CR 93/15
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1993
Public sitting
held on Tuesday 15 June 1993, at 10 a.m., at the Peace Palace,
President Sir Robert Jennings presiding
in the case concerning Territorial Dispute
(Libyan Arab Jamahiriya/Chad)
_______________
VERBATIM RECORD
_______________
ANNEE 1993
Audience publique
tenue le mardi 15 juin 1993, à 10 heures, au Palais de la Paix,
sous la présidence de sir Robert Jennings, Président
en l'affaire du Différend territorial
(Jamahiriya arabe libyenne/Tchad)
____________
COMPTE RENDU
____________
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Presents:
President Sir Robert Jennings
Vice-President Oda
Judges Ago
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Ajibola
Herczegh
Judges ad hoc Sette-Camara
Abi-Saab
Registrar Valencia-Ospina
___________
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Présents :
Sir Robert Jennings, Président
M. Oda, Vice-président
MM. Ago
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Ajibola
Herczegh, juges
MM. Sette-Camara
Abi Saab, juges ad hoc
M. Valencia-Ospina, Greffier
__________
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The Government of the Libyan Arab Jamahiriya is represented by:
H.E. Mr. Abdulati Ibrahim El-Obeidi
Ambassador,
as Agent;
Mr. Kamel H. El Maghur
Member of the Bar of Libya,
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A.
Whenwell Professor emeritus, University of Cambridge,
Mr. Philippe Cahier
Professor of International Law, Graduate Institute of International Studies, University of Geneva,
Mr. Luigi Condorelli
Professor of International law, University of Geneva,
Mr. James R. Crawford
Whenwell Professor of International Law, University of Cambridge,
Mr. Rudolph Dolzer
Professor of International Law, University of Mannheim,
Sir Ian Sinclair, K.C.M.G., Q.C.
Mr. Walter D. Sohier
Member of the Bar of the State of New York and of the District of Columbia,
as Counsel and Advocates;
Mr. Timm T. Riedinger
Rechtsanwalt, Frere Cholmeley, Paris,
Mr. Rodman R. Bundy
Avocat à la Cour, Frere Cholmeley, Paris,
Mr. Richard Meese
Avocat à la Cour, Frere Cholmeley, Paris,
Miss Loretta Malintoppi
Avocat à la Cour, Frere Cholmeley, Paris,
Miss Azza Maghur
Member of the Bar of Libya,
as Counsel;
Mr. Scott B. Edmonds
Cartographer, Maryland Cartographics, Inc.,
Mr. Bennet A. Moe
Cartographer, Maryland Cartographics, Inc.,
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Le Gouvernement de la Jamahiriya arabe libyenne est représenté par :
S. Exc. M. Abdulati Ibrahim El-Obeidi
ambassadeur,
comme agent;
M. Kamel H. El Maghur
membre du barreau de Libye,
M. Derek W. Bowett, C.B.E., Q.C., F.B.A.
professeur émérite, ancien titulaire de la chaire Whewell à l'Université de Cambridge,
M. Philippe Cahier
professeur de droit international à l'Institut universitaire de hautes études internationales de
l'université de Genève,
M. Luigi Condorelli
professeur de droit international à l'Université de Genève,
M. James R. Crawford
titulaire de la chaire Whewell de droit international à l'Université de Cambridge,
M. Rudolph Dolzer
professeur de droit international à l'Université de Mannheim,
Sir Ian Sinclair, K.C.M.G., Q.C.
M. Walter D. Sohier
membre des barreaux de l'état de New York et du district de Columbia,
comme conseils et avocats;
M. Timm T. Riedinger
Rechtsanwalt, Frere Cholmeley, Paris,
M. Rodman R. Bundy
avocat à la Cour, Frere Cholmeley, Paris,
M. Richard Meese
avocat à la Cour, Frere Cholmeley, Paris,
Mlle Loretta Malintoppi
avocat à la Cour, Frere Cholmeley, Paris,
Mlle Azza Maghur
membre du barreau de Libye,
comme conseils;
M. Scott B. Edmonds
cartographe, Maryland Cartographics, Inc.,
M. Bennet A. Moe
cartographe, Maryland Cartographics, Inc.,
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Mr. Robert C. Rizzutti
Cartographer, Maryland Cartographics, Inc.,
as Experts.
The Government of the Republic of Chad is represented by:
Rector Abderahman Dadi, Director of the Ecole nationale d'administration et de
magistrature de N'Djamena,
as Agent;
H.E. Mr. Mahamat Ali-Adoum, Minister for Foreign Affairs of the Republic of Chad,
as Co-Agent;
H.E. Mr. Ahmad Allam-Mi, Ambassador of the Republic of Chad to France,
H.E. Mr. Ramdane Barma, Ambassador of the Republic of Chad to Belgium and the
Netherlands,
as Advisers;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre and at the Institut
d'etudes politiques of Paris,
as Deputy-Agent, Adviser and Advocate;
Mr. Antonio Casses, Professor of International Law at the European University Institute,
Florence,
Mr. Jean-Pierre Cot, Professor at the University of Paris I (Panthéon-Sorbonne),
Mr. Thomas M. Franck, Becker Professor of International Law and Director, Center for
International Studies, New York University,
Mrs. Rosalyn Higgins, Q.C., Professor of International Law, University of London,
as Advisers and Advocates;
Mr. Malcolm N. Shaw, Ironsides Ray and Vials Professor of Law, University of Leicester,
Member of the English Bar,
Mr. Jean-Marc Sorel, Professor at the University of Rennes,
as Advocates;
Mr. Jean Gateaud, Ingénieur général géographe honoraire,
as Adviser and Cartographer;
Mr. Jean-Pierre Mignard, Advocate at the Court of Appeal of Paris,
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Mr. Robert C. Rizzutti
cartographe, Maryland Cartographics, Inc.,
comme experts.
Le Gouvernement de la République du Tchad est représenté par :
M. Abderahman Dadi, directeur de l'école nationale d'administration et de
magistrature de N'Djamena,
comme agent;
S. Exc. M. Mahamat Ali-Adoum, ministre des affaires étrangères de la République du Tchad,
comme coagent;
S. Exc. M. Ahmad Allam-Mi, ambassadeur de la République du Tchad en France,
S. Exc. M. Ramdane Barma, ambassadeur de la République du Tchad en Belgique et aux
Pays-Bas,
comme conseillers;
M. Alain Pellet, professeur à l'Université de Paris X-Nanterre et à l'Institut d'études politiques
de Paris,
comme agent adjoint, conseil et avocat;
M. Antonio Cassese, professeur de droit international à l'Institut universitaire européen de
Florence,
M. Jean-Pierre Cot, professeur à l'Université de Paris I (Panthéon-Sorbonne),
M. Thomas M. Franck, titulaire de la chaire Becker de droit international et directeur du
centre d'études internationales de l'Université de New York,
Mme Rosalyn Higgins, Q.C., professeur de droit international à l'Université de Londres,
comme conseils et avocats;
M. Malcolm N. Shaw, titulaire de la chaire Ironsides Ray and Vials de droit à l'Université de
Leicester, membre du barreau d'Angleterre,
Mr. Jean-Marc Sorel, professeur de l'Université de Rennes,
comme avocats;
M. Jean Gateaud, ingénieur général géographe honoraire,
comme conseil et cartographe;
Me. Jean-Pierre Mignard, avocat à la Cour d'appel de Paris,
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Mr. Marc Sassen, Advocate and Legal Adviser, The Hague,
as Counsel;
Mrs. Margo Baender, Research Assistant, Center of International Studies, New York
University, School of Law,
Mr. Oliver Corton, Collaborateur scientifique, Université libre de Bruxelles,
Mr. Renaud Dehousse, Assistant Professor at the European University Institute, Florence,
Mr. Jean-Marc Thouvenin, attaché temporaire d'enseignement et de recherche at the
University of Paris X-Nanterre,
Mr. Joseph Tjop, attaché temporaire d'enseignement et de recherche at the University of
Paris X-Nanterre,
as Advisers and Research Assistants;
Mrs. Rochelle Fenchel;
Mrs. Susal Hunt;
Miss Florence Jovis;
Mrs. Mireille Jung;
Mrs. Martine Soulier-Moroni.
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Me Marc Sassen, avocat et conseiller juridique, La Haye,
comme conseils;
Mme. Margo Baender, assistante de recherche au centre d'études internationales de la
Faculté de droit de l'Université de New York,
M. Oliver Corten, collaborateur scientifique, Université libre de Bruxelles,
M. Renaud Dehousse, maître-assistant à l'Institut universitaire européen de Florence,
M. Jean-Marc Thouvenin, attaché temporaire d'enseignement et de recherche à l'Université de
Paris X-Nanterre,
M. Joseph Tjop, attaché temporaire d'enseignement et de recherche à l'Université
de Paris X-Nanterre,
comme conseillers et assistants de recherche.
Le secrétariat de la délégation sera assuré par:
Mme Rochelle Fenchel;
Mme Susal Hunt;
Mlle Florence Jovis;
Mme Mireille Jung;
Mme Martine Soulier-Moroni.
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The PRESIDENT: Please be seated. Sir Ian Sinclair.
Sir Ian SINCLAIR: Mr. President, Members of the Court,
The second half of the statement made by Mr. Maghur yesterday was devoted to a brief
account of Libya's views on the significance of the Franco/Libyan Treaty of 1955 to a resolution of
the territorial dispute between Libya and Chad. Mr. Maghur rightly placed the 1955 Treaty in the
context of the broad political relations between Libya and France in the early and mid-1950s. Now,
the Court will be aware from the lengthy written pleadings that the first major element in Libya's
case is that there is not now, nor has there ever been, a conventional boundary between Libya and
Chad, or between the territories now comprised in Libya and Chad, whether on the basis of Article 3
of the 1955 Treaty read in isolation, or on the basis of any of the other international instrument not
referred to in Annex I. That is the broad framework of this opening part of Libya's oral pleading.
Within that broad framework, my particular task is to present Libya's considered views on the
significance and meaning of Article 3 of the 1955 Treaty in the context of the present territorial
dispute.
The Court will of course be familiar with the principle of "contemporaneity" in treaty
interpretation. The late distinguished Judge Sir Gerald Fitzmaurice formulated this principle in the
following terms:
"the terms of a treaty must be interpreted according to the meaning which they
possessed, or which would have been attributed to them, and in the light of current
linguistic usage, at the time when the treaty was originally concluded." (33 BYBIL,
1957, p. 212.)
That principle has been applied by the present Court, for example, in the Rights of Nationals of the
United States of America in Morocco case (I.C.J. Reports 1952, p. 189).
Of course, as the Court will be aware, this principle of contemporaneity in treaty
interpretation is not unqualified. We know from the Court's Judgment in the Aegean Continental
Shelf case (I.C.J. Reports 1978, p. 32) and from its advisory opinion on the Legal Consequences for
States of the Continued Presence of South Africa in Namibia (I.C.J. Reports 1971, p. 31) that
expressions may be used in a treaty which are, as it were, by definition, generic and which may lend
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themselves to an evolutionary interpretation. However, subject to this qualification, the principle of
contemporaneity, as an expression of the broader concept advanced by Max Huber in the Island of
Palmas arbitration that "a juridical fact must be appreciated in the light of the law contemporary
with it, and not of the law in force at the time when a dispute in regard to it arises or fails to be
settled" (2 UNRIAA, p. 845), certainly has its part to play in the process of interpretation.
Now, Mr. President, Libya has thought it right to begin this series of presentations by taking
first the 1955 Treaty. This is because both Libya and Chad accept that this should be the starting
point. Chad indeed asserts in its Memorial that the 1955 Treaty constitutes un titre contestable
determining the international boundary between Libya and Chad (MC, Chap. III). Chad likewise
insists in its Reply that the 1955 Treaty has an exceptional importance for the purpose of the
settlement of the dispute submitted to the Court (RC, para. 5,56). True, Chad appears at time to
resile from this position, particularly in its most recent pleading. Thus, Chad now appears to
maintain that by the 1955 Treaty, France and Libya confirmed the line of the disputed boundary;
but that, even if they had not concluded this Treaty, the line would still have been the same by reason
of the fact that, at the time of Libya's and indeed Chad's independence, it resulted from previous
agreements to which the two States had succeeded; and that, even if, in their turn, these previous
agreements must be ignored, the Aozou strip would not be less Chadian because of the effectiveness
of the French and Chad presence in that area (RC, para. 1.32). Now, the Court may think that this
marks a substantial retreat from Chad's opening position that the 1955 Treaty constitutes un titre
incontestable determining the boundary between Libya and Chad. At the very least, it seems to
herald a certain distancing by Chad from the terms of the 1955 Treaty.
The Court will hardly need reminding that Chad has advanced three distinct theories to sustain
its case that the boundary runs along what Chad refers to as the 1899/1919 line — that is to say, the
south-east line described in Article 3 of the Anglo/French Additional Declaration of 1899 as
"interpreted" by the final paragraph of the Anglo/French Convention of 8 September 1919. The first
theory is that, by virtue of Article 3 of the 1955 Treaty, Libya and France agreed that the boundary
between Libya and Chad should be the line already fixed by the international acts listed in Annex I,
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and notably the two Anglo/French treaty instruments to which I have just referred; and this quite
irrespective of the status of that line or the opposability of the international acts concerned to Libya.
On this first theory, Article 3 is constitutive of the boundary between Libya and Chad east of
Toummo. The second theory is that the south-east line described in Article 3 of the
1899 Declaration, while conceded by Chad to have divided only spheres of influence in 1899, had
become a true boundary line as between Britain and France, and subsequently as between Italy and
France, by reason of French occupation of territories up to the 1919 line in the period between 1913
and 1919, and of recognition of that line by both Great Britain and Italy. The third theory is that,
irrespective of any treaties, precisely the same line had become a true boundary line by 1919 based
on French effectivités alone. Now, it is, of course, a curious feature of the three theories that they all
lead to an identical line.
I would stress that my task this morning is confined to addressing the first of these three
theories advanced by Chad. Other of my colleagues will be reviewing the arguments of law and fact
which are alleged to underpin or to support the other two theories, and will demonstrate how
fragile — indeed how totally lacking in conviction — those arguments are.
By way of contrast to Chad's downgrading of the 1955 Treaty, Libya continues to insist on its
central significance. Libya has not challenged, and does not challenge, the validity of the
1955 Treaty in general, or of Article 3 of that Treaty in particular. Libya has however drawn
attention to certain instances of French conduct during the 1955 negotiations, which might be
regarded as falling short of the standard of good faith applicable in such circumstances and which, in
Libya's submission, must be taken into account in interpreting the combined effect of Article 3 and
Annex I (CML, paras. 7.20 to 7.38). Libya is, of course, convinced that the ordinary meaning of
Article 3 bears out fully the interpretation for which Libya contents — namely, that it did not
constitute (or determine) a boundary in any sector of the line where no such boundary had been
delimited pursuant to prior agreements and that it operated solely as a recognition by both Parties of
those boundaries which had already been delimited as boundaries under such prior agreements. But,
if any doubt remains on this aspect of the matter, Libya contends that this doubt must be resolved in
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favour of the Libyan interpretation and against that of Chad, because of the proven evidence of
French conduct during the 1955 negotiations. That conduct was of course designed, if not actively
to mislead Libya over the legal basis of what France asserted was Libya's southern boundary east of
Toummo, at least to prevent any substantive discussion of that portion of the alleged boundary.
Now, Mr. President, Members of the Court, Libya accepts that "Article 3 of the 1955 Treaty is
directly pertinent to resolving the present dispute" (RL, 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" (RL, 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.
Before doing so, a brief word is necessary about the immediate background to the
1955 Treaty. I will begin with the events of World War II, when Libya, then under Italian
sovereignty, was the scene of major military operations. By mid-1943, with the defeat of Axis forces
in North Africa, Allied forces were in military occupation of the whole of Libya. More precisely,
British forces occupied Cyrenaica and Tripolitania while Free French forces, advancing from French
Equatorial Africa, occupied the borderlands and the Fezzan. This was the position until the end of
1951 when Libya achieved its independence. But, with the end of World War II, discussions had
already begun between the four major Allied Powers as to the future destiny of the Italian colonies in
Africa, including Libya. These initial Four-Power discussions led to the incorporation in the Italian
Peace Treaty of Article 23 and Annex XI, the latter being a Four-Power Declaration. Under
Article 23, as you will hear further from Professor Condorelli later on, Italy renounced all right and
title to the Italian territorial possessions in Africa, including Libya. These possessions were to
remain under their present administration pending their final disposal. The Four Powers were jointly
to decide upon the final disposal of the Italian colonies in Africa within one year from the date of
entry into force of the Peace Treaty. The Four-Power Declaration specified that "the final disposal
of the territories concerned and the appropriate adjustment of their boundaries" was to be made by
the Four Powers "in the light of the wishes and welfare of the inhabitants and the interests of peace
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and security, taking into consideration the views of other interested Governments". The Four-Power
Declaration went on to stipulate that if the Four Powers were unable to agree upon the disposal of
the former Italian colonies within one year from the entry into force of the Peace Treaty, the matter
would be referred to the United Nations General Assembly for a recommendation, the Four Powers
agreeing in advance to accept that recommendation.
The Court will have noted that what was reserved to the Four Powers was the right of final
disposal of the Italian territorial possessions in Africa. The Peace Treaty did not transfer
sovereignty over Libya and the other former Italian colonies in Africa to the Four Powers, either
jointly or severally. With the entry into force of the Italian Peace Treaty, sovereignty over Libya
remained in abeyance pending the decision to be taken on its final disposal either by the Four Powers
jointly or, in default thereof within the specified time-limit, by the United Nations General Assembly.
Now, as the Court will be aware, the Four Powers were unable to reach agreement on the
"final disposal" of Libya within the time-limit stipulated, so the question of Libya was duly referred
to the United Nations General Assembly. It is interesting, however, that during the Four-Power
discussions in 1948, France put forward a substantial claim for frontier revision. Mr. Maghur has
already referred briefly to this French proposal. As the Court will see, it would have involved the
placing of substantial areas to the east of Ghadames and Ghat within French territory, and
straightening Libya's southern "boundary" in the Toummo and Tibesti areas so that it ran along the
Tropic of Cancer as far as the 20th parallel of longitude. The Court will of course find this as Map
No. 9 in the Judges' folders. And as the Court will see, this would have been all very much to the
advantage of Tunisia, Algeria, French West Africa and French Equatorial Africa and to the clear
disadvantage of Libya. All this is admitted by Chad in its Memorial (MC, para. 57). Perhaps
fortunately, the Four Powers did not accept the French claim for frontier revision.
This abortive attempt on the part of France to secure substantial territorial gains for French
possessions in Africa at the expense of Libya deserves particular mention, since it contrasts so
vividly with what Chad asserts, both in its Application to the Court of 3 September 1990 and in its
supplementary letter to the Court of 28 September 1990, to have been the true object and purpose of
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Article 3 of the 1955 Treaty, namely to secure the explicit consecration of the uti possidetis of 1951
based upon previous specified agreements. There can be no doubt that the 1948 French proposal to
the Four-Power to the Four-Power Commission, had it been accepted, would have ridden roughshod
over any notion of uti possidetis and would have radically redrawn the boundary between Ghadames
and Toummo delimited by the 1919 Franco/Italian Agreement.
It would not only have done that: it would have involved the further appropriation of
substantial portions of Libyan territory in the south by drawing the boundary line between Libya, on
the one hand, and the French possessions on the other hand, along the Tropic of Cancer as far as the
20th longitude. Certainly, it can hardly be maintained that France adhered to the uti possidetis
principles in its approach to the boundaries of Libya in 1948. There is the further consideration that
France was seeking to achieve this substantial revision of Libya's external boundaries through the
medium of the activities of the Four-Power Commission. France was obviously seeking to achieve
the imputation of Libyan territories, not through a process of negotiation in which account would
have to be taken of Libyan interests, but under what one might term the euphemistic rubric of
"boundary adjustments" which, by a strange quirk, always seemed to favour French interests.
It only remains to point out that the French military did not abandon the idea of securing a
revision of what they conceived to be Libya's southern boundary in favour of French West Africa
and French Equatorial Africa, notwithstanding the failure of the French Government to persuade the
other members of the Four-Power Commission to accept France's proposal for frontier revision in
1948. In 1953, 1954 and 1955, the French military produced, for internal consideration in France,
three different proposals for Libya's southern boundary, all of which shared a common theme. East
of Toummo there would be a triangular piece of territory to the north of the 1919 line which would
be attributed to French West Africa and French Equatorial Africa, so as to encompass the entirety of
the Tibesti massif in French territory: in return, the south-east line from the 20th longitude
eastwards should be drawn parallel to, but south of the 1919 line intersecting the 24th longitude at
about 19° N rather than 19°30' N, thus affording some compensation to Libya.
When the Franco/Libyan negotiations were resumed in July/August 1955, the French
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negotiating delegation was in fact authorized to make the proposal now being shown on the screen if
it felt it could do so without raising the fundamental question as to the validity of the French thesis
concerning Libya's southern boundary (RL, Supp. Ann. No. 6.6, Doc. No. 5); but, perhaps wisely,
the French delegation did not believe this condition could be met, so that the proposal was never
formally tabled.
Now, Mr. President, I do not fortunately need to go into detail at this stage about the handling
of the Libyan question in the United Nations General Assembly in 1949 and 1950, but will do so in a
later intervention. Suffice it to say that the General Assembly, by a large majority, recommended in
Section A of resolution 289 (IV) of 21 November 1949, that Libya be constituted an independent
and sovereign State; that this independence should become effective as soon as possible and, in any
case, not later than 1 January 1952; and that a constitution for Libya should be determined by
representatives of the inhabitants of Cyrenaica, Tripolitania and the Fezzan meeting and consulting
together in a National Assembly. Section C of the same resolution dealt specifically with the
boundaries of the former Italian colonies and called upon the Interim Committee of the General
Assembly "to study the procedure to be adopted to delimit the boundaries of the former colonies in so
far as they are not already fixed by international agreement", and to report with conclusions to the
fifth regular session of the General Assembly.
The Interim Committee commissioned a study of this question from the United Nations
Secretariat. The Secretariat study which was submitted to the Interim Committee on
27 January 1950, reflected the uncertainty which existed at the time as to whether Libya's southern
boundary east of Toummo had been delimited by the international agreement, and if so by what
agreement. France had contributed to that uncertainty by supplying inaccurate information to the
Four-Power Commission. For example, France had asserted, inter alia, that the line shown on a
map produced by the Gouvernement-général de l'Algérie was based on a (non-existent)
Franco/Italian Protocol of 10 March 1924. It is therefore hardly surprising that the Secretariat
study, while reproducing these French explanations, annexed a "Sketch-Map of Libya's Frontiers"
showing a dashed line east of Toummo with three questionmarks superimposed on it — this you will
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find, gentlemen, as map No. 6 in the Judges' folders. Mr. Maghur has already shown you the
sketch-map. It will be seen that the dashed line with question marks shown on this sketch-map was
not the east-south-east line resulting from the Anglo-French Convention of 8 September 1919; it
was in fact closer to, but not identical with, the 1935 Treaty line, as you will see on the screen. This
clearly indicated the doubt that existed that the time as to whether, and if so to what extent, Libya's
southern boundary had already been delimited by international agreement.
During subsequent discussions in the Interim Committee and the Ad Hoc Political Committee,
the majority view was clearly that the General Assembly had no competence to rectify or adjust
already existing boundaries, and that a clear distinction must be drawn between the concepts of
delimitation, demarcation and rectification of a boundary.
In the light of these discussions, the United States delegation presented a draft resolution
initially to the Interim Committee and subsequently in a slightly modified form to the Ad Hoc
Political Committee. This draft resolution later became General Assembly resolution 392 (V) of
15 December 1950, which provided inter alia (and this is the most significant portion of the
resolution):
"That the portion of its boundary [this is Libya's boundary] with French territory
not already delimited by international agreement be delimited, upon Libya's
achievement of independence, by negotiation between the Libyan and French
Governments, assisted on the request of either party by a third person to be selected by
them or, failing their agreement, to be appointed by the Secretary-General."
In introducing this draft resolution, the United States delegate specifically argued: "that boundaries
which had not yet been delimited should be delimited by negotiations between the States concerned".
And she went on to emphasize: "that the contemplated procedure was applicable only to the
delimitation of the boundaries and not to their rectification".
So it was quit clear that the resolution was to apply only to the delimitation of boundaries
which had not yet been delimited.
Prior to the vote on this resolution, the French representative in the Ad Hoc Political
Committee had intervened to explain the French position. He first of all presented a claim for
rectification of the boundary between Libya and Algeria in the region of Ghat and Serdeles, making
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it quite clear that this was indeed a question of boundary rectification. He then attempted to clarify
France's position as regards Libya's alleged southern boundary east of Toummo. He first of all
correctly pointed out that the 1935 Treaty of Rome between France and Italy had not been ratified,
and then asserted, much more controversially, that, in these circumstances, reference should be made
to "previous provisions fixing that section of the boundary". In this context, he cited the
Franco/Italian Accord of 1902, with its reference to the boundary of Tripolitania "indicated in the
map annexed to the Additional Statement of 21 March 1899", and the Anglo/French Convention of
8 September 1919, together with the Anglo/French Declaration of 21 January 1924, relating to the
Anglo/French Protocol of 10 January 1924. Already, we can note the false reference to the map
supposedly annexed (but in fact not annexed) to the 1899 Additional Declaration. He concluded by
asserting that "the matter was therefore governed at present by all the texts he had just quoted". If
this statement was intended to assert Libya's boundary with French West Africa and French
Equatorial Africa was already delimited by international agreement, it is inconceivable that France
should thereafter have voted in favour of resolution 392 (V), as France in fact did, both in
Committee and in Plenary. It is inconceivable because, apart from Libya's southern boundary east
of Toummo, there was no other portion of Libya's boundary with French territory which had not
already been delimited by international agreement. Libya's boundary with Tunisia had been
delimited by the Franco/Ottoman Convention of 19 May 1910, and the Secretariat study had duly
noted this, adding that no claims or questions had been raised with regard to it. Libya's boundary
with Algeria had likewise been delimited by virtue of the Franco/Italian Agreement of
12 September 1919 (as noted in the Secretariat study), and, although France had indeed presented to
the United Nations a territorial claim in respect of the region of Ghat and Serdeles, this was a claim
for rectification of the boundary (as the French representative himself admitted) and, for this reason,
fell outside the scope of General Assembly resolution 392 (V). Accordingly, the only portion of
Libya's boundary with French territory to which the resolution could apply as being "not already
delimited by international agreement" was the boundary with French West Africa and French
Equatorial Africa east of Toummo and running to the Sudan boundary. Chad has never sought to
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give a meaning to General Assembly resolution 392 (V) other than the one I have just given. The
latest Chad explanation, given in its Reply, is that the resolution refrains from specifying to what
extent the boundary between Libya and French possessions in Africa is delimited or not. But the
weakness of this explanation is manifest. The General Assembly proceeded on the assumption that
there was a portion of Libya's boundary with French territory which had not already been delimited
by international agreement. What portion could that be other than the southern boundary between
Toummo and the Sudan border? Chad is careful not to respond to this crucial question.
One other event in the period preceding Libya's achievement of independence must be noted.
On 7 October 1951, there was promulgated the Constitution of the United Kingdom of Libya. It has
already been referred to briefly by Mr. Maghur. This had been drawn up with great care. Article 4
of the Constitution deals specifically with Libya's boundaries. What is highly significant — and I
must mention that this appears as Item No. 11 in your Judges' folders — is that to the east, Libya
admits that its boundary coincides with the "boundaries" of the Kingdom of Egypt and of the AngloEgyptian
Sudan; and to the west, Libya admits that its boundary coincides with the "boundaries" of
Tunisia and Algeria. But, to the south, the word "boundaries" is significantly omitted. Now this
reflects the same conclusion as had been adopted in General Assembly resolution 392 (V), of the
previous year and illustrated on the "Sketch-Map of Libya's Frontiers" annexed to the United
Nations Secretariat study: the undetermined nature of Libya's southern boundary.
So much, at this stage, for the general background to the provisions of the 1955 Treaty
relating to Libya's boundaries. The more immediate background was Libya's desire to achieve the
removal of French military forces from the Fezzan. French forces had remained in the Fezzan since
Libya had achieved independence under a temporary agreement which had to be renewed every six
months. It was in fact renewed seven times. But in November 1954, the Libyan Government made
it clear that it did not intend to renew this temporary agreement. Libya was prepared to enter into
negotiations with France, but only on the basis that the negotiations would have as their point of
departure the evacuation of French forces from the Fezzan. France's relations with the Arab world
generally were strained at this time, primarily as a result of general Arab support, within the
- 28 -
framework of the anti-colonialist movement, for nationalist opinion in Tunisia, Morocco and Algeria.
France was also at this time disenchanted with British and United States policy towards Libya.
Both these States had achieved satisfactory agreements with Libya for the maintenance of their
military facilities in Libya, and France looked to them for a degree of support in their negotiations
with Libya which, in French eyes, was not forthcoming. It was in these difficult circumstances that
France, with considerable reluctance, embarked on negotiations with Libya at the end of 1954, the
negotiations being directed towards the conclusion of a Treaty of Amity. In these negotiations, and
in return for their agreement to evacuate French forces from the Fezzan, France sought
compensation with respect to security and frontiers.
Mr. President, I have spent a good deal of time in describing the general background and the
immediate background to the opening of the negotiations between France and Libya at the end of
1954 which led to the conclusion of the 1955 Treaty, with its related conventions and other
instruments. But the main purpose of the statement which I am making this morning is to address
the question of the interpretation of Article 3 in the light of Chad's first thesis, namely that the
1955 Treaty itself accomplished the delimitation of Libya's southern boundary east of Toummo by a
kind of renvoi to the actes internationaux listed in Annex I.
In other words, as I have said already, Chad's first thesis is that Article 3 was constitutive of
Libya's southern boundary with French West Africa and French Equatorial Africa. By way of sharp
contrast, Libya contends that Article 3 of the 1955 Treaty, read with Annex I, is not constitutive of
any boundary, but is merely declaratory of the boundary status quo as of the date of Libya's
independence, and is thus an affirmation of the strict uti possidetis juris principle as of that date.
Does the text of Article 3 of the 1955 Treaty shed any light on the force of these respective
contentions? Chad appears to assume that the wording of Article 3 fully supports her first thesis.
For Chad, the 1955 Treaty constitutes un titre incontestable (MC, Chap. III, p. 94, para. 1)
determining the international boundary between Libya and Chad. For Chad, and again I am quoting,
this time from the Chad Counter-Memorial, a simple reading of the provisions of Article 3 and
Annex I is sufficient to resolve definitively the boundary dispute (CMC, Chap. XI, p. 481,
- 29 -
para. 11.12). Chad asserts, and here I am citing from their Reply, that it only wishes to give to the
terms of Article 3 of the 1955 Treaty their natural and ordinary meaning in the context of the Treaty
as a whole (RC, Chap. V, p. 125, para. 5.34).
Now, I have to say that Libya takes issue with Chad on each of these propositions. Libya
relies likewise on the literal interpretation of Article 3, but reaches conclusions diametrically opposed
to those of Chad. So what does Article 3 say? And here we have the text. It is item No. 12 in your
folders. It says in English translation that France and Libya recognize that the boundaries separating
the territories of Tunisia, Algeria, French West Africa and French Equatorial Africa, on the one
hand, from the territory of Libya, on the other hand, are those boundaries which result from
international acts in force on the date of the constitution of the United Kingdom of Libya, as listed in
Annex I. So Article 3 does not delimit any boundary at all. It is directed towards the recognition by
the parties of boundaries already fixed and delimited before the date of Libya's independence. And
there clearly were such boundaries. Neither Libya nor Chad dispute that the boundary between
Tunisia and Libya was originally delimited by virtue of the Franco/Ottoman Convention of
12 May 1910. Neither Libya nor Chad dispute that the boundary between Libya and Algeria was
initially fixed by virtue of the Franco/Italian Agreement of 12 September 1919, although the
boundary line so fixed was subsequently rectified in relation to the sector between Ghat and
Toummo as a result of the inclusion in Annex I of the 1955 Treaty of a provision identifying three
specific points through which the boundary line should pass; and that boundary line was rectified
yet again as a result of the Exchange of Letters between France and Libya of 26 December 1956, to
which I will have occasion to refer in more detail shortly. The Court will have noted that both the
Franco/Ottoman Convention of 1910 and the Franco/Italian Agreement of 1919 are listed on the
Annex I list. I would in addition stress the significance of the phrase sont celles qui which appears
in Article 3. The Arabic and French language texts of the 1955 Treaty are equally authentic. In the
Arabic text of Article 3, the words corresponding to les frontières are repeated instead of using the
word celles, so that the equivalent in French would read: "reconnaissent que les frontières séparant
les territoires . . . sont les frontières qui résultent . . ."
- 30 -
The Court will have noted that one of the few points on which both Libya and Chad appear to
be in agreement concerns the critical date. Both parties accept that the critical date in this case, so
far as Libya is concerned, is the date of Libya's independence, that is to say 24 December 1951;
and, so far as Chad is concerned, the date of Chad's independence, that is to say, 11 August 1960.
But it is in fact the date of Libya's independence which is the most significant date, and Chad itself
seems to accept this when she states in her Memorial:
"Lorsque la Libye devint un Etat indépendant, elle le fut dans le cadre de ses
frontières telles qu'elles existaient au moment de son accession à l'indépendance, le
24 décembre 1951." (MC, pp. 88-89, para. 138.)
The notion of a "critical date" is, generally speaking, that it is the date on which a dispute may
be said to have "crystallized", so that a court has to look at the evidence of title as it existed on that
date. Evidence as to claims or conduct after the critical date is certainly not excluded, but in
principle is treated as serving only to clarify or confirm what the situation was on the critical date.
The concept of the "critical date" has a respectable pedigree. Its genesis is usually found in
the Island of Palmas Award. There was much discussion of the concept by counsel for both parties
in the Minquiers and Ecrehos case, although, in the event the Court did not find it all that relevant in
the particular circumstances. On occasion, tribunals have relied more on a "critical period" than on
a precise "critical date", as in the Award in the Taba arbitration of 1988 (80 ILR, p. 226).
The "critical date" is particularly relevant in situations such as the present one, where a new
State, or more than one new State, comes into being. This is because of the principle of uti
possidetis juris, according to which a new State succeeds to, or inherits, the territory and the
boundaries existing at the date of independence. The Court will recall that it made this very point
with great clarity in its Judgment in the case concerning the Frontier Dispute (Burkina
Faso/Republic of Mali):
"By becoming independent, a new State acquires sovereignty with the territorial
base and boundaries left to it by the colonial power. This is part of the ordinary
operation of the machinery of State succession . . . the principle of uti possidetis applies
to the new State (as a State) not with retroactive effect, but immediately and from that
moment onwards. It applies to the State as it is, i.e., to the 'photograph' of the
territorial situation there existing. The principle of uti possidetis freezes the territorial
title; it stops the clock . . ." (I.C.J. Reports 1986, p. 568, para. 30.)
- 31 -
So, in the present case, we must take our photograph of the legal situation as of
24 December 1951 — the date of Libya's independence. What happened thereafter cannot modify
the situation unless there has been some new cession of territory which neither side alleges in relation
to the border area east of Toummo. Conduct by either Party subsequent to 24 December 1951 is of
course admissible, but only to prove, or disprove, the situation as it existed on that date.
It is of course Libya's contention that the only rectifications made to Libya's boundaries by the
1955 Treaty, and indeed by the subsequent 1956 Exchange of Letters, were modifications of her
boundary with Algeria and that, in all other respects, the 1955 Treaty simply confirmed the
boundary status quo — that is to say, as between Libya and what was later to become Chad, the
absence of a conventional boundary.
But Chad has argued that the Libyan interpretation of Article 3 implies that that Article can be
interpreted as not regulating any boundary question (CMC, Chap. XI, p. 486, para. 11.23). This, I
may say, Mr. President, is demonstrably false. Article 3, read with Annex I, was designed to ensure
the recognition by both Parties of any pre-existing boundary which might result from the
international acts listed in Annex I. This was important not only to Libya but also to France, since
Libya was the first State bordering French territory and French possessions in Africa to achieve
independence in the post-war era. There was uncertainly in the 1950s as to what would be the
position of newly independent States in Africa with reference to boundaries which the colonial
powers had fixed as between themselves prior to the achievement of independence. The Court will
recall that it was not until 1964 that the African Heads of State and Government approved the text of
the Cairo Declaration. So there was definite advantage to France in ensuring that Libya would no
longer be entitled to contest those boundaries which the Colonial Powers had already fixed
conventionally as between themselves prior to the critical date.
It will of course now be evident to the Court that Libya and Chad are in fundamental
disagreement as to the meaning which must be attributed to Article 3 of the 1955 Treaty. Both
invoke the general rule of interpretation set out in Article 31 of the Vienna Convention on the Law of
Treaties, and, in particular, both rely upon the rule stated in paragraph 1 of that Article, namely:
"A treaty shall be interpreted in good faith in accordance with the ordinary
- 32 -
meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose."
Yet the Parties reach diametrically opposed conclusions as to the meaning to be attributed to
Article 3 of the 1955 Treaty, read in conjunction with Annex I. Chad's first theory is that the
ordinary meaning of Article 3 supports the conclusion that this Article achieves the delimitation of
the boundary easy of Toummo by way of a renvoi to the international acts listed in Annex I. Libya
firmly denies this, pointing out that the text of Article 3 goes no further than to confirm that those
boundaries which result from international acts in force as of the date of Libya's independence shall
be taken nas the boundaries between Libya and French possessions and territories bordering Libya.
Now, I would reserve the right at this stage to revert late in this statement to any arguments which
might be derived from the "context" of the 1955 Treaty. I would also reserve the right at that point
to offer a few observations on the "object and purpose" of the 1955 Treaty. But it is already
sufficiently apparent that the views of the Parties on the interpretation of Article 3 of the
1955 Treaty are so divided that recourse may usefully be had to the supplementary means of
interpretation for which Article 32 of the Vienna Convention on the Law of Treaties makes
provision. The Court will of course recall the terms of Article 32 of that Convention:
"Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of Article 31, or to determine the
meaning when the interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable."
Mr. President, I must say at once that Libya does not, and I repeat not, take the position that,
in the present case, recourse to supplementary means of interpretation is necessary to determine the
meaning of Article 3 of the 1955 Treaty. Libya firmly believes that the interpretation which it
upholds is fully in accordance with Article 31 of that Convention and neither leaves the meaning
ambiguous or obscure nor leads to a result which is manifestly absurd or unreasonable. But Libya
does take the position that, in this case, recourse to supplementary means of interpretation will
amply confirm the interpretation which Libya puts on the text. I have already, I must admit,
- 33 -
Mr. President, anticipated making reference to supplementary means of interpretation by analysing
at some length the circumstances of the conclusion of the 1955 Treaty. Indeed, Libya regards the
circumstances of the conclusion of the 1955 Treaty as being of prime importance in the present case,
bearing in mind the need for the Court to bear constantly in mind the historical background against
which the Treaty was negotiated. As one distinguished commentator has observed when commenting
on the circumstances of conclusion of a treaty:
"Il s'agit du cadre historique que forme l'ensemble des événements qui ont porté
les parties à conclure le traité pour maintenir ou confirmer le statu quo, ou apporter un
changement qu'une nouvelle conjoncture nécessite." (Yasseen, "L'interprétation des
traités d'après la Convention de Vienne sur le Droit des Traités," RCADI (1976-III),
Vol. 151, p. 90.)
But at this point, it may be helpful if I were to analyse such travaux préparatoires of the
1955 Treaty as the Parties have been able to lay before the Court in their written pleadings to see
what light they shed on the differing interpretations upheld by Libya and Chad.
The first point to note about these travaux is that they may be incomplete, at least with respect
to the second phase of the negotiations in July and August 1955. I will have occasion to draw
attention at a later stage to certain notable gaps in the archives of the French Ministry of Foreign
Affairs. For its part, Chad has complained about the virtual absence of Libyan records of the
negotiations immediately preceding signature of the 1955 Treaty, and has in particular accused
Libya of failing to provide to the Registry copies of the complete documents of the Libyan records of
which it provided extracts at Annexes 73 and 74 to the Libyan Memorial (RC, pp. 118-119,
paras. 5.12 to 5.15). It should be said straightaway that Libya has nothing to hide. It was explained
in paragraph 5.459 of the Libyan Memorial that the limited Libyan records relating to the second
phase of the negotiations consisted primarily of unsigned minutes. This is not altogether surprising,
given that the negotiations were taking place in Tripoli and that, as a newly-independent State, Libya
was suffering from a shortage of trained personnel. In deference to the Chad complaint, however,
Libya has furnished to the Registrar of the Court, under cover of a letter from the Libyan Agent of
4 December last, the complete texts of the records of which it furnished extracts at Annexes 73
and 74 to its Memorial. And it will be seen that the additional materials so furnished do not directly
- 34 -
concern the boundary problem, the extracts having included all material strictly relevant to the
boundary.
The second point to note (and it is much more significant than the first) is that the travaux,
and particularly the more recent travaux from French sources furnished by Chad, confirm that the
French delegation to the second phase of the negotiations were under instructions not to enter into
substantive discussions with the Libyan delegation about the boundary east of Toummo. We know
already that, on 2 May 1955, the Governor-General of the AEF had written to the Ministre de la
France d'Outre-Mer warning the French authorities of the risk the French negotiators would be
running if the question of the southern boundary were opened up for discussion. More specifically,
after setting out the long-standing French thesis as to the legal basis for this boundary (which, of
course, the French Government of the day had temporarily discarded in 1935, as you will presently
hear), he argued:
"To request Libya to recognise the actual boundaries would risk implying that we
retain doubts as to the strength of our rights and would put us more or less in the
position of supplicants and expose us to a refusal which would give an appearance of a
legal basis to possible claims by Tripoli." (ML, French Archives Annex, p. 169.)
In his view, the question of the delimitation of the southern boundary between Libya and the
AEF should only be raised in the agreements to pose the principle of what he described as "a
delimitation on the ground" to be undertaken in the future, taking as the sole basis the treaties in
force as of the date of the creation of the Libyan State (ML, pp. 370-372, paras. 5.437-5.439). The
long-standing French thesis was of course that Libya's southern boundary had been determined by
the 1899 Anglo/French Additional Declaration as modified by the Anglo/French Convention of 1919,
Italy having formally recognized, according to that thesis, the 1899 Additional Declaration by virtue
of the 1900 and 1902 Franco/Italian Accords. Thus, the French position at this time was based
exclusively upon the predicated existence of a conventional boundary deriving from these
international acts, allowing absolutely no room for extraneous factors such, for example, as colonial
effectivités. But the strong advice of the Governor-General of the AEF was not to get into any
discussion about the legal basis of Libya's southern boundary beyond providing in the Treaty for a
delimitation on the ground in the future, to be undertaken on the basis of treaties in force as of the
- 35 -
date of Libya's independence. Chad has sought to downplay the significance of this advice by
describing the Governor-General as un fonctionnaire français and by describing his letter as un
instrument somme toute mineur (CMC, p. 530, para. 11.130). But this is thoroughly misleading.
The Governor-General was a senior and highly respected official, whose knowledge of the boundary
problem as it affected French Equatorial Africa was second to none. Moreover, evidence from
French archives confirms that his advice was strictly followed during these negotiations; and indeed
the instructions given to the French negotiators when negotiations were resumed in July 1955, were
entirely in line with the tactical advice which he had urged upon the French Government (RL,
paras. 5.91-5.95 and Supp. Ann. No. 6.6).
By way of illustration of this point, I would draw the Court's attention to Exhibit 6.6 to the
Libyan Reply, which is commented upon at Supplementary Annex No. 6.6 to the Libyan Reply.
Point 1 of this particular Supplementary Annex discusses various documents prepared in Paris and
brought to Tripoli by M. Dejean on the resumption of the negotiations in July 1955. The Court will
recall that, during the first round of negotiations between France and Libya in January 1955, a
certain amount of progress had been made on the boundary problem. In particular, it would seem
that both delegations were prepared to accept a general formula for the text of Article 3 in the
following terms:
"Les deux gouvernements conviennent de s'en tenir, en ce qui concerne le tracé
des frontières séparant les territoires français et libyen, aux stipulations générales des
textes internationaux en vigueur à la date de la création de l'Etat libyen." (RL, Ex. 6.4.)
This text was duly conveyed to the British Foreign Office by the French Embassy in London on
10 May 1955 as an element of agreement achieved during the January negotiations (ML, p. 374,
para. 5.445). Now, the first of the documents brought to Tripoli by Mr. Dejean on the resumption of
negotiations in July 1955, is a variant of the formula already agreed in January for what was to
become Article 3 of the Treaty. It would appear from Annex 102 to the Chad Reply that this draft
was tabled on that date:
"Les deux Hautes Parties Contractantes reconnaissent que les frontières séparant
le territoire de la Libye d'une part, des territoires de la Tunisie, de l'Algérie, de l'AOF et
de l'AEF, d'autre part sont celles qui résultent des actes internationaux en vigueur à la
date de la constitution du Royaume-Uni de Libye."
- 36 -
It may be surmised that this new text was thought to be more suitable for incorporation in the
eventual Treaty than the formula agreed in January, having regard to the possible imprecision of
such terms as stipulations générales. No change of substance, however, seems to have been
intended. To assist the Court, I now show the agreed January formula and the alternative text of
Article 3 tabled by Mr. Dejean on 19 July.
It will also be seen that this new text is virtually identical with the text of Article 3 as finally
adopted, with the significant omission of the reference to the list of actes internationaux in Annex I.
But among the documents brought to Tripoli by Mr. Dejean was an alternative version which would
have completed this text of Article 3 by adding an extra sentence: "Ces frontières figurent sur la
carte jointe en annexe au présent traité." This alternative version would also have embodied another
paragraph in the following terms:
"La délimitation, sur le terrain, de la frontière entre Ghat et Toummo sera
effectuée, d'accord entre les Hautes Parties Contractantes, dans un délai de [left blank]
à dater de la mise en vigueur du présent traité."
The same set of documents also contains proposed language obviously designed to complete this
additional paragraph:
"L'article devrait être complété ainsi: 'dans un délai de 6 mois à dater de la mise
en vigueur du présent traité, et en tous cas, avant le retrait des forces françaises du
Fezzan. Cette délimitation maintiendra en territoire français la trouée de
Takharkhouri, le col d'Anai, la Gara Derouet et Djemel (cote 10.10) et le puits de
Toummo auquel cependant les ressortissants libyens auront accès.
A l'est de Toummo la délimitation de la frontière sera l'objet d'une convention
ultérieure entre les Hautes Parties Contractantes.'"
There is absolutely no evidence in the travaux to indicate that this alternative version was ever
tabled. Ambassador Dejean was presumably authorized to draw upon it only if he could not achieve
agreement upon the text of Article 3 which he did not table. Nevertheless, the alternative version is a
significant indicator of French intentions, since it demonstrates that the French Government would
have been prepared to accept a text specifically stating that the delimitation of the boundary to the
east of Toummo will be the subject of a later convention between the High Contracting Parties. This
is in itself sufficient to dispose of the first Chad theory that the 1955 Treaty itself provided for the
delimitation of the boundary east of Toummo.
- 37 -
That the French negotiators faithfully followed their instructions in this respect seems beyond
dispute. There is absolutely nothing in the travaux préparatoires of the 1955 Treaty relating to
boundaries to show that the southern boundary east of Toummo was ever discussed in substance.
Even Chad admits that boundary negotiations preceding the conclusion of the 1955 Treaty bore
virtually entirely upon the sector between Ghat and Toummo, where the french negotiators were
seeking Libyan agreement to a rectification of the boundary to ensure that it passed through three
identified points (CMC, para. 11.123). That boundary had, of course, been fixed by the
Franco/Italian Agreement of 12 September 1919. 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. But even the identification of these three points did not, as I will shortly demonstrate,
have the effect of delimiting finally the rectified boundary in this sector, since the text in Annex I left
open the course of the line joining the three identified points, and indeed joining the final agreed point
to Toummo.
Chad has of course argued that the inclusion of Article 3 and Annex I in the 1955 Treaty
testifies to the intention of both Parties to reach a comprehensive and definitive settlement of all
outstanding questions concerning Libya's boundaries with adjoining territory, and Chad has cited, in
this context, a well-known passage from the Advisory Opinion of the Permanent Court in the case
concerning the Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (MC, p. 68,
para. 80 and CMC, p. 507, para. 11.72). Libya does not dispute the general thrust of that
particularly passage, but contends that it has no application to the present case. In the first place,
the text of Article 3 of the 1955 Treaty, particularly having regard to the use of the word
reconnaissent, signifies that the parties did not envisage Article 3 as fixing any boundary or partial
boundary, but rather as constituting a recognition by France and Libya of those boundaries which
had already been fixed by international acts in force as of the date of Libya's independence, subject
of course to any rectification of those boundaries brought about by the combined effect of Article 3
and Annex I. In the second place, the travaux préparatoires of the 1955 Treaty amply confirm that
- 38 -
neither France nor Libya wished to discuss, far less agree upon, the course of the hitherto
undelimited boundary between Libya and Chad east of Toummo. That France did not wish to do so
is plainly attested to by the following evidence:
(1) the letter of 2 May 1955 from the Governor-General of French Equatorial Africa to which I
have already referred (LM, pp. 370-372, paras. 5.437-5.439);
(2) the documents prepared in Paris and brought to Tripoli by Ambassador Dejean on the
resumption of the negotiations in July 1955. I drew attention to these documents only a few
moments ago (RL, Supp. Ann. No. 6.6, point 1).
That Libya equally did not wish to do so emerges clearly from the Libyan minutes of the July
negotiations. Thus, the Libyan Prime Minister is recorded as having said at a very early session of
the resumed negotiations on 20 July 1955, that
"the question of the frontiers has no connection with the Treaty and it must not be
linked with it, especially since the drawing of the frontiers requires experts and
specialists who are not currently available in Libya" (ML, p. 382, para. 5.459).
Admittedly, Libya was later persuaded to withdraw from this rather over-rigid position, at least to
the extent of showing willingness to negotiate on a limited rectification of the boundary between
Libya and Algeria — but only the boundary between Libya and Algeria.
The travaux préparatoires of the 1955 Treaty are singularly silent on the genesis of the list of
actes internationaux in Annex I. Chad offers no real explanation for this strange gap in the French
archives beyond the bizarre frankly unbelievable speculation that the question of the delimitation of
Libya's southern boundary was relatively secondary in the eyes of the parties as a result of the
unequivocal position taken by France before the United Nations in 1950 and 1951. There is also a
suggestion, which may appear as disingenuous to Members of the Court as it does to me, that there
was no need to have records or reporting telegrams of the final stages of the negotiations at the
beginning of August 1955 since the negotiations at the beginning of August 1955 since the
negotiations resulted in an agreed text, namely, the Treaty of 10 August 1955 (RC, p. 117,
paras. 5.10 and 5.11). As one who participated in a wide variety of treaty negotiations over a period
of more than 30 years, I think I can confidently assert that this is contrary to all experience.
- 39 -
Now, Chad has annexed to its Reply some 30 documents purporting to be the French travaux
of the July-August negotiating sessions in Tripoli. But the French travaux appear to be incomplete.
For example, there is no French report on the 20 July negotiating session, although the Libyan
minutes (see ML, p. 382, para. 5.459) record an important discussion on boundaries, in which, as I
have just indicated, the Libyan Prime Minister insisted that "the question of the frontiers has no
connection with the Treaty and it must not be linked with it". Is it really credible that the French
negotiators did not report to Paris on this? Again, although the telegrams at Annexes 112 (Paris to
Tripoli) and 113 (Tripoli to Paris) to the Chad Reply are both dated 26 July, neither concern
boundaries; and yet we know from the more limited Libyan records (see ML, p. 382, para. 5.460)
that, on 26 July, the two parties agreed to an "interpretative letter" relating to the frontiers and
similarly they agreed to the formation of a Franco-Libyan Committee to demarcate the frontier.
This would seem to have been a reference to the procedure whereby effect would be given to
whatever was agreed subsequently about the rectification or clarification of the boundary between
Ghat and Toummo since, as we know, the "frontier" which the Franco-Libyan Committee was to
demarcate was the boundary between Ghat and Toummo.
Both sides have produced travaux relating to the important discussion of boundaries at the
negotiating session on 28 July (see ML, p. 382, para. 5.460 and Ann. 117 to the RC). The two
records do not match all that closely. But what is clear from the French record is that, even at this
late stage, the Annex I list had not yet appeared, since it is specifically mentioned in the French
record that the formula already agreed for the content of Article 3 — namely, that the boundaries are
those which result from international acts in force as of the constitution of the Kingdom of Libya —
was maintained. Annex 120 to Chad Reply, constituting of a dispatch from Ambassador Graham in
Tripoli to the Foreign Office of 30 July, reports on a conversation which Graham had with
Ambassador Dejean on 29 July confirming the accuracy of the French record of the 28 July
negotiating session on this particular point.
The only occasion on which reference is made to the Annex I list in the French travaux most
recently made available by Chad is in Annex 130 to the Chad Reply. This is the text of the
- 40 -
Aide-Mémoire given to the Libyan Prime Minister on 8 August by Ambassador Dejean. In that
Aide-Mémoire, it is specifically stated:
"Nous avons admis, dans l'Article 3 du Traité . . . que les frontières étaient
déterminées par les actes internationaux en vigueur. Nous sommes d'accord sur la liste
de ces actes."
Ignoring for the time being the inaccuracy of the citation from Article 3 in this Aide-Mémoire, this is
the first indication in the French travaux of the existence of the Annex I list.
Mr. President, this is possibly the time at which we should have a break for coffee. I am sorry
to have kept the Court going for such a long period of time.
The PRESIDENT: This will be a convenient time, Sir Ian, and we will go along now.
The Court adjourned from 11.20 to 11.40 a.m.
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The PRESIDENT: Please be seated. Sir Ian Sinclair.
Sir Ian SINCLAIR: Well, Mr. President, Members of the Court, before our welcome coffee
break I had been summarizing the French travaux on the appearance of the Annex I list. So what
conclusions can we draw from this summary? Surely, first, that the French travaux are incomplete.
We know already that the Libyan travaux are incomplete. Libya frankly admitted, in
paragraph 5.459 of its Memorial, that its records relating to phase two of the negotiations, consisting
of unsigned minutes, were "quite limited". This is hardly surprising, given the sparse resources in
knowledgeable manpower available to the Libyan negotiating delegation at the time. But the same
can hardly be said of the French delegation. It is, in our view, virtually beyond belief that the Annex
I list should have made its appearance in the text sometimes between 28 July and 8 August without
any mention being made in the French travaux of the reasons why the French delegation should so
suddenly, and at so late a stage, have insisted on the inclusion of such a list in Annex I. Even Chad
appears to concede that the French travaux on the boundary question are incomplete, since, in
paragraph 5.11 of the Chad Reply, reference is made only to French diplomatic archives accessible
to the public.
Secondly, Ambassador Dejean had already, as a result of the 28 July negotiating session,
reported to Paris, and indeed to Ambassador Graham, that the boundary question had been settled to
France's satisfaction — and this even before the Annex I list had made its appearance. (See
Annexes 117 and 120 to the RC). This is sufficient in itself to dispose of the Chad argument
(advanced in the CMC, p. 528, para. 11.126) that the inclusion of the list of international acts in
Annex I had the effect of changing the method of delimitation. This is pure speculation, for which
not a shred of evidence exists. And it is belied by the content of the Annex I list itself which,
although incomplete and including certain "acts" not in force on the date of Libya's independence,
clearly was designed simply to identify the actes internationaux to which reference was made in
Article 3.
- 42 -
It could well be that the reference in the Libyan minutes of 26 July to the two parties having
agreed to "an interpretative letter relating to the frontiers" was simply an agreement to draft such an
interpretative letter. What its precise content would be was left undecided. Indeed, it had to be left
undecided until the very last moment because, as we know, the negotiating delegations did not agree
to the third point on the Ghat to Toummo line until 9 August — the day before signature of the
Treaty. And we know that the text of Annex I identifies the three points on the Ghat to Toummo
line. There is no evidence to show that, as early as 26 July, the French delegation indicated their
wish to see included in the proposed "interpretative letter" the list of international acts which
eventually appeared there. All one can say with certainty on the basis of the available evidence is
that the final text of Annex I could not have been agreed between the two delegations until 9 August
and that the list must have been included in what was subsequently to become Annex I some time
between 26 July and 9 August.
This chronological analysis is by itself sufficient to destroy the Chadian argument that the
inclusion of the list of international acts in Annex I served somehow to change the method of
delimitation agreed upon by virtue of the text of Article 3 itself. The Annex I list is regarded as
being of such minor significance that no reference will be found to it in the travaux préparatoires of
the 1955 Treaty until we suddenly note that, in Ambassador Dejean's Aide-Mémoire to the Libyan
Prime Minister of 8 August (Annex 130 to the RC), mention is made of the two sides being in
agreement on the list of international acts referred to in Article 3. The astonishing lack of evidence
as to the genesis of the Annex I list and as to the date on which that list was incorporated into the
text of Annex I certainly does not suggest that the list was intended to do more than identify the
principal international acts which are or might be relevant to the delimitation of the frontier as a
whole.
Now, Mr. President, the French travaux are also illuminating in a negative way in shedding
light on the relationship between Article 3 of the 1955 Treaty and General Assembly
resolution 392 (V). The Court will have noted that neither the preamble to the 1955 Treaty nor the
text of the Treaty itself make any reference to this resolution which, as I have already argued,
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sufficiently identified the contested boundary east of Toummo as being "the portion of [Libya's]
boundary with French territory not already delimited by international agreement". Chad's position
on the significance of the resolution has changed markedly during the development of the written
pleadings. Initially, Chad sought to argue that resolution 392 (V) supported the thesis that Libya's
southern boundary had been already delimited by international agreement, and that it was
accordingly unnecessary to have recourse to the procedure recommended in that resolution (MC,
Chap. I, p. 30, para. 63). By way of sharp contrast, but within the framework of the same written
pleading, Chad maintained that the negotiation of the 1955 Treaty had particularly as its object the
fulfilment of the mandate conferred by resolution 392 (V) (MC, Chap. III, p. 115, para. 55). These
contradictions are not resolved by what Chad says in its subsequent written pleadings. In its
Counter-Memorial, Chad appears to argue that the object and purpose of resolution 392 (V) was to
ensure that Libya's external boundaries should be completely delimited so as to leave no room for
any dispute in future. But then, after reciting the terms of Article 3 of the 1955 Treaty, the Chad
Counter-Memorial revealingly adds: "Il s'agit en quelque sorte de la réaffirmation sous une autre
forme des termes de la résolution 392 (V)" (CMC, p. 533, para. 11.137).
So, in Chad's view, Article 3 of the 1955 Treaty is simultaneously the fulfilment of, and the
reaffirmation of, resolution 392 (V). But I would submit, Gentlemen, that in terms of pure logic it
simply cannot be both. One cannot, at one and the same time, seek to maintain that Article 3 of the
1955 Treaty gives effect to resolution 392 (V) and yet amounts to no more than its restatement. The
Court may recall the following dialogue from the Mad Hatter's tea party in Lewis Carroll's Alice in
Wonderland:
"Then you should say what you mean", the March Hare went on.
"I do", Alice hastily replied; "at least — at least I mean what I say — that's the
same thing you know."
"Not the same thing a bit!" said the Hatter. "Why, you might just as well say
that 'I see what I eat' is the same thing as 'I eat what I see'."
Mr. President, Libya would submit that there can be no room here for the kind of verbal
pyrotechnics represented by that dialogue. The plain fact of the matter is that Chad has no
- 44 -
convincing explanation to offer for the relationship between resolution 392 (V) and the 1955 Treaty.
Libya's position on that relationship is, on the other hand, simple and fully in keeping with the facts.
Resolution 392 (V) had called upon Libya and France to delimit Libya's southern boundary as being
"the portion of [Libya's] boundary with French territory not already delimited by international
agreement". This was not done in the 1955 Treaty, as is confirmed by the fact that no reference is
made to the resolution in the text of the 1955 Treaty nor indeed in the preamble. It was not done
because neither party to the negotiations wished it to be done. Libya's basic position was that
boundary questions should not be dealt with in the 1955 Treaty. In order to achieve its signature,
Libya had however (with great reluctance) to accept a rectification or clarification of the boundary in
the sector between Ghat and Toummo. France's position, for quite different reasons, was also that
there should be no substantive negotiations on Libya's southern boundary east of Toummo. This
was because the French negotiators were following instructions not to open up for discussion the
legal basis for France's long-held theory that, despite the terms of resolution 392 (V), Libya's
southern boundary east of Toummo had already been delimited by international agreement. This
reflects the deep-seated ambivalence of the French position. On the one hand, the French negotiators
could not abandon that theory. The then French Government had admitted in 1935, as you will hear,
that the boundary between Libya and French Equatorial Africa east of Toummo had not been
delimited by international agreement, in the context of the Exposé des Motifs accompanying the draft
French law authorizing ratification of the Franco/Italian Treaty of Rome concluded earlier in 1935;
but the refusal of Italy to proceed to an exchange of instruments of ratification of that Treaty, which
would have established such a boundary, effectively forced France in the immediate post-war period
to resuscitate the earlier theory. On the other hand, there was clearly extreme nervousness on the
part of some French administrators (in particular, the Governor-General of French Equatorial
Africa) to expose that theory to discussion in the context of the negotiations with Libya in 1955; and
this explains why the French negotiators in 1955 were content not to press for a delimitation of the
boundary east of Toummo but simply to establish a formula which could serve as the basis for
subsequent and separate negotiations between France and Libya to fix (or, if you like, in the French
- 45 -
view, to confirm) that boundary. But of course no such subsequent negotiations took place.
In the light of these indicia from the travaux of the 1955 Treaty, the Court may well ask:
what, in Libya's view, is the true meaning of Article 3 of the 1955 Treaty, read in conjunction with
Annex I? The short answer is that Libya relies on the natural and unstrained meaning of the
language used in Article 3: that the two parties, by virtue of this provision, are recognizing that the
boundaries dividing the territories of Tunisia, Algeria, French West Africa and French Equatorial
Africa, on the one hand, from the territory of Libya, on the other hand, are the boundaries which
result from international acts in force on the date of Libya's independence, as listed in Annex I. This
is purely declaratory of the boundary situation as of the critical date, which both parties
acknowledge to be the date of Libya's independence. If boundaries result from any of the
international acts in force on the date of Libya's independence, those boundaries are to be recognized
as boundaries between Libya, on the one hand, and France on the other in respect of the French
possession or territory concerned. But if, in respect of any particular sector of the total boundary
between Libya and French possessions or territory, no boundary results from any of those
international acts, then Article 3, read with Annex I, cannot be interpreted as creating ex novo such a
boundary. Libya is wholly confident that the travaux préparatoires of the 1955 Treaty confirm this
interpretation of the text. It is Libya's contention, and Libya will establish this in subsequent
presentations, that no international act in force on the date of Libya's independence, whether listed in
Annex I or not, had delimited a boundary between Toummo and the Sudan boundary establishing the
limits of Libyan territory and the territory of its southern neighbour. The Treaty of Rome of 1935,
concluded between Italy and France, would have delimited such a boundary. But that Treaty never
entered into force, for reasons wholly unconnected with the boundary issue.
Now, Mr. President, this pretty well exhausts the guidance which can be obtained from a
detailed study of the travaux préparatoires. But it remains to be seen whether any light can be shed
on the interpretation of Article 3 of the 1955 Treaty from the context in which it occurs in the Treaty
as a whole. Libya would regard the context of the 1955 Treaty as including not only all the related
conventions between Libya and France concluded simultaneously with the 1955 Treaty itself, but
- 46 -
also the Exchange of Letters of 26 December 1956. I will presently come to that Exchange of
Letters which, as you will see, modified the boundary line between Ghadames and Ghat to the
evident advantage of Algeria. Although this Exchange of Letters post-dates the signature of the
1955 Treaty by some 18 months or so, it must be treated as part of the context of the 1955 Treaty
since it was concluded only because France threatened otherwise not to ratify the 1955 Treaty. As
the Court will be aware, Article 31, paragraph 2 (a), of the Vienna Convention on the Law of
Treaties defines the "context" of a treaty for the purpose of the general rule of interpretation as
comprising, in addition to the text, including its preamble and annexes:
"any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty".
Clearly, the Exchange of Letters of 26 December 1956 falls within this definition since, as
will shortly become apparent, France made its ratification of the 1955 Treaty conditional upon
Libya's acceptance of the 1956 Exchange of Letters.
Now, it is Chad which seeks to draw ammunition favourable to her case from an examination
of the context of Article 3 of the 1955 Treaty. What then is the essence of the Chadian argument so
far as it relates to the context of Article 3?
Chad asserts that the context of Article 3 supports her contention that that provision, read in
conjunction with Annex I, effects the delimitation of the Libya/Chad boundary east of Toummo by
reference to the lines which result from the combination of international acts identified in Annex I, all
these acts being deemed to have been en vigueur on 24 December 1951. To this end, she relies first
on Article 5 of the 1955 Treaty itself. The Court will recall that Article 5 makes provision for
consultation between the parties in the event that either of them becomes involved in an armed
conflict affecting territories in the continent of Africa situated in the northern hemisphere, by reason
of aggression or the imminent threat of aggression by another Power. The consultation envisaged is
for the purpose of ensuring the defence of their respective territories. As regards France, the
territories concerned are defined as those for which France has assumed he defence and which border
on Libya — that is to say, Tunisia, Algeria, French West Africa and French Equatorial Africa. As
regards Libya, the territory concerned is stated to be Libyan territory as defined in Article 3 of the
- 47 -
Treaty. And Chad seeks to extrapolate from this reference to Libyan territory in Article 5 of the
Treaty an acknowledgement by Libya that Article 3 has comprehensively delimited Libya's
boundaries with neighbouring territories.
The Court will of course hardly be deceived by this extravagant assertion. The phrase on
which Chad relies is a simple cross-reference back to Article 3 and is wholly consistent with the view
that part of Libya's boundaries with neighbouring French territories may have resulted from
international acts in force on the date of Libya's independence and opposable to Libya, and another
part may have been left undetermined, thus requiring still to be delimited by subsequent negotiations
between France and Libya on the basis of the criteria indicated in Article 3 of the Treaty itself.
We know, for example, that the Franco/Libyan negotiations in 1955 did not finally resolve the
disputed question of the course of the boundary line between Ghat and Toummo. France had
succeeded in securing, in the text of Annex I to the 1955 Treaty, Libyan agreement to the proposition
that the boundary line should pass through the three identified points of the trouée de Takharkhouri,
the Col d'Anai and point 1010. But this left entirely at large what should be the course of the line
joining these three points, and indeed the course of the line joining point 1010 to Toummo. As the
Court will see from the sketch illustrating possible boundary scenarios between point 1010 and
Toummo, the course of the boundary between point 1010 and Toummo was not resolved during the
1955 negotiations, nor indeed subsequently. The sketch map now illustrated is based directly upon
the map accompanying a note of 9 September 1960, from the "Service du Levant" of the Quai
d'Orsay addressed to the Service responsible for the Affairs of the French Community (RL,
Exh. 6.9). It will be equally clear to the Court that Article 3 of the 1955 Treaty, read in conjunction
with Annex I, did not definitively delimit that sector of the boundary between Libya and Algeria
which joins Ghadamès and Ghat. This is because, as we are already aware, France insisted in 1956
on rectifying this sector of the Libyan/Algerian boundary to secure the inclusion of the whole of the
Edjelé oil field in Algerian territory, and indeed threatened not to ratify the 1955 Treaty unless this
additional rectification were made. So, Mr. President, all the Chadian claims that Article 3 of the
1955 Treaty, read in conjunction with Annex I, had exhaustively delimited Libya's boundaries with
- 48 -
neighbouring French possessions or territories are shown to be false. Libya can cite numerous
admissions in documents prepared by French officials subsequent to 1955 to the fact that the
boundary between Ghat and Toummo remained to be delimited, notwithstanding the terms of
Annex I to the 1955 Treaty. For example, in a note of 15 July 1958, from the "Service du Levant"
of the Quai d'Orsay (RL, Exh. 6.9, first document) reference is made to Annex I to the 1955 Treaty.
But, the note continues (in English translation):
"However, the boundary has not been delimited on the ground and this
imprecision has been a source of incidents. Two serious incidents occurred on
17 September and 3 October 1957."
In a further note from the "Service du Levant" of the Quai d'Orsay of 11 February 1960 (RL,
Exh. 6.9, sixth document), it is specifically stated (again in English translation, and this is simply a
short extract from the document):
"From Ghat to Toummo, the boundary between France (in respect of Niger) and
Libya remains imprecisely defined by the Franco/Italian Arrangement of 1919 and the
Franco/Libyan Treaty of 10 August 1955. The Libyan Government, supporting the
territorial pretensions of its Touareg tribes, has never accepted the proposals of the
French Government to proceed to the precise delimitation and demarcation of this part
of the boundary . . ."
Even as late as April 1968, a note prepared in the Quai d'Orsay on the boundary between Algeria
and Libya south of Ghat admits quite frankly that between Ghat and Toummo there has been no
delimitation of the boundary:
"Aucune délimitation n'ayant encore été effectuée sur le terrain, des zones
contestées subsistent notamment au Sud de Ghat, et cette situation favorise la naissance
d'incidents de frontière." (RL, Exh. 6.9, eleventh document.)
Perhaps even more illuminating is a comment made by the French Ambassador to Libya in a
despatch to the French Foreign Minister of 13 April 1961 (shortly after Chad's independence). This
despatch analyses Libya's boundary problems and it contains the following passage:
"Je sais très bien que les Libyens se mordent les doigts de n'avoir pas essayé de
discuter avec nous la question de leur frontière avec le Tchad et le Niger quand il en
était encore temps; ils comprennent maintenant que les 'frères africains' se montreront
des adversaires encore plus difficultueux." (RL, Exh. 6.7 (tenth document).)
There could be no clearer statement that, in 1961, the French Ambassador to Libya regarded
the boundary between Libya and Chad as still remaining to be delimited.
- 49 -
These are but a few examples of a series of French official documents post-1955 which testify
to an unqualified acknowledgement on behalf of France that Article 3 of the 1955 Treaty had by no
means resolved all boundary problems between France and Libya. In the face of all this evidence,
this cloud of witnesses, how can it be plausibly contended that the simple cross-reference to Article 3
which is contained in Article 5 of the 1955 Treaty is sufficient to create a presumption that the effect
of Article 3 was comprehensively to delimit all Libya's boundaries with neighbouring French
territories or possessions? If even French officials frankly admitted in 1960 that the 1955 Treaty did
not delimit the sector from Ghat to Toummo and the sector from Toummo to the Sudanese frontier,
and that these sectors remained to be delimited as a result of negotiations with Libya, how can Chad
now advance arguments so clearly at variance with the facts?
Now, Chad also invokes the provisions of Articles 1, 9, 10 and 11 of the "Convention de bon
voisinage", and Article II of Annex III to the "Convention particulière" in support of her argument
that the context of the 1955 Treaty is consistent only with the Chad contention that Article 3
operates to delimit exhaustively all Libya's boundaries with neighbouring French territories. Chad
argues that Article I of the "Convention de bon voisinage" confirms that all Libya's boundaries are
defined by Article 3 of the Treaty (CMC, pp. 499-500, para. 11.56). But this is simply a repetition
of the Chad argument with respect to Article 5 of the Treaty itself and is open to precisely the same
objection as I have just indicated.
What might appear to be of greater significance are the references to selected geographical
features in Articles 9, 10 and 11 of the "Convention de bon voisinage". Article 9 is a general
provision whereby the two Governments undertake to provide facilities for the free movement of
nomads from tribes traditionally trading on one side or the other of the boundary in order to maintain
the traditional caravan routes between certain named regions.
Article 10 establishes a wide zone open to caravan traffic practised by nomads who were
holders of a special card. It identifies this zone, on one side or other of the boundary, as being
limited, in "French territory" by a line passing through certain specified locations and in "Libyan
territory" by a line passing through other specified locations. The map which we are about to show
- 50 -
shows the extent of the Article 10 zone. It will, of course, be noted that the 1955 "Convention de
bon voisinage" concerned the entire frontier area between Libya and adjoining French territories for
the defence of which France had assumed responsibility. Thus, some of the specified locations are in
present-day Algeria or Niger.
It will be apparent to the Court that the object and purpose of the 1955 "Convention de bon
voisinage" was to record agreement on practical measures necessary for ensuring frontier security
and for assisting cross-frontier circulation. Many of these practical measures had indeed been
recommended in a letter of 10 February 1955 from the Ministre de la France d'Outre-Mer to the
French Minister of Foreign Affairs, drawing upon earlier proposals which he had made on
27 July 1953 (RL, Exh. 6.6).
The Minister draws a clear distinction in this letter between the régime frontalier and the
course of the boundary itself. The régime frontalier has no bearing on the course of the boundary.
What is of course particularly interesting about the Article 10 zone that you can see is that it left a
great deal of leeway for the subsequent determination of a boundary line within the limits which it
fixed. As can be seen, both a strict south-east line in accordance with Article 3 of the 1899
Additional Declaration and the line fixed by the 1935 Franco/Italian Treaty would fit easily into the
zone. But of course the object and purpose of the Article 10 zone was simply to indicate the area
within which the nomadic tribes were accustomed to circulate. It was not to determine questions of
title to territory as between Libya and France. In this context, the Court will readily recall that,
within the framework of the "Convention de bon voisinage" as a whole, territoire français was
defined as meaning territories for the defence of which France had assumed responsibility.
Accordingly, no implication can be drawn from the references to territoire français in Article 10 of
the Convention that the named locations necessarily lie on the French side of any boundary line that
might eventually be established between the parties or their successors in title.
Now, the final element, Mr. President, of the "context" of Article 3 on which Chad relies is the
reference of Article II of Annex III to the "Convention particulière" to Piste No. 5. Piste No. 5 is the
route which, starting from a point in Tunisia proceeds southwards and southeastwards and "pénètre
- 51 -
en territoire du Tchad dans la région de Muri Idie". As explained at paragraph 55 of the Libyan
Reply, this description is far from being precise, as is shown by the map here illustrated. It will be
seen that the map shows both a Col de Mouri Idie and a geographical feature named Mouri Idie
itself. Which one is meant? Moreover, the description is deliberately vague: dans la région de
Mouri Idie does not give an exact indication of a crossing-point, even if one could identify which
geographical feature is meant.
Finally, Mr. President, in analysing the "context" of Article 3 of the 1955 Treaty, Chad
deliberately leaves out of account the Franco/Libyan Exchange of Letters of 26 December 1956.
Chad does not ignore this Exchange of Letters entirely, but endeavours to downgrade its
significance. What are the facts? The Franco/Libyan Treaty was signed on 10 August 1955. It was
signed subject to ratification. The Court will be aware that one of the related Franco/Libyan
agreements, also signed on 10 August 1955, was the Agreement relating to the withdrawal of French
forces from the Fezzan. This provided for the withdrawal of French forces from the Fezzan to be
completed by 30 November 1956. However, the French Government of the day did not even present
the 1955 Treaty to the Assemblée nationale in Paris for approval until 13 November 1956, some
15 months after signature. Why the delay? The French Government were no doubt nervous about
securing the necessary approval from the Assemblée nationale for the Bill which would authorize
ratification of the 1955 Treaty, particularly at a time when France's relations with the Arab world
were strained. But I would suggest that another, and more significant, consideration was involved.
At the end of 1955, it was confirmed that oil, in commercial quantities, had been discovered in the
vicinity of Edjelé, at a location very close to the line fixed by the Franco/Italian Arrangement of
1919. But France knew, much earlier, that there was every likelihood that this would be a major oil
strike. It was clearly in France's interest to ensure that the line between Ghadamès and Ghat,
although in principle delimited by the Franco/Italian Agreement of 1919, be rectified in such a way
as to ensure that the bulk of the Edjelé oil field fell on the Algerian side of the line. At French
insistence, negotiations were accordingly re-opened between Libya and France in the early months of
1956 with a view to delimiting more precisely the boundary line between Ghadamès and Ghat.
- 52 -
These negotiations, which were to result in the Exchange of Letters of 26 December 1956, were still
continuing in November 1956. Again, it was very much in France's interest in her ongoing
negotiations with Libya in 1956 to magnify the difficulties which the French Government were
encountering with the Assemblée nationale in securing Parliamentary approval to ratify the
1955 Treaty. In this context the Court will recall the episode of the Isorni amendment which is
referred to in the Libyan Memorial at paragraphs 5.498 to 5.499.
It is incidentally the 1956 Exchange of Letters which gives the lie to the Chad arguments that
Article 3 of the 1955 Treaty finally accomplished the delimitation of Libya's boundaries with
adjoining French territories. The boundary between Libya and Algeria was the most sensitive from
the French point of view, for Algeria was, at this time, a department of metropolitan France. Yet
during the 1955 negotiations, the French demands for rectification of the Libyan/Algerian boundary
had been limited to securing Libyan agreement to the three identified points between Ghat and
Toummo. No question had been raised by France as to the course of the line between Ghadamès and
Ghat. It is only some months after signature of the 1955 Treaty, but before that Treaty had been
submitted to the French Assemblée nationale for approval, that France raises the issue of the course
of the boundary between Ghadamès and Ghat, particularly in the area of Edjelé. In the summer of
1956, French officials recommended that it should be made clear to the Libyan Prime Minister that
the outcome of the French Parliamentary debates on the ratification of the 1955 Treaty would depend
largely on the result of the continuing negotiations on the course of the boundary between Ghadamès
and Ghat. Little attempt is made to disguise the element of blackmail involved.
Thus, an undated note for the President of the Council of Ministers prepared jointly by the
Direction générale des affaires politiques and the Direction d'Afrique-Levant of the Quai d'Orsay
and, from internal evidence, submitted in July or August 1956, is devoted to the need for the French
Government to define its position with respect to the ratification of the 1955 Treaty. The note points
out that the renewed negotiations about the delimitation of the Libyan/Algerian boundary will run
into serious difficulties if the 1955 Treaty is not ratified, and it continues:
"Or, un arrangement frontalier est indispensable si nous voulons conserver le très
important gisement pétrolier récemment découvert à Edjelé, et dont la possession est
vitale non seulement pour l'approvisionnement futur de la France en pétrole mais aussi
- 53 -
pour le développement économique de l'Algérie."
The note then goes on to recommend inter alia that the leader of the French delegation in Tripoli
should make it known confidentially to the Libyan Prime Minister that the outcome of the French
Parliamentary debates on ratification of the 1955 Treaty will depend in large measure on the result
of the discussions on the delimitation of the boundary; in other words, he would indicate that if these
discussions resulted in a solution satisfactory to France, the French Government would undertake to
hasten as much as possible the procedure of ratification and to use all its authority to bring about
this solution.
A later joint note of 13 November 1956, from the same source in the Quai d'Orsay, is
revealingly candid about French objectives in the continuing negotiations about the delimitation of
the boundary between Ghadames and Ghat:
"Entre Ghat et Ghadamès, où d'importants gisements pétroliers ont été
récemment décelés, notre intention est de demander au Gouvernement libyen de
consacrer dès maintenant, par un échange de lettres, la définition française de la
frontière algéro-fezzanaise plaçant les zones les plus intéressantes en territoire algérien
en dépit des dispositions peu favorables que contiennent, à ce sujet, les textes
internationaux." (Emphasis added.)
Here, there is a clear admission that France is seeking to modify, for her own benefit and that of
Algeria, existing international agreements defining the boundary between Algeria and the Fezzan in a
manner less favourable to French interests. The same note goes on to indicate that the withdrawal of
French forces from the Fezzan should be made conditional upon the prior acceptance by Libya of
these proposals. It is no exaggeration, therefore, Mr. President, to apply the term "blackmail" to
French conduct in the negotiation of the Franco/Libyan Exchange of Letters of 26 December 1956.
Both the notes from which these extracts are taken are at RL, Exh. 6.7.
Now the Exchange of Letters of 26 December 1956, modified the line between Ghadames and
Ghat which had been fixed by the Franco/Italian Arrangement of 1919 in such a way as to ensure
that the Edjelé oil field was fully incorporated within Algerian territory. The Court will now see on
the map the extent of the territorial gains achieved by France by virtue of this Exchange of Letters.
It clearly formed part of the context of the 1955 Treaty, since it was made between Libya and France
in connection with the conclusion of the 1955 Treaty, as the foregoing evidence amply confirms.
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There are other elements of French and Libyan conduct which may not, strictly speaking, form
part of the context of the 1955 Treaty, but which certainly have to be taken into account as being
part of the circumstances of the conclusion of that Treaty.
One such element of conduct bearing upon the interpretation of the boundary provisions of the
1955 Treaty is Libyan Petroleum Regulation No. 1 and Map No. 1 of 14 August 1955. As
Mr. Maghur has already analysed these materials in some depth yesterday, I will forbear from
repeating his explanation.
It remains only to consider the "object and purpose" of Article 3 of the 1955 Treaty. Chad
assumes that that object and purpose was to achieve a comprehensive delimitation of Libya's
boundaries with neighbouring French territories to the east and to the south. Libya makes no such
assumption. In Libya's submission, the travaux préparatoires of the 1955 Treaty are consistent
only with the view that the ambitions of the parties were much less far-reaching. Libya's prime
objective was to secure the removal of French forces from the Fezzan. Libya was neither prepared
nor equipped to enter into detailed negotiations on the course of her boundaries with neighbouring
French territories. Libya was reluctantly persuaded to enter into detailed negotiations on her
boundary with Algeria between Ghat and Toummo in the face of the French demand that the
boundary line in this sector be rectified so as to pass through the three identifiable points which I
have already mentioned. But, as we have seen, Libyan agreement to this demand did not bring about
a delimitation of the boundary even in this sector, as French officials frankly admitted several years
later. Nor can it be said that the unqualified object and purpose of the French delegation during the
1955 negotiations was to achieve such a comprehensive delimitation of Libya's boundaries with
neighbouring French territories. The evidence that the French delegation was under instructions
during both phases of the 1955 negotiations not to open up for discussion the legal basis for the
French theory that Libya's southern boundary between Toummo and the Sudanese frontier had
already been delimited is compelling. But why was the French delegation required to act under such
constraints? What did they have to fear? Was it because the French Government well knew that
their theory as to existence of a conventional boundary east of Toummo would not stand up to close
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scrutiny? Was it because, to adapt the story of Hans Christian Andersen, the Emperor would be
revealed as having no clothes? The questions are no doubt rhetorical, but they are none the less
suggestive of the answers that inevitably present themselves.
Now, Mr. President, this still leaves open a series of unresolved questions bearing on the
interpretation of Article 3, read in conjunction with Annex I. The first, and possibly the least
important, is whether the Annex I list was intended to be an exhaustive or a non-exhaustive listing of
the international acts relevant to a determination of the boundary east of Toummo. Libya has
already given in its written pleadings its reasons for regarding the Annex I list as being
non-exhaustive (see CML, pp. 51-52, paras. 3.12 to 3.16 and RL, pp. 37-38, paras. 4.09 to 4.11).
The second, and more significant, unresolved question bears on the interpretation of the phrase
actes internationaux en vigueur in the context of Article 3. Here we have a striking inconsistency in
the Chad position. The natural and unstrained meaning of the phrase actes internationaux en
vigueur appearing in Article 3 is that one is confined to a consideration of those international acts
actually in force as of the date of Libya's independence in 1951 and binding as of that date upon
Libya or its predecessor in title. This is the position which Libya takes. It is also the position which
Chad takes, at least in its Counter-Memorial. Thus, if you look at paragraph 11.20 of the Chad
Counter-Memorial, it unequivocally argues:
"La frontière ne peut être déterminée que par rapport aux actes internationaux en
vigueur à l'indépendance de la Libye. On a ici une double limitation: sont exclus, d'une
part les actes non internationaux, comme par exemple des actes administratifs internes
aux puissances coloniales et, d'autre part, les actes internationaux qui ne seraient pas ou
plus en vigueur le 24 décembre 1951, date de l'indépendance libyenne."
The same point is repeated even more clearly in paragraph 11.42 of the Chad
Counter-Memorial, where Chad acknowledges that the Franco/Italian Treaty of Rome of 1935 has to
be excluded from consideration not so much because it is not listed in Annex I as because it never
entered into force and could not therefore fulfil the condition specified in Article 3 itself of being an
international act in force as of the date of Libya's independence.
It is perhaps not altogether surprising that Chad in its Reply seems tacitly to have abandoned
this position. Chad now appears to be arguing that the failure of France to notify the Franco/Italian
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Accords of 1900 and 1902 and the Franco/Italian Agreement of 12 September 1919, under
Article 44 of the Italian Peace Treaty is explicable on the basis that, by virtue of Article 23 of the
Peace Treaty, Italy had renounced all right and title to its territorial possessions in Africa, that is to
say, Libya, Eritrea and Italian Somaliland. Therefore, according to Chad, it was not for Italy, nor
for France in the context of its bilateral relations with Italy, to consider treaties relating to the
boundaries of the former Italian colonies as maintained, reactivated or abrogated (RC, para. 5.50).
Alternatively, Chad appears to maintain that the legal effect of the phrase in Article 3 "tel qu'ils sont
définis dans l'échange de lettres ci-jointes (annexe 1)" is to indicate the texts which the parties
themselves considered to be en vigueur at the relevant time (RC, p. 132, para. 5.55). The weakness
of both these arguments is self-evident. Leaving aside the fact that this fundamental change in the
Chad position is indicative of a pronounced nervousness on the part of Chad as to the consequences
of the clear admissions made in paragraphs 11.20 and 11.42 of the Chad Counter-Memorial, the first
new argument presented in the Chad Reply fails to explain why reference was made to the en
vigueur condition in Article 3 of the 1955 Treaty; nor does it establish by itself that the
Franco/Italian Accords of 1900 and 1919 were en vigueur as of the date of Libya's independence.
Let us just consider a little bit more closely whether the Franco/Italian Accords of 1900 and
1902 can, as a matter of treaty law, be regarded as having been still in force on the date of Libya's
independence, that is to say on 24 December 1951. I need not go into much detail at this stage about
the content of these two agreements. Mr. Sohier will, in a later presentation, examine their meaning
exhaustively in the light of the circumstances prevailing at the time of their conclusion in 1900 and
1902 respectively. It is sufficient for present purposes for the Court to note that these were
originally secret agreements, kept confidential by the parties because they related principally to the
recognition by Italy of French rights in Morocco in return for a recognition by France of Italian
interests — Italian interests note, not Italian rights, — in Tripolitania/Cyrenaica. It would have
been extremely awkward for the content of these arrangements to have been made public at the time,
as Tripolitania/Cyrenaica was universally acknowledged to be an integral part of the Ottoman
Empire in 1900 and 1902. Now, this brief description of the content of the 1900 and 1902
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Franco/Italian Accords, coupled with the more elaborate analysis which you will presently hear from
Mr. Sohier, will, in Libya's submission, enable the Court to conclude that all the Chadian
contentions as to the effect of these two agreements are mistaken. These two agreements are typical
of the purely personal compacts made between colonial powers at the turn of the twentieth century,
whereby each sought to obtain recognition from the other for the position it had carved out, or was
hoping to carve out, in particular parts of Africa. But these agreements of 1900 and 1902 depended
for their continuing validity on the retention of the Italian position in relation to Libya — as potential
successor to the Ottoman Empire until 1912 and as sovereign power in Libya from 1912 to the entry
into force of the Italian Peace Treaty in 1947. Once that position had disappeared, as it did with the
entry into force of the Italian Peace Treaty, the raison d'être of the 1900 and 1902 Franco/Italian
Agreements also disappeared. Professor Condorelli, in a later intervention, will be discussing the
effect of non-registration of these two agreements under Article 44 of the Italian Peace Treaty. I
would simply make the point that, quite apart from the legal effect of non-registration under
Article 44 of the Italian Peace Treaty, and the motives which might have led France not to register
the 1900 and 1902 agreements, there is in fact reason to conclude that the continuance in force of
these agreements depended on the continuing retention by Italy of title in respect of Libya so that
they automatically ceased to be in force as soon as Italy's renunciation of right and title to Libya took
effect.
Now, Mr. President, the alternative argument at paragraph 5.55 of the Chad Reply is highly
suspect. It involves attributing to the parties an intent to deem certain international acts to have been
in force on 24 December 1951, irrespective of whether they were in fact in force on that date.
Moreover, it involves attributing to the parties an intent to do this retrospectively, since the
international acts alleged to have produced a particular boundary must have done so on the critical
date, that is to say, 24 December 1951. Prima facie, this is highly unlikely. As we have seen, the
Annex I list was included in the text at the very last moment and apparently without discussion.
Libya did not have the time to form any considered view as to whether the international acts which
France had included in the list were or were not in force on 24 December 1951. This was no doubt
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immaterial as regards the Franco/Italian Agreement of 12 September 1919, since the modifications
to that Agreement embodied in the text of Annex I itself — that is to say, the specification of the
three points through which the line from Ghat to Toummo must pass — those modifications
sufficiently indicate that France and Libya were treating that Agreement, or, perhaps more
accurately, the effects of that Agreement, as still subsisting on 24 December 1951. The fact remains
that the en vigueur condition is specified in Article 3 itself and has to be satisfied. That condition is
independent of the content of the Annex I list. The Annex I list is prefaced by the phrase "Il s'agit
des actes suivants." This would appear to be purely descriptive of the acts themselves and to carry
no implication as to whether they were or were not in force on 24 December 1951, a condition which
had to be separately and independently satisfied under Article 3.
The fact is that the language of that part of Article 3 which refers to the Annex I list, and of
the introductory words to the Annex I list itself, is far from clear. The most natural meaning to be
attributed to that language and those words is that they refer to international acts which were
actually in force as treaty instruments on 24 December 1951, and (independently of the 1955 Treaty)
binding, as of that date, on Libya or its predecessor in title. An alternative, but less likely, meaning
is that the language and words refer to international acts which, whether they were or were not in
force as treaty instruments on 24 December 1951, had earlier been in force and had established
territorial boundaries which were binding on Libya's predecessor in title. On this alternative view,
the words en vigueur refer to the effects of the treaty instrument rather than the treaty instrument
itself. But what seems to be excluded, Mr. President, is an interpretation of that language and those
words which would cover international acts actually in force on 24 December 1951, in the sense that
they were then binding on some entity other than Libya or Libya's predecessor in title, the effect of
Article 3 of the 1955 Treaty being to render these acts opposable to Libya. This is excluded because
there is nothing in the wording of Article 3 or Annex I to suggest that its purpose was retrospectively
to render opposable to Libya international acts which were not opposable to Libya or its predecessor
in title as of 24 December 1951.
Now, Mr. President, as I have indicated, Chad has signally failed to produce any travaux
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préparatoires relating to the genesis of Annex I. In the circumstances, and again bearing in mind the
incidence of the contra proferentem rule in the interpretation of treaties, upon which Libya has
enlarged in the Libyan Counter-Memorial (CML, paras. 7.31-7.37), Libya is confident that the
Court will reject the argument advanced in paragraph 5.55 of the Chad Reply.
Now, the third unresolved question bearing on the interpretation of Article 3 relates to the
issue of the extent to which colonial effectivités are to be excluded in the determination of the
boundary east of Toummo. The travaux préparatoires amply confirm that France, which was the
author of Article 3, firmly believed that a boundary line separating Libyan territory from the
territory of French Equatorial Africa (now Chad) would result from the international acts in force on
the date of Libyan independence. Libya, not having studied the matter in any detail and not being
equipped at the time with sophisticated legal advice on boundary matters, was not in a position to
challenge the view that a boundary line might result from these acts; but it clearly could not commit
itself to the view that such a boundary line did result from these acts. Hence the careful and cautious
language of Article 3. What is important to bear in mind, however, is that the French were relying
exclusively on a conventional boundary resulting from identified or identifiable international acts.
This accorded with the long-held French theory developed initially in the 1920s. Thus, in 1955,
Article 3 was drafted on the assumption that a boundary line east of Toummo might or, in the French
view, would result from one or more of the international acts to be listed in Annex I. It simply did
not address the issue of the relevance of colonial effectivités in the event that a conventional
boundary east of Toummo and opposable to Libya did not result from any of the international acts
concerned, whether or not listed in Annex I.
Now, the Court will be aware that Libya's basic contention is that none of the international
acts on which Chad seeks to rely established a territorial boundary east of Toummo opposable to
Libya or indeed to Italy or the Ottoman Empire as Libya's predecessors in title. If this is correct,
and Libya is firmly convinced that it is correct, then Article 3 ceases to be relevant as regards the
determination of that boundary. What then would be the position? Article 3 had, by clear and
inescapable inference, excluded reliance on colonial effectivités as a factor to be taken into account
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in determining a boundary pursuant to its terms. But if Article 3 ceases to be relevant to the
determination of the boundary east of Toummo, can one continue to ignore colonial effectivités?
Even assuming that, in 1955, France firmly believed that a conventional boundary east of Toummo
would result from the relevant international acts, there is, in Libya's view, insufficient evidence to
indicate that France was totally abandoning any reliance on colonial effectivités as an element to be
taken into account in the determination of that boundary if that firm belief proved in the event to be
unfounded. In principle, and on the assumption that a conventional boundary east of Toummo does
not result from any of the international acts concerned (and this is Libya's contention), whether listed
in Annex I or not, the position must be that that boundary will result from the application of rules of
general international law relating to the determination of title to territory in dispute. Libya has
already indicated, in its written pleadings, the elements which, in its view, are to be taken into
account in determining title to territory in the absence of a conventional boundary. Libya will of
course revert to this major aspect of the case in the second half of its oral pleading. Libya has
demonstrated that the Libya/Chad borderlands were not terra nullius in the opening years of the
20th century when Chad asserts that France acquired title by occupation. Libya relies inter alia on
the Court's Advisory Opinion in the Western Sahara case in support of the proposition that the
borderlands were not terra nullius at the relevant time. But even if this were not so, there is no
evidence that France acquired a valid title to the borderlands by way of effective occupation by 1914
(or even by 1919). And after 1919, acquisition of title to territory as a result of the use of armed
force was prohibited as a matter of general international law.
It is curious that France should so decidedly have sought to exclude reliance on colonial
effectivités in the text of Article 3. France was obviously concerned that Italian colonial effectivités
(particularly during the period from 1940 to 1943) that those Italian colonial effectivités could cast a
significant measure of doubt on the French claim to title over the borderlands; the travaux
préparatoires of the 1955 Treaty confirm this. It may be also that France was indirectly accepting
that military occupation based on conquest could not, after 1919, constitute a good claim of title to
the borderlands and so was prepared to exclude colonial effectivités as an element in the
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determination of title under Article 3 of the 1955 Treaty. Whatever the reason, there can be no
doubt that the deliberate exclusion by France of colonial effectivités as an element to be taken into
account in determining a boundary under Article 3, is strongly indicative of a complete lack of
confidence by France in the validity of any argument, whether on the law or on the facts, that she
could have established title to the borderlands on the basis of colonial effectivités alone or in
conjunction with any of the relevant international acts.
Now, Mr. President, I am coming to the end. But there is just one other feature of the
circumstances surrounding the conclusion of the 1955 Treaty to which I must draw attention: and
that is the deliberate failure of France to register the Treaty with the United Nations Secretariat
under Article 102 of the Charter until the year 1991, and then only at the request of the Government
of Chad. The facts are fully set out in the Libyan written pleadings: see ML, paras. 2.12 and 5.504
to 5.510 and RL, paras. 5.67 to 5.69.
In its Memorial, Libya had contrasted France's deliberate failure to register the 1955 Treaty
shortly after its conclusion with France's eagerness to register the Franco/Libyan Exchange of
Letters of 26 December 1956. Which as we know modified the Franco-Italian Agreement of 1919 to
ensure that the Edjelé oil field fell on the Algerian side of the boundary line. So this Exchange of
Letters of 1956 genuinely did purport to establish an international boundary. And what happens?
France promptly files the Exchange of Letters for registration with the United Nations Secretariat
under Article 102 of the Charter, and the registration duly takes effect on 19 May 1958. This is
some three-and-a-half years before consideration is even given within the Quai d'Orsay to the
possible registration of the 1955 Treaty.
Libya has drawn attention to this episode, not because the lengthy delay in effecting
registration casts doubt upon the validity of the 1955 Treaty or upon the ability of either party to
invoke it, but rather because it is illuminating in demonstrating the contemporaneous French attitude
towards the boundary provisions of the 1955 Treaty. For, if France had in truth taken the view that
Article 3 of the Treaty, read with Annex I, achieved the delimitation of the boundary east of
Toummo between Libya and what was later to become Chad (and this is what Chad's first theory
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requires), then France had every reason to effect rapid registration of the Treaty under Article 102 of
the Charter. This was in fact precisely what France did as regards the Exchange of Letters of
26 December 1956. The lengthy delay in effecting registration accordingly testifies to a firm
conviction on the part of the French authorities that the 1955 Treaty did not itself fix or determine
any of Libya's boundaries with French territory. In other words, it conforms entirely to the pattern
of all the other evidence relied upon by Libya to establish that Article 3 of the 1955 Treaty did no
more than confirm the territorial status quo as of the critical date.
Mr. President, Members of the Court, you will be relieved to hear that this effectively
concludes my presentation. I must apologize to the Court for the discursive nature of my address.
But I have had to draw heavily on a wide range of materials and evidence which not only support
and sustain the interpretation which Libya puts on the text of Article 3 of the 1955 Treaty but which
are also wholly incompatible with the interpretation which Chad seeks to put upon that text. In the
end, the Libyan position on the interpretation of Article 3 of the 1955 Treaty can be summarized in
the following propositions.
1. Libya relies on the literal meaning of Article 3 — namely, that the two Parties recognize
that the boundaries separating Libya from adjoining French territories are those which result from
international acts in force on the date of Libya's independence and opposable to Libya or Libya's
predecessor in title.
2. Libya regards Article 3 as being declaratory of the boundary status quo as of the critical
date, not as being constitutive of a boundary in any sector where no such boundary had previously
been determined.
3. In the sector between Toummo and the Sudanese frontier, the overwhelming weight of the
evidence is that no true boundary dividing the territory of what is now Libya from the territory of
what is now Chad had been determined prior to the date of Libyan independence. In particular, no
true boundary line opposable to Libya in this sector can be argued to have resulted from the
combined effect of the Anglo/French Additional Declaration of 1899, the Franco/Italian Accords of
1900 and 1902 and the Anglo/French Convention of 8 September 1919.
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4. The available evidence bearing on the negotiation of Article 3 of the 1955 Treaty amply
confirms that no attempt was made to negotiate de novo a boundary between Toummo and the
Sudanese frontier. Indeed, the available evidence shows that both Libya and France (though for
widely differing reasons) were reluctant even to engage in detailed discussions about the legal basis
for the alleged conventional boundary in this sector.
5. The context of Article 3 of the 1955 Treaty is wholly consistent with the Libyan
interpretation, and is wholly opposed to the Chad interpretation. In particular, the Franco/Libyan
Exchange of Letters of 26 December 1956, which must be considered to be part of the "context" of
Article 3 of the 1955 Treaty, demonstrates beyond question that the 1955 Treaty did not definitively
resolve, and was not intended to resolve, all outstanding boundary issues between Libya and France.
6. The travaux préparatoires of the 1955 Treaty and the circumstances of its conclusion
again give overwhelming support to the Libyan interpretation of the legal effect of Article 3, read in
conjunction with Annex I.
7. Although the language of Article 3, read in conjunction with Annex I, might suggest that
the list of actes internationaux in Annex I was intended to be limitative, Libya is not entirely
convinced that this was indeed the common intention of the parties, particularly in the absence of
evidence in the travaux préparatoires relating to the genesis of the Annex I list and the point of time
at which it was included in the text.
8. Libya contends that the expression actes internationaux en vigueur used in Article 3 of the
1955 Treaty must be interpreted as referring to international acts actually in force as of the date of
Libya's independence, and as not including international acts not in force or no longer in force as of
that date.
9. Article 3 of the 1955 Treaty, read in conjunction with Annex I, excludes reliance on
colonial effectivités as an element to be taken into account in the recognition of a boundary pursuant
to its terms. But Article 3 and Annex I were concerned only with conventional boundaries. The
deliberate exclusion by the parties (and particularly by France) of colonial effectivités as an element
to be taken into account in determining a boundary under Article 3 is in any event indicative of a
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complete lack of confidence on the part of France in the validity of any argument, whether on the law
or on the facts, that she could have established title to the borderlands on the basis of colonial
effectivités alone or in conjunction with any of the relevant international acts.
10. The circumstance that France did not register the 1955 Treaty under Article 102 of the
United Nations Charter until 1991, while she registered the Franco/Libyan Exchange of Letters of
1956 shortly after its conclusion, confirms the Libyan view that France had no belief, in the years
following the conclusion of the 1955 Treaty, that that Treaty effected the delimitation of a boundary
between Libya and what is now Chad east of Toummo.
11. Mr. President, you will be relieved to hear that this is the final proposition. As a matter of
law, the Court would in any event be entitled to take into consideration the circumstance that France
may not have acted during the boundary negotiations with Libya in 1955 and 1956 in a manner
entirely consistent with the standard of good faith required in the negotiation of treaties and, in the
event of the Court's retaining any doubt as to the meaning to be attributed to Article 3 of the
1955 Treaty, to give effect to the principle of good faith by upholding the Libyan interpretation and
rejecting the French interpretation now espoused by Chad.
Mr. President, Members of the Court, I thank you for your close attention. I will be followed,
tomorrow morning obviously, by Mr. Sohier who will begin by giving a general description of the
geography and the inhabitants of the borderlands, and will then proceed to examine the content and
the significance of the principal international agreements up to 1912. Thank you.
The PRESIDENT: Thank you, Sir Ian. So, Mr. Sohier, until tomorrow morning at
ten o'clock. I am getting a little anxious about the slippage each day so far on the agreed timetable,
but no doubt Libya is taking this into consideration in planning the rest of the use of the agreed
timetable. So, ten o'clock tomorrow morning. Thank you very much.
The Court rose at 1.00 p.m.
Audience publique tenue le mardi 15 juin 1993, à 10 heures, au Palais de la Paix, sous la présidence de sir Robert Jennings, président