100]
I believe that the reasons aligned by Libya to contend that effectivites
could not play a decisive role in this case were valid. The basic question
was a question of title, and the legal title has been shown to reside first
with the indigenous population, especially the Senoussi peoples, the
Otto-man Empire, and later Italy. This was the title that Libya inherited.
France never occupied the Libya-Chad borderlands (whether by peaceful means
or by conquest) until after 1929, by which time occupation by force was
unlawful under international law. In any event, the territories in question
were not terra nullius, so that the occupation by a French military presence
was, to use the words of Chief Justice Hughes of the United States Supreme
Court, "a mere usurpation".
Moreover, one should recall that the 1955 Franco-Libyan Treaty, which
according to Chad was the rock on which the whole Chadian case rested,
disregards completely the question of effectivites, relying exclusively on
the conventions in force at the date of Libyan independence for the purpose
of defining the borderline east of Toummo.
I now turn to the so-called "Aouzou strip". The Chadian Memorial itself
(Vol. I, p. 17) recognizes that the expression "Aouzou strip" is of recent
use, appearing at the end of the 1970s because of "usage journalis-tique".
It encompasses the region that would have been "ceded" by France to Italy
under the terms of the Laval-Mussolini Treaty. It is delimited by two lines:
the 1935 Treaty line and the 1899 Franco-British Convention line. It is
curious that Chad should have invoked the line of the 1935 Treaty,
describing in full detail the southern limit of the "Aouzou strip". For the
northern limit, it relied on the 1899 line as it appears on the Livre jaune
map. The "Aouzou strip", including a small intrusion into the territory of
Niger, covers an area of 144,000 kmFN2 � 1,040 km long and 140 km wide. The
strip is divided into parts corresponding to the Borkou, the Ennedi and the
Tibesti; in other words, it is the BET.
The position of the French Government concerning the sovereignty over the
"bande d'Aouzou" is somewhat dubious. For instance, on 27 March 1985, the
Minister of Defence, Charles Hernu, said in an interview:
"La bande d'Aouzou est hors du Tchad. Cela, tout le monde en est d'accord.
M�me le president Habre le reconna�t. C'est une affaire qui remonte � 1934."
(See Counter-Memorial of Libya, Vol. 1, p. 312.)
Therefore, nobody less than the Minister of Defence of France confirmed the
clear-cut statement of President Tombalbaye in his disputed letter to the
Libyan Head of State.
As has been said, the Parties disagreed on the nature of the task that lay
before the Court. Libya contended for a distribution of territories, [p101]
having in mind the historic colonial titles. Chad maintained that the
southern frontier of Libya existed, and resulted from the international
instruments en vigueur at the time of Libya's independence. Indeed,
according to Chad, the task of the Court was confined to the choice of one
of the two lines limiting the Aouzou strip, despite the fact that in the
Accord-Cadre there is not the slightest mention of the "Aouzou strip". Chad
contended that whatever the task of the Court might be, it would have to
establish a frontier line.
Chad agreed that by virtue of the Treaty of Ouchy, confirmed by the 1923
Lausanne Peace Treaty, Italy inherited all the sovereign rights of the
Ottoman Empire, yet Chad denied that the Porte had any sovereign rights over
the BET.
Libya appealed to considerations of equity if the Court had to establish ex
novo a boundary line, urging it to produce a line which was practical, fair
and sensible, taking into consideration the interests of the Parties and
the peoples of the region. Chad categorically rejected any resort to
considerations of equity, even infra legem.
The relationship between the two countries has been far from peaceful. Early
in 1963 the internal situation in Chad was conducive to a rebellion that
triggered the creation of the FROLINAT (Front de liberation national). In
the same year a treaty of friendship between Chad and Libya was concluded,
dealing mainly with security of communications, but providing nothing on
frontiers.
By 1955 the discovery of oil and the promulgation of the first Libyan
Petroleum Regulation opened the door to a brighter future for Libya. By 1971
Chad, alleging interference in internal questions, had broken off relations
with Libya, but relations were resumed in 1972 when a new treaty of
co-operation and mutual assistance was signed. Again there was no mention of
frontiers. It was around then that the episode of the Tom-balbaye letter
occurred. Following the 1972 Treaty other agreements between Libya and Chad
were concluded. In the 1974 Treaty the only reference to frontiers was a
condemnation of the arbitrarily established colonial frontiers, obviously in
contradiction to the 1964 Cairo Declaration. A new treaty was signed in
1980 and again there was no mention of the presence of Libyan troops on
Chadian territory. Yet another treaty was signed in 1981, ignoring the
"invasion" by Libyan troops of the "Aouzou strip". (On the Chadian internal
front, the Accord de Lagos sur la reconciliation nationale au Tchad,
concluded in Lagos on 13-18 August 1979, by all Chadian political parties,
assisted by the representatives of Cameroon, Libya, Niger, Nigeria, Senegal,
Sudan, Congo, Liberia, Benin, Central Africa and the representative of the
Organization of African Unity, had not dealt at all with the occupation of
the "Aouzou strip" by Libyan troops. Its objective was a cease-fire and the
creation of the Gouvernement d'union nationale de transition (GUNT).) The
complaints presented by Chad to the United Nations Security Council produced
no solution but were apparently conducive to the conclusion of the Accord-[p102] Cadre of 31 August 1989, by virtue of which the present case came to
the Court.
I believe that the titles to the territory asserted by Libya are valid.
Neither France nor Chad could present any sounder titles than the three
layers of title enuring to Libya, namely those of the peoples inhabiting the
territory, tribes, confederations of tribes and the Senoussi Order, the
Ottoman Empire's sovereignty over the area, passing to Italy in 1912 and
thence to Libya in 1951.
The argument of Chad that the claim of Libya would involve half of Chadian
territory was unimpressive. Not only does it beg the question but it also
works the other way around, since Chad's claim involves a substantial part
of Libyan territory.
The claim of Libya represented on map 105 of the Libyan Memorial was based
on succession to Ottoman claims that went much farther to the south.
The concluding paragraph of the Judgment, paragraph 76, invokes the pacta
sunt servanda rule to justify the line enshrined in the operative part,
which would result from the 1955 Treaty. Nobody would challenge this
fundamental rule of international law, what Hans Kelsen established as the
Grundnorm of international law. But it obviously applies only to treaties in
force, and Article 11 of the 1955 Treaty renders its validity after the 20
years deadline, to say the least, debatable.
Paragraph 77, containing the dispositif, resorts to the line of the 1919
Franco-British Convention, the so-called "Wadai-Darfour Convention" which,
incidentally, dealt with the southern frontier of Libya with the French
territories, moving it northward. The 1899 strict south-east line was indeed
progressively moved northward: first with the Livre jaune map, in a
unilateral modification of the original line, without consultation with the
British, something which, according to the handwritten note of Lord Thomas
Sanderson, Permanent Under-Secretary of State for Foreign Affairs, "did not
matter much". The fact is that the 1899 line, following a strict south-east
direction � and that seems to have been the intention of the negotiators in
the light of the travaux preparatoires � would intersect the 24� E meridian
at 15� 35' N of latitude, approxi-mately at the place where it meets the
Wadi Howa. The same line, as depicted on the Livre jaune map, would meet the
24� E meridian at the latitude of 19� N. According to the Franco-British
Convention, the intersection would occur at 19� 30' N. Chad contended that
it was not a strict south-east line, but an east-south-east line. Therefore
there is a substantive modification in the course of the line, which has
been pushed northward some four degrees. And that is the line which the
dispositif of the Judgment takes as the basis for defining the boundary
between the Republic of Chad and the Libyan Arab Jamahiriya.[p103]
But one could not exclude a compromise solution which, regrettably, neither
the Parties nor the Court explored. There were two possibilities for drawing
a fair and equitable line: the first would have been the line of United
Nations map No. 241, which is close to the 1935 line but not iden-tical to
it. Given that Chad had not scrupled to use the 1935 line as the southern
limit of the "Aouzou strip", I cannot see why it would have objected to its
use for a boundary ex novo.
The second solution would have been to revert to the 1899 strict southeast
line, which was at the origin of the dispute, and which continues to appear
on very recent maps, for instance, the 1988 OAU map attached to its
Sub-Committee's report on the Libya-Chad dispute. This, in my view, is the
most obvious, and perhaps the most equitable, line.
Both those lines would have afforded the advantage of dividing the Tibesti
Massif between the two countries. And it is not necessary to emphasize the
importance of the Tibesti Massif for the possible defence of one country or
the other, as repeatedly asserted by both Parties.
(Signed) Jose Sette-Camara. |
|