Traduction

Non corrigé Traduction

Uncorrected Translation

CR 2012/26 (traduction)

CR 2012/26 (translation)

Mercredi 17 octobre 2012 à 15 heures

Wednesday 17 October 2012 at 3 p.m. - 2 -

10 The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the

second round of oral argument of the Republic of Niger. I should now like to invite

Professor Maurice Kamto to open Niger’s second round of oral argument.

Mr. KAMTO: Thank you, Mr. President.

T HE APPLICABLE LAW

1. Mr.President, Members of the Court, Burkina Faso opened its second round of oral

argument by returning to the issue of the applicable law. After referring in florid terms to what it

presents as Niger’s “at . . . times moving” “gift” for telling “stor[ies]” my distinguished colleague,

2
Professor Alain Pellet, made an appeal to “come back to reality and lex dura” . One must never

give up hope, Members of the Court, because all good things come to those who wait. Here, at last,

we have Burkina Faso claiming to be ready to talk about the facts; a little too late, but never mind.

Niger has done its utmost since the beginning of these proceedings, indeed since the work of the

Joint Commission, to show how necessary it is in a case of this kind for the law to be applied in the

light of the facts, or for the facts to shed light on the application of the law. Niger will return to this

essential question of the role of the facts in the im plementation of the law, once it has replied to a

series of points raised by Burkina Faso in what looks like a last-ditch effort: the question of the

critical date, the status of the Agreemen t of 28March 1987 and the role of the effectivités in the

present case. But before that, Mr. President, allow me to reply to some preliminary questions.

I. Some preliminary questions

2. There are two such questions: firstly, the question put by Judge Donoghue and, secondly,

the nature of the agreement constituted by the exchange of letters of 29October and

2 November 2009 and the proof of its ratification by Niger.

1
CR 2012/25, p. 10, para. 1 (Pellet).
2Ibid., para. 2 (Pellet). - 3 -

11 A. Reply to Judge Donoghue’s question

3. On Friday 12October, Judge Donoghue put the following question: “Are the Parties

bound under international law by the results of the demarcation of the frontier to which the Special

Agreement refers in Article 2, pa ragraph 2?” Niger’s reply is as fo llows: the Republic of Niger is

bound, and has always considered itself to be bound, under international law, by the results

contained in the agreement constituted by th e exchange of letters of 29October and

2 November 2009 between Burkina Faso and the Republic of Niger.

4. My esteemed colleague Professor Jean Salm on will reply, when you give him the floor

during this second round of Niger’s oral argument, to the question put by Judge Bennouna.

B. The nature of the agreement constituted by the exchange of letters of 29October and

2 November 2009

5. MrPresident, Members of the Court, the results of the demarcation of the frontier in

question are indeed embodied in an agreement in the form of an exchange of letters dated

29 October and 2 November 2009 between Niger and Burkina Faso.

6. Listening to Burkina Faso, you would think that “entente” was almost a dirty word. The

opposing Party has made much of the translation by the Registry of that word “entente” by

“agreement”, considering that “ understanding”, for example, would have been a better translation

for “entente” than the word “agreement” 3. Because, for Burkina Faso, it cannot be an agreement,

unlike in particular the Special Agreement of 24February 2009, which is not “a mere

‘understanding’ of uncertain legal significance”4.

7. Mr.President, I plead fatigue on behalf of my distinguished opponent, Professor Alain

Pellet, who was the one who picked this semantic fight, and I shall therefore refrain from engaging

in any fisticuffs on the matter. Suffice it to recall here ⎯ with apologies to the Court ⎯ an

extremely well-known provision of a convention with which all internationalists are very familiar.

Article 2, paragraph 1 (a), of the 1969 Vienna Convention on the Law of Treaties ⎯ to which

12 Niger acceded in 1971 and Burkina Faso in 2006 ⎯ provides in unequivocal terms that:

“1. For the purposes of the present Convention:

3CR 2012/25, p. 12, para. 6 (Pellet).
4
Ibid., pp. 15-16, para. 15 (Pellet). - 4 -

(a) ‘treaty’ means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation.”

Yes, I plead the fatigue of my learned colleague, because that alone can explain his failure to recall

this provision. I would add only that numerous bilateral agreements are concluded between States

by means of an exchange of letters, as is plai n from international case law and in particular the

various cases which your Court has had occasion to hear . 5

8. The agreement constituted by the exchange of letters of 29 October and 2 November 2009

between Burkina Faso and Niger is therefore clearly an agreement under international law. This is

the “positive law” which the opposing Party vaunted, rather sarcastically, in its introductory speech

on Monday 6.

9. In the course of replying to JudgeDonoghue’s question, one of Burkina Faso’s counsel

cast doubt on the fact that the ratification of the ex change of letters of 2009 had indeed taken place

7
in Niger . In order to remove all possible ambiguity on this point, Niger has produced, in

accordance with Practice Direction IX of the Court

“Law No.2011-38 of 3December 2011, authorizing approval of the exchange of

Notes embodying the agreement between the Parties on the delimited sectors of the
frontier between the Republic of Niger and Burkina Faso, signed by the Minister
Delegate for Regional Co-operation of Bu rkina Faso on 29October 2009 and by the

Minister for Foreign Affairs and Co-operation of Niger on 2 November 2009”.
8
This law was published in the Journal officiel of the Republic of Niger on 19December 2011 .

Members of the Court will find the text at tab 21 of the judges’ folder. Pursuant to this law, the

President of the Republic of Niger signed the act of ratification by which, “[h]aving seen and

13
examined the said law”, he affirms: “We declare that it is accepted, ratified and confirmed, and

vow that it shall be scrupulously observed.”

10. By a letter dated 13February 2012, the Minister for Foreign Affairs, Agent of the

Republic of Niger, informed his counterpart from Burkina Faso of the fact that the ratification

process had been concluded in Niger. His letter, which you will find at tab 22, reads as follows:

5See, for example, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 332, para. 34.
6
CR 2012/25, p. 10, para. 1 (Pellet).
7
Ibid., pp. 12-13, para. 7 (Pellet).
8Journal officiel of the Republic of Niger, special edition No. 20, 19 December 2011, p. 1490. - 5 -

“With reference to the above-menti oned exchange of Notes embodying the
agreement between the Parties on the delimited sectors [of the frontier between our

two countries], I have the honour to inform you that Niger has just ratified this
exchange of Notes in accordance with the constitutional procedures in force.

Consequently, in the event that Burkina Faso has also carried out this formality
in accordance with its internal procedures, I would suggest that we exchange the
instruments of ratification at a date to be fixed by joint agreement as soon as possible.”

Clearly this letter received scant attention from its addressee, since no reaction was forthcoming

from the Government of Burkina Faso. And, as Monday’s oral argument showed, it would also

seem to have been overlooked by the opposing Part y in the present proceedings. Niger can only

regret this fact, but it willingly takes note of the apologies which were presented to it in this regard

by the Deputy Agent of Burkina Faso in his letter of 16 October 2012. The incident can therefore

be regarded as closed as far as Niger is concerne d. In any case, it confirms the importance that

Niger attaches to complying with its internationa l commitments. There can be no further doubt in

that regard.

11. However, this does not resolve the question of the legal scope of this agreement, on the

subject of which the Parties remain divided. Burkina Faso declared that

“if this exchange of letters constitutes a treaty within the meaning of international law,
subject to ratification under Article7 of the 1987Agreement, as the Agent of Niger
asserts, then it has not, in any event, been ‘officially recognized’ under international

law, to use Niger’s phrase in respect of th e consensual line of 1988 and the political
compromise of 1991; it has indeed not been ratified by both States; consequently . . .
it remains legally non-binding between the Parties” 9.

Niger agrees that a bilateral agreement which is s ubject to ratification, but which has not yet been

ratified by the two States concerned, does not have the force of law between them. But it was ⎯

14 and moreover still is ⎯ up to Burkina Faso, if it wishes the said agreement to become a binding

legal instrument between itself and Niger, to pe rform the necessary ratifi cation formalities in its

turn, so that the two States can proceed with the exchange of the instruments of ratification in order

to complete the process, rather than asking the Court to do something which, in international law, is

incumbent chiefly upon the States themselves. Th e Court, as respectable and respected as it may

be, does not conclude treaties; it settles disputes. Its function is not to give its blessing, through a

res judicata, to an international agreement which has been properly concluded.

9
CR 2012/25, pp. 12-13, para. 7 (Pellet). - 6 -

12. Following these preliminar y questions, I shall now turn to a number of aspects of the

applicable law which our opponents have raised once again. These are: the status of the

Agreement of 28March 1987, the question of the “critical date” and the role of the effectivités in

the present case.

II. The status of the Agreement of 28 March 1987 in the present case

13. Members of the Court, your interpretati on of Article6 of the Special Agreement of

24February2009 will be one of the keys to this case. Our opponents seek to rely on whatever

comes to hand, but the text of the Special Agreem ent of 2009 does not need to be compared to any

other text in order to be understood. It is pe rfectly clear that the terms of a special agreement

seising the Court can vary ⎯ and do generally vary ⎯ from one case to another. While the

subject-matter of frontier disputes may appear to be the same ⎯ the delimitation of the frontier ⎯

each case has its own historical background. What counts here is what the Special Agreement says,

and how it is to be understood in the light of inte rnational law. What counts in the present case is

what the Special Agreement of 24 February 2009 says in regard to the applicable law, and not what

it does not say, or what is said in other special agreements in other cases involving delimitation of

the land frontier. To show how “crucial”(our opponents’ term) is the reference in the Special

Agreement of February2009 to the Agreement of 1987, our opponents make the point that there

was no such reference in the Special Agreement in the Burkina Faso/Republic of Mali case, and

that

15 “[t]hrough its silence the Special Agreement in [that] case referred back to general
international law; the Special Agreement in the Benin/Niger case did not go very
much further; the rules and principles of international law in Article38 and the uti

possidetis juris represent no great commitment. However, the reference to the 10
1987 Agreement is another matter altogether and it is far more restrictive.”

This reasoning is difficult to follow: why on earth should the Special Agreement of 1983 between

Burkina Faso and Mali, or that concluded be tween Benin and Niger, have referred to the

Agreement of 1987?

14. Niger appreciates that our opponents seek to immure the present proceedings within the

walls of that 1987Agreement as regards the admi ssible evidence, and of the Erratum to the

10
CR 2012/25, p. 14, para. 12 (Pellet). - 7 -

1927 Arrêté as regards the course of the disputed fr ontier. However, it has to be shown

convincingly why, firstly, the Court should ab andon its well-established jurisprudence governing

the methodology applied by it in delimiting the cour se of each disputed sector of a frontier, as well

as the admissibility of evidence in that regard; and secondly, why the provisions of Article 6 of the

Special Agreement of 24 February 2009 should be applied selectively. For Burkina Faso gives the

impression of “picking and choosing” (as the Brit ish or the Americans would say), as if the

applicable sources of law set out in that article were a “shopping list”. May I remind you that

Article 6 is entitled “Applicable law”, and provides as follows:

“The rules and principles of international law applicable to the dispute are those
referred to in Article38, paragraph1, of the Statute of the International Court of

Justice, including: the principle of the intangibility of boundaries inherited from
colonization; and the Agreement of 28 March 1987.”

I will not give way to the temptation to embark on an exercise of interpretation of this article. I

would, nonetheless, note that my colleague on the ot her side of the Bar slipped into his speech last

Monday ⎯ almost casually, but it cannot have escaped you, Members of the Court ⎯ the

statement, in relation to that Agreem ent, that “[t]his is the law, the lex specialis, which is binding

on the Parties and likewise on the Court” 11.

15. Thus for Burkina Faso, the law applicable ⎯ the sole law applicable ⎯ in the present

case is the Agreement of 28 March 1987. In order to give you a visual illustration of this curious

16 conception of the application of a provision of an agreement drafted in a single sentence, here

[Slide of full text of Article6] is what Artic le6 of the Special Agreement of 24February2009

says, and here [Slide of the text of the article without the passages that Bu rkina disregards] is the

text as Burkina Faso understands it. Niger, so we are told, has composed a fairy tale for your

benefit; but it does not have the power— as if with a magic wand— to make entire passages

disappear from a legal text. In fact, Members of the Court, Burkina Faso goes one better: it is, I

believe, called a conjuring trick! At a stroke, all that is left is this famous “special law” 1, this

“treaty adopted freely and knowingly by the Parties and which has the force of law between

11
CR 2012/25, p. 14, para. 11 (Pellet).
12
Ibid., p. 16, para. 16 (Pellet). - 8 -

them” . As if the Special Agreement of 24Februa ry 2009, whose provisions our opponents thus

seek to camouflage, was not also a treaty; as if the provisions of Article 6 of that treaty, on which

the Court’s jurisdiction in the present case is f ounded, had, for their part, been adopted under

constraint and unknowingly ⎯ and as if that Special Agreement does not have the force of law

between them.

16. Members of the Court, Article6 of th e Special Agreement of 24February2009 was

drafted in such a way as to enable the Court, in order to settle the present dispute, to apply all the

rules and principles of international law, among wh ich the Parties wished to include the provisions

of the 1987Agreement, without substituting those pr ovisions for the entire corpus of the relevant

rules and principles of international law applicable both to proceedings before the Court and to the

delimitation of their land frontier. Clearly, if the parties to the 2009 Special Agreement had wanted

the Court to apply only the Agreement of 28 March 1987, and nothing but that agreement, in order

to settle this dispute, they would not have encumb ered themselves with the reference to Article 38,

paragraph1, of the Statute of the Court, or to the principle of the intangibility of boundaries

inherited from colonization. If this so-called lex specialis of 1987 were alone applicable to the

present dispute in its current contentious phase befo re the Court, then our opponents should tell us

when, to whom, or to what is applicable the lex generalis referred to in that same Article 6. But it

has not uttered a single word on the subject. That lex generalis has suddenly disappeared; for our

opponents, it no longer exists.

17. And the worst of it, Mr. President, is that Bu rkina Faso itself fails to keep faith with this

“special law” over which it makes such a hullabal oo. Criticizing Niger for having spoken on the

17 uti possidetis principle in the first round in terms that were “too abstract”, our opponents argue that,

in doing so, Niger

“failed to take account of the fact that, in our case, it must be applied while taking full
account of the Special Agreement; of the reference in the latter to the
1987 Agreement; and of the exclusive role which that Agreement accords, on the one

hand, to the 1927 Arrêté and its Erratum and on the other, in the alternative, to the
1960 IGN France map. That is the applicable law, and that above all else.” 14

13
CR 2012/25, p. 15, para. 13 (Pellet).
14
Ibid., p. 16, para. 16 (Pellet). - 9 -

No further reference at all to “any other releva nt document accepted by joint agreement of the

Parties”, which is the third type of document for the application of which Article2 of the

1987 Agreement provides, “should the Arrêté and Erratum not suffice”.

18. Make no mistake, Members of the Court, this is not an oversight, but a deliberate

omission. Our opponents are extremely attached ⎯ or at least they appear to be ⎯ to this article,

and are far too well aware of its pr ecise terms to have been guilty of a simple oversight. The truth

is that the reference to any other document accepted by joint agreement of the Parties runs counter

to the approach of our opponents, who maintain th at there have never been any such agreements.

Thus Burkina Faso pares down Article 2 of the Agreement, leaving only the Arrêté as amended by

the Erratum and the 1960 IGN map.

19. For Niger, the provisions of Article 2 of the Special Agreement of February 2009 form a

single whole, which the Court must interpret and apply, taking account: firstly, of the fact that the

Agreement of 28 March 1987 referred to therein was concluded in the context of a bilateral process

for demarcation of the frontier in which the Parti es had drawn up a limitative list of the documents

and materials that they wished to be taken into account for purposes of that exercise; and secondly,

of the fact that the Court cannot deprive itself of the means which are supposed to assist it in

establishing the legal truth in this case, by perm itting the exclusion of evidence that the Parties

never wished to exclude in this contentious phase of the settlement of their frontier dispute.

20. I now come to the issue of the critical date.

18
III. The critical date in this case

21. Mr. President, Members of the Court, in its oral presentation last week, Niger put

forward a conception of uti possidetis founded on the jurisprudence of the Court, and in particular

on the Judgment of the Chamber of 22 December 1986 in the Burkina Faso/Republic of Mali case.

How troublesome our opponents appear to find that Judgment. Unable to find fault with the use

that we make of it, they are reduced to criticizing the sound of our voice. When it is they who

invoke that Judgment ⎯ as indeed they do, but in a manner to which I will return shortly; when it

is Burkina Faso which invok es that Judgment, it “cites” it 15; however, when it is Niger’s counsel

15
CR 2012/25, p. 15, para. 15 (Pellet). - 10 -

16
who refer to it, “they recite it as if it were a breviary” . In respect of what Niger has to say on the

critical date, our opponents regard our approach as “uncompromising ⎯ formalistic . . .”. Burkina

claims that Niger “wants a single critical dat e”, and that we are forcing them “to choose” ⎯ or,

rather, that we “proclaim that the only critical date to be taken into account is the date of

independence” 17. But it is not Niger which is “uncompromising” in its approach to the critical date.

Members of the Court, it is this Court’s estab lished jurisprudence which imposes that approach ⎯

both on Niger and on Burkina Faso. Burkina, moreover, states that it is “more than ready to accept

18
that the critical date for the application of the uti possidetis principle in our case is August 1960” .

So why not leave it at that? Instead of that, our opponents launch themselves into an argument

which is largely irrelevant, persisting in seeki ng to convince us that there could nonetheless be

19
several critical dates. “The notion of a critical date is not unequivocal” , assert our opponents:

first, it can be used both “to determine the date for the application of the uti possidetis principle” as

20
well as “for establishing the date on which a dispute crystallized” ; secondly, “and more

generally, the term serves, in practice, to identify any date where pause must be taken in order to

assess the status quo, be this territorial or otherwise” 21.

19 22. I do not know to whom or to what this passage from our opponents’ oral presentation

represents a response. At no time has Niger enga ged in a general discussion of the notion of the

critical date in international law. It is the critical date, for purposes of the application of the

uti possidetis principle in a decolonization contex t, which Niger has identified from the

jurisprudence of the Court. Thus our opponents’ arguments here are completely beside the point.

Moreover, none of the judgments which they cite in support of their argument in footnote 22 to the

Verbatim Report of the hearings on Monday 15 October [CR2012/25] deals with a case of

boundary delimitation following decolonization. Fu rthermore, when our opponents refer to the

Burkina Faso/Mali case in support of their general argument on the critical date, they go about it in

1CR 2012/25, para. 14 (Pellet).

1Ibid., p. 16, para. 17 (Pellet).
18
Ibid., para. 18 (Pellet).
19
Idem.
2Idem.

2Idem. - 11 -

quite the wrong way ⎯ to put it politely. Last Monday, our opponents would have you believe that

in that case the Chamber of the Court “began by explaining that a first critical date was the dates of

independence”. However, not only is there nowhere to be found in the Judgment of

22December1986 either the expression, or even the idea, of a “first critical date”, but our

opponents have failed to tell you when the second criti cal date occurred, for Niger believes that, if

there is a first one, there must be a second.

23. So what is Burkina Faso telling you on this point, Members of the Court? That, over and

above the first critical date of 1960, “the 1986 Chamber had to go back in time in order to

determine [the] ‘content’ [of the uti possidetis] ⎯ i.e., the course of the frontier”22. Then, in order

to substantiate its assertions, it proceeds to quot e the Chamber’s Judgment, but inaccurately, since

the quotation is both truncated and taken out of context. According to our opponents, what the

Chamber allegedly said was the following:

“the Chamber’s task in this case is to indi cate the line of the frontier inherited by both

States from the colonizers on their accession to independence . . . [T]his task amounts
to ascertaining and defining the lines whic h formed the administrative boundaries of
the colony of Upper Volta on 31 December 1932.”

However, this is what the Court actually said:

20 “the Chamber’s task in this case is to indi cate the line of the frontier inherited by both
States from the colonizers on their accession to independence. For the reasons

explained above , this task amounts to ascertaining and defining the lines which
formed the administrative boundaries of the colony of Upper Volta on
31 December 1932. Admittedly, the Parties could have modified the frontier existing

on the critical date by a subsequent agreem ent. If the competent authorities had
endorsed the agreement of 15January1965 , it would have been unnecessary for the
purpose of the present case to ascertain wh ether that agreement was of a declaratory
or modifying character in relation to the 1932 boundaries. ” ( Frontier Dispute

(Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 , pp.632-633,
para. 148.)

24. Firstly, the omission of the phrase “For the reasons explained above” prevents us from

understanding why the Chamber states that its task here is to ascertain the 1932 boundaries. The

phrase refers back to paragraph 142 of the Judgmen t, where the Chamber “finds that the available

information is not always sufficient to establish which of two possible lines coincides with the one

which existed in 1932”. Secondly, as can readily be seen, the uncited remainder of the quotation

shows clearly that the critical date ⎯ the only critical date to which the Chamber is referring

22
CR 2012/25, p. 17, para. 19 (Pellet). - 12 -

here ⎯ is indeed 1960, when the two Parties to the dispute attained independence, as is shown by

the reference to a 1965 agreement which could have modified the existing boundary. Yes indeed,

Members of the Court, Niger prefers to recite the Court’s Judgment “like a breviary”, with the

fidelity required of believers in Holy Writ.

25. But our opponents did not content themselves with an abbreviated quotation from the

jurisprudence on the critical date. They further embarked on a journey through time which defies

the imagination. According to our opponents, “1960 relates back to 1947. . . . However, we have

to go a little further back in time, since 1987 (by virtue of the Parties’ Agreement of 28March)

‘bestrides’ . .. this entire period, and refers dir ectly to the 1927 Erratum, while fast-forwarding to

23
the 1960 map should that Erratum not suffice.” So 1987 “bestrides” the entire long period from

1986 to 1927, with an intervening fast-forward to the IGN map of 1960. We have to ask ourselves

what purpose this fast-forward serves, since Burkina Faso invites us to return to the limbo of the

primordial year of 1927, where everything was perfect as regards the course of the frontier. At the

same time, it asks us to “bestride” that same period ⎯ but in the reverse sense ⎯ in order to follow

21 that unchangeable 1927 line on the ground, so that it may serve as the frontier between what would

become the Republic of Niger and Burkina Faso. What a piece of pure fanatasy! Between the
24
“house of cards constructed by Niger” and this remarkable sandcastle of our opponents, there has

to be something a little more solid. Mr. President , we are left with one undeniable fact: for

purposes of the application of the uti possidetis principle in a decolonization context ⎯ as is the

case here ⎯ 1960, the date of the two countries’ indepe ndence, can relate to no other date than

1960, the one and only critical date on which the colonial heritage falls to be determined.

26. It only remains for me now, to conclude my oral presentations in this case, to reply to

certain criticisms addressed to Niger by our oppone nts, in the course of their second round of oral

argument, on the role of the effectivités in the present case.

23
CR 2012/25, para. 20 (Pellet).
2Ibid., p. 18, para. 22 (Pellet). - 13 -

IV. The role of effectivités in the present case

27. Mr. President, Members of the Court, Niger has told you that, in its view, this case

corresponds to the fourth of the hypot heses identified by the Chamber in the Burkina

Faso/Republic of Mali case, namely the one in wh ich the title is insufficient ⎯ not non-existent,

not absent, but insufficient ⎯ and where the effectivités can be used to supplement it. The other

Party has not told you which of these four hypotheses it argues in this case. It could not tell you,

because it does not know itself which of these hypotheses can be used to support its position.

Moreover, it admits as much. Indeed, having in voked the hypothesis where “the act corresponds

exactly to law” and where “the only role of effectivité is to confirm the exercise of the right derived

from a legal title”, and then another hypothesis wh ere “the act does not correspond to the law,

where the territory which is the s ubject of the dispute is effectively administered by a State other

than the one possessing the legal title” and where “pre ference should be given to the holder of the

title”, our opponents declared on Monday: “[w]e are in one, or perhaps the other, of [these] two

hypotheses” 2. To mask their confusion, our opponents glibly state that Niger “has the wrong

26
22 hypothesis” and that Burkina is “certainly not in the one in which [Niger] has positioned

[itself]”2.

28. Burkina Faso’s approach to the case was bound to lead it into a dead end. First of all, the

other Party argues the untenable theory of a clear and precise title, sufficient in itself to determine

the entire course of the frontier. But it clings to th is theory so tightly that unfortunately it does not

hesitate to cite case law which is inappropriate to support it. Our opponents first cite the Judgment

delivered by the Court on 3 February 1994 in the Libyan Arab Jamahiriya/Chad case. The

reference they make to paragra ph 51 of that Judgment is misleading. In that paragraph we do

indeed find the following passage, which appears in parenthesis, moreover, as an explanation of the

Court’s reasoning: “Having before it a clause whic h leaves little to be desired in the nature of

clearness, it is bound to apply this clause as it sta nds, without considering whether other provisions

might with advantage have been added to or substituted for it.” ( Acquisition of Polish Nationality,

Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 20.)

25CR 2012/25, p. 27, para. 41 (Pellet).
26
Ibid., para. 40 (Pellet).
27Ibid., para. 41 (Pellet). - 14 -

29. However, in that case the Court was not c onsidering a text determining the course of the

frontier between Libya and Chad. It was consider ing the interpretation of Article 3 of the 1955

Treaty which “refers to the international instruments ‘ en vigueur’ (in force) on the date of the

constitution of the United Kingdom of Libya, ‘ tels qu’ils sont définis ’ (as listed) in the attached

exchange of letters” (Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports

1994, p.24, para. 49), and not a legal instrument determining the frontier line between the two

parties to the dispute. The terms of that Article 3 were interpreted differently by the parties. The

Court, moreover, notes that

“[t]he parties could have indicated the frontiers by specifying in words the course of
the boundary, or by indicating it on a map, by way of illustration or otherwise; or they
could have done both. They chose to proceed in a different manner and to establish,

by agreement, the list of international inst ruments from which the frontiers resulted,
but the course for which they elected presen ts no difficulties of interpretation. That
being so, the Court’s task is clear.”

Then comes the passage which I mentioned above and which begins with the words “[h]aving

before it a clause which leaves little to be desired in the nature of clearness, etc.”. The clause was

so clear because it was essentially enumerative, li sting a number of international treaties, and not

23
operative, as is usually the case with frontier delim itation instruments. As you can see, Members

of the Court, it is something quite different from what our colleagues on the other side of the Bar

would have us believe. What is really at issue here is their method, which is defective.

30. The fact that it is defective cannot be masked by our opponent’s skill in picking out a few

words from the speech by the Agent of Niger before the Court, in which he refers to the efforts

made by both States since their accession to i ndependence “to identify the precise line of the

frontier”28. “Identify” is an inappropriate word here, according to the other Party, since it could be

a synonym for “delimit”, whereas the Parties have only ever tried to demarcate their frontier, in

particular by concluding the 1987 Agreement. I hesitated, Mr. President, before looking at this

spurious semantic quibble; because so what? You cannot demarcate a frontier without knowing it,

that is to say, without identifying it. Our opponents reduce demarcation to the act of marking out.

Perhaps they are not aware that the first stage in the process of demarcation is an evaluation of the

frontier, which includes establishing co-ordinates, and that the stage which consists of constructing

28
CR 2012/22, p. 12, para. 10 (Bazoum). - 15 -

boundary markers only comes afterwards. That is why the exercise of demarcation always

involves multidisciplinary teams, within which the legal experts assist in applying the delimitation

instrument correctly.

31. But what is more serious, Members of the Court, is that Burkina Faso has consistently

misled both Niger and the Court by claiming th at “[t]he matter is settled” regarding the

non-binding nature of the much-vaunted “consensual line”, inasmuch as it was not the subject of “a

29
conventional text” . It maintains to the end that some thing can be done about this improbable

“consensual line”. On Monday, Professor Pellet beli eved he could usefully cite in support of this

cause the Judgment delivered by the Chamber of the Court in the Gulf of Fonseca case. But he

quoted a passage which has absolutely no releva nce to the present case, whereby the Chamber

declared that

“[n]o account could be taken by the Cham ber of any negotiating concessions which
24
might have been made as to the position of the limit . . . the Chamber is entitled to take
account of the shared view in 1881 and 1884 of the Parties as to the basis and extent of
their dispute” .

32. The quotation is truncated, that is to say, there is a passage left out in the middle; but

even contemplating it in the state in which it was produced by the other Party, you do not have to

read it many times before you realize that taking account of the view of the parties “as to the basis

and extent of their dispute” has absolutely nothing to do with the fact that there is an agreement

between the Parties ⎯ in this case the 1987 Agreement ⎯ which defines the documents to be used

for the purpose of determining the course of the common frontier in a bilateral process. Did the so-

called “consensual line” concern “the basis and ex tent” of the dispute between Niger and Burkina

Faso? Is that the positive law extolled by the ot her Party and with which it merrily urges Niger to

comply?

33. Another reason why Burkina Faso does not know to which of the hypotheses identified

in the Chamber’s 1986 Judgment in the Burkina Faso/Republic of Mali case it should subscribe is

that, despite its energetic defence of its “clear title” theory, it is fo rced to bow to reality, to the

facts. Thus, although the other Party contests in principle the idea that colonial effectivités have a

29
CR 2012/25, p. 20, para. 26 (Pellet).
30
Quoted in CR 2012/25, p. 20, para. 26. - 16 -

role to play in this case, it is obliged to concede, in words that convey both its unease and the fact

that it is torn between two irreconcilable strands of logic, that “the Erratum is not incomplete and

only very marginally does not suffice” . In other words, it is complete and does not suffice, albeit

marginally! Herein lies another potential semantic quibble, but Niger will not get involved in this

one. It is far more important to repeat here th at Burkina Faso no longer adheres absolutely and

exclusively to the complete title constituted by the 1927 Erratum. It sometimes breaks free from it,

as and when it suits, and gives preference to the 1960 IGN map. Then it decides that both Parties

should leave it at that; namely, at this exceptional case where it allows us to follow a tiny bit of the

line on the IGN map. For the rest, no other document is admissible because the door was shut once

25 and for all on which documents can be used in 1987, in the Agreement of 28 March.

34. I have shown during these pleadings that the other Party is far from being absolutely

faithful to Article 2 of that Agreement, which it brandishes feverishly when it accuses Niger of

“substitut[ing] the line shown on the map with an improbable mishmash of more or less formal

colonial documents (generally less ra ther than more so, by the way)” 32. However, armed with its

complete title, Burkina Faso could have provided the Court with confirmatory effectivités, since it

claimed on Monday that “[t]he colonial effectivités have no role to play, other than a confirmatory

33
one” . But it does not provide any at all, Members of the Court; on the contrary, it persists in

trying to pick holes in or undermine the credibility of the hundreds of documents supplied by Niger

to confirm boundary practice and demonstrate the complexity of the case. But obviously, it could

not call into question the approach taken by the Co urt in resolving cases of this kind, from which it

is clear that the Court takes account of all the evidence produced by the parties in order to ascertain

the course of a frontier, even one which has alread y been defined in an instrument that is not

contested by the parties, as the analysis of the Judgment of the Court in the Cameroon v. Nigeria

case has so eloquently shown. Mr. President, Niger notes that Burkina Faso has not for one

moment contested the relevance of that decision, which describes in detail the methodology used

by the Court in the said case. Niger accordingl y notes that the Parties do not disagree on this

3CR 2012/25, p. 21, para. 27 (Pellet).
32
Ibid., p. 22, para. 29 (Pellet).
3Ibid., p. 27, para. 40 (Pellet). - 17 -

subject. Similarly, Niger notes that the Parties no longer really disagree as to the documents from

the 1932 to 1947 period. No doubt remembering its position on this subject in the Burkina

Faso/Republic of Niger case, Burkina Faso remained silent on the matter in the second round of its

oral argument.

35. Mr. President, Members of the Court, Professor Pellet concluded his pleadings on

Monday by stating that “[i]t is quite simply inappropriate to claim, in our case, that ‘the

34
1927 Arrêté and its Erratum are one piece of evidence of the frontier line, among others’” . What

should we do? Niger is not arguing what is approp riate, but what is stated by international law.

Here, it is what is stated in the established juri sprudence of your Court, in particular in the Burkina
26

Faso/Republic of Mali case, regarding all acts of colonial law, and as the Court’s predecessor, the

Permanent Court of International Justice, found earlier in respect of domestic legislation and

administrative acts. Burkina should therefore have cited jurisprudence, in this connection, and not

Niger’s pleadings which themselves refer to it. If the other Party disagrees with the Court’s

jurisprudence, it should say so to the Court, rather than reproaching Niger for relying on it.

36. Members of the Court, as you can see, the methodology used by the Republic of Niger

for the purposes of determining the disputed fron tier remains on solid ground. And I shall end my

pleading there, having paved the way for that of ProfessorTankoano, who will contest what

remains of the straight-line theory put forward by the other Party, that of Professor Salmon on the

course of the frontier in the Téra sector, and that of Professor Klein, who will close by replying to

Burkina Faso’s challenges as to th e course of the frontier in the Say sector. I thank you for your

kind attention.

Mr. President, I would now ask you to give the floor to Professor Tankoano.

The PRESIDENT: Thank you very much. I give the floor immediately to

Professor Amadou Tankoano. You have the floor, Sir.

34
CR 2012/25, p. 27, para. 41 (Pellet). - 18 -

TArN. KOANO:

T HE STRAIGHT LINE POSTULATE

1. Mr. President, Members of the Court, during the pleadings on Monday morning,

Burkina Faso continued to defend its assertion that th e frontier in the Téra sector is composed of a

series of straight lines. The other Party’s argumen t on this point focused on two main areas. First,

our opponents presented their view of how the 19 27 official texts had been prepared. Then

Professor Forteau referred to a set of documents fro m the colonial period which, according to him,

show that the colonial administrators themselve s saw the boundary in the Téra sector as following

27 straight lines. This presentation will be devoted to rebutting those two arguments.

A. The process of preparing the 1927 official texts

2. During the second round of oral argument, BurkinaFaso once again put forward the

hypothesis that the 1927 Arrêté and Erratum had been prepared in a way that might be described as

essentially “technocratic”. It was the Governor-General of FWA, and he alone, who determined ex

nihilo the new boundary between the Colonies of Upper Volta and Niger in the cosy atmosphere of

his office in Dakar; that is not stated explicitl y by our opponents, but their scenario would seem to

suggest just that kind of atmosphere. Accord ing to Professor Forteau, “the author of the

instrument, the Governor-General of FWA, did not have umpteen methods at his disposal for

delimiting the territory of the colonies” 3. In this case, recourse to an artificial— and therefore

36
arbitrary— line was necessary . In this context, our oppo nents reaffirmed the constitutive

character of the 1927 texts 3. And Professor Forteau described in particularly graphic terms the

method used by the author of those texts:

“When reading the Erratum, it is appare nt that its draftsman is following the

course of the line with his pen: ‘[t]he boundaries’, states the Erratum, ‘are determined
as follows’: ‘[a] line’, which starts from the heights of N’Gouma, and then passes in
turn through a number of points until it reaches Tong-Tong; ‘ this line [the author of

the Erratum is still following the same line, he has not lifted his pen] then turns
towards the south-east, cutting the Téra-Dori motor road at the Tao astronomic marker
located to the west of the Ossolo Pool, and [again, his pen has not moved from the line

3CR 2012/25, p. 37, para. 6 (Forteau).
36
Ibid., para. 8 (Forteau).
3CR 2012/25, p. 26, para. 39 (Pellet). - 19 -

he is following] reaching the River Sirba at Bossebangou’. ‘It [the same line again,
38
his pen has still not moved from this line] almost immediately turns back up’, etc.” .

It’s a pretty picture and, as we listen to ProfessorForteau, we can almost see the course of the

boundary being traced by the author of the texts.

3. That said, what actual basis is there to s upport Burkina Faso’s scenario? None at all. In

28 fact, the case file shows that a quite different me thod was used to prepare the 1927 texts. I would

first of all recall that the boundaries of the cantons of Dori cercle which were to be transferred to

Niger in accordance with the presidential Decree of 28 December 1926 were set out in a Record of

Agreement of 2February1927 concluded be tween the representatives of the Colony of

39
Upper Volta with a view to preparing the Arrêté of delimitation . The wording of this Record of

Agreement is as follows: the cantons concerned [Slide showing the text of the Record of

Agreement and the Arrêté]

“are bounded to the north by the current boundary with Sudan (Gao cercle) as far as
the heights of N’Gourma, and to the west by a line passing through the Kabia ford,
Mount Darouskoy and Mount Balébanguia, w est of the ruins of the village of
Tokébangou, and Mount D oumafondé, which then turns towards the south-east,

leaving the ruins of Tong-Tong to the east and descending in a north-south direction,
cutting the Téra-Dori motor road to the west of the Ossolo Pool, until it reaches the
River Sirba (boundary of Say cercle), near to and to the south of Boulkalo”.

As you can see on the screen, this text is reproduced word for word in the Arrêté of

31 August 1927. Its key elements are also contained in the text of the Erratum of 5 October. [End

of slide]

That being so, how is it possible to continue to claim that the 1927 texts constitute a new

situation, with no link to the realities on the ground? The 1927 texts were undoubtedly prepared on

the basis of work carried out on the ground, which sought to clearly reflect the boundaries of the

cantons as they existed at that time. It was not th e intention of the authors of the Record of

Agreement of 2 February 1927 to draw abstract and artificial straight lines, but to reflect the actual

boundaries. As the commander of Dori cercle very clearly stated in his letter of 14 August 1929 to

the Governor of UpperVolta, the Record of Ag reement concluded between Governor Brévié and

Inspector Leffiliatre “first lists the cantons transferred to Niger and then determines the boundaries

38
CR 2012/25, p. 38, para. 10 (Forteau).
39
MN, Ann. C 7. - 20 -

of the two colonies in accordance with those of the cantons” . It is the outcome of this work that

the Governor-General of FWA reproduced word for word in the 1927 Arrêté, without altering it in

any way. In so doing, the authorities of French West Africa obviously adhered unreservedly to the

method adopted by the authors of the Record of Agreement: to determine the boundaries of the

29 cantons first of all, and then, on that basis, to fix the boundaries between the two colonies.

4. It is clear from the cartographic file that those pre-existing boundaries did not, for the

most part, follow a straight-line course in th is sector. In his statement last Friday,

Professor Jean Salmon showed that the boundary iden tified by Lieutenant Coquibus in 1908 in the

Téra sector probably did not follow a straight lin e, but rather a slightly curved line from the

Tong-Tong astronomic marker to the tripoint between the cercles of Dori, Tillabéry and Say.

[Slide of the “new frontier” map] This shape is found on the 1927 “new frontier” map. [Straight

lines superimposed] As you can now see on the screen, Professor Forteau’s claim that “that it

suffices to lay a ruler on the 1927 map to see that it provides in reality for a boundary in the form of

two straight lines” 41 is clearly not correct. The 1934 and 1946 Niamey maps kept the same curved

line. [End of slide] Compared to the “new fr ontier” map, the IGN line is very sinuous because the

scale of the map makes this possible. As we shall now see, neither do the various documents from

the colonial period referred to by our opponents provide any basis to support the straight-line

theory in the Téra sector.

B. The documents from the colonial period do not support the hypothesis of a
boundary line in two straight-line sections in the Téra sector

5. In his statement on Monday, Professor Forteau referred to various documents which, in his

view, showed that the colonial administrators agreed that the boundary between Tong-Tong and

Tao consisted of two straight lines. In reality, the outwardly convincing exercise undertaken by our

opponent is an example of the art of mobilizing a wide variety of circumstances as if they were

42
proof of an unconditional surrender to the obsession with straight lines .

40MN, Ann. C 25.
41
CR 2012/25, p. 44, para. 39 (Forteau).
42Ibid., p. 45, para. 40 (Forteau). - 21 -

6. The first hypothesis we find in those documents is that the administrators considered that

the 1927 line, by establishing a boundary crossing Dori cercle in a west-east direction, made it

30 difficult for them to keep a check on their nomads who had fields on either side of the boundary

and who wished to settle where taxes were lower. The administrators therefore complained about

that new boundary, without however ever considering the line in question to be a straight line. And

although they considered the line to be fixed, they wanted it to be applied flexibly in order to

resolve specific cases. This is the case with the letter of 9August1929 43and the letter of

14August1929, in particular. In this context, the other Party also criticized the letter of

31 July 1929 44 by asserting that its author, who said that he would like “Téra to agree to apply a

little less precision in relation to th e boundaries between Dori and Tillabéry” 45, was attempting “to

46
escape the rigours of... the Erratum” . However, in this case, wi shing to escape the rigours of

the Erratum in no way implies that the Erratum established a straight line in this sector, but rather

that its existence made it possible for nomads to move away from the cercle of the author of the

letter. That, I am sure you will agree, is a completely different type of concern.

7. The same applies to the subject of the letter of 19 August 1929, cited by Professor Forteau

47
for the same purposes . What the author of the letter, Taillebourg, seeks to do is to retain the

population and the cultivated fields in spite of the new boundary. It is therefore not a matter in this

case of a boundary that follows a straight line, but simply a boundary that makes the administration

of that part of the Téra sector difficult. Ou r opponents also cite the letter of 27 September 1929 48,

in which the Governor of Niger refers to “a theo retical and artificial frontier”. ProfessorForteau

deduces from this, without further ado, that this is “precisely what a line in two straight sections

represents”. In fact, Governor Brévié referred to a theoretical and artificial frontier because it

established a new boundary in an area where previ ously there had been none for the nomads, in

4CR 2012/25, para. 41 (Forteau).

4Ibid., para. 42 (Forteau).
45
MN, Ann. C 23, p. 2.
46
CR 2012/25, p. 45, para. 42 (Forteau).
4Ibid., p. 46, para. 43 (Forteau).

4CR 2012/20, p. 28, para. 68 (Forteau). - 22 -

what formerly had been a single cercle — the Dori cercle. The author of the letter makes no

mention of two straight lines . 49

31 8. The second hypothesis is that the admini strators describe the boundary as artificial or

theoretical. However, that terminology does not me an that they are referring to artificial straight

lines, but that, like all lines on a map that are invisible on the ground, they did not exist for the

nomads and that they must not be allowed to cause problems for either the local populations or the

administrators. Thus, in a letter of 6 February 1932 50, the Chef de cabinet of the

Lieutenant-Governor of Upper Volta describes the Erratum boundary in the Téra sector as “a

boundary that is simply a line on the map” 51. In Mr. Forteau’s opinion, that automatically means a

reference to an artificial boundary 5. In fact, the conclusion is still the same: the new boundary re-

creating Téra Subdivision made the management of nomads problematic; that did not mean,

however, that the boundary followed a straight line.

9. The third hypothesis is that the boundary is described as theoretical and abstract, in the

sense that it does not correspond to the reality on the ground. Once again, that does not necessarily

mean that it consists of two straight lines. Thus, in the letter of 19 May 1943 53, the line is regarded

as “purely theoretical and artificial”; it is not th e line that is followed in practice. Likewise,

according to our opponents, the author of the repor t of 24 December 1953 said that “the Tao-Sirba

line of the Arrêté was more ‘theoretical’ than the proposals by Delbos in 1927 for a series of

straight lines” 54. What does AdministratorLacroix, the author of the report, actually say? He

states: “Again, this clearly involved theoretical lines ⎯ which still did not mean much to the local

people concerned — but which were nonetheless easier to identify in the field than the “Tao-Sirba

line” in the Arrêté.” 55 This unredacted excerpt from the report in question once again clearly shows

that the question of theoretical boundaries is rais ed solely in relation to the problems those

4CR 2012/20, p. 28, para. 68 (Forteau).

5CR 2012/25, p. 46, para. 44 (Forteau).

5MN, Ann. C 44.
52
CR 2012/25, p. 46, para. 44 (Forteau).
53
Ibid., pp. 46-47, para. 47 (Forteau).
5Ibid.

5MN, Ann. C 79. - 23 -

boundaries caused on the ground. There is no mention in this document of the two straight lines to

which the other Party repeatedly refers. In a simi lar vein, our opponents attempt to use a letter of

32 17 December 1927 56 in support of their thesis, in which Delbos, referring to the Coquibus map,

stated that it “only showed theoretical lines and points”. However, contrary to what

ProfessorForteau appears to infer, that does not mean that the theore tical lines in question

consisted of two straight lines. We know, on th e contrary, that the line shown on Administrator

Delbos’s sketch-map is a curved line, like the Coquibus line.

10. The fourth type of documents cited by our opponents in support of their argument that

the colonial administrators adhered to a course c onsisting of two straight lines in the Téra sector

consists of documents in which those administra tors are said to acknowledge that the boundary

runs from Tong-Tong to Bossébangou following a straight-line course. In his letter of

10 April 1932, Roser refers to problems posed by the interpretation of the Erratum “when a straight

57
line is drawn between the Tao marker and the River Sirba at Bossébangou” . However, it is

precisely an interpretation of the text that he dis putes and which he rejects as being contrary to the

effectivités.

11. The general conclusion that Professor Fo rteau draws from the various documents he

selected is the following: “What emerges from all of these documents is clear: the Erratum

provided for an artificial delimitation, in the form of two straight lines, between the Tong-Tong and

58
Tao markers and Bossébangou.” This conclusion is quite incorrect. As we have just seen, while

it is true that various documents from the co lonial period refer to the 1927 texts as creating

theoretical or artificial boundaries, those term s must not be understood as having the meaning

given to them by our opponents. In none of the documents in question do we find any mention of a

course consisting of two straight lines in the Téra sector, contrary to what the other Party would

have you believe. The question of the theoretical or artificial nature of the boundary is raised

primarily in relation to considerations connected with the administration of nomadic groups in the

area. Whereas until 1927 those groups could move freely back and forth across Dori cercle, which

5CR 2012/20, p. 28, para. 68 (Forteau).
57
MN, Ann. C 45, pp. 5-6; cited in CR 2012/20, p. 28, para. 68 (Forteau).
5CR 2012/25, p. 47, para. 48 (Forteau). - 24 -

at that time extended to the River Niger, their m ovements were severely affected by the creation of

33 a new boundary between two distinct colonies in th is sector in 1927. These explanations of key

historical and sociological issues have once again been completely ignored by our opponents.

12. Mr. President, Members of the Court, that concludes my statement in the second round of

oral argument. I should like to thank you very much for your attention. Mr. President, I should be

most grateful if you would give the floor to Professor Jean Salmon, who will continue with Niger’s

oral presentation.

The PRESIDENT: Thank you. I give the floor to Professor Salmon... although I may

interrupt you at the appropriate moment for a break. You have the floor, Sir.

Mr. SALMON: I thought that my statement would be after the break, Mr. President. Could

you tell me how many minutes I have now, Mr. President, so that I do not exceed that time?

The PRESIDENT: About 20 minutes.

Mr. SALMON: Very well. Thank you, Mr. President.

T HE COURSE OF THE BOUNDARY IN THE TÉRA SECTOR

1. Mr.President, Members of the Court, in its written pleadings and its first round of oral

argument Niger has set out the reasons why the boundary between Niger and Upper Volta in the

Téra sector was not an artificial and arbitrar y line and, as our colleague Professor Tankoano has

just demonstrated, masterfully in my view, could not be formed of two straight lines.

The section of the boundary between Tao a nd the point where the boundary reaches Say

cercle was imprecise; research had to be carried ou t to identify the boundary at the date of the

uti possidetis in this sector. Two methods were required: the first was to refer to cartographic

material, and in particular the IGN map of 1960, while the second consisted of taking into account

the effectivités throughout the colonial period.

34 2. The cartographic material yielded several maps and sketch-maps, which provided

important information in order to identify the noti on that people had of the boundary in this sector

at various times. - 25 -

(a) First and foremost is the sketch-map prepar ed by Captain Coquibus, which had served as a

basis for determining the 1910 line and which, acco rding to the information that we have about

it, showed a curved line.

(b) Next we have the Delbos sketch-maps, which enjoyed great popularity in Dori and Tillabéry

cercles and which, while adopting the course of the Coquibus line for the vast majority of the

boundary, showed a triangular salient, known as the Yagha or red triangle, in its eastern part.

(c) The “new frontier” map, which was sent to the colonies and cercles with the Erratum on

5October 1927, illustrated the intention of the Erratum’s authors: it showed the boundary

following a curved line, directly inspired by the Coquibus line, but ignored the red triangle

which was dear to Commander Delbos. Th is map showed the tripoint between the cercles of

Say, Dori and Tillabéry at a point with the co-ordinates 13° 29' 08" N and 01° 01' 00" E and not

at Bossébangou. This map would prove to be a valuable resource for the cercle commanders.

They had received it as an official map accompanying the Erratum, as is shown for example by

the Roser/Boyer Agreement of 1932.

(d) Sketch-maps of cantons: in the Téra sector only one sketch-map has come down to us

concerning Diagourou canton. Although the boundaries of this canton, which were constantly

being crossed by the nomads, were not easy to delimit, the Head of Téra Subdivision was able

to append to his report of 10 August 1954 on the census of Diagourou canton a map showing

all the villages of that canton 5. Its date is known. The map was appended to the said

60
1954 report as is clear from the first page thereof .

(e) However, the map which would ultimately play a decisive role in the post-independence period

is the collection of sheets produced in 1958/60 by the Institut géographique national de

France. This map was distinguished not only by its unprecedented topographic quality but also

35 by the fact that it identified the administrative boundaries which existed in 1958. It constitutes

the best photograph of the colonial legacy at a date close to independence. This is particularly

true in the Téra region, which is the most populou s of the entire frontier. The best evidence of

the care taken by the drafters of the map to pl ot the inter-colonial boundary in this sector as

59
MN, Ann. D 21.
60
MN, Ann. C 84. - 26 -

accurately as possible, is the large number of t oponyms and the very meandering route that is

adopted for the boundary line, mirroring as closely as possible the population distribution on

either side of the boundary.

3. As for the effectivités, they are established by various documents: tour reports of cercle

commanders, official lists of villages, electoral lists from 1956, Records of Agreement regarding

the settlement of territorial disputes, etc.

4. Based on its conviction of the care w ith which the drafters of the 1960map had

represented the probable boundaries of the cantons as they existed in practice at the critical date,

Niger considered that this map should in princi ple serve as a guide for determining the course of

the inter-colonial boundary in 1960. Unless abnormal deviations in relation to the texts or manifest

lacunae in the information on the canton boundaries are discovered, and subject to the necessary

caution where the hesitation of the map’s drafters is reflected in gaps in the line of crosses, Niger

believes that, in this sector, it is the boundary dr awn on the IGN map which should be adopted as

the frontier line.

5. This may be an appropriate time to re ply to JudgeBennouna’s question [slide of the

sketch-map showing the line of the frontier]. Fo r the record, that question reads as follows: “To

what extent and for which section(s) do each of th e Parties agree to refer to the 1960 IGN map to

establish the course of the frontier between them?”

The sketch-map which is now being shown ma rks in red the portions of the boundary line

shown on the IGNFrance map which are followed by Niger, and in yellow those which are not.

This sketch-map therefore shows that the first section in which the boundary shown on the map is

followed by Niger is the one which runs from the Ta o astronomic marker to the site of the former

“tripoint” between Dori, Tillabéry and Say cercles. The only exceptions in this section are the sites

of Petelkolé and Oussaltan. The second section in which the boundary that appears on the

1960 map is followed by Niger runs from the Goui na frontier point to the beginning of the Botou

36 bend. Niger will provide in writing, before the deadlines set by the Court, additional information

about the reasons for which it does not adopt the other portions of the boundary line shown on the

IGNFrance map. I hope that this reply will satisfy JudgeBennouna for the time being [end of

slide]. - 27 -

6. Thus, to return to the Téra sector, Niger only makes three modifications to the line shown

on the IGNFrance map. The first is the Vibourié marker, which escaped the notice of the map’s

drafters, but which is justified, as we demonstrated last week and as my colleague

Amadou Tankoano has again mentioned, by the existence of an intermediary frontier point between

Tong-Tong and Tao, which was established by means of a marker by the colonial authorities. The

other two exceptions are at Petelkolé and Houssaltane.

7. For this sector our opponents speak of “enclaves” 6. The word is skilfully chosen. It

suggests that Niger is claiming areas which are in Bu rkina territory. It will not fool anyone. In

fact, what we have here is a border area which was very well analysed in the Roser/Boyer report of

10 April 1932 6. Professor Thouvenin regarded the analysis that I made of that document last week

63
as “unfruitful— not to say impenetrable” . It is true that the Roser/Boyer report is not easy to

decipher, but it nonetheless illustrates the difficulties that the cercle commanders had to overcome.

Boyer, the Head of Téra Subdivision, and Roser, the commander of Dori cercle, say that they

travelled the course of the boundaries of their administrative divisions. What boundaries? In

particular the Téra/Dori border area; they write: “We travelled together from Tao to Tingou,

64
passing through Petelkelé, Houssaltane, Bangaré.” This is therefore about localities on the

frontier and not enclaves. They do so following a map. Roser specifies that it is “[t]he map that

the Dori cercle received from the administrative centre in support of the official text” and added

that he “noted this by very carefully enlarging the map to 1:500,000” 65. Turning then to another

frontier point (in the Yagha triangle), he writes th at “the line... cannot lie more than a dozen

37 kilometres from the frontier as shown on the official map. A millionth-scale map cannot possibly

show clearly all the twists and turns of a boundary line.” Contrary to what Mr.Thouvenin

66
asserts , it is not therefore in any sense an extrapolation to consider that this description is of the

“new frontier” map that Roser has with him. It is true that, basing themselves on the

61CR 2012/25, p. 29, para. 2, in particular (Thouvenin).

62MN, Ann. C 45 and judges’ folder, tab 13.
63
CR 2012/25, p. 30, para. 3 (Thouvenin).
64
MN, Ann. C 45 and judges’ folder, tab 13, p. 1.
65Ibid., p. [5].

66CR 2012/25, p. 30, para. 5 (Thouvenin). - 28 -

Delbos/Prudon maps, which they particularly pr ized, the two administrators, Roser and Boyer,

believed that the boundary ought to have gran ted the red Yagha triangle to Upper Volta.

Nevertheless, the fact remains that the por tion of the boundary which concerns us here ⎯ a

boundary which, unless the Governor of Upper Volta objected, those administrators were

proposing to mark with frontier posts ⎯ passed, according to them,

“through Bangaré (three districts: one to the east of the Bangaré marigot and two to
the west...), to Houssaltane, which it l eaves to the east, to Petelkarkalé, which it

leaves to the west, to Petelkolé which it leaves to [the] east, and from there it runs in a
straight line to the frontier marker situated 5.75 km from the Tao astronomic marker”.

This is what is indicated with great precision by the effectivités which prevailed, at the time, in this

sector. The course of the boundary between Petelk arkalé and Petelkolé is moreover confirmed by

the tour report of 24 December 1953 of Deputy-Administrator Lacroix (Tillabéry cercle) . 67

Burkina, on the other hand, regards these texts as evidence of the application of the Erratum.

However, that is not the point which is the pur pose of our demonstration. This document is

relevant in that it is evidence of the de f acto boundary which was applied on the ground. The

village of Petelkolé appears again on the map of Diagourou canton of 10August 1954. In any

case, the Court will have noticed that Burkina does not provide a single piece of documentary

evidence to show the effectivités at Petelkolé. It would have been difficult to do so against the

word of the commander of Dori.

8. But what settles any dispute over this frontier point once and for all is the establishment of

a juxtaposed frontier post in this locality. Burkin a cannot contest the conclusions of the bilateral

(Burkina-Niger) Committee on the identification of s ites for the installation of juxtaposed control

posts of 9 June 2006, which recommended the construction of the post which is situated 2 km from

68
the frontier of Burkina . Here, all of a sudden and for the first time, during the proceedings before

38 the Court, we have Burkina arguing that this post was created by a committee which had no power

69
to conclude a frontier agreement . But that is obviously not what this is about. The bilateral

Committee in question did not conclude a frontier agreement and Niger has never claimed that it

67MN, Ann. C 79, p. 3.
68
CMN, Ann. A 24 and judges’ folder, tab 16.
69CR 2012/25, p. 31, paras. 11-12 (Thouvenin). - 29 -

did. That Committee simply noted that the frontier passed between Petelkolé (Niger) and

Seynotyondi (Burkina). No one contested that report. The juxtaposed control post was built on the

proposed site and has been in operation for many year s. It is hard to imagine that Burkina would

have failed to oppose the erection of such a post, and the construction by Niger of 2km of road

beyond that post, if all of this had taken place in Burkina territory.

Mr. President, I think that now might be a good time, with your permission, in order to avoid

my starting . . .

The PRESIDENT: Thank you very much. It see ms that it really is teatime now! We will

take a break of 20 minutes and then go on with your presentation. The sitting is adjourned for

20 minutes.

The Court adjourned from 4.40 p.m to 5 p.m.

The PRESIDENT: Please be seated. I invite Professor Salmon to continue his presentation.

You have the floor, Sir.

Mr. SALMON: Mr. President, Members of the Court, I will now address the second

disputed issue, namely the Oussaltane area.

Oussaltane

9. In order to dispel all uncertainty in this regard, we submitted a total of seven documents

showing that Niger exercised sovereignty over Ou ssaltane. Of those seven documents, Burkina

challenges only three; we note the lack of comment on the four others. As to the three documents

which it disputes, the first concerns a situation where certain fractions claimed that they lived in

Oussaltane and therefore asked to be transferred to Tillabéry cercle. In relation to this request,

39
Mr.Thouvenin tells us that it is not for fractions to decide whether or not they belong to Dori

cercle, it is up to the administrative authorities. That is precisely what happened. The two cercle

commanders decided to go and check whether the three fractions in question did indeed live in

Oussaltane. Thus this meant that the two cercle commanders recognized that Oussaltane was part

of the territory of Niger. The second document re lates to an official who had come to Oussaltane - 30 -

to serve a court summons on a national there. Mr. Thouvenin tells us that this all goes to show that

this was an area where Dori had jurisdiction, sin ce it was an official from Dori who came to serve

the summons. However, what Mr. Thouvenin neglects to tell us is that we learn from the rest of the

document that the Téra representative explains th at the opposite is the case: namely, that

Oussaltane is indeed in Niger and that an unoffi cial arrangement on this matter had been agreed

with his predecessor. As to the third document, it is a telegram/letter of 11 July 1951 from Larue,

Head of Téra subdivision, in Tillabéry cercle, stating once again that the line leaves Oussaltane to

the east. However, it seems that, in the cour se of this discussion, the commander of Dori cercle

had, on the contrary, insisted that the boundary be demarcated on the basis of the Erratum — a fact

of which Mr. Thouvenin , of course, makes great play. However, he once again neglects to read us

the end of Larue’s document, which states the follo wing: “Apparently, [the Dori commander] fails

to appreciate some of the consequences of that po sition . . . The inaccuracy and imprecision of the

Erratum have moreover been pointed out numerous times.” 70

That is all we have on Oussaltane. You will note that Burkina Faso seeks systematically to

use against Niger all of the documents produced by us in support of our arguments. However, our

opponents have failed to produce the slightest evidence of effectivités from their own archives. As

we find it difficult to believe that those busy little bees acting as counsel for Burkina Faso did not

do their own research, we are bound to conclude that they came away empty-handed.

Bangaré

10. Let us now turn to Bangaré. Bangaré is a locality which is accepted to have existed from

the outset, and which, moreover, had the status of village from 1945. This village has been the

40 subject of a particularly fierce onslaught on the part of my colleague, Mr.Thouvenin, who has

developed a whole series of arguments to which I was unable to respond the first time round, for

lack of time ⎯ and I fear that I may well find myself in the same situation now. Nonetheless,

Commander Roser, in his report of 10 April 1932, stated quite categorically that Bangaré has

always been located on Niger territory. Our oppone nts have sought to discredit Roser’s position,

arguing that in so stating he was basically contradicting the Erratum. However, I believe that, once

70
MN, Ann. C 73. - 31 -

again, looking at the matter from the current perspective, that criticism does not hold up, for we are

talking here about effectivités, and the information that Bangaré has always been located on Niger’s

territory, provided by Roser, Commander of Dori cercle, undoubtedly carries particular weight.

Moreover, subsequently, as I have just told you, in 1945 Bangaré would appear as a village on the

various lists prepared by Tillabéry cercle. Mr.Thouvenin has a further argument: namely that, if

there is a Bangaré, in all likelihood it changed its location, because Bangaré cannot be where we

place it. Well, yes, Members of the Court, it is tr ue that from time to time villages were relocated,

Alfassi for example, and Senobellabé, but there has ne ver been the slightest shred of evidence that

Bangaré was ever relocated.

Our opponent then goes on to challenge a whol e series of documents in our Memorial and

Counter-Memorial, telling us that Annexes C 117, C 118 and C 125 are problematic, since it is not

clear who their authors were, or where they come from, etc. However, in terms of substance, all of

these documents do indeed mention Bangaré, and are pertinent. Their authenticity and dates are

vouched for by Niger’s Agent. It is true that, lik e other documents extracted from lists of villages,

they are part of longer documents. The complete documents are at the Court’s disposal, if it wishes

to examine them. As regards series C117, C118, C119, C120, C121, C 122, etc., they are all

part of a particularly voluminous document, pr epared in Téra on 10August1954 by the Head of

the Subdivision, Marc Perret. This document or iginates from Niger’s nati onal archives, and bears

the refence number 19.3.39. Niger’s delegation to The Hague has brought with it this original

document of 81 pages ⎯ one of our colleagues has it ⎯ and, if necessary, it can be filed in the

Registry, if the Court so wishes (and this will pr ove that all of the documents on Bangaré that we

have provided are all authentic).

41 Mr. Thouvenin has told us that he finds it somewh at curious that this village can be regarded

as a district of Diagourou. How, he says, is it possible, at a time when no district could normally be

located over 20 km away from its administrative centre, for Bangaré to be regarded as a district of

Diagourou? This must be some other Bangaré. Ho wever, the data on the sheet are perfectly clear:

the village, which is indeed 35km away from Téra, lies only 23 or 24km from Diagourou. But

there is no problem with the fact of the village of Bangaré being regard ed as a dependency of

Diagourou. A challenge of a similar order wa s mounted by our opponents on the basis that the - 32 -

Arrêté of 1January1956, which established polling stations and districts for the elections to the

71
National Assembly , had provided for two polling stations at Diagourou: a first one, where

Bangaré was cited along with othe r names of tribes; and then a second, “Diagourou village”, in

which Bangaré was not mentioned. According to Mr. Thouvenin, this was clear evidence that the

Bangaré in question was not a village of Niger, but in fact a village of Upper Volta, and that what

was happening was simply that Niger nationals living in Upper Volta were entitled, on an

individual basis, to vote at Diagourou’s first polling station. But that is precisely not what

happened. The practice, as I am now explaining it to you, has, moreover, continued to this day.

The voters in question (those of Bangaré, which is a hamlet or farming settlement) actually vote ⎯

and still vote today ⎯ at Diagourou, which is the village to which they are attached. The reason

for this is that voters’ lists are prepared on the basis of census return s, which are themselves

prepared village by village, family by family. The inhabitants of Bangaré village, which, in

administrative terms, is no more than a farming village for certain inhabitants of Diagourou, are

registered at Diagourou, which is the “mother v illage” from which they originate. Their polling

station is thus located at Diagourou, and they vo te at the same time as those members of their

family who are not living at the hamlet or farming settlement.

Once again, as the Court will have noted, Bu rkina seeks to use against Niger documents

produced in order to facilitate the Court’s work. But it fails to provide the slightest scintilla of

42 evidence of any effectivité from its own archives. It would have been far simpler and far more

convincing to have produced evidence that the village of Bangaré voted in Upper Volta!

13. I believe it is clear from all of this that Niger, for its part, has provided evidence showing

that the villages of Petelkolé, Oussaltan and Ba ngaré, located in the border area, have indeed

always been regarded as part of the colony of Niger, and are in no sense “enclaves” within the

territory of Burkina Faso.

The villages located between the IGN line and the straight line claimed by Burkina Faso

14. [Slide: Extract from the 1960 IGN map] You will note that, while Burkina has thus

focused its attack on the areas along Niger’s territorial boundary, it has remained surprisingly silent

71
CMN, Ann. B 35. - 33 -

on the issue of which country has sovereignty ov er the villages located between the IGN line and

the straight line which it claims. The latte r in effect, because of its arbitrary nature ⎯ i.e., of

Burkina’s line— blunders blindly through areas which belonged to Niger during the colonial

period and have continued to do so ever since. That, moreover, is the reason why that line could

not be accepted under the 1988 and 1991 compromises. It would have transferred to Burkina Faso

villages that undoubtedly fall within Niger’s sovere ignty [End of slide]. We will give you a few

examples:

Bein(Beyna)

72
This village is among those included in the list of localities in Téra subdivision in 1952 ,

73 74
1954 , and 1959 .

[Slide: Diagourou sketch-map]

75 76
It appears on the sketch-map of Diagourou canton of 10 August 1954 . There is a data

77
sheet “Beïna astronomic station”, Niger territory ⎯ Téra region, updated on 20February1957

(this would seem to be a document that carries particular weight). The village appears again on the

78
43 list of localities of Diagourou canton in 1959 . It appears on the list of polling stations for the

79
elections to the 1956 National Assembly .

Mamassirou

16. We now come to Mamassirou, a village regarded as belonging to Niger in the

Roser/Boyer agreement 80, and shown as belonging to Diagourou canton in the census returns of

72
Census of Téra canton, 10 July 1952 (CMN, Ann. C 115).
73
List of villages of Téra Subdivision at 1 January 1954 ⎯ Téra canton (CMN, Ann. C 116).
74List of villages of Téra canton, 17 April 1959 (CMN, Ann. C 124).

75Diagourou canton on a scale of 1:250,000, 1954 (MN, Ann. D 21).

76Report from the Had of Téra Subdivision on the census of Diagourou canton, dated 10August1954 (MN,
Ann. C 84).

77Data sheet, “Beïna astronomic station”, 20 February 1957 (CMN, Ann. C 123).
78
List of villages of Téra canton, 17 April 1959 (CMN, Ann. C 124).
79
Arrêté No. 2794 establishing polling stations and district s for the elections to the National Assemby, Journal
officiel of Niger, No. 304, 1 January 1956 (CMN, Ann. B 35).
80
Letter No. 112 of 10 April 1932, and Tour Report from Civil Service Deputy Roser, Acting Commander of Dori
cercle, to the Commander of Upper Volta (Political Office). Certified copy of 15 September 1943 (MN, Ann. C 45, p. 6). - 34 -

81 82 83
1954 and 1959 . This village features in an annex appended to the report from the head of Téra

subdivision of 10 August 1954 84. It also appears on the 1954 sketch-map of Diagourou canton . It 85

is included in the list of polling stations for the 1956 elections to the National Assembly 86.

Ouro Gaobe

17. Here we have a report on the 1954 census of Diagourou canton, where the village is

described as having been “established some 20 years ago by some Rimaibé from Yagha” . 87

44
Yolo

And finally, the village of Yolo. It is men tioned in all of the lists of villages of Téra

Subdivision, Diagourou canton, under the name of Yolo (in 1927 88, 1933 , 1948 90 and 1954 ),91

92 93
then Yélo (in 1959 ). It appears on the sketch-map of that canton prepared in 1954 . It is also

mentioned on the data sheets appended to the report on the census of Diagourou canton prepared

8List of villages of Téra Subdivision at 1 January 1954 ⎯ Diagourou canton (CMN, Ann.C117), and list of

villages of Téra Subdivision at 10 August 1954 (extract No. 1) (CMN, Ann. C 118).
8List of villages of Diagourou canton, 17 April 1959 (CMN, Ann. C 125).

8“Mamassirou Beyna”: appended to the Report from the Head of Téra Subdivision on the census of Diagourou

canton, dated 10 August 1954 (MN, Ann. C 121).
84
Report from the Head of Téra Subdivision on the census of Diagourou canton, dated 10August1954 (MN,
Ann. C 84).
85
Diagourou canton on a scale of 1:250,000, 1954 (MN, Ann. D 21).
86
Arrêté No. 2794 establishing polling stations and distri cts for the elections to the National Assembly, Journal
officiel of Niger No. 304, 1 January 1956 (CMN, Ann. B 35).
87
Report from the Head of Téra Subdivision on the census of Diagourou canton, dated 10August1954 (MN,
Ann. C 84).

8Extract from the “Directory of lo calities” (1927): v illages of the cantons of independent Peuls ⎯ Diagourou
(Dori cercle) (CMN, Ann. C 109).

8List of villages of Téra Subdivision ⎯ Diagourou canton, 6 July 1933 (CMN, Ann. C 110).

9List of Niger cantons and villages forwarded to the Minister for Overseas France (Diagourou, Tamou and
Torodi cantons), undated, 1948 (MN, Ann. C 71).

9List of villages of Téra Subdivision at 1 January 1954 ⎯ Diagourou canton (CMN, Ann.C117), and list of

villages of Téra Subdivision at 10 August 1954 (extract No. 2) (CMN, Ann. C 119).
9List of villages of Diagourou canton, 17 April 1959 (CMN, Ann. C 125).

9Diagourou canton on a scale of 1:250,000, 1954 (MN, Ann. D 21). - 35 -

on 10 August 1954 by the Head of Téra Subdivision . Finally, this village is included in the list of

95
polling stations for the 1956 elections to the National Assembly .

[End slide: Diagourou]

As is clear from the foregoing, the frontier line claimed by Niger essentially follows the IGN

line for the section running from Tao to the tripoint between Dori, Tillabéry and Say cercles. It

only deviates from that line for specific reasons. Mr. President, Members of the Court, we now

come to the end of my presentation in this second round of oral argument. Please excuse me for

the rush at the start to catch up on the ex tra minutes that I thought I had been given ⎯ not by you,

but by my team. It remains for me to thank you for having kindly listened to me and I now ask

you, Mr.President, to give the floor to Professor PierreKlein for Niger’s reply to Burkina Faso’s

argument on the line of the frontier in the Say sector.

45 The PRESIDENT: Thank you very much, Professo r. I give the floor to ProfessorKlein.

You have the floor, Sir.

Mr. KLEIN: Thank you, Mr. President.

THE BOUNDARY IN THE S AY SECTOR

1. Mr. President, Members of the Court, it t hus remains for me now to go back over Niger’s

claims concerning the course of the frontier in the Say sector. Claims which Niger apparently

failed to explain properly during the first round of its oral argument — according to our opponent,

who, at the start of this week, stated that it had “heard... hardly anything about Niger’s line” 96.

During my presentation last Friday on the Say sector, however, I set out at great length the bases on

which Niger founded its claim in that sector. I can only regret that those explanations clearly did

not reach the ears of counsel for Burkina Faso; be that as it may, I have no intention of setting

them out again. Instead, I shall use this af ternoon to address the points which still divide the

Parties at this stage of the proceedings.

94
“Yollo Beyna”, “Yollo Djinkargou”, “Yollo Hamidou” and “Yollotaka or Taka”: appended to the Report from
the Head of Téra Subdivision on the census of Diagourou canton, dated 10 August 1954 (CMN, Ann. C 122).
95
Arrêté No. 2794 establishing polling stations and distri cts for the elections to the National Assembly, Journal
officiel of Niger, No. 304, 1 January 1956 (CMN, Ann. B 35).
9CR 2012/25, p. 57, para. 6 (Thouvenin). - 36 -

In order to do so, I shall return, first, to the question of the error involving Bossébangou, then

to the line proposed by Burkina after Bossébangou, then to the question of the location of the

former “tripoint” and, finally, to the course consis ting of two straight-lines in the sector up to the

beginning of the Botou bend.

A. The author of the Erratum committed an error in describing the new inter-colonial

boundary as passing through the village of Bossébangou

2. In its oral argument at the beginning of this week, our opponent once again rejected the

error theory which had been put forward by Nige r, and the bases of which do not need repeating

here. In response to Niger’s arguments on this point, Professor Forteau invoked what he called the

“deafening silence” maintained by Niger during the first round of its oral argument on a series of

46 documents from the colonial period which Burkin a Faso said “confirmed that the line was indeed

97
intended to pass through Bossébangou” . And as for the line shown on what our opponent persists

in calling the “1927 sketch-map”, Professor Forteau regards this merely “as proof that it was the

98
draftsman of the map who made a mistake” . Allow me to revisit briefly these two points. In

respect of the first, Niger did indeed remain silent on the small number of documents from the

colonial period which were referred to by Professor Forteau during his initial presentation;

however, we did so not only becau se of time constraints, but, in particular, because those

documents appeared to us to carry very little weight. What do they actually say? That, as stated in

the report from the Commander of Dori cercle, dated 7July1930 and cited by our opponent, “an

Erratum to that Arrêté [the Arrêté of 31August1927] does not alter the boundaries fixed, except

that the frontier line should reach the River Sirba at Bossébangou instead of Boulkabo” 99. Or, in

the case of the letter of April[1953] from the Governor of Niger, which was also cited by

Mr.Forteau, that the line as described in the Erratum starts “from the Tong-Tong astronomic

100
marker... crosses the Téra-Dori road at the Tao marker and continues to Bossébangou” . In

other words, those documents merely describe the boundary in that sector as it is set out in the

97CR 2012/25, p. 52, para. 22 (Forteau).
98
Ibid., p. 51, para. 19 (Forteau).
99
MN, Ann. C 38, p. 2, cited in CR 2012/20, p. 61, para. 58 (Forteau).
10MN, Ann. C 75, p. 2, cited in CR 2012/20, p. 62, para. 61 (Forteau). - 37 -

Erratum. Nothing more. For its part, Niger therefore finds it very difficult to see how these

documents “confirmed that the line was indeed intended to pass through Bossébangou”, to recall

the words of our opponent. So, silence filled and, all things considered, it was not so deafening

after all.

3. The question as to who made a mistake in their description of the inter-colonial boundary

in the area — the author of the Erratum or the drafter of the 1927 map — is, of course, impossible

to answer on the basis of these documents alone. While Niger concluded that the line adopted in

the Erratum was wrong, because it described the inter-colonial boundary as running as far as

Bossébangou, it reached that conclusion on the streng th of various pieces of evidence, all of which

suggested the same thing. The 1927 map is far from an isolated piece of evidence. The line shown

47 on that map in this sector is, in fact, confirmed by two types of sources. First, by a series of

statements of colonial administrators, which leave no room for ambiguity, since they expressly

101
draw attention to the error perpetuated by the Erratum on this point . Niger has already amply

discussed these statements in its written pleadings and during the first round of its oral argument. I

shall not go over them again, therefore. Second, it must be pointed out that, far from being

isolated, the line shown on the 1927 map can, on the contrary, be seen on various other maps drawn

up during the colonial period. [Slide of Say cercle, extract from the 1928 General Map of FWA]

In this regard, I shall limit myself to menti oning the map of the region established by the

Geographical Department of FWA in 1934 102[End of slide — slide of the 1946 IGN Niamey map]

103
and the “Niamey” sheet of the 1946 IGN map [End of slide]. It is true, as our opponents rightly

recalled on Monday, that in the case concerning the Frontier Dispute (Burkina Faso/Republic of

Mali), the Court observed that, while the author of the 1927 map had acquired “a very clear

understanding of the intention behind the texts” of 1927, “[t]hat does not mean that the map

104
necessarily conveys the correct interpretation of the erratum” . In this instance, however, the

combination of the various pieces of evidence whic h have just been presented would suggest that

10See, in particular, MN, pp. 108-110, paras. 7.19-7.20.
102
MN, Ann. D 19.
10MN, Ann. D 20.

10Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 , p.646, para.171, cited in
CR 2012/25, p. 52, para. 20 (Forteau). - 38 -

the interpretation given by the drafter of the 1927 map to this part of the Erratum was, in fact, the

“correct” one, on account of his “very clear understanding of the intention behind the texts”, which

is confirmed by those other pieces of evidence. In any event, it should be noted that, if the Court

were to find that there was such an error, the legal consequences of that finding would be clear-cut.

That section of the frontier line would have no “leg al validity”, in accordance with the Chamber’s

ruling in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) . During the

second round of its oral argument, our opponent, in fact, no longer disputed that this would be the

consequence of the factual error, and so it may be considered that the Parties agree on this point.

Just as it is not correct that the frontier passes through the village of Bossébangou, it is likewise

clear that the line claimed by Burkina Faso after that locality is misconceived.

48 B. The line claimed by Burkina after Bossébangou does not accord at all

with the wording of the Erratum

4. As will be clear to the Members of the Court at this stage, the frontier line claimed by our

opponent after Bossébangou follows the line shown on the IGN map up to the tip of the salient.

However, on this subject, we were reminded by our opponent on Monday that Burkina had adopted

this line because it “derives from the Erratum” and not simply because it was the line shown on the

105
IGN map . Duly noted, and Niger can only regret that the other Party has relied on what it terms
106
our “lack of understanding” of its position, which has led it to conduct the debate on the basis of

a false premise. But Niger can also only admi t its complete and utter bewilderment at our

opponent’s claim that its line in that area is based solely on the text of the Erratum. [Slide of

sketch-map No.10, p.148 of MBF] I would remind you that the Erratum describes a boundary

which “almost immediately turns back up toward s the north-west”. If the map in Burkina’s

Memorial showing the latter’s claims in this sector, which can now be seen by Members of the

Court, is meant to represent a line which takes a north-westerly direction so as then to form a

salient, one can clearly only question our opponent’s grasp of the points of the compass. In the

end, the most accurate presentation of the line clai med by Burkina Faso in this area would appear

to be that made by ProfessorThouvenin last week , during which he explained that the frontier in

105
CR 2012/25, pp. 58-59, para. 11 (Thouvenin).
106
Ibid., p. 59, para. 11 (Thouvenin). - 39 -

this sector “follows the right bank of the River Sirba from east to west until point P1” 107.

East-west, then, much more so than “towards th e north-west”. I shall say no more, except that,

once again, it is difficult to reconcile our opponent ’s claim with the wording of the 1927 Erratum.

[End of slide] I now come to the question of the determination of the “tripoint”.

C. The location of the former “tripoint” between Say, Dori and Tillabéry cercles
can be identified with precision

5. Whether this point can be identified with precision has continued to be the subject of

debate between the Parties. Du ring the second round of its oral argument, our opponent rejected

that possibility, contending that this point c ould not be determined on the basis of traditional

108
49 boundaries of Say cercle, whose very existence it contests , and that, if a tripoint did exist, it was

situated at Boulkalo, and not at the place where Ni ger locates it. I shall revisit in detail these two

points, which are clearly connected.

6. Firstly, Burkina Faso claims that there are no traditional boundaries of Say cercle. Thus,

Mr.Forteau criticized Niger for having invented what he called the notion of “the High Speed

Traditional boundary”, arguing that “[i]n less than ten years, in a region that was uninhabited or

unexplored, traditional colonial boundaries of a purely pragmatic nature are said [by Niger] to have

been born and fixed once and for all in 1910, with such certainty and geographical precision that

they tied the hands of the Governor-General of French West Africa 17years later, when he was

preparing the Erratum” 10. “Is that really convincing?”, Mr .Forteau then asked. There is a

two-stage answer to that question. First, th e period to take into consideration when assessing

whether or not there are traditional boundaries of Say cercle does not end in 1910, but in 1927.

That is the year in which the Arrêté, and subsequently the Erratum, were adopted, and which is

relevant for establishing the bases on which those documents were drafted. [Slide of the 1909

Boutiq sketch-map] Secondly in this regard, it would appear very difficult to deny the existence of

such boundaries when they consistently appear on the sketch-maps and maps of Say cercle drawn

10CR 2012/21, p. 25, para. 65 (Thouvenin).
108
CR 2012/25, p. 51, para. 17 (Forteau); p. 53, para. 24 (Forteau).
10Ibid., p. 51, para. 17 (Forteau). - 40 -

110 111
up in 1909 , [End of slide. Slide of the 1915 Truchard sketch-map] 1915 , [End of slide. Slide

of the 1926 Blondel map] 1926 11, [End of slide. Slide of the 1927 “new frontier” map] and also

1927. [End of slide. Slide showing both the 1909 Boutiq sketch-map and the 1927 “new frontier”

map, side by side] As you can see, the appear ance of these boundaries did not change between

1909 and 1927, except, of course, for the removal of Botou canton. Clearly, it does not appear to

do violence to these maps to talk of traditional boundaries of Say cercle. [End of slide]

50 7. What should we conclude from this? That , in the words of our opponent, the hands of the

113
Governor-General of FWA were “tied” by the course of those boundaries , or that the purpose of

the Erratum was “to enshrine the so-calle d traditional course of the boundaries of Say cercle” 114?

Despite what our opponent seems to think, Niger has never claimed anything of the sort. It has

simply noted the constancy of the course of those boundaries. And, moreover, it could not help but

assess the impact of that pre-existing situation on the way in which the boundaries were described

in the official texts of 1927. It will be recalled that, with respect to Say cercle, the Arrêté of

31 August 1927 reproduces almost word for word the description of the boundaries of that cercle as

contained in a record of agreement of 10Febr uary1927, drawn up by a representative of the

115
Colony of Upper Volta and a representative of the Colony of Niger . [Slide showing both the

description of the boundaries as contained in the Reco rd of Agreement of 10 February 1927 and in

the Arrêté of 31 August 1927] The slide currently on the screen makes it possible to see just how

close the text of the Arrêté is to that of the Record of Agreemen t. I shall not read it out again. We

can, in any event, agree that this similarity is, at the very least, striking, and that it further seriously

undermines Burkina Faso’s argument that, in a dopting the 1927 texts, the Governor-General

created an entirely new boundary, which in no way reflected the existing situation. [End of slide]

What, in fact, did the authors of the Record of Agreement of 10 February do, other than to refer to

the maps of the cercle which were available to them and which their description of the boundary

110MN, Ann. D 1.

111MN, Ann. D 4.
112
MN, Anns. D 6 and D 7.
113
CR 2012/25, p. 51, para. 17 (Forteau).
114Ibid., p. 56, para. 3 (Thouvenin).

115MN, Ann. C 8. - 41 -

follows most precisely? That there were traditional boundaries of Say cercle, therefore, emerges

very clearly from all of the documents I have just mentioned. The evidence also demonstrates that

the authors of the official texts of 1927 had no intention of departing from the course of those

traditional boundaries. This is true for the Arrêté, as we have just seen. But it is also true for the

Erratum, since the sole purpose of its adoption was to rid the original text of the description of the

“internal” boundaries of Say cercle, which were not relevant to the determination of the

inter-colonial boundary with Upper Volta. The best evidence of this is that the description of the

51 cercle’s “relevant” boundaries remained virtually unchanged between the Arrêté and the Erratum.

Contrary to our opponent’s assertions, the char acteristic “salient” of the boundaries of Say cercle

was, therefore, by no means a recent creation “gained” by that cercle in 1927 11. It follows from all

of the foregoing that Niger is perfectly entitled to rely on the traditional maps of Say cercle in order

to determine the position of the former tripoi nt, which can be located at the tip of the

aforementioned “salient”. That this is where the tripoint was located, as I had the opportunity to

explain last week, can be confirmed with the he lp of other evidence, including the 1927 “new

frontier” map and the mission report prepared by the Administrators of Dori and Tillabéry cercles

in 1943, which indicates very precisely where the former tripoint could be located, supported by

geographical features 117.

8. Burkina Faso also disputes the location of the tripoint claimed by Niger on another basis.

In its view, the documents used to prepare the offi cial texts of 1927 show that this point was, in

fact, located further downstream on the River Sirba, at the village of Boulkalo. [Slide of

sketch-map, tab 7 of the judges’ folder, Burkin a Faso — “The delimitation according to the Arrêté

of August 1927”] Our opponent bases that assertion, first and foremost, on sketch-maps which it

has furnished and which show the boundary running in a south-east direction reaching the River

Sirba precisely at the village of Boulkalo. I have two points to make on this subject. The first is

that the text of the Arrêté, which this sketch-map is supposed to illustrate, talks about a boundary

that reaches “the River Sirba (boundary of Say cercle), near to and to the south of Boulkalo” and

not “at Boulkalo”, as this sketch-map suggests. The second observation is that such a boundary

116
CR 2012/25, p. 53, para. 27 (Forteau).
117
CR 2012/24, p. 31, para. 11 (Klein) and references. - 42 -

line does not appear on any — and I mean not one single — map from the colonial period. That,

moreover, is the very reason why our opponent coul d find no other solution than to create this map

to support its argument. [End of slide. Slide of sketch-map, Ann. MBF 24] Our opponent also

referred to a sketch-map annexed to a letter of 1926 from the Governor of Niger concerning the

incorporation into his colony of that part of Dori cercle which had been detached from Tillabéry

118
52 cercle in 1910 . Burkina Faso invokes that document, among others, in order firmly to conclude

that the “tripoint was located in 1908 on the Sirba” 119and that “there is, moreover, no salient at the

120
level of this tripoint” . Mr. President, Members of the Court, we cannot help but be impressed by

our opponent’s extraordinary eyesight. One sketch-map showing a single cercle — the Dori cercle,

as it was at that time — and yet not in its entirety or accurately, but I shall co me back to that in a

few moments — is enough for it to determine the location of what, in its view, is the true “tripoint”.

The scale of that achievement must be properly appreciated, especially since the sketch-map in

question shows neither the Sirba, nor the village of Boulkalo or that of Bossébangou. [End of

slide] And one cannot but admire the “cool” of a Party which last week criticized Niger for basing

the location of the tripoint claimed by it on maps which date back to a period when only two

121
cercles existed in the area in question . Niger, however, has since explained that the location of a

tripoint does not change simply because, during a given period, that point was located on the

122
boundary between two, rather than three, cercles . What is more, Burkina did not contest that

point. Here, we are shown nothing at all. Ther e is not a single feature which would make it

possible to identify the alleged tripoint on the Sirba. Moreover, the sketch-map which our

opponent used for its demonstration is not accu rate, because it does not include Diagourou among

the subdivisions making up Dori cercle. [Slide showing together th e sketch-map in Ann. MBF 24

and MN, Ann.C5] As is shown in this 1924 sketch-map, which was annexed to an Annual

General Report of Dori cercle 123, Diagourou canton was situated between Dargol and Yagha. To

118MBF, Ann. 24.

119CR 2012/25, p. 54, para. 28 (Forteau).
120
Ibid.
121
CR 2012/20, p. 54, para. 29 (Forteau).
122CR 2012/24, p. 30, para. 11 (Klein).

123MN, Ann. C 5. - 43 -

remove all doubt, Niger has itself highlighted the boundaries on this map in red ink. It — that is to

say Diagourou canton — would also be transferred to the Co lony of Niger following the Decree of

28December1926. And, therefore, it is at the point where the line separating the cantons of

Yagha and Diagourou would meet the boundary of Say cercle that the tripoint was located, not at

53
the point erroneously presented to you by our opponent. [End of slide]

9. The reference, in the Arrêté of 31 August 1927, to a boundary coming from the north-west

and reaching “the River Sirba... near to and to the south of Boulkalo” also warrants a word of

explanation. Its origins can readily be traced b ack to another record of agreement, that of

2February1927, which my colleague, Professor Amadou Tankoano, spoke to you about earlier

124
this afternoon . Like the Record of Agreement of 10 February 1927 describing the boundaries of

Say cercle, and of which I spoke a few moments ago, that text sets out the boundaries of the

cantons of Dori cercle which are about to be incorporated into the Colony of Niger. It is that text

which describes the aforementioned point where the boundary meets the Sirba, a description

which — you were told — would be reproduced word for word in the Arrêté of 31 August. [Slide

of the 1926 Blondel-La Rougery map] The reference to Boulkalo is easily explained, since at that

time it was the only locality in that part of Dori cercle which was depicted on maps, as shown, for

example, by the 1926 Blondel-La Rougery map. It was, therefore, the only identifiable point

within Dori cercle to which the signatories of the Record of Agreement could legitimately refer in

order to describe the boundaries of that cercle. [End of slide] However, it was clearly never their

intention to make the locality of Boulkalo it self the meeting point of the new Dori-Tillabéry

boundary and Say cercle. The language they used makes this sufficiently clear: “near to and to the

south of Boulkalo”. Thus the picture of the s ituation as presented to you by our opponent at the

start of this week turns out, once again, to be singularly incomplete. I repeat, the boundary as

presented by Burkina Faso cannot be found on a sing le map from the colonial period. [Slide of the

“Téra Subdivision” sketch-map, MN, Ann. C 47] On the contrary, if one looks at the sketch-maps

which were produced at the same time as the 1927 texts, and which show the boundaries of Téra

Subdivision as they were at that time, it is clear that the meeting point of the divisions in question is

124
MN, Ann. C 7. - 44 -

located at the tip of the salient, as Niger has always contended. [End of slide] I would remind you

125
that the co-ordinates of that point, as determined by Niger, can be found in its written pleadings .

54 10. We can therefore now turn to the final section of the boundary, which runs to the

beginning of the Botou bend.

D. The double-straight-line section preceding the start of the Botou bend is part

of the colonial heritage that Burkina Faso has never challenged

11. In its written pleadings, as well as in its first round of oral argument, Niger explained

how the colonial authorities had precisely fixed the boundary between the two colonies on the road

linking Niamey with Ouagadougou. The point on the road where the documents from the colonial

period locate this point inevitably entails a modification of the line of the frontier in relation to that

described in the Erratum. Whereas the latter speaks of a single straight line as far as the start of the

Botou bend, the agreement between the authorities of the two colonies on the determination of the

frontier point requires a boundary in two straight lines in this area. At no time, either in its written

pleadings or in the first and second round of oral argument, have our opponents disputed the fact

that the documents from the colonial period to which I have just referred gave an accurate

description of the location of the frontier on the road between the two colonies. We are bound to

place this on record. [Slide: Supplementary IGN sheet showing the location of the frontier post]

Just as we are bound to place on record th e fact that the cartographers of the Institut géographique

national de France had noted, in the course of their prepar atory surveys for what was to become

the 1960map, the presence of a “frontier post” at the location determined jointly by the colonial

authorities. [End slide: Slide showing extract from the 1960 IGN map] This was duly marked on

the map in its final version. Thus, in showing the frontier in this sector as consisting of two straight

lines, the IGN cartographers were not inventing anything; they were simply reproducing on the

map the situation which they had noted on the ground. [End slide]

12. This was thus the situation facing the two States at the time of their accession to

independence in 1960. That is the content, in this sector, of their colonial heritage at that time. Did

either of the two States subsequently seek to ch allenge it? Our opponents have made desperate

125
CMN, p. 84, para. 2.2.13. - 45 -

efforts to have us believe this in the course of their oral argument, citing the positions of the

representatives of the two States during the work of the Joint Technical Commission on the

55 Demarcation of the Frontier 12. Or by asserting that the 1987 Ag reement required us in any event

to follow to the letter th e line described in the Erratum, regard less of any subsequent development

on the ground, even if this reflected an agreement ⎯ even a tacit one ⎯ between the two States 127.

However, let us bear in mind, once again, th at, in these proceedings before the Court, the

1987Agreement is no longer the only reference source. As ProfessorKamto has just reminded

you, the dispute has to be settled on a far broader basis: the “rules and principles of international

law . . ., including the Principle of the Intangibility of the Boundaries Inherited from Colonization

128
and the Agreement of 28 March 1987” , in accordance with the terms of Article 6 of the Special

Agreement. And what is the point that we are a ddressing here? None other than the determination

of the boundary inherited by the two States in this sector at the time of their accession to

independence. And their acquiescence in the perpetuation of that situation. In his oral presentation

last Monday, Professor Thouvenin suggested that this was a somewhat superficial argument. “[I]n

order,” he stated, “for an acquiescence to have th e effect of modifying a frontier line, we need

rather more” 129. And he then referred us to what the Court said in the Malaysia/Singapore case in

2008:

“any passing of sovereignty over territory on the basis of the conduct of the Parties . . .

must be manifested clearly and without any doubt by that conduct and the relevant
facts. That is especially so if what may be involved, in the case of one of the Parties,
is in effect the abandonment of soverei gnty over part of its territory.” ( Sovereignty

over Pedr aranca/Pula Buatu Puteh, Middle Rocks and Sout Lhedge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 51, para. 122.)

However, Mr.President, Members of the Court, what ProfessorThouvenin neglects to tell you is

that there is no question here of any abandonment by Burkina Faso “of sovereignty over the part of

its territory” ⎯ to cite the language of the Court. [Slide: IGN map, with the triangular area located

between the lines claimed by the two Parties] Du ring the colonial period, as I have just reminded

you, the area situated between the line of the frontier as shown on the IGN map and that claimed by

12CR 2012/21, p. 10, para. 11 (Thouvenin).

12CR 2012/25, p. 63, para. 29 (Thouvenin).
128
Article 6 of the Special Agreement of 24 February 2009 (MN, Ann. A 13).
12CR 2012/25, p. 63, para. 30 (Thouvenin). - 46 -

56 Burkina Faso was always regarded as belonging not to Upper Volta, but to Niger. And that

situation continued after independence, as is shown by the fact th at the villages located in that area

have always been administered since then by Nige r. In other words, if there is a change of

sovereignty as a result of the Court’s decision in this case, it will be to the detriment not of Burkina

Faso, but of Niger.

13. Niger has indeed set out in its Memorial ev idence going back to the colonial period and

130
showing that various localities situated within that area belonged to the Colony of Niger . This

has, however, been challenged in Burkina’s Coun ter-Memorial, where it states that Niger wrongly

identified these villages 13. To give you just one example, our opponents deny that the village of

Lati (with one “t”), which several directories of villages clearly confirm as belonging to Niger

Colony, is the same as Latti (with two “t”s) , as shown on the extract from the IGN map 132.

However, this challenge is based on pure suppos ition, and blithely takes no account of what was

the repeated practice in the area. To cite just a few names ⎯ which are now familiar to Members

of the Court ⎯ we find Tillabery spelled as “Tillabé ri”, Bossébangou as “Bossébango”, or

Nabambori as “Nababori”, without it ever occurring to anyone to claim that this implied some form

of confusion as to the identity of the localities in question. Moreover, the Director of Burkina’s

Geographical Institute told us no different in the part of his speech regarding the use of names in

the disputed area, during his presentation of Monday, 8 October 133. He noted, for example, that the

village called Tchenguiliba in the 1927 Arrêté had been identified under the name of Tyenkilibi on

the IGN map 13; as you see, this is not just a question of the difference between one or two “t”s. It

is hard to see how differing views should be take n of the village of Latti, according to whether its

name is written with one “t” or with two.

57 14. What is in any event striking here ⎯ and this is clearly absolutely basic ⎯ is the fact that

our opponents once again confine themselves to challenging the documentary evidence submitted

by Niger, without providing the slightest proof th at the villages in question belong to Upper Volta;

13MN, pp. 118-120, para. 7.39.

13CMBF, pp. 129-135, paras. 4.65 to 4.74.
132
CMBF, p. 134, paras. 4.70 to 4.72.
13CR 2012/19, p. 39, para. 37 (Tapsoba).

13Ibid. - 47 -

and that is particularly revealing. Even supposing ⎯ quod non ⎯ that the other Party had been

able to establish ⎯ negatively— that there is nothing to show that these localities belonged to

Niger, it is quite incapable of demonstrating that they were regarded as belonging to Upper

Volta ⎯ in other words, to provide proof positive. Hence we have no evidence whatever that the

localities situated within the triangle in question,whatever their names, have at any time been

regarded as belonging to Upper Volta. I leave it to the Members of the Court to draw the necessary

conclusions [End of slide]. The situation shown on the 1960IGN map is thus indeed that which

prevailed on the ground at the time; it was that situation which the two Parties to the present

dispute inherited when they acceded to independence, and I can only repeat that neither of the two

States subsequently made any formal challenge to that part of the colonial heritage.

15. Mr. President, Members of the Court, that ends Niger’s second round of oral argument. I

thank you for your attention and I ask you, Mr. Preside nt, kindly to give the floor to the Co-Agent

of the Republic of Niger for a brief speech in which he will read out the submissions of the

Republic of Niger.

The PRESIDENT: Thank you, Professor. I gi ve the floor to His Excellency Mr.Amadou,

Co-Agent of the Republic of Niger. You have the floor, Excellency.

Mr. AMADOU: Thank you, Mr. President.

C LOSING SPEECH AND SUBMISSIONS

1. Mr.President, Members of the Court, in th e absence of the Agent of Niger, I have the

honour, on behalf of my country, before this honou rable and prestigious Court, to read out the

submissions of Niger.

58 2. Before I do so, I should like to remind you of the subject-matter of the dispute before the

Court: under the terms of Article2 of the Special Agreement seising the Court, of

24 February 2009, the Court is requested to dete rmine the course of the boundary between the two

countries in the sector from the astronomic marker of Tong-Tong to the beginning of the Botou

bend, and to place on record the Parties’ agreement on the results of the work of the Joint Technical

Commission on Demarcation of the Burkina Faso-Niger boundary with regard to: - 48 -

(a) the sector from the heights of N’Gouma to the astronomic marker of Tong-Tong; and

(b) the sector from the beginning of the Botou bend to the River Mekrou.

With respect to this second part of the subject-matter of the dispute, the Court is not required

“to confirm the course of the frontie r” in the demarcated sectors, as requested by the Co-Agent of

Burkina Faso in her concluding remarks on M onday, but to place “on record the Parties’

agreement” on the results of the work of the Joint Technical Commission on Demarcation of the

boundary in the sectors in question. It is to that second request, as it was formulated in the Special

Agreement — and to that request alone — that the Court is called upon to respond.

3. Having clarified that, I should like to express my pleasure at the quality of the proceedings

which have taken place before this honourable Court over these two weeks. I am certain that these

oral hearings, together with all of the documents which have been produced in the context of this

case, will enable the Court to settle once and for all the delimitation of th e portion of the frontier

which remains in dispute between our two brother and friendly countries.

4. I should now like, on behalf of my Gove rnment and the people of Niger, to express our

sincere thanks to you, Mr.President and Members of the Court, for listening to us so attentively

and patiently; I should also like to thank Mr.Philippe Couvreur, Registrar of the Court, and his

entire team for the readiness to help, professiona lism, sense of duty and conscientiousness which

they have shown since the beginning of these proceed ings; I take this occasion to offer a special

thanks to the interpreters for their patience and the quality of their services. As for our team of

counsel and experts, they know how much the Government of Niger appreciates their tireless work.

Finally, I should like to thank our brothers and friends from Burkina Faso for their co-operation

throughout these proceedings, by renewing the friendship of the people of Niger. Like my sister

59 and colleague, MsSalamata Sa wadogo Tapsoba, Co-Agent and Mini ster of Justice of Burkina

Faso, I shall leave The Hague knowing that the judg ment which the Court will render in this case

between our two countries will help to strengthe n further the fraternal and good-neighbourly

relations which have always existed between the peoples of Burkina and Niger.

5. Mr.President, Members of the Court, to conclude our oral argument and in accordance

with the provisions of Article60, paragraph2, of the Rules of Court, I should like to request the - 49 -

Court to adjudge and declare that the frontier between the Republic of Niger and Burkina Faso

takes the course described on pages 95 and 96 of the Counter-Memorial of the Republic of Niger.

In accordance with Article 7, paragraph 4, of the Special Agreement, Niger also requests the

Court to nominate, in its Judgment, three expe rts to assist our two countries as necessary in the

demarcation of the common frontier.

With this, and recalling our complete confidence in the impartiality of the Court, I thank you,

Mr. President and Members of the Court, for your kind attention.

Mr.PRESIDENT: Thank you, Your Excellency, Minister and Co-Agent of Niger. The

Court takes note of the final submissions which you have just read out on behalf of the Republic of

Niger, as it took note, on Monday 15October2012, of the final submissions of BurkinaFaso.

Judge Cançado Trindade has two or three questions to put to the Parties. To that end, I shall now

give the floor to Judge Cançado Trindade. Judge Cançado Trindade, you have the floor.

Judge CANÇADO TRINDADE: Thank you, Mr.President. For precision purposes, as to

the factual context of the present case, I address my questions to both Parties:

⎯ First, could the Parties indicate in a map the areas through which nomadic populations used to

move, during the period when they became inde pendent and today, and to what extent the

frontier will affect these populations?

⎯ Secondly, what is the radius of the areas of movement of these populations along the border
60

between the two States concerned (if possible, indicating in a map the exact parts of the

border)?

⎯ Thirdly, what villages are susceptible to be affected by the frontier the Parties are claiming for?

Thank you, Mr. President.

The PRESIDENT: Thank you, Judge Cançado Tri ndade. The texts of the questions will be

sent to the Parties in writing as soon as possible. In accordance with the usual practice, the Parties

are invited to provide their written replies to the questions by not later than 6p.m. on

24 October 2012. Any comments a Party may wish to make, in accordance with Article 72 of the - 50 -

Rules of Court, on the replies by the other Party must be submitted no later than 6p.m. on

31 October 2012.

This brings us to the end of the hearings devot ed to the oral arguments in this case. I should

like to thank the Agents, counsel and advocates of the two Parties for their statements. In

accordance with the usual practice, I shall request th e Agents to remain at the Court’s disposal to

provide any additional information the Court may require.

With this proviso, I now declare closed th e oral proceedings in the case concerning the

Frontier Dispute (Burkina Faso/Niger). The Court will now retire for deliberation. The Agents of

the Parties will be advised in due course as to the date on which the Court will deliver its judgment.

As the Court has no other business before it today, the sitting is now closed.

The Court rose at 6.05 p.m.

___________