Territorial Dispute (Libyan Arab Jamahiriya/Chad)

On 31 August 1990, the Libyan Arab Jamahiriya filed in the Registry a notification of an Agreement that it had concluded with Chad in Algiers on 31 August 1989, in which it was agreed, inter alia , that in the absence of a political settlement of their territorial dispute, they undertook to submit that dispute to the Court. On 3 September 1990, Chad filed an Application instituting proceedings against the Libyan Arab Jamahiriya that was based upon the aforementioned Agreement and, subsidiarily, on the Franco-Libyan Treaty of Friendship and Good Neighbourliness of 10 August 1955. The Parties subsequently agreed that the proceedings had in fact been instituted by two successive notifications of the Special Agreement constituted by the Algiers Agreement. The written proceedings occasioned the filing, by each of the Parties, of a Memorial, a Counter-Memorial and a Reply, accompanied by voluminous annexes, and the oral proceedings were held in June and July 1993.

The Court delivered its Judgment on 3 February 1994. It began by observing that Libya considered that there was no existing boundary, and had asked the Court to determine one, while Chad considered that there was an existing boundary, and had asked the Court to declare what that boundary was. The Court then referred to the lines claimed by Chad and by Libya, as illustrated in sketch-map No. 1 reproduced in the Judgment (see below p. 146) ; Libya’s claim was on the basis of a coalescence of rights and titles of the indigenous inhabitants, the Senoussi Order, the Ottoman Empire, Italy and Libya itself ; while that of Chad was on the basis of a Treaty of Friendship and Good Neighbourliness concluded by France and Libya on 10 August 1955, or, alternatively, on French effectivités, either in relation to, or independently of, the provisions of earlier treaties.

The Court noted that it had been recognized by both Parties that the 1955 Treaty between France and Libya was the logical starting-point for consideration of the issues before the Court. Neither Party questioned the validity of the 1955 Treaty, nor did Libya question Chad’s right to invoke against Libya any such provisions thereof as related to the frontiers of Chad. One of the matters specifically addressed was the question of frontiers, dealt with in Article 3 and Annex I. The Court pointed out that if the 1955 Treaty did result in a boundary, this furnished the answer to the issues raised by the Parties. Article 3 of the Treaty provided that France and Libya recognized that the frontiers between, inter alia, the territories of French Equatorial Africa and the territory of Libya were those that resulted from a number of international instruments in force on the date of the constitution of the United Kingdom of Libya and reproduced in Annex I to the Treaty. In the view of the Court, the terms of the Treaty signified that the Parties thereby recognized complete frontiers between their respective territories as resulting from the combined effect of all the instruments listed in Annex I. By entering into the Treaty, the Parties recognized the frontiers to which the text of the Treaty referred ; the task of the Court was thus to determine the exact content of the undertaking entered into. The Court specified in that regard that there was nothing to prevent the Parties from deciding by mutual agreement to consider a certain line as a frontier, whatever the previous status of that line. If it was already a territorial boundary, it was confirmed purely and simply.

It was clear to the Court that — contrary to what was contended by the Libyan Arab Jamahiriya — the Parties had agreed to consider the instruments listed as being in force for the purpose of Article 3, since otherwise they would not have included them in the Annex. Having concluded that the Contracting Parties wished, by the 1955 Treaty, to define their common frontier, the Court considered what that frontier was. Accordingly it proceeded to a detailed study of the instruments relevant to the case, i.e., (a) to the east of the line of 16° longitude, the Anglo-French Declaration of 1899 — which defined a line limiting the French zone (or sphere of influence) to the north-east in the direction of Egypt and the Nile Valley, already under British control — and the Convention of 8 September 1919 signed at Paris between Great Britain and France, which resolved the question of the location of the boundary of the French zone under the 1899 Declaration ; (b) to the west of the line of 16° longitude, the Franco-Italian Agreement (Exchange of Letters) of 1 November 1902, which referred to the map annexed to the Declaration of 21 March 1899. The Court pointed out that that map could only be the map in the Livre jaune published by the French authorities in 1899 and which showed a dotted line indicating the frontier of Tripolitania.

The Court then described the line resulting from those relevant international instruments. Considering the attitudes adopted subsequently by the Parties with regard to their frontiers, it reached the conclusion that the existence of a determined frontier had been accepted and acted upon by the Parties. Lastly, referring to the provision of the 1955 Treaty according to which it had been concluded for a period of 20 years and could be terminated unilaterally, the Court indicated that that Treaty had to be taken to have determined a permanent frontier, and observed that, when a boundary has been the subject of agreement, its continued existence is not dependent upon the continuing life of the Treaty under which that boundary was agreed.