Traduction

Traduction
on- Corrigé Translation
Uncorrected

CR 93/17 (traduction)
CR 93/17 (translation)

Jeudi 17juin 1993
Thursday17 June 1993 The PRESIDENT: ~l'easbee seated. Mr. Cahier.

Mr. CAHIER: Mr. President, Memberosf the Court,it is not without

emotionthatan international juristpleads beforeyou, and 1 wish to

4
tellyou that it is an honourand aprivilegeforme to appear before the

Courtin this casebetween Libya and Chad.

The task fallingto me todayis to examine the period fr1 om19 to

the conclusionof the 1935TreatybetweenItaly and France. The period

is fairly fertilein eventssincetreatieswere concluded betweet nhe

protagonists ofOur history,GreatBritain,Franceand Italy,States

which engagedin negotiations on an ever largescale. 1 nevertheless

have no desireto overtaxyour attention, for two reasons. First,Libya

and Chadhave dwelton thoseeventsat somelengthin their pleadings

and, second, theyhave hardly modified the existing situat inrnegard

to the boundary delimitatit onatis the subjectof the dispute before

you.

But whatwas the situation in1919? My colleagues speakin egarlier

have demonstratedto you that, between thFerenchand Italian colonial

possessions in Libya,the boundarywas notdelimited apart from the line

from the Mediterranea to Ghadamès. Al1 the rest of the boundary line

was uncertainty, even if Fran and Italy thought they had righ insthe

region,but rights not expressed precisely a whichdeservedto be, for

the sake ofarrivingat a genuine deli...atio of the boundary. The

situationwas to be completedby theconclusion, in 1915,of a more

precise instrument,namelytheLondonAgreementthatprovided for some
....
1 1 colonial compensation for Italy.In 1919,therefore, thevar vas over,
---
the allies hadwon and it might havebeen supposed thatin that great

global negotiation leadi togthe Treatyof Versailles Francewould attempt,in the lightof the LondonAgreement,to delimit thatLibyan

boundarywith Italy. As we have seen,negotiationsno doubt tookplace

in May 1919,but the French proposa(lsescribedas scantyby Tittoni,

the ItalianMinisterfor Foreign Affairsinhis speechto Parliament on

29 September1919)proved insufficient and certai notysuch as might

compensatethe effortmade by 1taly.inthe-war.foughtsideby sidewith

theAllies.

That,Gentlemen, is the legal landscapwe discoverwhen - if you

will allow me the expression the curtain rosien 1919. From the

chronological poinof view,we should first examine tT heeatybetween

Great Britain anF drance,sinceit was concludedon 8 September1919,

while that betweenFranceand Italy came on 12 September1919. The

reason1 preferto dealwith the second before the fir istthatthe

latterhardlyconcernsthe present dispute. The pointis thatits

preambleindicates that itwas concludedin pursuanceof Article13 of

theTreatyof Londonand that its purposewas "determination of the

boundary between Tripolitan and the French possessionosf Africa inthe

sector from Ghadamè to Toummo,a sectornot featuringin the present

dispute.

1 wishmoreoverto emphasize the term employ inArticle1 of that

Agreement, namelyfixing of the boundary.This proves once morwehat

the LibyanGovernment has alwaysargued: thain this sector therweas

no boundary delimitedsince,otherwise,the termused would not havebeen

fixing butmodification.

ThatExchangeof Notesbeingextremely precisa end perfectly clear

(theCourtwill findthe textin the Memorial of Libya,International

Accordsand Agreements,Ann. 18), there wouldbe no causeto dwellon it - if the opposing party had not, in accordancewith a method rather toits

liking,strivento give it a meaningthat in no way derivesfrom the text.

Chad considers,in the firstplace, that the 1919Treaty, deciding

that Toummo constitutesthe south-westward end-pointof Libya, confirms
t
Italy'sacceptanceof the boundaryof Tripolitaniashown on the map

appendedto the Anglo-FrenchDeclarationof 1899.(MC,..p..203).

That assertionis surprising, to Say the least. The 1919 Agreement

containsno referenceto the map. Now, the Treatycannot confinu

somethingthat it does not mention.

What is more, needlessto recall, themap was notappendedto the

1899 Declaration.

As my colleague,Mr. Sohier,has indicated,that map did not inany

way and couldnot establish aboundary,particularly sincenone of the

Partiesto the Agreementhad a sovereignright over the territory.

But the imaginationof Our honourable opponenti ss fertileindeed

when they asaertthat it can be deducedfrom the 1919 Agreement that,

from Toummo,the boundary forms a bendas it runs north-eastwardand cuts

the Tropic of Cancerat longitude 16" East of Greenwich,that is, the

startingpoint of the Anglo-Frenchlimit of 1899 (MC,p. 201, and CMC,

p. 355).

... 1 have read andre-readthe Franco-ItaliaA ngreement of 1919several

--- 13 times andhave failedto findthe slightest indication o afboundary

delimitationeast of Toummo. It is not evena matter of being able to

Say that a textdoes not haveto be construedwhen it is clear; in this
case thereis quite simplyno text to construe. The delimitationof the

boundary goes from Ghadamès toToummo and stops there. Beyond that point everything remat ionbe done. The Treaty itself

recognizesthiswhen statingthat:

"theGovernmentof His Majesty the King of Italyand the
Governmentof the Republic have reachedan agreementon the
following points, while reserving other pof intsfuture
consideration".

Those "otherpoints"necessarily concerned delimitati ofnthe

boundaryto the eastof Toummo sincethe Agreement makes no mentionof it

and it was the only partremainingto be delimited, the part between

Ghadamès and the Mediterranean havb inegn delimitedin 1910.

Accordingto the Governmentof Chad,the 1919Agreement,by being

set in the contextof the compensation promise to Italy in Article13 of

the Treatyof London, shows that Italy recognized the territorial

status quo, even though questioninit politically (MC,pp. 201-202).

That assertionis hardlycorrect. Italydid not recognizethe

territorialstatus quo, for it was heir - as the Libyanpleadingshave

shown - to the rightsof the Ottoman Empirein the region. That being

said,thoserights werenot clearlyestablished and did not enablea

boundaryto be preciselydelimited. There consequentle yxisted a

territorial dispute between Fran and Italyin the region,as moreover

recognizedin Article13 of the Treatyof London.

For, after mentioningthe principle of compensation in favo our
14

Italy,it adds: *

wparticularlyas regardsthe settlementin her favourof the
questions relativteo the frontiersof the Italiancoloniesof
Eritrea, Somalilana dnd Libyaand the neighbouring colonies
belongingto Franceand Great Britain".

If precise frontierh sad existed atthe time, the Treaty woulof

coursenot have mentioned "questions relati toethe frontiers"; it

would have sufficetdo insertthe principleof compensation in regardto frontiers. If the Treatycites "questions relativ to the frontiers",

this is becausesome frontiershave yet to be delimited and theries

uncertaintyabout the rights of the Partiesin some regions.

Thepurposeof Article13 of the Treatyof Londonwas thereforeto

enableItaly,when delimitation was effected,to rely thereonin orderto

obtaina boundaryline to its advantageand, in the event of doubtas to

the reciprocalrightsof the Parties,to have such rightsestablishedin

its favour. Hence Italy,in the negotiations within the SupremeAllied

Counciland its Commission,adoptedthe compensation stance. Those

negotiations,it must beadded, occupied only fourmeetings held,to be
v
precise,on 15, 19, 28 and 30 May 1919. It is hard to see how,in such a

short spaceof time,the Partiescouldhave engagedin an in-depthlegal

examinationof their respective right in the region.

What it came to in realitywas a global politicanlegotiation,and

the fact that Italy sought a mandate ovTergo provesthis. Now by

adopting a politicasltance,that based on Article 13 of the Treatyof

London,Italydid not renounce anyof its rightsand itdid not legally

recognizeany statusquo. If it couldreachan agreement, so much the

better,as happenedwith the 1919Treatyfor the Ghadamès-Toummoboundary

line; ifnot, too bad. Italywas subsequently to negotiate, asthe ,V

1919 Treatymoreover indicates" ,while reservinogther points forfuture

*considerationW.

It is in thisway that theCommission understooi dt since in its

report, after mentionin the Italianrejectionof the Frenchproposals

regarding the boundaroyf Libya,it adds: "Italythereby intendsto keep

the Africancolonial questioonpen betweenit and France." (ML, Italian

Archives Annex, p. 28). That being so, inasmuchas Article13 of the

Treatyof Londonhad not beenfullyapplied - as the FrenchGovernment

realized sincean interna1note of the FrenchMinistryfor Foreign AffairsStatesthat "Italywill alwaysbe able to rely on Article 13 of
_..
the Treatyof London,a terrainon whichit is very difficult tr oefuse
16
- - to talk" (MC,Ann. 148) - the situationregarding thesouthem boundary

of Libyawas notmodified bythe 1919Treaty between Franc and Italy.

There wereno boundaries separatin the two colonialPowersbefore1919;

nor were there anyin 1919. Italy-andFranceeach. retained-anyrights

theyhad inthe region,but from1915onwardsItalypossessed a further

right, that arisin fromArticle13 of the Treatyof London.

The only effect,therefore,of the September1919 Treatywas to

delimit the boundar yn the Ghadamès-Toummoectorand nothingelse.

Seekingto give it a consequenceon the southernboundaryis forcing

reality, for theries nothingof the sort in the textor the context,or

in the circumstancesof the Treaty's negotiation.

While 1 have been ablto be briefas regards consideratio of the

1919Treaty between Franc and Italy, 1 must dwellat greaterlength on

theTreatyof 8 September 191c 9oncludedbetween GreatBritainand

France. A curioustreatyit wassinceit concemed the southem boundary

of Libyaand so wasboundto encroachon Italy'srights,or at the very

leaston the rightsthatItalybelievedit possessedin the region.

Italywas not associatedwith or even informedof the existenceof that

Agreement,which was - to Say the leas- improperand unfriendlysince

it wasdirectlyconcerned by its object. That provesthat the two

Parties cannothavehad clear consciences abouIttaly. A funnyway it

was ofapplyingthe Treatyof London,and strange"compensation"!

For a full grasof the scopeof thatTreaty, wemust go backa

momentto the 1899Declaration.It will be recalledthat,accordingto

its Article2, the courseof theboundaryof Frenchterritorycouldnot

in any event go beyond the 2d 3rdreeof longitude.
17 On this point,the

1919 Agreementextendsthatboundaryto the 24th degreeof longitude. - That part of the Agreementis now shown on the screen(textNo. 59 of the

green file).

Its geographicaleffect can be seen on Map No.58.

But what is more, Article3 of the 1899 Declarationprovided that, %

north of the 15th parallel,the French zone would be limitedby a line

which, nmning from the intersectioo nf the Tropicof Çancer and the

16th degree of longitude,would descend south-eastwardas far as the

24th degreeof longitude,which it would followsas far as its junction

north of the 15th parallel. Now,ccording to the 191A 9greement,and by

way of interpretation,that linewould takea south-eastward direction as
w
far as the 24th degree of longitudea,t the point of intersectionwith

the latitude 1g030'N. That passageof the Treatycan now be seen on the

screen (textNo. 61 of thegreen file).

The difference between th 15th parallel andthat of 19'30' is not

insignificant.Map No. 28, which is in your file and now appearson the

screen,shows theline resulting from the 1899 Declarationt,hat given in

the YellowBook, and that of1919. The difference between these lines

is striking. Furthermore,that line which in 1899 strictly followeda

south-eastorientation becomes in 1919 aneast-south-east line.

According toChad, the line resulting from the 1919 Agreement

differsnot at all, or very little,from that of the 1899Declaration.

Furthermore,the 1919 Agreement is claime tdo do no morethan construe

the 1899 Declaration, whichis said to result fromthe treatypassages1

have just shownyou. Two assertions, two errors: one of fact, theother

of law.

Let us first take the errorof fact,namely that the frontier line

resulting from the 1899 Declarationis supposedlyidentical,or almost
. .
so, to that derivingfrom the 1919 Treaty. Examination of the map before
- - 1 8
you (Map 28) shows that there is a considerable divergenceetweenthe - 1899 lineand thatof 1919. More concretely, thn eew boundaryline (CML,

p. 185)has the effectof according Francea territoryof some

180,000km2, which is equivalentto the combinedareasof Switzerland,

the Netherlands,BelgiumandAustria. Admittedly we are talkingabout

desertterritories and,when setagainst the immensit of the African

continent,the sizeof the aboveEuropeanterritories pales into

insignificance. Al1 the same,a sizeablechunkof territoryis involved

and it is hard to understand how,n the faceof themost elementary

truth,Chad can assertthat the1899line is equivalent, or almostso, to

thatof 1919. The figures are there.

Chad further claimsthat the1919 Treaty construe thatof 1899. 1

have nothingagainstthatassertion, in thattwo States may,by way of

authentic interpretatio modifya treaty. But thatof courseonlyholds

good in the caseof theirmutualrelations.Legally speakingt ,hewhole

reasoningis flawedwhen appliedto thirdStates.

The principleof the relativeeffectof treaties, whetheror not

interpretative,is well establishedin internationallaw. It hasalways

been recognized in authoritative legal opini ond confirmedin

internationalcase-law. Examiningthe effectsof the 1898 Treaty of

Paris,concluded betweenSpainand theUnitedStates, Max Huber, in his

farnouarbitralAwardin the Island of Palmascase,statedthat:

"it is evident thatwhatevermay be theright constructio nf a
treaty,it cannot be interpreta ed disposingof the rightsof
independentthirdPowers." (RIAA Vol. II, p. 842.)

. .
The principlederivesfromthatof the independence and equality of
.- -19
States,whichhas so oftenbeen recognized in many resolutionosf the

General Assembloyf theUnitedNations.It is moreover reaffirme in

Article 34 of the 1969 Vienna Conventioon the Lawof Treaties.

And if thereis one provisionof the 1969Conventionthatcodifiesa

customaryrule,it is well and truly that one. The ruleof the relative effectof treatiesis not questionedon the

othersideof the bar; our colleagues representing thGovernmentof Chad

are too goodjuristsfor that. On the otherhand,theycontend,and on

this point thecannotbe followed, that thedelimitationresultingfrom
e

the 1919Agreementwas opposableto Italy,whilerecognizing that the

latterStatewas in a third-partypositionvis-à-vis.-thAatreement.

1 shalltry to summarizetheir reasoning a faithfullyas possible.

First,thisopposability is claimed to resulfromthe factthatthe 1919

boundarylinewas similarto that of1899 recognizeb dy Italy. Now the

LibyanGoveniment has put paidto that assertion. The twolinesdiffer,
w
1 repeat,considerably.

The Governmentof Chadthenargues that, evenif thelinesdiffer,

that of1919 is stillopposable toItaly. 1 have somedifficulty on this

pointin following the reasoningof Our opponents.

The firstargument stildlerivesfrom the alleger decognitioby

Italyof theAnglo-FrenchAgreementof 1899. My colleague Walter Sohier

has refuted that assertia ond thereis no need to revertto thematter.

Accordingto the second argument, Turkpeyssessedno sovereign

rightoutsidethe limits of Tripolitani so,thatit couldnot transfer

to Italy rightsit did notenjoy(RC,p. 59).

Libyahas arguedon variousoccasions, and will showagain,thatthe

Portepossessedat the timerightsthatwent beyond the limitsof

Tripolitania.But in any case,if theCourt - as we believeit- will

arriveat the conclusiot nhatthe 1955Treaty betweeLnibyaand France

did not delimit Libya's southern boundarit will be for it,initsduty

of delimitation,to determinethe rightsof Turkeyin the region. The

Governmentof Chadmoreover recognizes the existe ofcan Ottoman

presencein 1908 (RC,p. 64), and itis a fact thatat that timneo

Frenchtroopswere present. There can be no doubt-and this is not questionedby Our opponents

(RC,p. 59) - thatby the Treatyof Ouchyof 15 and 18 October1912 Italy

succeededto Turkeyin respectof its territorial rights over the

territorythatwas to becomeLibya. No doubt theTurkishrights, still

not beingprecise,couldlend themselves to discussionand negotiation,

but what is certainis that neitherFrancenor GreatBritainwas entitled

in 1919,by anagreement betweenthem, to disposeof the rightsthat

Italy possessedas the successorState. In no way could the1919 Treaty

be opposableto Italy,which wasunawareof it andwhich,as soon as it

learntof it, constantly rejecte it.

Probably consciouosf thefragilityof itsargument, the Government

of Chad developeda new one in its Repl(p. 56). Accordingto thisnew

argument, Article16 of the 1923 Treatyf Lausanne sanctionetdhe

renunciationby Turkeyof al1 rightsand title whatsoever over or

respectingthe territories situate outsidethe boundarieslaid down in

the Treaty. Again,accordingto Chad:

"thisrenunciationwas not intendedonly forItaly; it also
relatesto the British Empireand France,likewisePartiesto
the Treaty. From thisit can be concluded thaTurkey's
improbable righttso the territoryoccupiedby Francehave, in
any event, beenextinguishedjust as are thoseit couldhave
had in respectof the Britishor Italian colonies includinig,
the latter case,Libya"(RC,p. 59, para. 2.60),

and the Reply addsthat the 1912 Treatyending thewar between Italyand

Turkey,was tes inter alios actaas against Francand Great Britain,

creatingno obligation towardsthosetwo countries.

Even if it had two crutchesto hold it up, this argument wodot
2 2
stay on its feet. Firstof all,it is beyond dispute that the

1912 Treatyof Ouchyhad the effectof transferringto Italy Turkey's

sovereignty overLibya,even ifthe boundaryof that territory hadnot

been entirelydelimited. Not onlydid the international communitof the timetakenote ofit, but Franceand subsequently Great Brita inso gave

it cxpressrecognition.The formerby meansof a unilateral declaration,

formulatedwithout any reservatiot n,enthroughtheAgreement with Italy

of 28 October1912 (ML,International Accord and Agreements,Ann.11). %

The two States, Franceand Great Britain, went batck that

recognition through Artic 10eof the LondonAgreementof 1915,which

read:

"Al1rightsand privileges in Libyaat present belonging
to the Sultanby virtueof the Treatyof Lausanneare
transferred to Italy."(ML,Vol. 11, Am. 2, NO. 12.)

The recognitionby thosetwo States ofthe ItalianrightsoverLibya
w
arisingfromthe 1912 Treatyis therefore cleaa rnd unconditional.It is

extraordinaryt,o say the least,thatChadshould today be arguingthat

that accordwasres inter aliosacta as against GreaBtritainand

France.

To completethis aspect ot fhe problem,1 wouldindicatethatChad's

interpretatioonf Article16 of the 1923Treatyof Lausanneis mistaken.

For Article 16, as1 have alreadysaid,provides:

"Turkeyhereby renouncesal1 rightsand titlewhatsoever
overor respecting the territories situatedutsidethe
frontierslaiddown inthe present Treaty ..."

But what arethe frontierslaiddown in the presentTreaty? They

are the boundariesprovidedfor in Article 2 conceming Bulgariaand

Greece,and in Article3 concerning Syriaand Iraq; together withthe

cessionof islandsin favour of Greece(Art.12) and Italy(Art.15).

The renunciationof al1rightsand titleby Turkey,giventhe

positionof Article16 in the context of the Treaty,can only concern

thoseterritories. There is not a word thereinon Libya.That goes

without sayinbgecause,Turkish sovereignt havingbeen transferred to

Italyin 1912, Turkey couldnot renounce rightsit had beenwithoutfor

over ten years. Continuing our examinationof the 1923 Treaty, wesec that in

Article22 it containsa provisionconcerning Libya,which hasto beread

in conjunctionwithArticle10 of the LondonAgreementof 1915. Under

the latter, as we haveseen,Italy was substitute in Libyato therights

and privileges at presentbelongingto the Sultanby virtue ofthe 1912

Treatyof Ouchy.

What is certainis that in 1915 Great Britaiannd Franceagreethat

al1 the rightsof theOttoman Empire overLibyaare transferret do

Italy. There is no longer any reservation.And thisis a far cry from

Chad'sinterpretation.

There is neverthelessroom forconjecture as to what the terms

"rightsand privileges at presentbelongingto the Sultan"meant in

1915,sinceItalyhad succeededto the OttomanEmpirein Libya in 1912.

The answer is simple,as the Memorialof Libyaand my colleague

ProfessorCondorelli have shown: the 1912Treatyaccordedthe Sultan

certainprivileges. Heetained,for example,a persona1 representative

and some authority in religioa usfairsregardingthe Muslims. While,by

virtueof the 1915Treaty,the rightswere transferred to Italy,the

Treatyof Londonwas obviously not opposable to Turkey. Hence Article 22

of the Treatyof Lausanneof 1923:

"Turkeyhereby recogniset she definiteabolitionof al1 rights
and privileges whatsoever which shenjoyedin Libyaunder the
Treatyof Lausanneof the 18th October, 1912".

This provision,as we can see, is concernewith recognition of the

transferto Italyof the residual rightt shatTurkeystillpossessed in

Libyaunderthe 1912Treaty. As to Franceand GreatBritain,they had

already recognizedsuch transfer in1915. Examination of the relevant

instrumentsthus showsthe artificial natureof Chad'slegalconstruction. In 1919,as in 1923, Italy possessedthe full legal titleinherited

from Turkey. It was therefore legallyjustifiedin protestingagainst

the Anglo-FrenchTreaty of 1919,which encroachedon its claims. Iwas

moreoverto proteston severaloccasions,as we shallbe seeing.

1 wish to emphasize,and Chad acknowledges amuch (MC, p. 190,

para. 182), that this Italianoppositionto the 1919 Conventionas

constantly reiterateuntil the conclusionin 1935 of the Laval-Mussolini

Treaty.

This attitudeis symptomatic: no State,no government would protest

for fourteenyears againstan agreementwhich, byvirtue of the relative w

effectof treaties,is not opposable toit if itwere notconvinced of

beingquitewithin its rights. Such justification may arisefrom either

of the following grounds:

(1) First, Italynever recognizedthe 1899 line beyond which France

undertooknot to go;

(2) Even if thatwere the case,the Agreementof 1919 is altogether

different from that of 1899.

1 considerthat, in the interests of baetter appreciationof those

protests, the reasoning o the ItalianGovernmentshouldbe examined,as

expressedin its notes ofprotest. W

From theoutset,the firstNote ofthe Italianto the

FrenchGovernment, of 12 December1921, is extremely clear;after

showingthat the 1919 lineis different from thao tf 1899, it adds:

"The above considerations makit impossiblefor the Royal
Governmentto recognize theAnglo-FrenchConventionof 1919."
(MC, Anns.98/99.)

The Italian Noteof protestto theBritishGovernmentof

10 December1921 was draftedin more or less the same terms(ML, British

ArchivesAnnex, p. 137). That the 1899linedifferedfrom the1919 oneis reaffirmedin a new

Italian Noteaddressedto the FrenchGovemment on 27 March 1924 (MC,

Ann. 104). However, this latter Nog tees further,owingto the fact

that the 1919 Convention us the termboundary.

Chadmakesmuch of the use of thisterm in the Convention.In its

view,if the 1899Declaration only delimieed-zoneosf influence, the

1919Convention consolidatt ede proposedline intoan actual

delimitation of a frontier(MC, p. 193).

The resultis thatthisallegedauthentic interpretatioi n, 1919,

of the 1899Declaration had the effectnot onlyof modifying the course

of the line indicatedb,ut alsoof modifyingthenature ofthis line. In

1899,two Statesrecognized their mutualterritorial aspirationb s,t no

more thanthat; in 1919 - againin the opinionof Chad - those

two Statescarriedout a genuine territorial partition thetexpenseof

Italy,a thirdStatein relationto thisagreement. And todait is

maintainedthatthis territoriac lhangeand this changein thenatureof

the 1899 linewas opposableto Italy. The latter immediatel detected

the trap. In its diplomatic Notof 27 March 1924,it stated:

"TheDeclaration of 21 March 1899representednothing more than
an apportionmentof spheresof influence, whereasthe
1919Convention ... is anactual delimitatio onf a frontier.
The spiritof thosetwo diplomatic document is accordingly
different,and onehas to acceptthatthe 1919 Convention
fundamentallmyodifiedthe statusquo arising from the

Declarationof 1899...

The Governmentof Italy,for its part, considers itself
fully entitletdo refrainfromrecognizing the existenceof the
Conventionof 8 September1919." (MC, AM. 105.)

In my view,there is accordinglyno possible doubtthat Italy

recognizedneitherthe change in the courseof the line, norits

transformatioinntoa boundary. None of the argumentson whichChad

basesits contention thatthe 1919boundarylinewas opposableto Italy

standsup to an analysisof the facts. Consequently,the Govenment of Chad cannotrelyon Italy9salleged

acceptanceof the line arisingout of the 1899Declaration as resulting

in the opposabilitoyf the 1919line, sincethe lattermodifies both the

courseof the formerlineand itsverynature. a

The argumentthat the1919Convention doesnot modifythe
---
1899 Declaratiobnut interpretsitaccordingto theoriginalintentionof
- - 27
the parties(MC,p. 194) is equally unfounded.

Italyhad no reasonto be concerned with the parties'intention in

concluding the 1899 Declaration,n intentionof which it obviouslycould

not be aware, nothavingparticipated in itsnegotiation. Only thtext
v

of the Declarationcouldbe of concernto Italy; but thistext

-whatever may be saidabout it - in no way foreshadowetdhat ofthe

1919 Convention ,hich- as we have seen- departsfrom it and is

accordinglyres inter aliosacta for Italy.

The Italianpoint ofview wasto be reiterated on severaloccasions,

in particularat the time of theFrenchmilitary incursion into

Tibesti. In its Note of protestof 19May 1930 (MC,Ann. 125),the

Italian Government remindedthe French Governmentthat the latterhad, in

1902,recognized thetthe 1899 Declaration betweF enanceand England

marked,for the French sphere of influencein relationto Tripolitania

and Cyrenaica, a limitwhichthe Government of the Republicdid not

intendto overstep. ThisNote reverted to the fact thatItalyhad never

recognized the Conventionof 8 September1919,as it had profoundly

modifiedthe 1899Declaration, both in its legaland in its territorial

content. The Notewent on to Say:

"this pointis establishew dithout anyprejudicewhatsoeverto
the rightsarising in Italy's favour o outArticle13 of the
Pact of London of... 1915". Hence,over the years,the Italian positio remainedconsistent:

the Conventioonf 8 September1919 is not opposableto it.

ühat did Francereplyto this? It will comeas no surpriseto you

that theFrenchcontention corresponds broad toythatof Chad,as set

2 8 forthin its pleadings. There werenumerousFrenchdiplomatic notes in
- -
replyto the numerous Italianones.

The Frenchcontentionis clearlyset forthin the Noteof

7 February 1923(MC,Ann. 102). It firstof al1 refersto the Exchange

of Lettersof 1 November 1902,in which it is observed that

"oneshouldtake the limitto Frenchexpansion ...to be the
frontierof Tripolitaniaas shownon themap annexedto the
Declarationof 21 March1899, completing the Franco-British
Conventionof 14 June 1898".

Furthermore- accordingto the French Governmen-t the course of the

north-eastern line, beii ngdicated bdots, wasnot a definitive one.

This is particularlyso sinceparagraph3 of the 1899 Declaration before

describingthe line,stated: "It is understood, in principle."

It was furtherthe French Government's view thtahe 1919 Convention

in no way modified the provisioons the 1899 Convention,s is apparent

from its last paragrapw h,ich says so in soany words. And, after

analysing thenew line, the Notegoeson to Say:

"Thisinterpretation, sc olose to theprovisional linoen
the 1899map, slighlyenlargesthe French zoneof influence at
theexpenseof theAnglo-Egyptiad nomain. However,the spirit
of theLondonDeclaration of 1899is respected- and the text
of that instrument didrovidefor that interpretation."

Let us not overlookthatthis Note recognizes the verslight

enlargementof the French zone ofinfluence.But, in its Noteof

21 June 1924 (MC,Ann. 107),the French Government dismiss ehe Italian

argumentthatthis slight territorial increi asfavourof France

amountedto about180,000sq. km. "A few hundredkilometresat most", the French Notemaintains. In

its Note of 5 March 1930(ML,ItalianArchives Annex,p. 701, the French

Governmentasserts:

"the line which,to the eastof Toummo, marksthe limit of the
Frenchpossessions is the line definedby the Franco-British
Agreementof 9 September 1919 interpretin the Franco-British

Declaration of21 March 1899,recognizedby Italy under the
termsof the Franco-Italian Agreemen tf 1 Hovember1902".

Up to this point, thereis some consistencyin the Frenchposition,

even if it is legallyunfounded. But then,threemonths later,the

FrenchGovernment changedits position. It did so by theNote of

25June 1930 (MC,Ann. 127). Accordingto the latter,the 1902 Agreement

between Franceand Italy madeit clear that theterritoryclosedto

Frenchexpansionwas delimitedby the boundaryof Tripolitania, shownon

the mapappendedto the 1899 Declaration. And theNote goes on to say:

"However,an examinationof the said map shows that the
territoryin questionruns fromToummo towards the north-east
up to approximately25O latitudenorth,and thereafterruns due
north. The line defined by Article 3 of the Franco-British
Declaration of1899 coincides with this boundaryat its
intersection with the Tropicof Cancerbut does not cross it,
so thatthe territories which it dividesbetween France and
Great Britain are situated entirelyoutsidethe area reserved
for Italy."

It followsfrom this that the line arisingout of the 1919Agreement

couldnot prejudiceany Italianright.

Hence this line- allegedly opposablt eo Italyunder the

1902Agreement - this line,as 1 was saying, has disappeared;
it no

longerhas the slightest importance ,s in anycase it was situated

outsidethe area reserved for Italy. This is a realconjurer's trick

which deservesapplause.

In any event,the French stance undoubtedl wavered. 1 find

evidenceof this ina letterof 7 August 1928 (ML, FrenchArchives

Annex,p. 360) from de Beaumarchais,FrenchAmbassadorin Rome,to the* FrenchMinisterfor Foreign Affairs, Briandi,n which theAmbassador

givesan accountof a conversationhe had hadwith Mussolini about

negotiations on, inter alia, theLibyanboundary. De Beaumarchais

proposedthatthe oasisof Djadoshouldbe incorporated intL oibyan

territory,but undertwo conditions:

(1) Recognition byItalythatFrancehad fulfilledthe requirements

of the Treatyof Londonof 1915; and

(2) Recognition by Ital of the 1899Agreementrelatingto the

Tripolitanian boundaries.Finally, the Ambassador add thathe had

pointedout to Mussolint ihat "itwas necessaryto definitively determine

the boundaries of Our respectivpossessions".

We must be dreaming. France,which maintainei dn variousdiplornatic

notesthatItaly hadrecognized the so-calledpartitioningof influence

between France and Great Britainis now askingfor such recognition,and

not ofthe 1919 Agreement - whichwouldhave been naturals ,inceItaly

had never recognizedit - but of the 1899one. This is not a runof the

mil1 Frenchinterna1administrativN eote,but an officia1demarcheby the

FrenchAmbassadorto the ItalianHead of State. To tellus today,as

Chaddoes,that theFrenchposition was an invariable oneand thatthis

famous1899line wasopposableto Italy from 1902 onwardsis to distort

reality.

But, independentloyf theserepeatedchangesin the Frenchposition,

the argumentthat the1919Treaty,whose origins go back to the Treaty of

1899, wassituatedentirely outsidethe area reservedto Italy,should be

rejected. One has to choose: eitherthe 1902Agreement concerned both

Tripolitaniaand the line stemmingfromthe 1899Agreement, or it

concerned Tripolitaniaalone. In the former case,it scarcely needs

sayingthat theline stemming fromthe 1919Treatyencroached upon Italy'srights,sincenot only was the course modified to the

disadvantageof that State,but its very naturewas modified. Or the

1902 Agreement concerneTdripolitaniaalone, butin that case theFrench

argumentoverlooks thefact thatin 1912 Italy had succeedet dhe Sublime

Porte inthe regionwith respect toal1 its rights. This succession was

recognizedby France in 1912 and by Franceand Britain in the Treaty of

1915.

Say what one will, this alternativecannotbe circumvented.

Regardlessof which of the twosolutions onechooses,the inescapable

conclusion isthat the1919Agreement affecteI dtaly'srights andthat

Italywas therefore justifiedin its protestsand its refusa1to

recognizeit.

Mr. President, Members of the Court, in its writtenpleadingsLibya

has shown deep divergences betweenthe Britishand French attitudes

regardingthe protestslodgedby Italy after the Agreement 1 of19.

As to Chad, it has sought to minimizethem in order to reachthe

conclusionthat the positionof these two States wasin fact one and the

same. However, facts are facts and the divergence exists,s 1 shallnow

underline byanalysingthe Britishstance.

As 1 have just indicated,on 10 December1921, Italy addressed a

note of protestto the British Government statit ngat it couldnot

recognizethe 1919 Agreement, for the same reasonsas those set out in

the memorandum of 12 December 1921 addressed t the FrenchGovernment,

and alreadyanalysed.

Contrary to FranceB ,ritainis much less sureof its case in

relationto the 1919Agreement. Incidentally, you will findinterna1

British memoranda examiningthis problemin the annexesto theLibyan

Memorial (British ArchivesAnnex, pp. 138-149). From the outset

(p. 138), it is stated that: "In this longand very complicatenote the Italian
Ambassadorhas put his fingeron a certaindiscrepancy between
Our Conventionwith Franceof March21st,1899,and
September 8th,1919relatingto the frontierbetwenBritishand
Frenchpossessions in North-EastAfrica."

On the followingpage, this internal memorandum acknowle thaes,

at the timeof thenegotiationsfor the 1919 Treaty,it was not known

whetherits effectson Italianterritory had been takeninto account,but

itis achowledgedthatthe effectof theTreaty wasto extendthe French

territoriesin the region. And thenote adds:

"On the otherhandwe are partiesto theAnglo-French
Conventionand as such,the Italianshave a rightto protestto
US."
. -.
The same internal memorandugoeson to state,and thisshowsthe
33
- - embarrassmentof the British administratiot n,at it is necessaryto

consult the FrenchGovernent and thatItalycouldbe told, inreply,

that thecourseof the 1899 line gave a generi aldication ofthe

frontier, whichwas interpretedand clarifiedin 1919. But the authorof

thememorandum is underno illusion,forhe adds: "The Italiansare not

likelyto accept this argument."

And takingthe Italianclaimsseriously, he adds:

"Moreover,if we should proveto be wrongand theItalians
rightwe shouldbe in the positionof havingcededto Francean
area to whichwe had no title." (ML,BritishArchivesAnnex,
p. 143.)

Mr. President,Membersof the Court,1 do not thinktoo much

importance shoulbde attachedto internalmemorandaof national

administrations,sincetheir probativf eorceat the international level

is relative; however,theycan givean indication of the circumstances

in whichdecisionswith genuineinternational repercussionsare taken.

In the event,thesedomesticmemoranda merels yhow that the British

administratioins not quitesurehow to replyto the Italianmemorandum, that it is not sure of its rights, that it acceptsat,in 1919,there

was a changein relationto the 1899 Agreement,sinceit recognizes that

territorywas cededto France.

At al1 events, and thiiss what interestuss, the officia1British

replyto theItalianmemorandum doesnot seek to justifythe 1919

Agreement,sayingthat the courso ef the lineof the 1899 Agreement gave

only a general indicatio of the frontierw,hichhad therefore been

interpreted and clarified; as we haveseen,this wouldhave beenin

accordwith the Frenchargument. No, the British memorandumis on more

solidlegalgroundand basedupon a solutionrecommended withinthe

administration (ML,British Archives Annep x,. 147-149).

This British replyof 5 February1923 to the Italianprotest

deservesto be quotedin detail(itwill befoundin the Memorial of

Libya, ItalianArchives Annexp ,p.38-40). It conformsto the Libyan

position. Indeed, accordint go this memorandum, thewres no question

that the Declaration of March 1 and9theTreaty of 1919 "Could inany

way dispose of territory belonginto a third power", an adds thatthe

Declaration of 1899:

"merelydeined the limito sf two spheres ofpolitical
influence ... The situation isnot inany way changeb dy the
conventionof 1919 ... Thisbeing thecase,the convention
doesnot and couldnot disposeof any Italian territor at al1
and if any of the area comprised betwetene two linesreferred
to in the Anglo-Frencdeclaration of 1899and the agreementof
1919 respectivelyis in factItalian territory, the righ ofs
yourExcellency's government ov thatportionof the area are
unaffectedby the convention".

In conclusion,the British memorandum adtdsat:

"If the Italian Governmehntve any rightsof sovereignty
in the areain questionthey can onlyhave been inheritedfrom
the TurkishGovernment."

The BritishGovement was subsequentlt yo adhereto its analysisof

the legal situatio in the region. Libyahas shownin itspleadings how far the Britishposition

divergedfrom theFrenchone. Chadhas soughtto minimizethis

divergence, thougihtis quiteunmistakable.

Franceconsidersthat theTreatyis no more thanan interpretation

of the Declaration of 1899thatit doesnot altermuch in the caseand

that,anyway,Italy isboundby..the.190 Agreement.-0n.theotherhand,

TheAgreementof 1899and
Britainreservesal1 Italy'spotentialrights.

the Agreementof 1919"couldnot disposeof any Italianterritoryat all"

and, furtheron,neitherof thesetwo conventions "couldin any way

disposeof territorybelongingto athirdPower."

* 35 Moreover,it will benotedthatit is State successiot nhat forms

the basisof the Britishposition. If Italyhas rights,theirorigincan

only bethosepossessed by Turkey. In its diplomatic memorandFrance

is silenton thispoint. Havingsaidthis,the British memorandumadds:

"Thequestion whethearny ofthis areaia Italianterritoryis one of

fact,in whichthe onusof prooflieson the ItalianGovernment."

Thereis no doubtthat the burdenof prooffallsupon the party

asserting the existen cea fact. Buhere, inmy pleading,the problem

is not whether Italyad or did not have rights inhe disputearea,the

problemis the effectof the 1919 Treaton the rights Italyclaimed to

possess. Now, contraryto France,which considertshatthis Treatycan

be invokedagainstItaly,Britainis of the view thatit couldhave no

effecton any possibleItalianrights. This is what mustbe stressed

today

The divergence between Franaced Britain is importanalsoas

regardsthenature ofthe line. It will be recalled that,amongother

grounds,Italyhad justifiedthe inopposabilit to itof theTreaty of

1919by reasonof the change itnhenature ofthe line. - 24 -

How doesBritainreplyto this arguments ,inceFrancedoesnot?

Again in thememorandumquoted, the ItalianGovernment pointosut that

the 1899Declarationmerelydefined the limits t ofo politicalareasof

influenceaddingthat: "Thesituationis not in any way changedby the

conventionof 1919."

Membersof the Court, this i aslong way from the Frenchthesis,a

longway froma frontier, for we are stillin the contexotf an

apportionmentof areasof politicalinfluence;and 1 believethe tenn

politicaishouldbe noted. At al1 events,in theview of the British
. .
Government, therweas neverany territorialapportionment. And awee
36
- not claiminganythingelse. Libyamaintains thati ,n 1919,no frontier

delimitationwas made,and thatif it had been,it was notopposableto

Italy.

In orderto explainthisdivergence of interpretation between France

and Britain,Chadhas put forwardan argumentwhichis surprising to Say

the least. We aretold,you are told, Membero sf the Court,that the

Britishinterpretation ie sxplained by the fat ctat, ultimatelaynd

contraryto France,Britainwas notparticularly interesti edthe region

(CMC,pp. 321-322). A curiousargument. If my understanding is correct,

the interpretation give by Franceto the Treatyof 1919should be W

preferredto thatgivenby Britain,becausethe formerhad major

interests in theregionwhich isthe subject ofthe present dispute.

This is a novelmethodof interpretinT greatieswhich willbe sought in

vain in the 1969ViennaConvention on theLaw ofTreaties. In fact,it

is the opposite interpretati thnatshould beadopted, giventhe

self-evidenttruththatan uninterested State willoffera more objective

interpretation. Inaddition,when one isconfrontedby divergent interpretationi st,

is the onemost in keepingwith the elementaryprinciples of

internationallaw that should beadopted.

The Britishinterpretation has the merit of simplicity. It is

supportedby two pillars:

(1) The Declarationof 1899.resulted.in-an-apportionmei ntto tvo

areasof politicalinfluence;

(2) The Treatyof 1919 couldnot alter thisstateof affairs in any

way, nor prejudiceany possible rights that Italypossessedin the region

as heir to the rights of the SublimePorte.

The first argument complie with the principle thattwo States
37
. - cannotsharea territoryoverwhich theyhave no right. Let us not

forgetthat in 1899,neither Englandnor France waspresentin the region

concemed .

The second argument adhere to the least disputed principle of

internationallaw, namely,the principleof the relativeeffectof

treatiesand the principlo ef the successionof States interritorial

matters.

The Chadianinterpretationo ,n the otherhand, isthe productof

veritable legal acrobatics. Accordingto this interpretation, Italy

having in 1902recognizedthe 1899 apportionmeno tfareasof political

influence,in 1919 it must recognize: (a) a genuine frontier

delimitation, whichwas the logical consequenceof thispolitical

apportionment;(b) a changein the courseof the 1899 line, since this

linewas uncertain.

1 have alreadysaid and 1 reiteratethat to allow the thesisof Our

honourable opponenti ss to fly inthe face of the principleof the

relativeeffectof treaties. To acceptit is to abandonone of the most

solidrulesof international law. Thus,1 believe1 'haveshownthatthe Treatyof 8 September1919

between Franceand Britain doesnot have theeffectof establishing a

frontierwhich can be opposedto Italy. In1919,as before, the

situation has not changed,and thereis stillno frontierdelimitation in

the region,which question formt she subjecof the disputebeforeyou.

1 shallpauseonlybrieflyon the 1924 agreement-betwee Britainand

Franceand thatof 1934between Britain and Italy.What happensin

1924? In accordancewith the Declaratioof 1899,a Franco-British

Commissionhad the task of delimiting the frontibertween French

Equatorial Africaand theAnglo-EgyptianSudanon the ground,in
w
conformitywith the indicationgsiven inparagraph 2 of thatDeclaration,

as amended by the Conventio on1919. The Agreementof 10 January1924

takes noteof the work of that Commission.Althoughthe Commissionhad

followed the indicatioi nsparagraph2 of the 1899Declaration, the

demarcationof the frontiershouldhave ceasedat the pointof

intersectionbetweenlatitude 15'45'and 24" longtitudEeast. But the

Commissioncontinued well beyondthatpoint since,accordingto the

1924Agreement(CM, Sec. VIII,para.g, Ann. No. 10):

"Fromthe intersectioonf thewadi and the 24thmeridian
the frontier followtshatmeridiannorthwards upto the point
where it meets the parallelof Latitude19" 30' North".

Hence,the 24th meridian, which wato have beena limitof the

Frenchpoliticalzone,becomesan actualfrontier, complyin gn this

respectwith the 1919 Agreement,the pointreached by thelinedeparting

from theTropic ofCanceris fixedat parallel1g030',which,as we have

alreadyseen, substantiallyencroachedupon the rightsthat Italyclaimed

to have in the region. It will thereforecome as no surprisethat, in a diplomatic

memoranudmof 28 February1924 to the British Government, Itap lyotests

both against the Treat of 1919 and against this demarcatioonf the

frontier (LM, British ArchivesAnnex,p. 180).

At first sight, there is certain alcontradiction between the

British position conveye to Italy-in.the.British.diplomat memorandum

of 1923,accordingto which the 1919 Agreement cannot possibly aff thet

rightsof the latterin the regionand this 1924Agreement. The reasons

for this contradiction esca pe, Membersof the Court, but this

contradiction is of virtuallyno consequencelegally.

In the contextof international relationw s,ere Italyis concerned,

al1 that countsis the British attitudt eo it, namelythat the agreements

between Britainand Francecannot possibly prejudiceItaly'srights in

the region. In any case,by virtueof the principle of the relative

effectof treaties, the 1924Agreement, like the Agreemeo nt 1919,is

not opposableto it, al1 the more so sinceItaly protests.

Franceand Britain can therefore delimit, demarcaa te many

frontiersas they like,yet thesemeasures are completely devoo idlegal

validity sincethey encroach upon the rightsof anotherState. Moreover,

the demarcationceased at the 1g030'paralleland does not continue

westwards,which shows that, in the view of Franceand Britain, this

segment didnot constitutea frontier.

The aim of the Treatyof 20 July 1934between Britain, Egyp tnd

Italy is to delimitthe frontier betweenSudanand Libya and its purpose

is to make it clearthat the SarraTriangle belongs to Libya. The

negotiationswhichprecededthis Agreement havb eeen describedin detail

in the LibyenMemorial(pp.303-314)and there is no point in going over

them again. They showthat Britain recognized that i,n 1899 and 1919

therewas nothing buta delimitation of zonesof influence between France and itselfand thatItalywas presenting itselfas the successor Statto

the rights ofTurkey. But whatseemsto memore importans ttillis the

actualtextof the Treaty.

"Startingfrom the pointof intersectionof 25thmeridian
east of Greenwich witparallel22" north,the frontierfollows
the 25th lineof meridianin a southerldirectionas far as
its intersectiowith parallel20" north; from thispointit
follows parallel0"north.in.a.wester1y.directa iofar as
its intersectiowith 24thmeridianeastof Greenwich;from
thispoint,it followsthe 24th meridianeastof Greenwich in a

southerly directioas far as its junctionwith the frontierof
Frenchpossessions". (LM,International Accord and Agreements
Annex, No. 24).

Thisprovisionof the Treatymust be read in association witah

passagein the Officia1 Communiquof the three governmentswhich is now W

being projecteodn the screen(No.62 in the GreenFile). Let me draw

your attentionto the terms"stillto be fixed",which showsthat in the

mindsof thesegovernments, the frontier line witthe Frenchpossessions

has stillto be delimited.

But one of the signatorieis not justanyone. It is the British
4 1
Government,boundby the Agreementsof 1919and 1924with France.

By expressingitselfas it doeswhen concluding the Treatyof 1934,

the BritishGovemment showsonceagainthat it hasneversoughtto

encroachupon Italy'spossible rights.The limitof Frenchpossessions

is not determined.Accordingto the Treaty,it shouldbe situated

somewherealongthe 24thmeridianin a southerly direction. But where?

It is a mystery.

Hence,at least accordint go thehistoricalbackgroundto this

question,three pointsare possible alonghe 24thmeridian. Eitherthe

pointof intersectionwith the19"30*parallel. But surely notfor

Italy, whichhad protested abouthe 1919 Agreement.Or the one

resultingfrom theYellow Book,namelylgO,or lastly,the 1899courseof - the political zone of influencewhich leadsto the 15O35'parallel. But

other linesare also possiblb eearingin mind Turkey'srightsin the

region.

Membersof the Court, there mawyell bea degreeof incoherence in

the British andFrenchpositions regardina g possible delimitatioonf the

possessionsas betweenFranceand Britain in.the.region. Hy.purposehere

is simplyto showyou that theseincoherences can only be explainedby

the fact that therweas no delimitationand that,if Britainand France,

through the 1919 and 1924Agreements,had wishedto arriveat one, this

delimitationwas not opposableto Italy. The 1934Agreement is

additionalproofof this.

Examinationof the periodbetween 1919 and 1934 shows that the legal

situation regardintghe delimitationof the frontier between Francand

Italyin the areain question, through tht ewo Treaties of1919 and
42
thoseof 1924 and 1934,remainedwithouteffect. There wasno frontier

in 1919,and there is stillno frontier in 1934.

You now have beforeyou a geographical ma(Map No.63 in the Green

File),which showsin 1934the frontiers resulting from the Agreements.

To theWest, the frontier is delimited as faas Toummo, asit is in the

eastbetweenItaly,Egypt and the Sudan. Everything still remain to be

done in the southbetween Italyand France.

Mr. President, Membersf the Court,it remains forme to consider

the Franco-Italian negotiations leadt inthe conclusionof the Treaty

of 1935; theyhave beenexaminedin detailin theLibyanwritten

pleadings and, not wishinto overburden my statement, may, most

respectfully, refeyrou tothosepleadings (ML, pp. 280-302and 314-323).

Thankyou Membersof the Courtfor your attention. May 1 now ask

you to give thefloorto my colleagueLuigi Condorelli, after th morning

breakperhaps. Le PRESIDENT : Je vous remercie Monsieu Cahier. Je pensequ'il

convientpeut-êtremaintenant de prendreune pause avant l'intervention

de M. Condorellijusqu'àla finde la matinée. Je vous remercie beaucoup.

The Court adjoumed from 11.20 -to 11-30a.m.

Le PRESIDENT : MonsieurCondorelli.

Mr. CONDORELLI:

Introduction

Mr. President, Membero sf theCourt,in takingthe floorbeforeyou

again,1 should like to beginby announcing the topicsto whichmY

pleadingwill relate today.

Firstof all,1 intendwithyour permission to suspendthe

historical sequence o efvents for ashort whileand to referto the

geographic maps of Libya fromItaliansources. My aims to determine

whetherit is true, asChadasserts,thatthesemaps confirm the

acceptance by Italy ofthe 1899 orthe 1919lineas thesouthernfrontier

of Libya, or whetheb ry anychance thesemaps do not provethe exact

opposite.

After this study ot fhemaps, in the second partof my pleading1

shalltakeup thehistoryof the disputeat theexact point at which

Professor Cahier stoppi ed his pleading a momenatgo. My taskwill be

to presentto the Court the Rome Agreementsof 7 January 1935, witah

view to showingthat,even though the 1935 Treatydid not finallyenter

into forcein the absence ofan exchangeof ratificationst ,he * Mussolini-Laval Agreementsprovedquite clearlyand definitivelya

conclusionwhich was inany case already self-evidei ntview of al1 the

proofsprovidedby the studyof earlierevents,namely,that before 1935

no frontier had been definedto separatethe Frenchand Italian

possessionseast of Toummo.

In the thirdpart of my statement 1 shallthen-examinesome of the

eventsthat occurred after 1935, in orderto show that thesubsequent

practiceof the Partiesconcerned laterconfirmedthe absenceof a

frontierin the regionin question.
-.
Finally,in the fourthand last part, 1 shalldeal with the Treaty
. - 44
of Peace of 1947and its effectson the present dispute.

PART 1

"THE ITALIANMAPS

1. Concerningthe Chadianargumentthat Italyrecognized the map
appearingin the Livrejaune

Mr. President,Libya'sprevious pleadingh save shown that Italy

never recognized eithet rhe line inthe map published in the Livre

jaune of 1899 or that ofthe Franco-British Conventio of 1919,and in

particular never agreedto considereitherof these lines as the southern

frontiersof Libya. This demonstration will now be supplemented by the

studyof maps of Italianorigin which fullyconfirmits results.

It is true that Chad in its Reply claimsthe contraryto be the

case. Its argument isthat after1902,Italy itselfadoptedthe map in

the Livre jaune and used it in its negotiationswith Great Britain,

being perfectly aware o the fact thatthe map inquestionhad not been

annexedto the 1899 Declaration. But letus at onceexamine the basis of this argument. On page 55

of its Reply, Chad gives a rnapwhichnow appearson the screen. This is

apparentlya partialextractfrom the mapin the Livrejaune, except

that theinsetidentifyingthe variousboundarieshas disappearedand

Italianwordinghas been added in two places, in particularwith regard

to the legend"Anglo-French Declarationof 21.March1899". As you can
. -
see, this legend follows th east-south-eastlinewhich,both in the rnap
- 45
- in the Livre jauneand in this one, misrepresents td hee south-east

line ofArticle 3of the Declaration. You can thereforesee that it is

the same line that appearsin both cases.

Let us now go back to the rnapwhich appearsin the ChadianReply.

The fact thata rnapcontainswords in Italian hardly provea snything.

To derivefrom it any indication of the Italian position,it shouldbe

proved thatthis is an officia1Italianrnapand that ithas been used

by Italyto imply recognitioo nf both the boundaries traceodn it,

particularlythe one of interestto Chad. But our opponents carefully

refrain from proving anythio ng the kind inthat connection.

Where does thisrnapcome from? Its provenanceis indeedunknown.

Chad foundit annexedto a ForeignOffice memorandum concerning certain

discussionsin 1911between Great Britai and Italyon the frontier

between Libyaand Egypt (RC, Ann. 23). This memorandurcnontainsa

referenceto an Italian diplomatin cote,but it is not stated whether

thisnote was accompanied by amap; inany case, Chadhas not annexed

the Italian note. But even ift were admitted for th eake of argument

that thernapin questionwas reallysubmittedby an Italianembassy,

it wouldquiteobviouslyhave relatedto a document used to illustrate

Italy'sposition concernina g frontier which had nothintgo do withFrance,in the contextof negotiation witah State otherthanFrance.

Moreover, thereis no mentionof thenatureof the variouslinestraced

on thismap.

Membersof theCourt,you may well ask whyChad is makingso much

of an elementas dubiousas a map of uncertainorigin,with an ambiguous

Why does Chad
content and comingfromthe archives-ofa..third-country.

rathernot base its analysio sn the many officia1talian maps obefore

and after 1912? The answeris simpleand devastatingfor Our opponents:

it is thatal1 the Italian mapswithout any exception, radically

contradict the allegatio ofsthe opposing Party.Indeed, just likethe

Britishmaps which were show to you by my colleagueMr. Sohier,the

Italian maps shotwhat thelineof Article 3 of the 1899 Declarationuns

due south-east,not east-south-easta,nd clearlyestablishthatno border

line is concerned. In a moment,1 shall havethe pleasureof showing

thesemaps and commentingon them,particularlysince,oddly enough,

Chadseemsto be unawareof their existence.

Before doingso, however,1 shallSay a few wordsaboutan argument,

not cartographicablut related,that theChadian Replyhas derivedfrom

repliesto a parliamentariynterrogatiognivenon 12 December1914by

the UnderSecretaryof Statefor the Colonies,Mr. GaetanoMosca,at

a meetingof the Italian ParliamentRC,Ann. 28). The questionwas

whether an oasis nearhâtwhichhad been occupiedby the Frenchbelonged

to France orto Italy,and the representativoef the Italianovernment

indeed referreidn the groundsforhis reply,both to the

Franco-British Declarati ofn 1899 anto themap "drawnup subsequently"

to the Declaration,inorderto justifythe Italianpointof view.

Accordingto Chad,thisis supposedto provethe importancw ehichItaly

attachedto the 1899Declaration. Frankly,Mr. President,it is hard to sec the logicof this
47 -
argument,which bears no relationto the territorythat is the subjecof

the present dispute. Firstof all,Mr. Moscadoesnot specifythernapto

whichhe is referring.Secondly,it is perfectlyobviousthatMt. Mosca

is referringto the areaof Ghât, oran oasisnear Ghât,whichis in the

westernpart of Libya,on theAlgerianside,not .in-the south: the

be it the onein the Livrejaune or any other,
referenceto themap,

therefore relates onltyo thewesternpartsof Tripolitania, not to the

southernboundary; in otherwords,the lineto whichMr. Mosca refers is

not that ofArticle3 of the 1899 Declaration ,ut the undulatingline

surrounding Tripolitania, which noitsmentionedin any provisionof the

Declarationand which hasneverbeena frontier in the legalsense,

since,as you haveheard,it served as a simple geographic indicato ion

a boundarywhich Francehad undertakennot to cross. It shouldbe borne

in mind in thisconnectionthatMr. Moscacouldnot havereferredto such

an undertaking,sinceit derived from th 1900-1902Agreements which were

still secretat that timeand which,as Libyahas shown, had nothingto

do with southern Libyabut related tothe West. And we should also

rememberthatin 1912Italy still believedwhat France had wrongt loyld

it in1902,namely, that amap was annexedto the 1899 Declaration,

whereasthatwas notthe case.

To tell the trutht,he ChadianReply containsthe curiousassertion

that asentenceof the statementby the ItalianUnderSecretaryof State

impliedhis "perfectknowledge ofthe circumstancesin whichthe 1899 map

had been prepared( "RC,p. 36,note 6). But thisargumentis not very
. .
48 serious,sinceit is basedon a mistranslatioonf the originalItalian:

Mr. Moscareferredto a map (theone in the Livrejaune?) prepared - "pursuant"("inseguito"in Italian) to the 1899 Declaration,and not

"after"this Declarationa ,s Chad alleges(wronglyonly on page 36, since

the correct translatio is giventwo pages further on). The term is

thereforenot "after",but "pursuantto" ("à la suite"in French)and

this term does not necessarilyimplya sequencein time,and in the case

at issue thewords serveto establishthe connectionbetweenthe

Declarationand the rnap: the fact is thatMr. Moscanever suspectedthat

the rnapallegedlyannexedto the 1899 Declaratiow nas in fact afanciful

inventionof Frenchdiplomats:

2. The officia1Italian maps

1 now come to the officia1 Italianaps, whichcan well enlightenus

about Italy's opinionson the questionof Libya'ssouthernborder. Here

we have on the screenthe rnapof Africa publishe dy the ItalianMinistry

of ForeignAffairsin 1906,or fouryears afterthe Franco-Italian

Agreementof 1902. (Thernapappearsin the Libyan Reply,and under

No. 69 on your file.) Severalof the linesappearingon thisrnapare

identified: first,the line representin the Ottoman claimsof 1890,

then a line surrounding Tunisiaand goingas far as Ghadamès(the reason

for this lineis that thernapantecedesby severalyears the 1910Treaty

on the Frontier between Tunisiaand Libya); to the eastwe see,

interalia, the ButrosGhali-Cromer line o f899,separating Egypt from

the Anglo-EgyptianSudanalongthe 22nd parallel:we can also see the

@ linesof the 1899Anglo-French Declaration, in which the line of

Article 3 is represented asrunningdue south-east; and with regardto

the line of Article2, two partsof it are marked, whereasthe one

betweenthe 11th and 15th parallelsof northernlatitudeis stillto be

defined. Membersof theCourt,you will noticethat theundulatingline which

surroundsTripolitaniain the mapin the Livrejaune does not appearon

The general profileof Tripolitania, Cyrenaicaand Fezzanis
thismap.

shown in yellow,whereasthe areato the southand west of the line in

Article3 of the 1899Declarationis shown in white,with a legend in

Italianreading: "areaclaimedby Franceand by.TurkeyV'.

Mr. President,thismap alone showshow erroneous arethe Chadian

allegations concernint ghe significanceand effectsof the Franco-Italian

Agreementsof 1900-1902. One glanceshowsus visually, first of all,

that in 1906 Italyin no way recognized thata frontierof Tripolitania

had been established in 1902. Secondly, Italy notetdhat the

Tripolitanian hinterland was stiltlhe subjectof a dispute between

Franceand thePorte,and that this dispute shoult dhereforebe regarded

as remainingto be settled. Thirdly,it is obviousthat in1906 Italy

was convinced that the line in Article3 ran duesouth-east,and

consequently attachedno importancewhatsoeverto the east-south-east

line appearingin the map inthe Livre jaune. Fourthlyand finally,

from the Italianpoint of view this last-named lin was certainly not

supposedto representa delimitation between Ottoman possessions and

thoseof France,since the territoryto the south-westwas said to be

claimedby both countries.

Let us now turn to another mapnow shown on the screen,that

publishedby the ItalianMinistry ofForeign Affairs in 1912,whichLibya

has givenin its Reply and which appearon your file as No. 70. Among

the linesdrawn in differentcolours,thereis the frontier between Libya

and Tunisiawhich wasthe subjectof the 1910Agreementand which runs

as far asGhadamès. Here again,we donot see the undulatingline

surrounding Tripolitani in the map ofthe Livrejaune,but above al1

the line of Article3 of the 1899 Declarationis once again represented as runuingsouth-east. The same appliesin connectionwith this linein

the 1917map of the Ministry for Coloniew s,ich Libyareproducedin its

Replyunder the symbol LR-16.cand whichyou can now see on the screen

and in No. 71 of your file.

It is surprising,Mr. President,thatnone of the officialItalian

maps that 1 have just shownappearamong the 162 or-so.maps in the

cartographical atlas accommpani the ChadianCounter-Memorial, and that

in spiteof the fact that, for example,the 1906rnapis specifically

mentionedin the documents producedby both Partiesto thiscase. It is

even moresurprisingthat,as we have seen,Chad on the contrary refers

to a truncated copo yf the rnapn the Livrejaune,a copy the source of

which is unknown and the probativeforceof whichseems to dependon the

fact that some Italian wordsappearon it!

But let us go on lookingat themaps, turning to another officia1

rnapthat thatis being shown onthe screen,the one publishedby the

ItalianMinistryfor Colonies in 1926 (No.72 on your file). It is now

ten years later,and thewesternfrontierof Libyahas been established

up to Toummo, sincemeanwhilethe Franco-Italian Agreemen of 1919has

been concluded, asMr. Cahierhas toldyou. But nothingis shom east of

Toummo, sinceno delimitation was tracedpreviously. It will be seen

that on thisrnapthe line of Article 3 of the 1899 Declaration nolonger

appears,but the frontierwith Egypt establishei dn 1924,or two years

earlier, naturally appear in easternLibya.

Let us turn to yet anothermap, the officia1ItalianMap 2 of 1937,

reproducedin the LibyanCounter-Memoriaa lnd in No. 73 of your file.

This timewe see the line ofthe Treatyof Rome of 1935, which1 shallgo

on to discussin a moment. 1 have takenthe libertyof drawingyour

attentionto thisrnapand slightly anticipatint ghe following

considerations in orderto completethe cartographical analysis without * interruption,and also to point out that the one we now see on the screen

is indeed theonly the Italianofficia1rnapwhich does appearin the

Chadiancartographical atlas: it is indeed an extraordinary coincidence

that ouropponents havefoundin theirsearchof the archives only one

officia1Italianrnapwhichwas harmlessto their cause, and have not come

upon any one of thosewhich are seriously.prejudicia1.to.thea irguments.

And now let us go on to the last two maps, first, theone dated 1939

whichyou see here and which correspondsto the one publishedin the

LibyanCounter-Memorial as map No. 54, and then the one of 1941, which

. K7 appearsas No. 74 in your file. 1 do not needto dwell at length on
Jr,
thesetwo maps,for like the 1926rnapwhich 1 showedyou a few moments

ago, they do not containany lineseast of Toummo: since the Treaty of

Rome never finallyentered into force,it was only naturalto indicate

again the absenceof any frontier in the region.

3. The incidentof the Italian school rnapof 1930

Mr. President,Membersof the Court,so far 1 have spokenabout the

officia1Italian maps,but there is anothermap, this onequasi-official

but very interesting,which shouldbe considered briefly,and that is the

school mapof 1930,whichwas the basis of a most instructive diplomatic

incidentbetween France and Italy. Here it is on the screen w

(MapLR 16E). Its historyis recountedin great detailin the Libyan's

submissions (LM, paras.5.278-5.279and Maps Nos. 78 and 79; LM,

paras. 6.200-6.205and Map LR 16E; LR, Vol. II, Supplementary

Ann. No. 5.10),so that 1 need onlygive you a short recapitulation.

Briefly,the problemwas the following:in December 1930, the

FrenchAmbassadorin Rome was informed that a rnapof Africaused in

Italian schoolsshowedLibya ascomprising both Tibestiand a vast area

to the south and to the east of that locality,the effectresultingfrom the colouringof the said area, identicalto thatused forthe remainder

of the Libyanterritory. The French protesteda ,nd after an exchangeof

very detailed correspondence between different ministries conct erned,

ItalianGovernmentreactedto thatprotestby adoptingthe solutionof

leavingthe area in question white, in recognition of the factthat the
. - frontiersin the areahave not yet been..internationally..defi( nedWtof

' 53
the telegramof 22 December1930 from the Ministry of ForeignAffairs,

signedby Mr. Guariglia: LR, Vol. II, Ann. No. 5.10). In the same

telegram,it is indicatedthat the solution was one currently adopted for

both officia1and touristmaps. It maybe gathered that Francehad never

before reacted against map isndicating theabsenceof the frontier in

the areaand thatin orderto satisfyit the 1930 schoolmap was to be

modifiedto confirmthat thefrontier hadindeednot yet been defined.

It will be noted that the solutionadopted musthave been acceptedby

France, since it did not give rise to any further protests.

Mr. President, the1930 incident thus clearly confirms what may be

deduced from the officia1maps,namely,the absenceof a frontierin

the regionwhich isthe subject ofthe present dispute. Moreover,

the incident shows thatFrancehad no objectionto raiseagainst maps

indicatingthe absenceof a frontier.

But one last remart khatneeds to be made concerning this episode is

that the modification ofthe schoolmap, asdecidedupon at governmental

level, clearly showt she extentof the area claimedby Italy.

Unfortunately, Libyw aas unableto find acopy of the modifiem dap in

colour,but only the 'blackand white copieswhichwere published in the

LibyanMemorial(MapsNos. 78 and 79). It may be supposed, however,

that the effectof whitening in accordanc with the instructiono sf the

Ministryof Foreign Affairs tha erea to the east andsouthof Toummo whichappearedin greenish yellow on the 1930rnapmust have beenthat

which is now appearingon the screen. Let us now superimposon the

amendedrnapthe line claimed byLibyabeforeyour Court: here it is on

54
the screen. It is interesting tonotehow close thisline is to the

lower edgeof the area thatthe 1930 schoolrnapindicatedas belongingto

Libya, andwhich thernapmodifiedby the Italianauthorities indicatedas

claimed simultaneously I byalyand France.1 shouldlike to pointout

that thisrnapwith the superimpositio of the lineof the Libyanclaim

appearson No. 77 of yourfile.

4. Conclusionconcerning the Italianmaps

Mr. President, Memberosf the Court,1 have completedthe firstpart

of my statementand it onlyremains forme to draw what1 believeto be

thenecessaryconclusions.

The firstis thatnone of the Italianofficia1and quasi-official

maps, thoseimrnediatel yollowingthe 1900-1902Agreementsor laterones,

show anysouthem borderfor Libya: Italiancartographers expres wsith

perfect consistenc the firm andconstantconvictionof the Italian

Governmentthatthe frontier had neverbeendefinedin the disputed

region,with one sole exception: the 1935 lineappearedin mapsfor a

short period, onltyo disappearwhen it becameclearthat the

Laval-MussolinTireatywas not goingto enter into force.

The second conclusioi ns thata certain numberf Italianmaps up to

1917 do showthe lineof Article 3of the 1899Decelaration, but clearly

specifythat thisline doesnot represent a frontia enrd thatit wasdue

south-east,and not east-south-east.None and absolutlynone of the

officia1Italianmaps reproduce the lineof thernapin the 1899 Livre

jaune, and it is absoluteluntruethatItaly"accepted l'thismap, as

Chad alleges! Mr. President,1 should like to pointout that in its Judgment of

1986,the Chamberof your Courtwhich settledthe frontier dispute

betweenBurkina Fasoand Mali carefullyexaminedthe probative value of

maps when theywere notthe subjectof a specific agreement betwet ehne

parties to a territoria dispute. The Chambernoted thatthe weightof

maps asevidence might Vary according.to..the.irechnical.reliabilia tyd

the neutralityof theirsources,but stressedthat in al1 cases the

proofsin questionwere to be auxiliaryor confirmative in character:

indeed,maps "cannotin themselvesalonebe treatedas evidenceof a

frontier"(p. 583, para. 56). In this contextit must certainly be

admitted,for the same reasons,that themaps 1 have just shown can also

not be consideredin themselvesas evidenceof the absenceof a frontier

in the disputed region. Indeed,Libya carefully refrain frorclaiming

anythingof the kind,since it recognizesthat theItalian maps,however

technically reliablt ehey maybe - and they are indeedreliable- are

certainlynot neutral,but translate the Italianpoint of view into

cartographical images. Yet it is preciselybecausethey are notneutral

that theseItalianmaps are valuablehere in connection with the precise

identificationof the Italianposition. Indeed,the officia1Italian

maps, in view oftheir absoluteconsistency throughout tp heriodunder

consideration,irrefutably provt ehat Italy hasnever recognized either

the existence ofa frontier in theregionor the east-south-east

directionof the line arising frorArticle 3 of the 1899 Declaration. In

otherwords, thesemaps provideno decisiveproof of the absenceof the

frontier,but certainly pure decisively tI hatlyhas never recognized

the existenceof such a frontier. PARTII

ïEBROME AGBEEMgRTSOF 1935

1.The importanceof the RomeAgreements

Mr. President, the timhas now come forme to pass to thesecond

part of my pleading today, relatitngthe Rome Agreement sf 1935.

The Parties'submissionsshowa fundamental divergenc of viewson the

significanceof theseAgreementsand on their impacton the settlemenotf

the presentdispute. Nevertheless, ther is a complete convergencof

viewson one point - and that is already somethignarnely,that these

Agreementsare of capital importancbecausetheirtext,their context

and the circumstance sn whichtheywere concluded brin to light the way

in which the Parties regarded the situation prevai ininge region

concernedin 1935, where the statof the frontierswas concerned.This

importance is certainlnot diminishedby thefact that ratifications

were not exchanged,but on the contraryis enormouslenhanced thereby.

It would obviously servno usefulpurposeto questionnow what

the state ofthe frontiers before 1935 woh ulde been if the "African

Treaty"had entered intoforceand had thussettled the dispute. It was

preciselybecausethatdid not happenthat astudyof the 1935Agreements
-
is exceptionally usefulsincethisstudyenablesus to ascertain whether

Franceand Italy considered in1935 that thewere movinga pre-existing

frontier,or whether,on the contrary,the two countries recogniztedat

theywere establishinga frontier forthe very firsttime. 1 repeat,

thereis a complete convergencof views betweenLibyaand Chad on the

mannerin which the problem arises, altho thehydisagree completelon

the solutionof thatproblem, In order to give the Franco-Italia Treatyof 1935 its properdue,

it shouldof coursebe borne in mind that none of the international

instruments preceding that Trea were explicitlydesignedto definethe

frontierin the disputed area. Our opponents will surelynot deny,

something that is clear from the evidenceitself,namely,that in al1

the century old historyof the present dispute,..the.l9..35eatyis indeed

the only instrument underwhich the twoStatesclaimingsovereignty over

one or another partof the territory to be delimitedin pursuanceof

negotiations specifically concerw nedh delimitation,have plotted

a well determined line, geographical poi bytgeographical point,

specifically expressing the will thus to define"the frontier

separatingLibya fromFrenchWest Africaand French Equatorial Africa

east of TOiJMMO"(Art.2 of the Treaty). You can see on the screen

the line that was negotiatedin 1935.

Mr. President, Memberosf the Court, before proceedin to analyse

the 1935 Agreements,1 shouldlike to make two preliminaryremarks.

The firstis terminological.1 am now speakingof the "Agreements

of Rome" in the plural,and of the "RomeTreaty" - or the

"African Treaty" - in the singular.The reason forthis is that the

Treaty in questionis one,certainlythe most important, but only one,

of the eightinstruments which wer eignedon the same day by the Italian

Head of Government,Mussolini,and by the FrenchMinisterof

Foreign Affairs, Laval. Itouldnot be forgotten that the two States

had wishedto settleon that occasion,by a global arrangement, al1 the

colonial disputeosutstanding between them. Anotherof those

instruments, the General Declaration, makes this perfectly cw learit

stressesthat "...the conventions[in theplural]of today's date having

ensured the settlementof the main questionsthat previous agreementh sad leftoutstanding betweetnhem ...". 1 woulddrawyour attentionto the

word "outstanding":France and Italy thussolemnlydeclaredthatthere

were questions outstandingbetween the twocountries, questions whihcahd

not been previously settled anwdhich wereto be settlednow.

My second remarkis that the Treatyof Rome is the only oneof the

eightinstruments signeodn the samedate,.the.entry.intfc.rceof which

was subjectto theexchangeof ratificationsu ,nder its Article7. Chad

has shownin itsMemorialthatthe other instruments on the contrary,

enteredinto forceimediatelyupon theirsignature, sincetheywere al1

agreements in simplifiedform. May it please the Courtto note that

Libya fully recognizesthe accuracyof thatanalysis: this point may

therefore be regardedas settled, in vieowf the agreementexisting

betweenthe Partieson this particulas rubject.

2. The textof the 1935Treaty

The timehas come to takea closelookat the text of the Treatyand

to note once againsomething which strikesone as soon as one readsthe

first paragrapohf Article 2 and comparesit with the first paragraphf

Article4. To make myremarksclearer,1 have askedthesetwo textsto

be shownon the screen.

In Article 2,concerningthe frontierbetween Libya on the one hand

and French West Africaand FrenchEquatorialAfrica,on the other hand,

it is indicatedthat this frontiewrill be "determined"in themanner

specifiedin the restof the Article:the question is therefore one of

"determining"and not of moving or modifyingprae-existing frontier.

In Article4, on the otherhand,the expression used is completely

different, for there, in connection w thehfrontier between Eritraead

French Somaliland,the referenceis to themodification of a previous

frontier,sinceone lineis to be substituted for another. The wordingis very significant.It isclear that the term wsere

- - chosenwith the greatest care,in orderto emphasizethe convictioo nf

Franceand Italythat theoperations conductedin the twocases were

quitedifferentin nature - delimitation in the caseof Libyaand

rectification of the frontierin the caseof Eritrea. But that is not

al1: the textbeforeyou clearly ..explainthe..legarl.asonsjustifying

the choice of the terms. In the caseof Eritrea,it is specifiedthata

modification of the frontieris concerned, sincea different delimitation

was established previously t bwyo specifically mentioned treaties

the Rome Protocol etc. In the caseof Libya,on the other hand,the

reference had to be to delimitationbecausethe frontier in the areahad

not beenpreviously detennined by any treatyT ,oummobeing,as explicitly

statedin Article2, the "terminal pointof the line fixedby the

ParisAgreementof 12 September1919".

The provisionsof the 1935Treaty areof such- how shall I put it?

- - limpidclarity - that one is almost movt edpity our opponents, forced

as theyare to defenda reallyindefensible argument. Yet their

competence is quiteremarkable:in its Reply Chadpresents atextual

argument,onlyone, it is true,but one whichpurportsto provethat

therewas indeeda frontier in the disputed regionin 1935and that the

1935Treatymoved this frontier in favo ourItaly. The argumentis

basedon a passageof Article 2 in whichit is statedthat the borderline

is so plotted thatsuchand suchlocality"remainsin Frenchterritory":

if theselocalities "remain"in Frenchterritory underthe 1935 Treaty,

Chadmaintains,it is becausetherewas previously anotherwhichwas more

favourable forFrance.

The argumentis extremely subtle,but it is so subtlethat it

becomespractically evanescei nt it is studiedclosely. It can easily

be counteredby pointing out tha Article 2 describe and specifiesthe- effect thatwill arisefrom the delimitatip onovidedtherein: in other

words, itspecifiesthat at certain points the line must bedrawnin such

a way that the placecsitedwillbe situatedon one or the otherside

of the line, but thi sn no way indicates wheretheywouldbe ifthe

delimitation concernw edre notestablished.To sum up, the language of

Article2 is typical of a delimitation.treaty,..indicati.thatthe line

must be plottedon the mapin sucha way that, the frontier once

established, certain localities wil"remain"in the territory of one

of the States, and othei rsthatof itsneighbour.

Moreover, the accurao cy this analysisis confirmedby a perusal
'tr
of the officia1Press Release o f January 1935,in whichthe two parties

explainedthe objectand purposeof the Treaty. The Releasecontains

the followinpghraseconcerning thl eineprovidedfor in Article 2:

"thisline leaves Aozoa und Ouezenti in Italian territo and Bardaïand

Tekroin Frenchterritory".Here is something which definitively

demolishesthe Chadian argument,sinceit is clearthathere againthe

effectof a newly drawn linies beingdescribed, and the wordil ngaves

no room for argumenotn the questionto whom the localitiementioned

belongedbeforethe delimitation - unlessChad,hoistwith its own

petard, if1 may Say so, prefersto admit,for the sakeof consistency

with itsown argument,thatthis phrase fromthe Press Release implies a

recognitionby FrancethatAozouand Ouezenti already belong todLibya

beforethe conclusion oftheTreaty, sincethatinstrument "left"themon

the Italianside ...!

Mr. President, the textof the 1935 Treaty expressetshe intention

of the Parties withtheutmostclarity: thesePartieswere perfectly

aware that thewyere delimitinga frontierin the regionfor thefirst

time. The lineof Article 2, on themap which was submittt ed the - ItalianParliament with the textof theTreaty for purposesof

authorizationof ratificationb,ore the legend"Auovoconfine

meridionale"in Italian(Newsouthernfrontier), which wasundoubtedly

correct, sincea perfectlynew frontierwas indeedinvolved.

Bevertheless,Our opponentsdo not agreeat all,and are makingtruly

superhumaneffortsto derivefromthis.termino1ogy.an.argume which

seems tenuousto Say the least. Accordingto Chad,Italy'sreferenceto

a llnuovconfine"("newfrontier") is tantamountto the implicit

admissionthatan old frontierwas henceforthto be replacedby a new

one, inthe case of Eritreaas in thatof Libya. But unfortunatelt yhis

syllogism, althoug hpparentlyimpeccable,is reallyquite

unsatisfactorys,inceit takesno accountof the fact thatthe adjective
-.
i 6 2 "newlhas a numberof meanings,in Italianas inFrenchand English,and

perhapsin otherlanguages. May1 be permittedto inviteOur opponents

to takea look,for instance,in the most farnousof the great

dictionariesof the French languaget,he Littré,where theywill find

that "nouveau"("new")can certainlymean "autre,qui a changé"("other,

whichhas changed"),but can alsomean "quiest ou apparaîtpour la

premièrefois"("whichis or appearsfor thefirsttime")(Littré,

Dictionnairede la langue françaiseP,aris, Hachette, 1881Vol. III,

p. 757).

3. The press release

1 have just quoted thpressrelease of 8 January1935: this

is clearlya documentof greatinterest, sinceit clarifiesthe

meaning ofthe Treaty ofRome. Itis usefulto note,at this

juncture,that inthis press release,the objectand purposeof the

Treatyis described usintgermswhichare partlydifferent, but

whosemeaning is quiteidentical: it is stilla questionof the "detemination"of the Libyanfrontier, whereas, for Eritrea ,he

word usedis "rectification":this providesyet more confirmation,

were it needed,themeritsof the interpretation ot fhe textof the

Treatythat 1 put forward a momentgo. But what is even more

suggestive, sinceon thisoccasionwe are concerned with a fresh

proof,is the factthatthe press releasd eescribes-thestrip which,

40 years later,would generallbye referredto as the "Aouzoustrip"

as "territoriesthusrecognized as belonging toLibya". Here is

what is said so limpidly aneffectively:the Treatyof 1935,

contraryto what Chadwouldhave us believe, did not attribute
. .
Frenchterritories to Italy,but recognizedas Italianterritories
63
-. situatedin a non-delimitedareawhoseappurtenance to Italy France

had previouslycontested.

1 stillhave to indicate whatprobativeforcecan be attributed

to the pressrelease. To answer this question it shouldfirstbe

noted thatthis is the officia1 jointpressrelease distribute to

the press followintghe offficial ceremonoyf signingthe Rome

Agreements,and which waspublishedby the pressin bothcountries.

It goeswithoutsayingthat it is well knownthatpress releases of

thiskind are duly negotiate by thedelegations of the parties

concerned. Our press releast ehereforeconstitutes apublicand

officia1 declaratio by Franceand Italy,by meansof whichthe two

States explainjointlyand bycommonaccord what the purposeand

meaningof the 1935 Treatyis.

Your case-law ishighly instructivon the legalnature ofthis

typeof document. In your Judgmentof 19 November1978 inthe

Aegean Sea Continental Shelcase (I.C.J. Reports 1978p. 39,

paras.95-96)your Court observed tha "t[thereis] no rule of

internationallaw whichmightprecludea joint comuniquf érom constituting an international agreemen ..ll; to establish whether

this is or is not the case,your Courtsaid that everything"depends

on the natureof the actor transaction to which the Communiqué

givesexpression" whereas the form is not very important. Andthe

Court concludes,in this case, that

"in determining whatwas indeed thenatureof the actor
transactionembodiedin the ... Communiqué, the Court mus htave
regardaboveal1 to its actual terms and tothe particular
circumstancesin which itwas drawnup".

In two otherwell-knownJudgments,your Courthas established that,

ultimately,"the sole relevant questioi ns whether the language employed

in anygivendeclaration does reveala clear intention ..."of the author
. 64
or authors. This is in the Case concerning the Templeof Preah Vihear,

Judgment, I.C.J. Reports 1961,p. 32; and in the Nuclear Tests,

Judgment, I.C.J. Reports 1974,pp. 267-268,para.45).

In Our case, things couldnot be clearer, considerin tghe terms,the

circumstancesand the purposeof the pressreleaseof 1935. Withouta

shadowof doubt, the intentio nf Franceand Italywas to officially

explainthe meaningand scopeof the 1935 Treaty. The communiqué therefore

occupies pride of place in the interpretation of this Treaty,since it

constitutesan agreementaimed at elucidatin the legal significanc of

another agreement concluda ed the same timeby the same Parties. In other

words,we are inthe fieldof authentic interpretation; more precisely,

we are facedwith this authentic interpretati oofna contextual nature

which is discussedin Article31, paragraph2 (a),of the 1969 Vienna

Conventionon the Law of Treaties. 1 would pointout that the Vienna

Convention gives prideof place,as regards the interpretatio on a treaty,

to the context, and that thelatter means in the first place "Any agreement

relatingto the treaty which was made betweenal1 the partiesin connection

with the conclusion of the treaty." Let me say, in conclusion,that it is difficult to imagia ne

international instrumew ntichbetter fits this definitionthan the press

releaseof 8 January 1935.

4.The exposé des rotifs

So far,1 have leftasidethe mostexplicitand definitive

confirmationof all, thatwhich, soto speak, crownsthe demonstratio1 n

have justmade. 1 adoptedthis approach in orderto underline from the

outsetthe strangeneso sf the remarkon page 80 of Chad'sReply,

accordingto whichwhat results from the exposédes motifs 1 am now

going to discuss and that accompanies the French draft legislation

authorizing the ratificati ofnthe 1935 Treaty is"theonlydiscordant

. . note" in relationto Chad'sposition. A curiousremark if one thinks of
LA
YU the coherent bundle ofevidenceand clues 1have gathered and illustrated

so far and which can be added tothosestemmingfrom the travaux

préparatoires!

Afteral1 thatthewritten Libyan pleadingshave emphasized on this

point, 1 haveno need todwellat any further lengthon this exposé des

motifs. May 1 Say that, through thdeocumentin question, the French

Governmentindicated why it was askingits Parliament to adopt the

legislation authorizin the ratificationof theTreatyof 1935. In other

words,the Govemment wishedto persuadethe French Parliament to say

yes, by showingit the advantages of theTreatyand the problemsit would

have dispensew dith: an operation which, moreovew r,s wholly successful

sincethe FrenchSenateunanimously votedin favour, whereas th Chamber

of Deputiesdid so with the crushingmajorityof 55 votes to 9. What was

the Government'sargument? It was borrowedp ,ractically verbatim,from

a Quaid'Orsaymemorandumof 1935 (ML,French Archives Annex Vol. 3,

p. 426). This is the wording usei dn the essentialpassageof the-
exposédes motifs that1 should likeprojectedon the screenand an

extractof which is includedin No. 67 in your file. The relevant

passage is wordedas follows:

"the 1919 Agreement left Italy aFrancewithout a formally
agreedfrontiereastof Toummo,sinceRomehad always refused

to recognizethatthe lineof demarcation fixedby the
Franco-British Accordof 1899and 1919betweenthe Frenchand
British zonesof influence.couldf,or Italy,-servas a
physical frontier between sovere territories".

A little furtheorn inthe samedocument,it is pointed out that,

from1928onwards(thedateof the occupatioo nf the Fezzanby Italian

troopsduringthewar againstthe Senûsiya),

"it seemed thatthe absenceof frontierswouldbe anobstacle
to the local authoritiesf the two countriesas regards
CO-ordinatingtheiractionto policeandmonitorthe tribes"
(translationby theRegistry).

Theseare officia1admissions, madb ey the FrenchGovernmentto its

Parliamenton 26 February 1935, admissio nsichcompletely destrot yhe

Chadianthesis,just as,moreover,theydestroythe entireconvoluted

edificethatFrancehad claimed to erecton the basisof the

Franco-Italian Agreemenots 1900-1902. In fact,as will be noted,in

1935 the FrenchGovernmentpubliclyand explicitly recognize the

complete accuracoyf the argument presentbed Libyato your Court:

more preciselyi,t recognized

primo: that, priorto 1935,therewas no "formally agreed

frontier",eastof Toummo,and even,quitesimply,that there was

(second passage )n "absenceof frontiers"which implies among other

thingsthatFrance was in no way allegingthat,owingto the absenceof

agreements,the frontiermighthave resulted frosmomethingelse,from

effectivitéor someotherfactors, - therewas anabsenceof frontiers;

secundo: the FrenchGovernment alsp oubliclyand officially

acknowledgedin 1935thatItaly "hadalwaysrefusedto recognize", as a

"politicalfrontier",not only thelineresulting from thF eranco-British Agreementof 1919,but also that envisaged tb hye Franco-British

Declarationof 1899! In short,France fully recognize (anddoes so in

1935!)that theFranco-Italian Agreemeno ts 1900-1902 cannobte

interpretedas implyingacceptance by Italyof the lineof 1899 or 1919

as frontier. This isexactly the opposit of what Chad is today alleging
1
beforeyour Court, and Chad should.be.asked.houit .camaintain.withsuch

assurance athesisso clearly demolished b sucha host of decisiveand

mutually corroborativ proofs.

1 shallnow concludemy examinatioo nf this exposé des motifsand

. - would liketo do so by briefly recalling internatioc nale-law relating
..r

to the probativeforceof thistypeof interna1government document

issued tonational parliarnents. It istrue that, the arbitration

tribunalhave ruled,on 12 February1985,on a dispute between Guina ead

Guinea-Bissau,it considered that, strict speaking,thesedocuments

werenot part of the travaux préparatoires stricto sensu,yet

neverthelesstook them intc oonsiderationquiteclearlyas travaux

préparatoiresin the broadsense (RDGIP,1985,p. 515,para.70).

However,your Court, without concerningitselfwith argumentsabout

vocabulary, did not hesitateto considerthat "the intention ...is put

beyonddoubt"by the explanations givenby a government in theexposé de W

motifs" accompanying a nationalprojet de loi (Aegean Sea Continental

Shelf, Judgement, I.C.J. Reports1978, p. 27, para. 66). Essentially,

what is decisive is therefore thefactthat the intention should be

clearlyexpressed, as indicated inyour Judgmentquotedearlier. In Our

case,the intention of the FrenchGovernment is perfectlyclear onthe

subjectof the reasons which, in my view,render ratificatio of the 1935

Treaty highly desirable: it is becausethisTreatyfinallyestablished a

frontierwhere - as the FrenchGovernment publicly assure -d therehad

hitherto been an "absenceof frontiers". . . * 5. The fate of the 1935Treaty
? 69
1 comenow to the end of the second part of my statement. 1 wish to

recallthat the fact that the 1935 Treaty fai toedome into force was

due to a decisionof the Italian Government, which,despiteal1 the

pressuresto which itwas being subjectedby France, considered tha the

territorial sacrifices envisag bydItaly, especialla ys regardsLibya,

were not justifiedinasmuchas France hadnot fulfilledits obligations

regarding the Ethiopianaffair, particularli yn that it had not stoodup

for Italy before the Leago ue Nationsas a resultof the general

indignation provokedby Italy'saggressionagainstEthiopia. 1 note that

thereis no disagreement between the Parti assto the reasonswhy no

ratifications were exchanged,so that there is no point in dwellingat

lengthon thispoint. Needlessto Say, the factthat it did not come

into forcein no way detractsfrom the importanceof the Treaty for

present purposesw ,hich is that it constitutes evidence tha in 1935

France officiallr yecognized thanto prior treaty hadvalidly delimited

the frontier to the east of Toummo.

As for the questionas to how far the1935 Treaty should bt eaken

into accountby the Court when,having ascertainet dhe non-existenceof

a boundaryin the area that is the subjectof the dispute,it will face

the task of carrying out thdeelimitation, 1 shallhave the honourof

presentingLibya's views on Tuesdayof next week.

PART III

EVEiVTSBETWEEN 1935AND THE END OF THE WORLDWAR

1. General

1now come to the thirdpart of my oral statement for today, which

coversthe period from th 1935 RomeAgreementsto the end of the Second

WorldWar. In outline,the period coulb de splitinto twosections. The first,up to the end of 1938,is markedby a climateof
70
expectation:on eitherside,preparations go ahead for the entry into

forceof the 1935 delimitation,steps are takenwith a view to that,or

worries arise overthe uncertaintycreatedby the protracted procedures

for the exchangeof ratifications.

The secondsection,which runsfrom 1939 to-thePeaceTreaty of

1947,sees Franceand Italy draw backto theirpre-1935 positions.

France, forinstance, havingbeen unableto persuadeItaly to exchange

ratifications,was to affect forgetfulnesof everythingit had openly

concededin 1935 and, withquiteremarkableaplomb,resumedits

traditional claim that theast-south-eastline of theLivre jaune of

1899,as construed bythe Anglo-FrenchConventionof 1919,formedthe

southernboundaryof Libya. For its part,Italywas to upholdthe idea

that theboundary had stiltlo be determinedin the light bothof the

Ottomantitleand of the Italianrightsbased on the LondonAgreement

of 1915.

It must straightawaybe recalledthatno fresh negotiation was to

take place betweenthe States,both being soondrawn into the turmoilof

the Second WorldWar. The existingsituationas to the questionof the

southernboundarythereforeunderwentno furthermodification, at least W

up to the time of Italy'sexit from thstage. Two episodesfrom that

perioddeservehighlighting, however,sincethey clearly confirm the

absenceof delimitation.

2. The Jef-Jef incident

The firstof thoseepisodeswas that calledby Chad the Jef-Jef

incidentof 1938,a minor incident thatthe otherside has strivento

blow upquiteout of proportionin orderto infersome significance

clearlynot present. Chadmakes out the episodeto prove that Italy recognized thesovereig'ntof France overtheAozou strip, whereas in
71
- - realitythe only inference onceanmake is that the twoStates were

stickingto their respectivpeositions.What is more, the incident took

placeat a timewhen the fateof the 1935 Treaty stilhlung in the

balance andnot, as Chadhas thenerveto claim,at a time whenit had

become clearthatthe Treatywouldneverenter intoforce.

The whole storarises from the drillingwork on a well thatItaly

had decidedto carry outin April1938 in a place situateidn the part of

the contestedzonerecognized by the 1935 TreatyasItalian. You can see

on the screenwhereJef-Jefis exactly. Thatwork,startedoff with

labourers,was interruptedby the Frenchforces before being resumed

briskly bythe Italianmilitaryand completedwithout the Frenchforces

daring,thistime,to interveneto halt it. Diplomatic notes were

neverthelessexchangedin orderto specifythe respective pointosf view

(MC,p. 214 et seq.; CML,p. 374 et seq.). Regardlessof the

language usedon eitherside,Italyclearlyachievedits aim of formally

establishingsovereigntyin the zoneby carryingout civilengineering

worksand leaving marksindicatingthat theplace concernelday within

Italianterritory(seeFileon the Jef-Jefincident, CMC,Vol. IV,

p. 541). But it is also true thatn the Frenchside this conductof

Italywas questioned, thougwhith extrememoderation,in thename of

continuityof Frenchsovereigntyin the zonepending thepossibleentry

intoforceof the 1935Treaty. It is certain,however,thatFrance,

72 while keeping vaery l.oprofile,did not bowto the Italianpointof

view; it is also certainthatno documenttestifiesto any Italian

assentto France'sattitude.On the contrary,the Counter-Mernorioal

Libya hasshown(p. 374 et seg.) thatItaly maintaineidts convictions

and positionregardingthe ownershipof the territoryin question. Chad,in particular, completed lystortsrealitywhen it claimsthat

the ItalianAide-Mémoireof 3 May 1938 implied recognitiobny Italyof

the 1919 lineas the southem boundaryof Libya. If suchhad been the

case,Italywouldhave had to apologizeforviolatingthe territorial

sovereigntyof France. Yet Italy madeno suchapology. On the contrary,

Italywas the one toprotestagainst the decisionof the.French military

to prevent continuatioof thework; and it was Italy which, withou the

slightest hesitation, notifi Francethat thework was goingto resume,

and had no thoughtsatal1 about seekingany permission!Furthermore,

thatwork was indeed continueadnd completed withouhtindrance. Given

suchan attitudeon Italylspart, one mighh tave expectedstrongand

immediatereactions froFmrance. The Quai d'Orsayin facttook a month

and a half to respond,on 20 June,with an extremely conciliatonryte in

which,aftera reminderof France'sposition of principle it promptly

declared the inciden closed sincethe workhad been completed(MC,

p. 215). To see in al1 that aformof assentto France's position sn

the partof Italy isa matter,it seemsto me, ofthe most unbridled

fantasy.

It is true that in the ItaliaAide-Mémoire of 3 May theplacein

questionwas describedas being situated

"in the zone betweetnhe presentboundaryof Libyaand
the boundary resulting from the Mussolini-Laval Agreement
of 1935".

But this undeniabl clumsydraftingis far from justifying the whole
73
. - construction thaC thadwouldlike to baseupon it. For the expression

"present boundary was takenfrom thereportof the Governor-Genera olf

Libya,Balbo,noted asthe stoutest defende of Italy'sterritorial

rightsover the Libyan hinterland. Without any doubt, the wor ins

question referret do the existinge facto situationon the ground of

the Italian and Frencharmed forces,and not to the de jure situation. * Aeedlessto say, both Govemor Balbo and theItalianGovernmentknew

perfectlywell that just a few years before,on 9 June 1934, Italyhad

firmly protestedagainstthe establishment of a French fortifiedpost at

Tekro,well to the south of Jef-Jef,just as it had protestedin a

perfectly constantmanner,between1921 and 1934, againstthe

Anglo-FrenchConventionof 1919...That-is the-diplornati.andpolitical

contextin which the 1938document must quite obviously beconstrued.

. 7 4 4. The discussion.of 1941 on the demilitarizedzonewithin the
frameworkof the drmisticeCommission

It falls tome now to say a few words abouta second episode,that

of theexchangeof letters between General GrossP i,esidentof the

Franco-Italian Armistice Commission of 1941, a the Frenchauthorities

on the subject ofthe200 km demilitarizedzone to beestablished along

the Libyanboundaries,in accordancewith the 1940Armistice Convention

between the two countries. 1 shall only say a few words about it because

the Parties havealready covered the subjet ctoroughly in writingnd,

above all, becauseit would be pointlessto dwell on a topic from which,

with the bestpossible goodwilln ,o usefulargumentcan be derivedfor

settlement of the presentdispute.

True, Chad is not in agreementsince,on the contrary,it attempts

the impossible toextractfrom the relevant materialfanciful evidence of

instances of assenton the part of Italy. Butin reality anunbiassed

perusalof thematerialin questionsufficesto show,at the endof the

day, that the two Stateshad simplyrevertedto their traditional

positions in viewof the fact that the Rome Treaty of 1935 hafinally

not entered intoforce.

The whole storymay be summarizedthus. Noting that theboundary

had never been determined,General Grossipropoaedto France,on

12 March 1941, that the demilitarizedzone be computefrom the1935 * line. In the eyesof the Italians, thatline couldbe provisionallyused

pendinga futuredelimitation, sinceit was the only one resultingfrom

an instrument negotiated Ibyaly (eventhoughthe 1935 Treatyhad not

entered intoforce). The Frenchauthorities tooka long timeto react.

Aftera somewhatconfusedinterna1debate complicated b the current

situation(sincetheVichyGovernment was.incontrolx, .the..response
7 5
finallycame twomonthslater,on 14 May 1941. It comprised the

counter-proposa1 tuose the 1899-1919line instead,sincefor Francethat

line had beenaccepted byItalyin 1900-1902, whereas Italyhad "objected

to" the 1935Treaty.

As we can see, thereis nothing particularlnew up to here.

Forgettingthe explicitadmissionsit had made in 1935, Francresumed

its traditional positiwonth which weare familiar. But where things

takequitea different turna ,t leastas Chadsees it, is on the occasion

of the Italianresponseto the Frenchcounter-proposal. Accordingto the

Counter-MemoriaolfChad,thatresponsewas a veritable capitulatio n,

more no less,Italy having been incapab ofequestioningthe worthand

soundnessof the Frenchargument.

What inventiveness!Quitefrankly,it is hard to understand how the

otherside can readso many thingsintoa shortletterof 14 July in W

whichGeneral Grossistates: (1) that thequestionof the boundary lies

outsidethe cornpetencef theArmistice Commissio and will findits

place amongthe problemsto be clearedup afterthe war; and (2) that

for the applicatioof the armisticethatquestion is of no practical

importanceand can thereforeremainunsettled. 1s thata capitulation?

But itis quitethe opposite: For ontwo occasions the letterstates

that for Italythe southernboundaryof Libyahas not been delimited,

despitewhat Francecla2ms. Why otherwise wouldGeneralGrossirankthe

boundaryquestion amongthe issuesto be cleared up afterthewar? Why - otherwisewouldhe affirmthat for the timb eeing thequestioncan remain
76
"unsettled"? Inshort,it is clear thatthroughGeneralGrossi'sletter

the Italianauthorities were definitely questioninFrance'sposition

that the southernboundaryof Libyahad alreadybeen established, by the

mere factof explicitlyindicating that for Italythat boundaryremained

to be determinedin the future.

One conclusionstandsout: afterthe periodof the Rome Agreements

France,by overlooking theexplicitrecognition of 1935 thatno boundary

had everbeen delimitedin the disputed region,resumedits old argument

that the boundary alreadyexistedsinceItaly hadsupposedlyaccepted

in 1900-1902 theline of 1899-1919. Italy, forits part,never bowed

to the Frenchcontentionand held fast to its position,namely that

the delimitationremainedto be establishedand shouldbe effected with

due regard to itsterritorialrights,as accruingto it from the Ottoman

heritageand under the LondonAgreement of 1915.

PART FOUB

The 1947 Peace Treatyand thesouthernboundary ofLibya

1. General

The timehas come to begin the fourthand last parof my statement

of today. 1 shallnow discussthe international instrumentthat brought

about Italy'sexit from the scene,namelythe 1947 PeaceTreaty. Atthe

end of the SecondWorld Warthe Peace Treaty dismantlethe Italian

colonial empire; ItalyhusdepartedfromLibya,havingbeen compelled

to renounceal1 its African possessionsi,ncluding everrightand title

to them,as provided in Article23, paragraph1, of the PeaceTreaty. In

77 accordancewith Article23, paragraph2, Libya continuedunderFrenchand

British administratiopendingits "final disposal"a,s providedin the

Treaty (thatis, accessionto independence).And, as you are aware,the decisionsrelating to thematterwere ultimatelytakenby the

UnitedNationsGeneral Assembly,failingthe decisionthat the

fourPowers were unableto make withinthe one-year time-limi laid down

in the Treaty. Sir Ian Sinclairwill deal with thiswholematter

tomorrowmorning.

In this finalpart of my statement1 intendto discussbriefly the

effectof the Peace Treatyon the questionof the boundariesof Libya.

Thissubjecthas been dealtwith at length inthe pleadingsof the

Parties,so that itwill sufficeto bring out its essentia llements.

The first pointto be made is that the Peace Treatydid not provide
.ir
for the intangibilitoyf the boundariesof Libya and the other former

Italiancolonies; on the contrary,it laid down that the boundariesin

questioncouldbe the subjectof an "adjustment",this is the termused,

"adjustment",by cornmoagreementof the fourPowers withina time-limit

of one year. This provisionis readily explaineidf regardis had, in

particular,to the factthatFrance,on the one hand, and Egyptjon the

other, wereplanningto put forwardterritorial claima st theexpenseof

Libya, whichwas why the Peace Treatyprovided for thepossibilityof

modifying,of adjusting,if necessary,the boundariesof the territoryin

question. W

Secondobservation: the PeaceTreatydid not transferto the Powers

sovereignty overLibya, asChad incorrectlymaintainsin its Reply;

the Peace Treatygrantedthe Powersonly the rightto continueto

"administer"Libya, as well asthe rightto take certainimportant

measureswithina shorttime-limit.

There can be no questionthat Italylssovereigntywas extinguished
78
by virtueof Article 23. This did not, however,involvea transferof

sovereignty, but aperiodof waitingand suspension which was to be

closedonly by the decisionon the finaldisposa1by Libya. In any event,thereis no pointin goingintothisquestion morefullysince -

as will be seenshortly- it is of no particular significance, whatever

Chadmay Say.

2. The failure to notify theranco-Italianreaties concerning Libya
underArticle 44 of the Treatyof Peace

One of the topicsdiscussed-inthe.Partiess1ubmissionsconcerning

the Treatyof Peaceis the questionof the consequenceosf the factthat

none of the Franco-ItaliatreatiesconcerningLibya werenotified by

Franceto ItalyunderArticle44 of theTreatyof Peace. ThisArticle

providesthatbilateral treatie not notified by thPeowerconcernedto

Italy"shallbe regardedas abrogated". In view of thisspecificlegal

rule,Libyamaintainedthatafterthewar, and therefore in 1955,the

Franco-Italiatreatieson which Chadbasesits claimscouldnot be

consideredto be in force.

But Chaddoesnot share this viewb ,elievingthat the treatiesin

question did not haveto be notifiedbecauseafter thewar Italywas no

longer concerned, havingostal1 its rights andtitlesin relationto

Libya. Yet thisreasoning is to oasty,sinceit failsto take into

accountthe very clear wordingof Article44, whichprovidesfor the

abrogation in the event onon-notificatioonf "al1such treaties",

namely, al1 "pre-warbilateraltreatieswith Italy". In otherwords,

eachAlliedor Associated Power mus know thatif it "desiresto keep in

79
forceor revive" any pre-warbilateral treat yith Italy,it must notify

sucha treaty. It is clearthat therulesof Article44 were designedto

applyto al1 the treaties coverb ed thedefinition provided, witho any

exceptionand it musttherefore be presumedthatFrancedid not notify

the two Franco-Italit aneatiesof 1900-1902and 1919becauseit did not

want themto be kept inforce. Moreover, thisassmption is whollyjustifiedwhen one thinksthat,
80'
through another provisioin thesame Treaty,in Annex XI,the Four

Powers,as 1 have said,reserved the right t"adjust",in otherwords to

modify theLibyan frontiers. France,in fact,had aspirationsin that

regard,as 1 pointed out afew momentsago. This being so, it was

completely logicalfor Francenot$0 notify-thetreaties-withItalythat

it consideredto be relatedto the Libyanfrontiers: not becausethese

treatiesno longer concernedItaly,but because,for France,it was more

appropriate, preciselyt,o disposeof theminorder to pave theway for

the "adjustments"it was seekingto obtain. Allowme to pointout that,
*rlr
on page 123 of its MernoriaChad openly admitted thatt is indeedin

thismanner that France's conduct ito be explained.Subsequently,in

its Reply,realizingthat the truthis harmfulto its case,Chad sought-

a littletardilyif the truthbe told - to changeits plans.
It is certainthat Franceardentlywishedto modify the Libyan

frontiersto its advantage,both in theWest and in the south (MC,

Ann.212); throughArmex XI of the PeaceTreaty, Franchad provided

itselfwith the means to make thesemodificationquite legally,if it

managedto obtainthe consentof the otherPowersor, later,that ofthe

GeneralAssembly; it goes withoutsaying that,to be consistent, France -

had to excludethe entireset ofbilateralprovisions whichfixedthese

frontiers(or which it had almost alwasaid it was convinced fixed

them,with the remarkable exceptioof 1935). This waspreciselythe

point of the decisionnot to notify theseprovisions, thereyringing

about their abrogationsubjectto seeking torevivethem ata laterday

if need be).

It shouldbe noted thatthesemotivesled Franceto notifyneither

the Franco-Italiangreementof 1919(whicheffectively drew a frontier
whosemodification was stronglydesiredby the French),nor theAgreementsof 1900-1902. In reality,as we well know,the

above-mentionei dnstruments hanot delimited any frontiepra,rticularly

in the regionwhichconcernsus. But Franceinitially maintaine the

contrary, andcontinuedto do so for decades, changing courise 1935,

thenreturningto the pointof departuresubsequently.It would

therefore have beenwholly logicatlo notify-theAgreementsin question,

sincethe Frenchterritorial aspirations also relat ind,he post-war

period, to the territories situa northof the 1899lineand the 1919

line.

Mr. President, Memberosf the Court1 now cometo my finalpoint.

3. Effectof the Peace Treaty on Article13 of the 1915 London Treaty
The foregoing consideratio nsd not touchupon the questionof the

survivalof the obligationprovided inArticle13 of the 1915 Treaty of

London becausethe régimeof Article44 referredonly to bilateraland

not to multilateralagreements.The fateof Article13 following the

succession from Ital to Libyais thereforegovernedby thepertinent

principles of generalinternationallaw, inthe absenceof a

jus specialeof a conventional natur establishedin the PeaceTreaty.

It is thennecessaryto refer,as Libyahas demonstrated, to the

principles setforthin Article11 of theViennaConvention on Succession

of Statesin respectof Treatiesand to note that,to the extentthat

Article13 ofthe 1915Treaty lays downan obligationthatdevolvesupon

Franceto theadvantage of Ital and thataffectsthe settlement of a

question relatintgo the delimitatioof theboundaryof Libya,the fact

of Italy'slossof sovereignty over Liby cannotextinguish the

obligationin question,whichremainsin force forthe benefitof Libya.

Chaddoesnot agreewith thisanalysis, which Libya hasdevelopedat

lengthin its Counter-Memorial; Chad'sthesison thispointis that,on

the contrary,the obligationof Franceto Italy derivingfromArticle13 endedwith the Peace Treaty byreason ofItaly'srenunciation of its

colonialrightsand titles. But thisthesisfailsto answer the real

question. It is indeedan incontrovertible fact tha in 1947 Italy lost

the rightto benefit underArticle13; that goeswithoutsaying,and

Libya is carefulnot to disputeit. But this in no way rulesout the
1
fact that Libya,once it came into existence, inherited the legal title

derivingfromArticle13, as it withoutany doubt inherited al1 the other

Italian and Ottomantitles capableof affectingthe settlement of the

questionrelatingto the delimitation of the boundary.

Clearly,Chad cannotblowhot and cold at thesame time. In other
J
words, either Chad arguesthatLibya isin no degree the successoo rf

Italy concerninLgibyanterritory,in which case it must accept the

consequencethatLibyaneitherenjoys theterritorial righto sf Italynor

is boundby the like obligations lai upon the latter; or Chad

acknowledges thaL tibya succeededto Italy concerninLgibyanterritory,

in whichcaee it cannotescape theconsequence that the colonial heritage

receivedby Libyacomprises not only constrain and obligations but also

advantagesand rights.

In conclusion,it may be observed that at theend of the Italian

period,as at the start,the territory of Libya wasnot delimited in the

south,as France moreover explicitly recognii zne1935. After 1947,

therefore, that delimitatih ond still to be effectedwith dueregardto

the relevant legal argumena tsd titles,as receivedby Italy fromthe

Ottoman Empire and as transmittedby Italyto Libya. Italyhad not only

not renounced any of its titles but had colle( ctedhence transmitted

to Libya) a fresh title arising from Artic 13eof the LondonAgreement

of 1915.

Thankyou, Mr. President.

0422c Le PRESIDENT : Je vous remerciebeaucoup,MonsieurCondorelli.

L'audiencereprendrademain à 10 heures et nous entendrons alors

sir Ian Sinclair. Je vous remerciebeaucoup.

The Court roseat 1 p.m. .s...% . .. .. -,.,,-<7ï.*UXP.rr-
,*9 ,%y '* 7 .:,.f?
Non- Corrige ., .. 'J Traduction
: I,' i 4-3
Uncorrected . . ?..r-.-Qc--..IW1\-iPC Translation
m.'. I '

CR 93/17(translation)/Corr.
(Englishonly)
5 July 1993

Page 34, 14th line, for "boundary" read "limitw

Page 38,2nd line,deletethe word "the"following"only"

Page 39, 5th line, beforethe finalword "thewinsertinvertedcommas

Page 41, 2nd line from foot, for "pure" read "prove"

Page 44, 8th line from foot, for "West" read East"

Page 51,4th line, for "a formerly"& "an";
9th line from foot, delete"formerly"

Page 52, 6th line from foot, for "Judgment" & "case-law";
4th line from foot, for "my" read "its",and
for "render"& "renderedw

Page 53, 9th line, for "as a resultof" read "inthe face of"

Page 63, 6th line, for "logical" read "illogical"