Traduction

Non corrigé Traduction

Uncorrected Translation

CR 2012/23 (traduction)

CR 2012/23 (translation)

Vendredi 12 octobre 2012 à 10 heures

Friday 12 October 2012 at 10 a.m. - 2 -

10 The PRESIDENT: Please be seated. The sitting is open and we are going to hear the

continuation of the first round of oral argument of the Republic of Niger. I give the floor, as I

promised yesterday, to Professor Salmon. You have the floor, Sir.

Mr. SALMON: Thank you, Mr. President

T HE STRAIGHT -LINE POSTULATE

1. Mr. President, Members of the Court, I had the opportunity to show you yesterday that our

opponent’s first postulate, that the frontier betw een Niger and Burkina Faso had essentially been

determined by lines of an artificial and arbitrary na ture was totally unsupport ed by the evidence.

Today I shall address the second postulate of Burkin a Faso’s argument, namely that the frontier is

composed of a series of straight lines in the Téra sector. This point is equally lacking in substance.

While, for the Say sector, Niger does not dispute that its traditional conf iguration is essentially

formed of straight lines, it does, on the contrary , dispute it in the case of the Téra sector. Let us

examine each of these sectors in turn.

A. Niger does not dispute that the boundaries of Say cercle include a
number of straight lines

2. Let us begin with Say cercle: it is undeniable that its boundaries are formed of several

straight lines. All of the sketch-maps of this cercle that we have since 1909 confirm this.

The maps and sketch-maps prior to 1927

3. Let us consider first the period prior to the 1927 texts [Slide: Atlas des cercles , Say

cercle, January 1926 ]. The map which you can see on the screen is of Say cercle, January 1926,

taken from the Atlas des cercles. It is not without relevance that, throughout the colonial period,

the Atlas des cercles, which was prepared cercle by cercle, enjoyed both very great popularity and

very great authority. In the same edition, it ser ved as a reference for the colonial administrators

until the appearance of the IGN maps from 1960. The shape of Say cercle is very specific. Its

11 eastern boundary is constituted by the RiverNiger, to the south-east, the Mekrou, to the

1
MN, Ann. D 6. - 3 -

north-west ⎯ on the opposite side ⎯ the Sirba as far as Bossébangou and, from that point: straight

lines. The boundary runs in a straight line to the north-west in order to form a salient

encompassing various villages, then runs down in a straight line to the south, where, at the level of

the Say parallel, it changes direction. It then runs in a south-westerly direction and, in three

successive straight lines, reaches the Mekrou. You can see then that, apart from the rivers, it is all

straight lines. This was the traditional form [Slide: Boutiq sketch-map of 1909 2]. We can see this

from a previous sketch-map of CaptainBou tiq dating from 1909 [Slide: Sketch-map of

Administrator Truchard of 1915 3]. The same shape can subsequently be seen on the sketch-map of

AdministratorTruchard of 1915 [Slide: Sheet, Say cercle from the BlondellaRougery map of

June 1926 4], and again on the BlondellaRougery map of June 1926. We are thus poised at the

point where our problems begin.

4. There is every reason to believe that it w as with these maps and sketch-maps to hand that

the drafters of the Arrêté of 31August1927 set about describing the entire boundaries of Say

cercle in terms of straight lines, with the exception of the river boundaries: that Arrêté of

31 August 1927 ⎯ which can be found in the judges’ folder at tab2 ⎯ lists those boundaries as

follows:

“To the north and to the east, by the current boundary with Niger (Niamey

cercle), from Sorbohaoussa to the mouth of the River Mekrou;

To the north-west, by the RiverSirba from its mouth as far as the village of

Bossébangou. From this point a salient, including on the left bank of the Sirba the
villages of Alfassi, Kouro, Takalan and Tankouro;

To the south-west, a line starting approx imately from the Sirba at the level of
the Say parallel and running as far as the Mekrou;

To th5 south-east, by the Mekrou from that point as far as its confluence with
the Niger.”

[Slide: Map of 6October1927 showing the new frontiers] The same applies to the

representation of Say on the map entitled “N ew frontier according to the Erratum of

5 October 1927”, to which I shall return shortly; it was forwarded to the relevant departments and

2MN, Ann. D 1.
3
MN, Ann. D 4.
4
MN, Ann. D 9.
5MN, Ann. B 26. - 4 -

6
12 to both colonies the day after the adoption of the Erratum, namely 6 October 1927 . According to

the Erratum, the line from the Tao astronomic marker reaches:

“the River Sirba at Bossebangou. It almo st immediately turns back up towards the

north-west, leaving to Niger, on the left bank of that river, a salient which includes the
villages of Alfassi, Kouro, Tokalan and Tankouro; then, turning back to the south , it
again cuts the Sirba at the level of the Say parallel. From that point the frontier,

following an east-south-east direction, continues in a straight line up to a point
located 1,200m to the west to the village of Tchenguiliba... [there then follows a
description of the northern boundaries of Botou canton] until it meets the former

boundary of the Fada and Say cercles [which as you see is also a straight line], which
it follows as far as the point where it intersects with the course of the Mekrou.” 7

5. We can thus see that the sole change effected by the Erratum of 5October1927 to the

traditional shape of Say cercle is the removal of Botou canton, which remains in Upper Volta.

The subsequent maps

6. The subsequent maps retain the traditional boundaries of Say cercle, except for the

removal of Botou canton. And I can now cite several maps: the 1927 road map of the Colony of

8 9 10
Upper Volta , that of Niamey of 1927 , the FWA wall-map of 1928 , the map of Niamey,

13th edition, 1934 11 [Slide: 1946map of Niamey] and the 1946 map of Niamey 12. I am only

showing you this latter map in order to enable y ou to appreciate the persistence of the traditional

line. It follows from the foregoing that the boundaries of Say cercle consist essentially of straight

lines. There are a number of reasons for this: the hostile nature of the terrain, the sparse

population; the maps themselves are marked “unexplored area”.

B. On the other hand, Niger disputes the claim that the boundary between Dori
cercle and Tillabéry cercle consists of straight lines

7. By contrast with its positi on regarding the boundaries of Say cercle, Niger does not agree

that the boundary in the Téra sector, between Dori cercle and Tillabéry cercle, is composed of

13 straight lines. We shall now endeavour to demonstr ate this to you. Let us understand one thing:

6MN, Ann. D 13.

7MN, Ann. C 27.

8MN, Ann. D 11.
9
MN, Ann. D 10.
10
MN, Ann. D 14.
1MN, Ann. D 19.

1MN, Ann. D 20. - 5 -

the aim of what we are about to show you is not to support a particular line among those which will

emerge from the historical background, but simply to demonstrate that, whichever line is adopted,

it is incompatible with the straight-line thesis relied on by our opponents.

The flaws in Burkina’s line

8. [Slide: Sketch-map No.15 from Burkina F aso’s Memorial, MBF, p.159 [p.132 of the

13
English version]] As can be seen fro m sketch-map No. 15 in its Memorial , Burkina Faso draws

two straight lines from point 6 to what it calls point P. The first of these runs from point 6 as far as

Tao, passing through point7; the second goes from Tao to pointP. This presentation of the

boundary is disputable on textual, historical and cartographic grounds.

(1) Textualgrounds

9. Let us first address the textual grounds. Contrary to what we have seen for Say cercle, for

the Dori/Tillabéry boundary the text of the Erratum makes no reference to straight lines. [This text

can be found in the judges’ folder at tab 3.] If I may just remind you of it:

“A line starting from the heights of N’ Gouma, passing through the Kabia ford
(astronomic point), MountArounskoye and MountBalébanguia, to the west of the

ruins of the village of Tokébangou, MountDoumafende and the Tong-Tong
astronomic marker; this line then turns towards the south-east, cutting the Téra-Dori
motor road at the Tao astronomic marker locat ed to the west of the Ossolo Pool, and
reaching the River Sirba at Bossebangou.” 14

In the whole of this part of the text, there isone word, and one only, which indicates a change of

direction, and that is the verb “turns” [French “s’infléchir”]; you will see how our opponents

interpret this [End of slide].

10. The co-ordinates of points 6 and 7 pose no problems. The Parties have set out markers at

both points. The disputed sector begins at Tong-Tong.

[Slide: Extract from cartographic annex MBF 36]

14 However, as can be seen from cartographic a nnex No.36 to its Memorial, Burkina Faso

places on the same stretch of straight line point 6 (Mount Doumafende), point 7 (Tong-Tong) and

Tao — with the obvious aim of giving this part of the frontier the appearance of an initial stretch of

13
MBF, p. 159 [p. 132 of the English version].
14
MN, Ann. B 27. - 6 -

straight line. This is clearly to do violence to the “sacred” text, since the Erratum provides,

expressis verbis, that after the Tao astronomic marker, “this line then turns towards the south-east”.

There is absolutely no turn on Burkina’s sketch-maps.

11. The muddled explanations given by Professor Forteau in order to justify this straight line

are truly confusing. In the first place, he claims that Niger itself accepted the straight-line solution

15
at the time of the draft compromises of 1988/1991 . And that’s it. This is clearly quite

unconvincing; rather it represents an implicit ad mission on the part of Burkina Faso, since that

compromise departed from the terms of the Erratum. By the compromise, Niger was evidently not

accepting that there was any form of turn at this point.

16
Mr. Forteau’s second argument is that there was a turn after Tong-Tong . Yes indeed, well

after: at Tao, the following point. Are they serious? According to the Erratum, the line was

supposed to turn not after Tao, but before, betw een Tong-Tong and Tao, which it totally failed to

do according to our opponents’ representation of it.

Finally, his third argument: Niger, too, accepted that there were two straight lines.

Professor Forteau then comes out with a completely surreal conclusion: “the two Parties are thus at

least now in agreement on one point : the correct interpretation of the 1927Erratum is that the

section of the frontier line which arrives at the Tong-Tong marker, as well as that which departs

from it, are both straight lines” 1! However, Niger, which relies here on an intermediate boundary

point ⎯ the Vibourié marker ⎯ is clearly not contending that th is represents an interpretation of

the Erratum, since it departs from it, and to present matters in this way amounts to a travesty which

does Burkina no credit.

12. From the Tao astronomic marker to Bossébangou, the Erratum does not indicate any

intermediate points. From this, Burkina infers that the frontier is a straight line. However, contrary

15 to the Say sector, in this part of the Erratum we do not find any terminology of a geometrical

nature. As Niger has maintained throughout the ne gotiations, if the text of the Erratum implied a

geometrical form between Tong-Tong and Bosséba ngou, passing through Tao, it would be, rather,

15CR 2012/20, p. 26, para. 61 (Forteau).
16
Ibid., p. 27, para. 62.
17Ibid., p. 27, paras. 64 and 65. - 7 -

the arc of a circle that the word “ turn” (infléchissement) would require. Burkina Faso disregards

turns where the text provides for them and sees straight lines where there are none in the text. Are

our opponents having problems with their eyesight ? This is a paradoxical interpretation,

particularly for a Party which regards the 1927 texts as sacred.

(2) Historical grounds: the cantons and the cercle boundaries as they were at the relevant

time

13. Like the textual grounds, the historical arguments do not suggest a straight line from

Tong-Tong to Tao, nor a fortiori from Tao to the boundary of Say cercle. We know that the

Decree of the President of the Republic of 28D ecember1926 reincorporated into the Colony of

18
Niger

“2. The cantons of Dori cercle which were formally part . . . of Niger in the Téra and
Yatacala regions, and were detach ed from it by the Arrêté of the
Governor-General of 22 June 1910.”

We have a good idea of the 1910 boundary from the preparatory documents to which we have

already referred. Thus the Record of Agreement of 2 February 1927 19specifically named the

cantons referred to in the 1926 Decree.

The Commander of Dori cercle, who was present at that meeting, would write on

17 December 1927 that those boundaries “had been established on the basis of the map prepared by

20
Captain Coquibus” . That is the same map used by the cercle Commanders Delbos (Dori) and

Prudon (Tillabéry) in June 1927 when they travelled along the boundary at the request of the

21
Governor of Upper Volta . The Chef de cabinet of the Governor had indeed indicated that the

survey should be made “by... simply follow[ing] line... Coquilin [meaning Coquibus] [and]

22
16 examining situation population” . This method and the accompanying recommendations seem

somewhat incompatible with the hypothesis that they were preparing simply to draw a straight line

through the area.

1MN, Ann. B 23.

1MN, Ann. C 7.
20
MN, Ann. C 20.
2MN, Ann. C 11.

2MN, Ann. C 12. - 8 -

14. The reports from Prudon, Commander of Tillabéry cercle 23 and Delbos, Commander of

24
Dori cercle , are helpful in that they confirm that in June 1927 the two administrators together

travelled the length of the traditional boundary , taking with them the sketch-map of

Captain Coquibus. It is interesting to follow their route. It is shown on a sketch-map by Delbos of

25 26
June 1927 [Slide]. Prudon’s sketch-map is similar . What we see is a gently curving line, and

below it a sort of triangle; and, moreover, right at the bottom a quite marked triangular or trapezoid

shape. Prudon’s sketch-map is similar.

However, a report from Delbos dated 27Augus t, addressed to the Lieutenant-Governor of

Upper Volta, proposed a draft Arrêté accompanied by a sketch-map which had been agreed — so

he tells us — with his colleague from Tillabéry [Slid e showing this sketch-map]. This line is more

angular, if you will, more of a “zigzag” ⎯ in fact we barely see this ⎯ than on his first sketch-map

27
of June 1927 . It shows a boundary which, from the tripoint to the west of Alfassi on the Sirba as

far as Tao, changes direction five times in an angular manner 28. It shows that the Dori and

Tillabéry commanders were departing from the C oquibus sketch-map, which one of them, Prudon,

29
described in relation to a certain part of the line as “theoretical” , while the other, Delbos,

considered that it included “notional lines” 30[End of slide].

A further sketch-map by Delbos, sent to Ouagadougou on 17 December 1927 [show this

sketch-map], when he had learnt of the decisions taken in Dakar and was in possession of the map

of the “new frontier”, has the merit of showing both the route regarded as the traditional boundary

31
17 by the administrators [in blue] and the course of the Coquibus line [in red] . In his account of that

mission, Commander Prudon states:

2Of 4 August 1927, MN, Ann. C 15.
24
Of 27 August 1927, MN, Ann. C 16. We do not have his Tour Report from the month of June, but we do have
the 1: 500,000 sketch-map of the route followed, which was appended thereto.
25
MN, Ann. C 14.
26
MN, Ann. D 3.
27
MN, Ann. C 16.
2See the particularly “geometrical” sketch-map appended to the letter of 27 August 1927, MN, Ann. C 16.

2Prudon, MN, Ann. C 15.

3Delbos, MN, Ann. C 20.
31
MN, Ann. C 14. - 9 -

“Apart from the slight modification [the triangle at the start], following natural

frontiers, the delimitation of the cercle made by Lieutenant Coquibus is indeed the line
that we followed and the line recognized by the various chiefs of the frontier cantons
in the two colonies concerned.” 32

This report and the sketch-map of 27December are interesting, for they show the difference

between the Coquibus line from Nababori to Kabia, which is slightly curved, and that followed and

adopted by the administrators, which, over part of the route, makes a detour to follow a chain of

hills. Nonetheless, a single glance at the sketch-m aps suffices to show that neither of them is a

straight line [End of slide].

15. Burkina expresses doubts as to whether there was any agreement between the

administrators, and argues that their proposals we re not adopted. As we have seen, it makes no

difference, however, whether or not the proposals re ached Dakar, or whether they arrived too late.

It makes no difference that the extent of the agreem ent claimed by Delbos may be uncertain. It is

clear that these proposals played no role in the delimitation effected by the Governor-General, and

Niger has, moreover, never claimed this. That is not the point of these communications. The

essential point is that they enlighten us as to th e shape of the 1910 boundary between Tao and the

tripoint. The documents are quite clear: it is not a straight line. We can thus form the provisional

conclusion that two canton boundary lines were then envisaged: either the two administrators

followed the Coquibos sketch-map, or they prepared a joint draft Arrêté consisting of a line broken

into straight sections. In neither case did the course of the boundary follow a straight line.

16. Burkina Faso disposes of all of these preparatory acts with a single stroke of the pen,

asserting that the Dakar Government took no account of them or “deliberately ignored them” 33 in

favour of a new course, consisting of straight lin es. While we may share the doubts regarding the

impact of the reports of the cercle commanders and their draft boundary, that is not the case for the

18 Records of Agreement of February 1927. We see that Governor Brévié had involved himself in the

field work in February1927 and how, on 27June 1927, his officials had taken the initiative of

34
sending a draft Arrêté to Dakar (of which we do not, in fact, have the text) . The importance of

the role played by the Coquibus map, which refl ected the course of the 1910 line required by the

32MN, Ann. C 15.
33
CMBF, p. 24, para. 1.22.4.
34MN, Ann. C 13. - 10 -

1926Decree is apparent from the Record of Agre ement of 27February1927, and its role in the

Erratum of October1927 is more than probable. Thus on this latter point, in his letter of

17 December 1927, Delbos states the following:

“The boundaries as described in Official Journal No.1021 [ sic; in fact it was

OJ1201] are an exact copy from the Report signed in my presence at Téra by
Governor Brévié and Inspector Lefilliatre. They had been established on the basis of
the map prepared by Captain Coquibus, which only showed the theoretical lines . . .” 35

The map of the “new frontier” for the Téra sector reproduces the curved line that we have noted in

the administrator’s sketch-maps. In reality, the only new aspect of the boundary of October 1927,

apart from the return to the 1910 line for th e Téra sector, is the fact that Botou canton remains in

Upper Volta. This is indeed confirmed by the letter of 2 April 1927 from the Director of Political

and Administrative Affairs to the Governor of Niger.

(3) Cartographicgrounds

17. Is the cartographic file more favourable to the thesis of two straight lines defended by our

opponents? We will not revisit what we have just said regarding the Coquibus line and the line

proposed by the administrators.

The “new frontier” map of 1927 [Slide of this map]

18. On the other hand, we do, above all, have to mention a map of key importance (which

Members of the Court will find at tab 12). Th e clearest illustration of the situation resulting from

the Erratum of October 1927 is the map entitled “French West Africa: new frontier between Upper

Volta and Niger (according to the Erratum of 5October1927 to the Arrêté of 31August1927)”,

36
19 scale 1:1,000,000 . This, as its title indeed states, illustrates the Erratum of 5October1927. It

was prepared by the Geographical Department of French West Africa. Burkina Faso endeavours to

dispute the scope and value of this map, since the course of the boundaries shown on it is in total

37
contradiction with its own theses . Relying, inter alia, on what the Chamber of this Court said in

the Frontier Dispute (Burkina Faso/Republic of Mali) case 38, Burkina Faso denies in its written

3MN, Ann. C 20.
36
MN, Ann. D 13.
37
See, for example, MBF, para. 1.76, then from para. 4.91.
3Judgment, I.C.J. Reports 1986, p. 554. - 11 -

39
pleadings that this map can constitute an illustration of the 1927texts . However, that is in fact

the case, as Niger has shown in its Memorial 40.

19. It is true that in the above case, Ma li, which had itself submitted that map to the

Chamber(I remember it very well, for, like my fri end Pellet, I was involved in that case, but of

course on the other side), had made no secret of the fact that the map gave no information as to the

official body which had prepared it, or the ad ministrative authority which had approved the line

41
which it showed .

The Chamber nonetheless adopted a nuanced pos ition towards this map, despite that

weakness:

“The Chamber, while not ascribing to this map submitted by Mali the
authoritative status of a document explaining the Order and erratum, i.e., one issued

with the colonial administration’s stamp of approval, holds nevertheless that it cannot
be overlooked as a piece of evidence; for even if it cannot be shown to have been
drawn up by that administration, it remains certain that the map’s compiler, having

perused the governing texts, and possibly the accessible maps, had acquired a very
clear understanding of the intention behind the texts, which enabled him afterwards to
lend that intention cartographic expression.” (Idem.)

42
We now know, thanks to the discovery in the national archives of Senegal of a document of

which Members of the Court will find a copy in the judges’ folder at tab 11, that this map is closely

linked to the text of the 1927 Erratum. It is undeniably an official map; it was indeed published by

20 the administrative authorities. It was sent under cover of a transmission note ⎯ which you have

before you ⎯ by the military Chef du cabinet militaire (2nd section) to the Director of Political and

Administrative Affairs in Dakar on 6October1927, that is to say the day after adoption of the

Erratum, with “copies to the Departm ent to the two colonies concerned” 43. Even if the map was

not officially appended to the text, everything goes to show that the administration of the

Government-General of French West Africa regarded it as reflecting the text which it had just

promulgated. And to requote the words of the Chamber, as has now been established, this map is a

document “issued with the colonial administration’s stamp of approval”, and possesses “the

3MBF, para. 4.91.

4MN, para. 5.7.
41
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 646, para. 171.
4MN, Ann. C 17.

4Ibid. - 12 -

authoritative status of a document explaining th e Order and erratum”. It should be recalled,

moreover, that when the Governor of Upper Volta transmitted to Administrator Delbos the text of

the Erratum, he appended this map, which the latter indeed challenged on certain points in his reply

of 17 December 1927 44. Subsequently, in 1932, Roser, Commander of that same Dori cercle ⎯ of

whom I shall speak again this afternoon ⎯ refers to this map, which had been enlarged to a scale of

1:500,000 for use in the field 45. We shall see shortly how important he regarded that map to be in

interpreting the colonial boundary.

20. Despite its small scale, which represen ts the 150km separating Tong-Tong from the

Dori/Tillabéry/Say tripoint in some 15cms ⎯ enabling few details to be shown ⎯ the “new

frontier” map permits at least two interesting conclusions. The first ⎯ as you can see ⎯ is that the

form of the boundary, although shown in outline only, is of a curved line and not of two straight

lines. The second is that the tripoint between the cercles of Dori, Tillabéry and Say is located at

46
the apex of the salient, where Niger has constantly claimed it to be, and not at Bossébangou .

21. The importance of this map is reflected in the fact that several maps produced

subsequently, in particular by the Geographical Department of French West Africa, would maintain

this shape until the maps prepared by the IGN in 195 8 and published in 1960: this is in particular

the case with a Niamey map of 1934 47and another of 1946. The map’s importance is equally
21

reflected in the profound silence maintained in regard thereto by Burkina Faso during its first round

of oral argument.

The 1960 IGN map

22. As we shall see in detail when we examine the Téra sector, in its 1960 maps the IGN,

following a quite different methodology, certainly does not adopt the theory of two straight lines in

this sector.

23. It follows from all of the foregoing that BurkinaFaso’s claim that, from Tong-Tong to

Tao and from Tao to Bossébangou, the boundary consis ts of two straight lines is not supported by

44MN, Ann. C 20.
45
MN, Ann. C 45.
46
See MN, paras. 7.14 ff.
47MN, Ann. D 19. - 13 -

the evidence. It follows that the presumption th at the distance between two points is normally

represented by a straight line is of no help in this sector.

Mr.President, I have come to the end of this morning’s speech. (Well, actually, I shall be

addressing you again at the end of the morning.) I thank the Court for its attention and I would ask

you to give the floor now to ProfessorPierreKlein, who will examine the third postulate of

Burkina Faso’s argument, namely that the 1927 texts constitute a clear title.

The PRESIDENT: Thank you, Professor. I give the floor to ProfessorPierreKlein. You

have the floor.

Mr. KLEIN: Thank you, Mr. President.

BURKINA FASO S ASSUMPTION THAT THE TITLE IS CLEAR

1. Mr. President, Members of the Court, it is an honour for me to take the floor in the present

case, once again on behalf of the Republic of Niger. As my colleagues have reminded you, the

approach to the case chosen by the other Party has been to take into account, for the purpose of

delimiting the frontier in the disputed sector, only the 1927 texts, which are thereby vested with

almost Biblical authority. According to our opp onents, this has to be the approach, on the grounds

that those texts are entirely clear. This is the last of the assumptions made by Burkina Faso, the

utter frivolity of which I would like to demonstrate to you this morning.

22 2. How blessed our opponents must be, for they are the enlightened ones! From the written

48 49
submissions of the other Party , and from their oral pleadings , it would appear that rarely has the

task of lawyers called upon to identify the course of a frontier been as straightforward as it is in the

present case. According to Burkina Faso, indeed, the Arrêté général of 31 August 1927 and its

Erratum constitute “a clear and uncontested title” 50which “fully defined” the “boundary between

51
the Parties” . The text of the Erratum, Professor Fort eau told us at the start of this week,

4See in particular MBF, p. 57, para. 2.8.
49
See in particular CR 2012/20, p. 13, para 58 (Pellet).
5MBF, p. 59, para. 2.13.

5MBF, p. 2, para. 2.8. - 14 -

52
“describes” the course of the frontier “in a clear and concise manner” . The Court’s task, in the

other Party’s view, is therefore particularly si mple: the delimitation of the common frontier has

been made by the 1927 texts and should be considered ⎯ I quote Burkina Faso once again ⎯

“established” 53. Consequently, all the Court has to do is to “clarify the interpretation of those

54
instruments with a view to the demarcation of the frontier between those two countries” . And the

task of interpreting them, which has just been me ntioned, is probably not really required either,

given the dazzling clarity of the 1927 texts. In its Memorial, the other Party states, with reference

to a meeting of the two States’ experts, that “strictly speaking, it was not a matter of ‘interpreting’

the Arrêté and its Erratum; in reality these texts did not raise any concerns between the Parties,

55
which [. . .] sought only to [. . . plot] on the map the description of the frontier given by the text” .

Following the same line of reasoning, it looks as if th e latter part of the year will be very peaceful

for you, Members of the Court, since all you will need to do is to “[plot] on the map the description

of the frontier given by the text”, a task which is unlikely to prove too exhausting.

In the face of such obvious facts, what else can be done, but to give in, and accept

enlightenment? Apparently, this was the conclusi on reached by the two States, still going by what

23 is said by the other Party, which states on this point that “[m]oreover, the Parties have not

disputed” that the 1927 Arrêté “provides a precise delimitation of the boundary between [them] in

[the] sector” which is still disputed 5.

3. What should we make of this line of reasoning, which is outwardly attractive, as

simplicity sometimes can be? To tell the truth, Mr. President, Members of the Court, I fear I shall

rather swiftly have to dissipate any illusions you might have started to entertain about your

programme for the end of the year. Burkina Faso’s argument that the 1927 texts are perfectly clear,

suffice in themselves and simply need to be tran sposed on to a map, in order to determine the

course of the frontier, is nothing more than a mere assumption which in this case is contradicted by

a considerable weight of evidence. Interpretation of the texts is therefore a vital task, and we can

52CR 2012/20, p. 19, para. 27 (Forteau).

53MBF, p. 2, para. 0.3.
54
Ibid.
55MBF, p. 42, para. 1.59.

56MBF, p. 101, para. 4.8. - 15 -

only work out exactly what is m eant by their terms by relying on extrinsic evidence, first and

foremost the practices followed by the colonial authorities and cartographic material from that

period. This has always emerged clearly, moreover, from the work done by the groups of experts

from the two countries, who were entrusted with the task of determining the course of the frontier.

By way of example, the report of the technical e xperts’ meeting held in 1986, upon which Burkina

Faso relies in order to affirm, in the extract from its Memorial which I have just quoted, that

“strictly speaking, it was not a matter of ‘interpreting’ the Arrêté and its Erratum”, in fact reveals

that the two delegations “proceeded to interpret” the 1927 texts 57. You will agree that we have

here a very strange way of reporting on the work ⎯ and on the task of the experts. That example

alone shows in any event that in this case it is not a matter of countering a claim made by the other

Party that the 1927 texts are perfectly clear and suffice in themselves with a counter-claim that the

texts are unclear and do not suffice, without such an assertion requiring any proof. On the contrary,

Niger is challenging the idea that the texts in ques tion are inherently clear, because a considerable

number of documents confirm the s hortcomings and lack of clarity of the terms used in the 1927

texts, which as a result cannot suffice on their own to identify the course of the frontier. If you will

allow me, I should like to run through the various po ints with you in detail. The first difficulties

24 are connected to the vagueness of some of the word ing used in the part of the 1927 texts which is

of interest to us here (A). Furthermore, in ma ny situations, it appears that even though the terms

used in 1927 may not give rise to problems of understanding on a purely linguistic level, their

lapidary or imprecise nature has caused constant uncertainties as to the precise path taken by the

boundary line in the disputed sector (B). Finally we will see that it transpires as a result that the

1927 texts do not suffice in various respects, and that it is impossible to claim that here we are in

the presence of a delimitation made exactly 85 years ago, in a complete and satisfactory fashion,

which only needs “plotting on the map” (C).

A. The vagueness of some of the wording used in the 1927 texts

4. Mr. President, Members of the Court, it has to be acknowledged at the outset that some of

the phrases or expressions used in the 1927 texts prov e to be extremely unclear in themselves. At

57
MBF, Ann. 69. - 16 -

least two examples of this lack of clarity can be found in the part of the Erratum of 5 October 1927

which describes the inter-colonial boundary in th e disputed sector. Let me remind you that you

will find this text at tab 3 of the judges’ folder.

5. I would recall that the text describes a line “starting from the heights of N’Gouma” and

reaching “the Tong-Tong astronomic marker”, and states that “this line then turns towards the

58
south-east” . A little further on, the Erratum provides that the line, moving in a south-easterly

direction, “reach[es] the River Sirba at Bossebangou”, after which it “almost immediately turns

59
back up towards the north-west” . Firstly, it should be recalled that the two Parties to the present

case have disagreed for a long time on the meaning of the verb “s’infléchir” 60 [to turn]. For Niger,

the idea of turning indicated a curved line, as Professor Salmon has just recalled. Burkina, for its

part, merely perceived in the expression the idea of a change of direction between two successive

straight lines 61. And as Professor Salmon has also just r ecalled, the other Party now seems to refer

25 to a different interpretation of the term “s’infléchir”, by illustrating its claim in the sector in

question with a completely straight line 62. Those different understandings of the concept of turning

therefore clearly indicate a difficulty of a linguistic na ture. It is the very meaning of the term used

in the 1927 text which causes a problem, independently of any question of context or of application

to the present case.

6. A similar observation may be made regard ing the words “almost immediately turns back

up”, used by the Erratum to describe the course taken by the boundary after it has reached the River

Sirba at Bossébangou. The very least we can say is that this expression is hardly a model of rigour

and precision for the description of a frontier line. It also turns out to be subject to widely

diverging interpretations, especia lly because, according to the text of the Erratum, the line

separating the two colonies had to run in a so uth-easterly direction until Bossébangou, before

“almost immediately turn[ing] back up towards the north-west”.

5MN, Ann. B 27.
59
Ibid.
60
See CMN, p. 29, para. 1.1.27.
6MN, Ann. A 5, p. 3 and MBF, pp. 109-132.

6MBF, Cartographic Ann. 36; CMN, pp. 39-40. - 17 -

[Animated graphic showing a li ne descending towards the south-east before turning back up

towards the north-west]

On various occasions during the course of th e negotiations between the Parties, Niger’s

representatives have indicated how baffled they we re by this wording, pointing out that a line

which descends towards the south-east before al most immediately turning back up towards the

north-west could only cancel itself out, which would lead to an absurd result 63.

[End of slide. Slide showing sketch-map with a line turning back up “almost immediately” towards

the north-west]

However, even taking into account the precise words of the Erratum and the fact that it refers

to a line which does not turn b ack up immediately, but “almost immediately”, in the opposite

direction to the one from which it came, should it no t be expected that the line resulting from that

description would look like the one you see on the slide before you now?

[End of slide. Slide with illustration of the line following the River Sirba]

However, an entirely different ⎯ and, it must be said, much freer ⎯ interpretation of the

terms is made by the other Party, when for this segment of the boundary it quite simply adopts the

26 line shown on the 1960 IGN map, at first following the course of the River Sirba and then moving

away from it to reach the head of the salient. Our opponents seek to justify this line with regard to

the text of the Erratum. Professor Thouvenin, in his presentation on Monday morning, gave us the

following explanation: “[t]he text states that th e frontier has to turn back up ‘towards’ the north-

west, which may be taken as meaning that it points in a north-westerly direction but does not

necessarily follow a due north-west bearing” 64. Therefore, if that reasoning is to be followed, a

text reading “almost immediately turns back up towards the north-west” should not be taken as

meaning that the line then “nece ssarily” turns towards “due” north -west, to go back to the words

used by Professor Thouvenin, but rather that it “poi nts in a north-westerly direction”. All of this, I

am sure you will agree, is crystal clear … And that reading of the text also bears eloquent witness

to the unwavering faithfulness to the terms of the Erratum displayed by our opponents.

[End of slide]

63
MN, Ann. A 5, p. 3.
64
CR 2012/21, p. 23, para. 56 (Thouvenin). - 18 -

In any event, those differences of interpretation illustrate, as clearly as it is possible to do so,

the fact that some of the terms used in the 1927 Erratum inherently lacked precision and were

prone to being interpreted in contradictory ways . Other examples could be given of similarly

ambiguous phrasing ⎯ even though the text only amounts to a few lines. We could also mention

the words “at the level of the Say parallel”, two lines further on, which have also given rise to

divergent interpretations on the part of the two States, both before 65and during these

66
proceedings . I will, I might add, come back to that point this afternoon.

7. The lack of precision in the terminology used in the 1927 texts had in fact already struck

the colonial administrators, from the late 1920s onwards . Just to give one such example, in a letter

to the Commander of Tillabéry cercle, the Commander of Dori cercle ⎯ hence on the Upper Volta

side of the frontier ⎯ wrote: “Do you not think that, since the Arrêté and the Erratum delimiting

Niger and Upper Volta sometimes use the words “almost”, “approximately” and “marked”, they do

not seek absolute precision?” 67

27 Evidently, what was unclear for the author ities of the Colony of Upper Volta in 1929 has

now become perfectly clear for the counsel of Burkina Faso . . . It is, moreover, intriguing to note

that the various terms I have just mentioned cons titute precisely the type of wording whose use in

official texts aimed at establishing delimitations was subsequently clearly advised against by the

FWA Geographical Department, due to the considerable degree of imprecision of the phrases in

68
question . In a letter of 1942, the Head of the Geographical Department thus wrote that

“any description of a frontier which includes language like ‘the north-south line...,
the line leaving to the east the villages of..., the line running in a south-easterly
direction...’ is so imprecise that in Europe, an area that is well known, it would
69
require meetings of bilateral commissions and a great deal of demarcation work” .

The author of the letter therefore suggested th at a different approach should be followed, in

order to avoid such unwelcome consequences, wi th reference being made in particular to

watercourses and ridgelines. Here again, we cannot help being struck by the fact that Burkina’s

65MN, p. 115, para. 7.32.

66See in particular CR 2012/21, pp. 16-17, paras. 24-29 (Thouvenin).
67
MN, Ann. C 24.
68Letter of 8 May 1942, MN, Ann. C 66.

69Ibid. - 19 -

counsel is setting up the 1927 texts as a model of legal drafting, even though the type of wording

used therein was advised against in no uncertain te rms by the colonial geographical services. That

finding alone would be enough to undermine comp letely our opponents’ argument that the title

constituted by the official texts of 1927 is clear, and that it suffices to read them in order to identify

the course of the frontier in the disputed area. Howe ver, there is more to come. As I would like to

explain in detail to you now, apart from those difficulties of a purely linguistic nature, the 1927

texts give rise to uncertainty due to the lapidary and imprecise nature of their content.

B. The uncertainties resulting from the lapidary and imprecise
nature of the 1927 texts

8. The linguistic and terminological problems wh ich I have just mentioned are certainly real.

Nevertheless, they do not necessarily affect all th e wording of the 1927texts. For the most part,

those texts are in fact clear ⎯ if the scope of that term is limited purely to linguistic characteristics.

However, a clear text from a linguistic point of view may perfectly well prove to be problematic

when it comes to putting it into practice ⎯ in other words, when it is a question of aligning it with
28

the reality on the ground. And in this regard too ⎯ indeed even more so ⎯ the 1927texts very

quickly showed their boundaries, if you will permit the expression.

9. In its written pleadings, Niger demonstrated the intensity of the criticisms which were

levelled at the text of the Erratum of October 1927 by the administrators of the two colonies

70
concerned . Here, I shall confine myself to recalling a few examples. In April 1932, the

Commander of Dori cercle wrote to the Governor of Upper Volta ⎯ the Colony of which his

cercle was part ⎯ to propose what he called “[p]ossible solutions to the problem arising out of the

inadequate and defective drafting of the official texts” 71.

I should like, if I may, to draw the attention of the Members of the Court to the fact that,

once again, this assessment originated from the au thorities of the Colony of Upper Volta. In a

report of 1934, the Commander of that same cercle noted that in several places “the boundary

between the two administrative divisions is theoretical and extremely imprecise” 72. But, without a

7MN, p. 26 et seq.
71
MN, Ann. C 45.
7MN, Ann. C 55. - 20 -

doubt, it was the Head of Téra Subdivision (on the Niger side this time) who gave the most acerbic

voice to such concerns in a report of 1952, in which he mentioned the Arrêté of 31 August 1927,

and its Erratum, “whose imprecision is matched only by its inaccuracy, the source of constant

argument between Yagha and Diagourou farmers” 73.

It would be possible to provide many more examples of criticisms of this kind and the use of

other, equally unflattering te rms to describe the 1927texts 74. It is therefore clear that those

primarily concerned by the application of these official texts ⎯ that is to say, the administrators of

the entities adjoining the other Colony ⎯ were not exactly dazzled by the extreme clarity which

our opponents attribute to these instruments. No greater light seems to have been shed on them in

the years that followed, since in the file there are several documents dating from after independence

in which the authorities of the new States ⎯ and I do mean the two States ⎯ were still denouncing

75
29 the “lack of precision” of the frontier, despite the existence of the 1927 texts . But what actually

lies at the root of this dissatisfaction? Severa l documents from the colonial period, but also the

work of the Joint Technical Commission on De marcation of the Boundary, make it possible to

understand this better.

10. First and foremost, there is no doubt that the lapidary nature of the 1927 texts gave rise to

significant difficulties. A letter of 1953, emanating from Tillabéry cercle, thus mentioned the

“deficiencies in the [...] official texts” 76. It could hardly be otherwise, given that we only have

one text of around ten lines to describe the course of a frontier which runs for a total of several

hundred kilometres. The opposing Party has attempte d to counter this argument by advancing the

thesis that, given the absence of precision, the frontier had to follow straight lines between the

77
various different geographical points mentioned in the texts . I think Professor Salmon provided

ample demonstration, this morning, of just how ar tificial this theory was, and showed that there

was not a shred of evidence in the file to confirm it, in particular as far as the Téra sector is

concerned. I will not dwell on it, therefore, except to observe that we might obviously ask

7MN, Ann. C 74.

7See MN, pp. 27-28.
75
See, in particular, MN, Ann. C 92.
7MN, Ann. C 78.

7MBF, p. 110 et seq. - 21 -

ourselves why the colonial officials criticized the lack of precision of the 1927 texts so consistently

and so virulently, if those texts provided for bo undaries which followed easily identifiable straight

lines.

11. Another obvious factor of uncertainty with regard to the application of the texts in

question lies in the difficulty ⎯ and often the sheer impossibility ⎯ of identifying on the ground

the places or geographical features which are mentioned in the Arrêté, as amended by its Erratum.

The scale of this problem became apparent in the course of the work of the Joint Commission.

Niger recalled in its written pleadings, for exampl e, the failed attempt of the members of the

Commission to locate Mount Arounskoye and Mount Balébanguia on the ground, despite their

78
being clearly mentioned in the Erratum . It was the same story with the identification of the site

30 of the “ruins of the village of Tokebangou”, despite no fewer than three field missions 79, as

80
ProfessorPellet recalled very pertinently on Tuesday morning . Similarly, the experts found the

co-ordinates of two different astronomic markers at Tao (whereas the text speaks of “the Tao

81
astronomic marker”) . And, what is more, neither of those markers could be found on the ground.

12. It is also necessary to mention one fi nal element of uncertainty which affects the

1927 texts. This lies in the factual error which a fflicts those acts when they have the inter-colonial

boundary pass through the locality of Bossébangou. I shall return to this point in greater detail this

afternoon. Allow me simply to point out now that this inaccuracy was also denounced by the local

authorities immediately after the adoption of the 1927 texts. In December 1927, the Commander of

Dori cercle ⎯ in Upper Volta, need I remind you? ⎯ thus vehemently criticized this part of the

text of the Erratum, noting that, in point of fact , the inter-colonial boundary in this sector ran “as

far as Nababori, reaching the Say cercle to the west of Alfassi and not at Bossébangou, which is

further up” 82.

13. As you can see, we are therefore some distance from the clear, precise and complete title

which Burkina Faso is pleased to see in the text of the Arrêté général of 31August 1927, as

78CMN, p. 37, para. 1.1.27.

79Ibid.
80
CR 2012/21, p. 34, para. [20].
81MN, Ann. C 105.

82MN, Ann. C 20. - 22 -

amended by its Erratum. On the contrary, the only possible conclusion is that the very terms of the

amended Arrêté are in some cases formulated ambiguously, and are open to very diverse

interpretations. And in other cases, even in th e absence of such linguistic difficulties, it is the

practical implementation of the texts on the gr ound which proved problematic, in particular

because of the impossibility of identifying in practice the actual location of a whole series of places

which are mentioned in the texts. Conversely, the 1927 texts make no mention of a whole series of

other places which are identified on the ground at th e time, which clearly does nothing to facilitate

their practical implementation. Finally, the erro r in the text of the Erratum, when it has the

inter-colonial boundary run as far as the Rive r Sirba at Bossébangou, further undermines its

reliability. To Burkina’s claim that the text of the amended Arrêté of 1927 is clear and precise,

31
Niger therefore opposes a much more realistic vision of that title, whose limits did indeed come to

light immediately after its adoption ⎯ or almost. There is nothing in the file to confirm the thesis

put forward by the opposing Party. On the contrary, everything shows that the practical application

of the reference texts was consistently problemat ic, whether it was during the colonial period or

after the two States achieved independence. Rather than adhering to the vision of the 1927 texts as

infallible purveyors of clarity, which Burkina Fa so has developed, it would therefore appear

distinctly more reasonable to ponder this medieval proverb: “The light reveals the shadow and the

truth reveals the mystery.” There is certainly no sh ortage of shadows in this file when it comes to

determining numerous sections of the disputed fron tier. And there is no doubt that the truth, as

revealed by all the administrative documents, is that the course of the boundary in the sectors in

question is shrouded in mystery, at least if the inte ntion is to determine it solely by relying on the

1927 texts.

All of this clearly goes to show that it is not reasonable to claim that these texts effected a

complete delimitation of the frontier in the sector concerned, which it is sufficient to plot on a map,

as our opponents maintain. The entire history of the inter-colonial boundary in the disputed sector

very clearly militates against this thesis. Contrary to what the opposing Pa rty maintains, the fact

that the 1927texts do not suffice compels us to ta ke into account other evidence with a view to

delimiting the frontier between the two Parties.

That will be the final point in my speech this morning. - 23 -

C. The fact that the 1927 texts do not suffice and the need to take into account other
evidence with a view to delimiting the frontier between the two Parties

14. Mr. President, Members of the Court, the question of whether the 1927 texts are ⎯ or are

not ⎯ clear and precise, and of whether they suffice ⎯ or not ⎯ in themselves has in fact two

crucial implications in the present case. The firs t concerns the role which it behoves the Court to

play in settling the dispute. The second concerns the sources or instruments which it will be

possible to call upon, with a view to identifying the course of the frontier between the two States in

the sector in question. I should briefly like to consider these two points in detail.

15. First of all, Burkina Faso has reduced th e Court’s role to the bare minimum. As has

already been recalled, it regards that role as be ing simply to implement a line which has already

83
32 been clearly established, and which is well accepted by the Parties . Burkina seems to have gone

a little further in its Counter-Memorial, since it writes that “the Court’s task in the present case

84
is ⎯ solely ⎯ to clarify its course when ⎯ and only when ⎯ that document does ‘not suffice’” .

In fact, however, this openness is only su perficial, since the opposing Party believes,

furthermore, that Niger’s denunciations of the Erratum’s inadequacies are based solely on false

85
“premises”, and that in this in stance we have what the opposing Party terms a “solid legal title” .

Although it admits of the theoretical possibility of interpretation, Burkina nevertheless rules it out

in practice, since it maintains that the 1927 texts ar e clear and that Niger “sees obscurity in [their]

86
simplicity” . This is precisely what Professor Pellet said in his speech on Monday, when he

asserted that he does “not claim that the Erratum is not subject to interpretation ⎯ every legal text

87
has to be interpreted!” . However, once again the scope for interpretation proves to be severely

curtailed. In recalling the maxim interpretatio cessat in claris 88, Professor Pellet immediately ⎯ I

would be tempted to say, almost immediately ⎯ closes the door that he had half-opened a few

moments earlier. Burkina claims that what Niger is proposing is not to interpret the 1927 texts, but

8MBF, paras. 0.3 and 0.19, in particular.
84
CMBF, p. 6, para. 0.8.
85
CMBF, p. 41, para. 1.49.
8CMBF, p. 43, para. 1.54.

8CR 2012/19, p. 64, para. 47.

8Ibid. - 24 -

to revise them outright 89. But, Mr.President, on what basis should it be decided that the text is

“clear” and therefore not open to interpretation? On the basis solely of Bu rkina’s reading of that

text, thanks to the particularly enlightened views of its counsel? Or by taking into account the file

and all the evidence in it? If so, the only po ssible conclusion would be that our opponents’

approach on this point is completely without foundation. How is it possible to speak of a clearly

established line, when we have just seen that th e lacunae and lack of precision in the 1927texts

have been denounced on countless occasions since their adoption? How is it possible to speak of a

33 line that is well accepted by the Parties, when t hose Parties, despite sparing no effort, since they

gained independence, to determine and demarcat e the line of their common frontier, have never

managed to agree on that line in the disputed sector? How is it possible to reconcile the thesis that

there are virtually no problems of interpretation with the concern expressed by the Prime Minister

of Burkina Faso in February 2006, when he suggested “the option of jointly putting the matter

before the International Court of Justice, so that it may rule on the persisting differences of

interpretation in regard to the colonial texts”90?

All of this evidence clearly shows that th is is not a “simple” matter of implementing a

frontier which has already been well identified and accep ted by the Parties. What is at issue in this

case is the elucidation of texts which everyone ⎯ everyone except our opponents ⎯ agrees to

consider as obscure on a good many points and, mo re generally, the determination of the frontier

line in the disputed areas using the various inst ruments of international law which the Court can

mobilize for that purpose. That therefore brings us to the second point which I identified earlier,

namely the one concerning the sources or instru ments which it will be possible to call upon with a

view to determining that line.

16. In this regard, the conclusion which I have just drawn, that the 1927 texts lack precision,

has one essential consequence. It makes it indispen sible to consult evidence which is extrinsic to

those texts with a view to enabling their interpretation. It was with this in mind that Niger based its

line of argument on a variety of documents from the colonial period, such as maps, reports and

administrative correspondence. These have already been presented to you in general terms

89
Ibid.
90
MN, Ann. A 11. - 25 -

yesterday by Professor Salmon, and in a few moment s Professor Kamto will return to this point, as

well as, more generally, the question of the relationship between titles and effectivités in the present

dispute. I shall therefore not dwell on this point any longer.

17. In conclusion, Mr.President, Members of the Court, it is therefore clear that the

1927texts do not constitute the clear and self-su fficient title which our opponents are pleased to

regard it as. On the contrary, those texts use a number of terms and expressions whose exact

content is, to say the least, difficult to determine. Moreover, their lapidary and imprecise nature, as

well as the factual error which they perpetuate in the sector of Bossébangou, have given rise to very
34

many uncertainties about the exact identification of the course of the boundaries which they were

supposed to set forth. Numerous documents, both prior and subsequent to independence, show this

beyond doubt. It is therefore undeniable that these texts present lacunae and that they do “not

suffice”, to use the terminology of the 1987Agreem ent, which provided that in such a situation

reference should be made to other instruments in order to identify the frontier line, amongst them

the 1960IGNmap. Contrary to what our opponent s claim, there is therefore nothing in Niger’s

approach which departs from the principles that ar e applicable to the determination of the section

of the frontier line which is still in dispute. And, contrary to what our opponents would also appear

to desire, you will not be able to content yourselves, Members of the Court, with being simply the

“mouthpieces of the law”, to use an expression which confines the judge’s role to one of

mechanically applying perfectly clear legislative texts. This is not true of those at issue here, and it

proves to be essential to interpret the applicable te xts, and also to complement them by consulting

other sources. The task with which the Court is confronted here is, therefore, a task of delimitation,

in the fullest sense of the term ⎯ but also in the most traditional sense of the term ⎯ a task which

it is obviously perfectly well equipped to carry out. My colleague, Professor Kamto, will return to

this point in more detail in a moment, in particular as regards the latitude which the Court has at its

disposal for interpreting instruments of delimitation.

For the time being, Mr. President, Members of the Court, it only remains for me to thank you

for your kind attention. I would ask you, Mr. President, to give the floor to Professor Kamto, either

now or after the break. - 26 -

The PRESIDENT: Thank you very much. I shall give the floor to Professor Kamto after the

break. The hearing is suspended for 20 minutes.

The Court adjourned from 11.20 a.m. to 11.50 a.m.

The PRESIDENT: Please be seated. You have the floor, Professor Kamto.

35 Mr. KAMTO: Thank you, Mr. President.

IMPLICATIONS FOR THE RELATIONSHIP BETWEEN TITLE AND EFFECTIVITÉS :

THE ROLE OF EFFECTIVITÉS IN THE PRESENT CASE

Introduction

1. Mr. President, Members of the Court, it now falls to me to explain why the Republic of

Niger believes that the title of 1927 is not sufficient on its own to determine precisely the entire

course of the disputed frontier, and why the effectivités and boundary delimitation practice have an

important role to play in the present proceedings.

2. For Burkina Faso, “the boundary between the Parties was fully defined in [the] Arrêté

général . . . of 31 August 1927 which was superseded by the Erratum of 5 October 1927, and it has

never been modified since” 91. The question of the inadequacies of this text of colonial law and the

resulting lack of precision in the frontier between the two countries, as raised by Niger, is a false

problem, according to our opponents.

3. Burkina Faso seemed to take a timid step in the right direction in its Counter-Memorial, in

considering, as Professor Klein recalled earlier, th at “the Court’s task in the present case is ⎯

solely ⎯ to clarify its course when ⎯ and only when ⎯ that document does ‘not suffice’” 9.

Similarly, at the end of his arguments on Tuesday morning, Professor Pellet achieved a real tour de

force by invoking a “twofold insufficiency, both on the ground and on the map” 93, regarding the

location of the village of Tokéba ngou. He concurs with the conclusions of the 1988 report by the

experts of the Joint Technical Commission on Demarcation, which acknowledged “that the basic

text [referring to the Erratum] did not suffice” and turned to the 1960 IGN map, although this was

91MBF, p. 57, para. 2.8.
92
CMBF, p. 6, para. 0.8.
93CR 2012/21, p. 35, para. 20. - 27 -

no more satisfactory, since that map does not men tion the village of Toké bangou. I would recall

that Tokébangou is in a sector of the frontier that is no longer disputed, but what is at issue here is

the methodology used. Our colleague then conclud es: “In other words, the experts declined to

give precedence to the line shown on the map over th e line in the Erratum, even though the latter
36

does not suffice— however, giving precedence to the map would not have been in compliance

with that reference text.” 94

4. One is tempted to say that the dog is chasing its tail; because, Members of the Court, what

is the other Party trying to tell you: that, faced with an inadequate or imprecise text, the experts

chose not to apply a map that was itself incomplete, since they wished to remain faithful to a text

whose imprecision had led them to consider the possibility of applying the map. Quite frankly, it is

possible to make a less complicated and more convincing argument. If the Erratum does not

suffice and the map is of little help because it rema ins silent on this point, that means that the

experts, in plotting the line, relied on something other than those two documents, from which they

clearly departed. However, Burkina Faso cannot say this, because it would destroy its notional

argument of remaining absolutely faithful to the text of the Erratum ⎯ so faithful that it rules out

the admissibility of any other document, unless it is accepted by joint agreement of the Parties.

5. Furthermore, in order to downplay the im pact of the Tokébangou example on its general

approach to the case, the other Pa rty hastens to add, in respect of Tokébangou, that “[w]hat we

have here is an exceptional case in which the Erratum does not suffice on its own, while the line

shown on the map does not help to interpret the Erratum” 95. For the rest, Burkina Faso adheres to

96 97
its original position as set out in its Memorial and Counter-Memorial .

6. In our opponents’ view, it would appear to suffice that a text delimiting the frontier exists

and that that text should be designated the “legal title” in order for it to be free from inadequacies

and from the resulting difficulties in applying it. Only such a view could have led our opponents to

persist with the fiction that, in respect of the 192 7 Erratum, we have “before [us] a [text] which

94Ibid., p. 35, para. 22.
95
Ibid., p. 35, para. 21.
96MBF, submissions, paras. 5.1 and 5.2.

97CMBF, submissions, para. 5.1. - 28 -

leaves little to be desired in the nature of clearness, [and that the Court] is bound to apply this [text]

98
as it stands” , thereby using the words of the Advisory Opinion rendered by the Permanent Court

of International Justice in the case concerning Acquisition of Polish Nationality.

37 7. Niger would have liked things to be so simple. But they are not, as our colleague

Professor Pierre Klein has demonstrated this morning. As we all know, determining the course of a

frontier is not a purely abstract undertaking, nor is it a purely academic exercise. Even when the

delimitation is based on a legal text, it is still necessa ry to ensure that it gives the precise course of

the frontier. That is why, when the Court is seised of a frontier dispute, it always ensures that the

title claimed by the Parties provides sufficient in formation to determine the exact course of the

frontier along its entire length, and not merely certain parts thereof.

8. A number of delimitation cases brought before the Court arose from a disagreement

between the parties as to the interpretation or th e lack of precision of the legal instrument of

delimitation. This is precisely the case in the present proceedings, which, as I shall show in a

moment, correspond to the fourth hypothesis contemplated by the Chamber of the Court in the case

concerning the Frontier Dispute (Burkina Faso/Republic of Mali). In that case, to which ⎯ need I

recall ⎯ Burkina Faso was a party, the Chamber of the Court noted that,

“[a]part from the texts and maps listed . . ., the Parties have invoked in support of their

respective contentions the ‘colonial effectivités’, in other words, the conduct of the
administrative authorities as proof of the effective exercise of territorial jurisdiction in
the region during the colonial period” ( Frontier Dispute (Burki na Faso/Republic of

Mali), Judgment, I.C.J. Reports 1986, p. 585, para. 63).

9. The Chamber acknowledged that the role played by the “ effectivités” in that case was

“complex”, and determined to state forthwith “in general terms, what le gal relationship exists

between such acts and the titles on which the implementation of the principle of uti possidetis is

grounded” 99. It then arrived at four hypotheses which are now authoritative in such matters. Based

on the contention that we are dealing with a co mplete title in these proceedings, Burkina Faso

argues the first hypothesis, whereby a cl ear title “therefore prevails over any effectivités to the

100
contrary” .

98See CR 2012/19, p. 64, para. 47 (Pellet).
99
Ibid.
100MBF, p. 49, para. 2.16. - 29 -

10. In Niger’s view, however, it is the fourth of these hypotheses that corresponds to the

situation facing us here. We are indeed in a situa tion where, as the Chamber of the Court stated in

38 the Burkina Faso/Republic of Mali case, “the legal title is not capable of showing exactly the

territorial expanse to which it relates. The effectivités can then play an essential role in showing

how the title is interpreted in practice.” (Ibid., p. 587, para. 63.)

11. Evidently, Burkina Faso did not pay any attention to that part of the Judgment. In

Burkina’s view, Niger has no justification for us ing, as it does, the many and varied documents

from the colonial period, and even the post-colonial period, to support its arguments and to claim

the frontier line that it proposes. This position is particularly hard to understand, since our

opponents must be aware that the Court does not h esitate to examine a disagreement regarding the

course of a frontier, even one already defined by an international treaty, by admitting various

documents provided by the parties in support of their respective claims.

12. In such cases, the Court, in accordance with its establishe d case law, has proceeded to

examine all the relevant evidence that might determ ine the parties’ intention regarding the precise

course of the frontier, on the basis of the lega l instrument concerned. Such evidence usually

consists of the travaux préparatoires of the said instrument of delimitation and its accompanying

maps, but also includes the “effectivités”. Once again, it is the Chamber of the Court in the case

concerning the Frontier Dispute (Burkina Faso/Republic of Mali) which provides a perfect

example of this, when it states: “The Chamber has to indicate the line of the frontier on the basis of

the documents and other evidence presented to it by the disputant Parties.” (Ibid., p. 588, para. 65.)

13. I would like to show in this part of Niger’s oral argument:

⎯ firstly, that the position adopted by Burkina Faso in respect of the documents produced by

Niger in fact raises the question of the admissibility of evidence in the present case;

⎯ secondly, that the 1927 Arrêté and its Erratum, whose importance as legal title in these

proceedings cannot be denied, are not the only items of evidence;

⎯ thirdly, that the Court agrees to specify the course of a frontier, even when it has already been

defined by a text that is legally undisputed by the Parties. - 30 -

I. The question of the admissibility of evidence in the present case

14. Members of the Court, Burkina Faso has a very ethereal notion of how the course of a

frontier should be determined. Its only lifeline is the Erratum to the Arrêté of 1927, which it clings

39 to in desperation. Even when our opponent seems to let go, it is to cling immediately to another

text, the Agreement of 1987, which, in its view, has the merit of supporting the 1927 Arrêté as

modified by the Erratum. Indeed, according to Burkina Faso,

“Article 2 of the Agreement of 28 March 1987 does not confine itself to recognizing
the pre-eminence of the course under the frontier title constituted by the 1927 Arrêté

and its Erratum; should these acts not suffice, it also limits the other documents which
may be used to establish the course of th e frontier to, firstly, ‘the 1:200,000-scale map
of the Institut Géographique National de France , 1960 edition’ and/or, if necessary,
101
‘any other relevant document accepted by joint agreement of the Parties’.”

Beyond the bounds of Article 2 of the 1987 Agreement, no salvation can be found in evidence.

15. In maintaining such a view, Burkina Faso in fact raises the problem of the admissibility

of evidence in these proceedings. This observation is based on two arguments put forward by the

other Party. According to Burkina,

⎯ firstly, the documents submitted by Niger are not among those explicitly referred to in Article 2

of the above-mentioned Agreement of 1987, nor have they been adopted by joint agreement of

the Parties within the meaning of Article 2 of that Agreement 102;

⎯ secondly, a number of these documents date back to the 1932 to 1947 period, when Upper

Volta no longer existed; any act adopted dur ing that period is purportedly inoperative, by

103
reason of the fact that in 1947 Upper Volta was re-established within its 1932 boundaries .

16. I shall reply to these two arguments in turn.

A. Burkina Faso’s argument is contrary to the principle of the free admissibility of evidence

17. Members of the Court, for Burkina Faso, any document not accepted by joint agreement

of the Parties is inadmissible as evidence in this case ⎯ in other words, all the documents provided

104
by Niger. You have heard the same st ory repeated from one speech to the next . On this point,

101
CMBF, p. 42, para. 1.51.
102
CMBF, p. 8, para. 0.13.
103See in particular CMBF, p. 122, para. 4.38.

104See, for example, CR 2012/19, p. 65, para. 42 (Pellet); speeches by Mr. Thouvenin, ibid., p 35, para. 20, p. 40,
para. 42, p. 41, paras. 46 and 47; Mr. Forteau, ibid., p. 53, para. 27, p. 58, para.42; see also CR 2012/21, p. 12, para. 5
(Thouvenin). - 31 -

40 the other Party remains stuck in 1987, when the two States decided in the Agreement of

28 March 1987 on the documents to be taken into account in carrying out the bilateral demarcation

exercise. Contrary to what Burkina Faso st ates, Niger neither “ignores” nor plays down the

105
importance of the terms of the 1987 Agreement , no more than it tries to extricate itself from its

commitments under that Agreement. It merely sees the Agreement for what it is: a bilateral treaty

concluded as part of the technical and diploma tic process of demarcating the common frontier of

the two States. Unlike Burkina Faso, Niger is aware that we are no longer in a context of bilateral

negotiations.

18. Evidently, the other Party is mistaken as to the era as well as to the context in which we

are now seeking a solution to the delimitation of the disputed frontier. The frontier dispute between

the two countries has now been submitte d to this Court, which was seised ⎯ need I recall ⎯ in

2009, on the basis of the Special Agreement of 24Fe bruary. It is thus the subject of judicial

proceedings, based on legal foundations that are co mpletely different from the bilateral procedure

initiated in 1964, of which the 1987 Agreement was, moreover, just one episode.

19. In international law, the well-known principle regarding evidence is that of its free

admissibility: all forms of evidence are admissib le, and there is generally no rule excluding

evidence of a particular nature. This principle is well established by various international texts 106,

107 108
as well as by jurisprudence and doctrine . In practice, there is a strong tendency for parties to

105
See CR 2012/19, p. 24, para. 24 (Thouvenin).
106
See, in particular, Article II, paragraph 5, of the Great Britain/United States Convention of 24 January (cited in
Reports of International Arbitral Awards (RIAA) Vol.XV, p.303); Article3 of the United States ⎯Haiti Protocol of
28 May 1884; Article III, paragraph 2, of the Germany⎯Venezuela Protocol of 7 May 1903; Article 88 of the Rules of
Procedure of the Franco-German M.A.T. of 2 April 1920.
107
See, in particular, Award of 31March1926, RIAA, Vol. IV, p. 359; Mavrommatis Palestine Concessions,
Judgment No. 5, 1925, P.C.I.J., Series A, No. 5 , p. 29 and Series C, No. 7-11, p. 33; Certain German Interests in Polish
Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7, p. 73; Free Zones of Upper Savoy and the District
of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, pp. 156-157; Corfu Channel (United Kingdom v. Albania), Merits,
Judgment, I.C.J. Reports 1949, p. 17; ECHR, Judgment of 18 January 1978, Series A, No. 25, pp. 79-80.

108See the opinion of Max Huber on the occasion of disc ussions among the Members of the Permanent Court of
International Justice regarding certain provisi ons of the latter’s Rules of CouP.C.I.J., SeriesD, No.2 , Addendum
(1926), p. 250; see in the same connection and on the same occasion the opinions of Nyholm and Anzilotti (ibid., p. 117
and pp. 129-130); see also: Joseph C. Witenberg, “La théori e des preuves devant les juridictions internationals”, Recueil
des cours de l’Académie de droit international (RCADI) , 1932-II, pp.87-88; CharlesdeVisscher, Problèmes

d’interprétation judiciaire en droit international public , Paris, Pedone, 1963, p.31; Durward V. SandiferEvidence
before international tribunals , revised edition, Charlottesville, Univsity Press of Virginia, 1975, pp.189-190;
H.W.A.Thirlway, “Evidence before Intern ational Courts and Tribunals”, in R.Bernhardt (dir.publ.), Encyclopaedia of
Public International Law, Vol.I, Amster dam, 1981, pp.59-60; Gérard Niyungeko, La preuve devant les juridictions
internationales, Brussels, Bruylant, 2005, pp. 239-319. - 32 -

give arbitral tribunals a considerable amount of scope in the matter of evidence. This was

41 particularly true in the Rann of Kutch (India/Pakistan) 10, Guinea/Guinea Bissau 110 and Guinea

111 112
Bissau/Senegal cases, and in that concerning the Laguna del Desierto (Argentina/Chile) . It

has been concluded from analysis of such international practice that

“it is safe to say that international judicial practice supports the existence of the

principle of free evaluation of evidence by th e tribunal... [Such] jurisprudence has
always shied away from restrictive rules regarding the admission and evaluation of

evidence by the organ responsible for deciding, amon113he various pieces of evidence,
which should have precedence over the other.” [Translation by the Registry.]

20. As a general rule, no evidence can be set aside unless it is excluded in a general

convention on which the tribunal’s jurisdiction is founded or in a special agreement seising an

international court. In the present case, the situation is very clear. Article 6 of the Special

Agreement of 24 February 2009 provides:

“The rules and principles of international law applicable to the dispute are those
referred to in Article 38, paragraph 1, 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.”

21. As we can see, Mr. President, this provision is framed in very open terms. The

applicable law in the present dispute is thus not limited to the principle of the intangibility of

boundaries inherited from colonization. Nor is it limited to the provisions of the Agreement of

March 1987, which is only one of the particular s ources the Parties wished to identify, without it

having precedence over other sources, since the a bove-mentioned Article 6 does not establish any

hierarchy among them. The applicable law in the present proceedings is the rules and principles of

international law in general, including the law of evidence before the Court. Hence, in interpreting

a text relating to the negotiations between the Part ies, there is no reason for the Court to depart

from the general rules applicable before it in that regard.

109
See the Arbitration Agreement of 1965 between India and Pakistan; text published inInternational Law
Materials (ILM), 1968, p. 6.
11See Article6 of the Arbitration Agr eement of 1983; text published in Revue générale de droit international

public (RGDIP), 1986, p. 489.
11See Article 6 of the Arbitration Agreement of 1985; text published in RGDIP, 1990, pp. 207-208.

11See ArticleXI of the Arbitration Agreement of 1991 between Argentina and Chile, cited by
Luis Ignacio Sánchez Rodriguez, “L’uti possidetis et les effectivités dans les contieux territoriaux et frontaliers”,
Recueil de l’Académie de droit international (RCADI), Vol. 263, 1997, pp. 173-174.

11Luis Ignacio Sánchez Rodriguez, op. cit. - 33 -

42 22. Members of the Court, it is one thing for neighbouring States to decide, in the framework

of a bilateral agreement, on the type of documents that should be used in the work of demarcating

their common frontier. That is what Niger and Burkina did when they referred in turn to the 1927

texts, the 1960 IGN map and the relevant documents accepted by joint agreement of the Parties. It

is quite another thing for a State that is a party to a dispute to place before the Court all the

evidence in support of its claims. That is what Niger has done in these proceedings, as it is entitled

to do.

23. Mr. President, Burkina Faso thus wrongful ly criticizes Niger for what it describes as its

“tendency to reinvent a frontier line on the basis of various documents whose relevance is ruled out

114
by the 1987 Agreement” . After all, Burkina itself acknowledges that between the Parties there

are “disagreements about how the applicable rule s are to be implemented” and that there have

arisen “differences of opinion about the delimitation of the frontier... that lie at the heart of the

115
present dispute” .

24. However, even with the benefit of this demonstration, the matter is apparently not

completely settled, since Burkina Faso also ru les out the documents relating to the 1932 to 1947

period, on the grounds that at the time Upper Volta no longer existed and that it was re-established

in 1947 within its 1932 boundaries.

B. The documents relating to the period from 1932 to 1947
are said to be irrelevant

25. This argument cannot succeed, Members of the Court. Just because Upper Volta did not

exist during that period, it does not mean that the boundaries between the cercles had disappeared.

Numerous documents from that time illustrate colonial boundary practice, including:

⎯ the Garnier-Lichtenberger Record of Agreement of 25 April 1935 settling the territorial dispute

at Sinibellabé 11;

43 ⎯ the letter of 9 May 1935 from the Commander of Dori cercle to the Governor of Niger making

reference to that Record of Agreement 11;

11CMBF, p. 8, para. 0.13.
115
Ibid., p. 9, para. 0.14.
11MN, Ann. C 57. - 34 -

⎯ the letter of 10May1935 from the Head of Té ra Subdivision to the Commander of Tillabéry

cercle118;

⎯ the letter of 9May1935 from the Commander of Dori cercle, although it only refers to a

sketch-map by Mr. Roser dating from 4 April 1932, th at is to say before Upper Volta ceased to

119
exist .

26. Burkina Faso dismisses them out of hand, just as it disregards every document not to its

liking. Thus, in his pleadings on Monday after noon, ProfessorForteau, referring to a Record of

Agreement of 13April1935 “concluded be tween Administrator Garnier of Dori cercle and

Assistant DeputyLichtenberger of Téra cercle”, which was the origin of the Vibourié marker,

stated:

“the Record of Agreement was concluded in 1935, at a time when Upper Volta had
ceased to exist. The latte r was reconstituted in 1947, within its 1932 boundaries ⎯
therefore anything which may have happened in 1935 is, once again, devoid of any
120
legal effect on the course of the boundaries of Upper Volta and of Niger.”

However, in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali),

Burkina itself referred to several documents of a similar nature dating from the same period, and

the Chamber of the Court, quite rightly, took them into account in its consideration of the case.

More specifically, throughout the Judgment of 22December1986, references are made in

particular to a letter of 19February 1935, an exchange of letters, and an Order of

121
27 November 1935 . At no time during the proceedings in question did BurkinaFaso express

any qualms about the fact that those documents dated from a period during which the colony of

Upper Volta no longer existed.

44 27. Furthermore— and paradoxically— ProfessorJean-MarcThouvenin, in his pleadings

on Monday afternoon, made extensive use of a re port of 9 April 1936 by Captain Fabry, M.D.

which, to tell the truth, says very little about the course of the frontier in that area, but merely

11MN, Ann. C 58.
118
MN, Ann. C 59.
11MN, Ann. C 67.

12CR 2012/20, p. 23, para. 48.

12Frontier Dispute (Burkina Faso/Republic of Mali) , Judgment, I.C.J. Reports 1986, p. 581, para. 52;
pp.584-585, para.60; pp.594-595, para.75; p.601, para.87; p.602, para.89; p.603, para.91; p.605, para.95;
p. 607, para. 98; p. 626, para. 135; p. 631, para. 144; p. 636, para. 135. - 35 -

depicts a few scenes of everyday life connected with the River Sirba, some 500 m from the village

of Bossébangou. What are we to understand, Members of the Court? That some documents

produced between 1932 and 1947 are admissible, and indeed relevant, in the present case, while

others are not? How can we explain such a selective approach? Obviously, fickleness and

inconsistency are not always found on the side where they are supposed to be.

28. It is therefore surprising to say the least that, with regard to the evidence and even more

so the use of it, the other Party has said, not w ithout a certain presumptuousness, I must say, that

122
Niger’s “judicial strategy” is not based on any “legal principle” ; and that the only consistent

aspect of Niger’s Memorial is “its inconsistenc y”, in that it “does not follow any clear method” 123,

in particular with respect to the documents it cit es for determining the course of different sections

of the frontier. Like a finicky schoolteacher, Burk ina Faso marks Niger’s work harshly. But this

teacher’s eyesight is clearly failing, and he is hol ding the work upside down: otherwise he would

have realized, Mr.President, that Niger’s judicial strategy is to provide the Court with all the

documents capable of guiding it in its task; and to analyse them in great detail in order to indicate

those which, in its opinion, support and complement the 1927 texts for the purposes of determining

the exact course of the disputed frontier, sector by sector. He would probably have realized that in

1987, BurkinaFaso and Niger were already both aware that the 1927 Arrêté, as amended by its

Erratum, and the 1960 IGN map could not suffice to determine the course of the disputed frontier

in every sector; and that this is no doubt why th ey included a reference to documents accepted by

joint agreement of the Parties.

29. Burkina Faso — using its customary highl y flattering language — reproaches Niger with

45 displaying “a singular, particularly lax, subjectiv e and uncertain notion of the expression ‘[s]hould

the Arrêté and Erratum not suffice’, which appears in Article2 of both the Agreement of

28 March 1987 and its Protocol” 124.

Whatever Niger does to demonstrate the relevance of the documents it produces for the

purposes of fully settling the present dispute, it makes no difference: the other Party has remained

122CMBF, p. 40, para. 1.47.
123
Ibid., p. 47, para. 1.65.
124CMBF, pp. 37-38, para. 1.41 and p. 44, para. 1.57. - 36 -

anchored in the context of the Joint Commission’ s work in 1987; it would do well to open its eyes

and realize that we are in a completely different context — we are before the International Court of

Justice in 2012.

30. In practical terms, the course of the secti on of the frontier that remains in dispute needs

to be established by having recourse to the effectivités arising from the history and composition of

the cantons, from the maps, and from a number of agreements resulting from colonial practice

which explicitly or implicitly recognize the frontier points, in particular in this still-disputed sector.

Niger will explain in its pleadings how, in its view, this combination of the Erratum, the

1927 Arrêté, the effectivités and boundary delimitation practice makes it possible to reach a clear

and definitive settlement of the dispute in this sector of the frontier. It now falls to me to show that,

important though it is for the purposes of resolving the present frontier dispute, the 1927 Arrêté, as

amended by its Erratum, is only one piece of evidence among others.

II. The 1927 Arrêté and its Erratum are one piece of evidence
of the frontier line, among others

31. Members of the Court, in the present case, the “colonial heritage” at the critical date is —

as Niger has shown — imprecise and incomplete. In short, it contains “deficiencies” which make it

impossible to determine the exact course of the front ier in all sectors. We have demonstrated that,

in the present case, no piece of evidence can be excluded. Accordingly, no part of the effectivités

or boundary delimitation practice produced by Niger should be disregarded.

32. In view of this, I shall now turn my attention to establishing:

⎯ firstly, that under international law the 1927 Arrêté and its Erratum are facts and, as such, are

not binding on the Court as rules of law; they constitute, in Niger’s opinion, a piece of

evidence which, while clearly important, is one that cannot exclude all the other pieces of
46
evidence;

⎯ secondly, that by choosing not to have recourse to the historical documents and factual

elements in order to substantia te its interpretation of the 1927 Arrêté, as modified by the

Erratum, Burkina Faso fails to contribute fully to uncovering the legal truth in the present case. - 37 -

A. The 1927 Arrêté and its Erratum are facts and one piece of evidence among others

33. Mr.President, Members of the Court, acco rding to Burkina Faso’s written and oral

pleadings, anything not in the Erratum to the 1927 Arrêté does not exist. The fact is, however, that

those things do exist, and neither Burkina Faso — nor Niger for that matter — can do anything to

change that situation; they exist, and they must contribute to the determination of a precise frontier

line, using a legal approach which is in keeping with the jurisprudence of this Court. Our

opponent’s repeated claims in support of its ar gument of a clear title, “which is sufficient in

125
itself” , cannot rid that 1927 text of its deficienci es. What was not clear in 1927 cannot have

become so in 1932, when Upper Volta was dissolved, or in 1947, when that colony was

reconstituted, and even less so in 1960, when the Parties to the present case gained their

independence.

34. It is important, therefore, to examine the exact status of the 1927 Arrêté and its Erratum

in the present case. Here too, the Judgmen t rendered by the Chamber of the Court on

22 December 1986 in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) is

of particular importance. What does the Cham ber say on the subject of the status of those

1927texts which— I would recall— were previously at issue in that case? It leaves nothing to

doubt: “it is solely the evidentiary value of the Order and erratum which counts” (Frontier Dispute

(Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 591, para. 72). The Chamber’s

statement is a logical consequence of its view of the status of colonial law in international law,

specifically in the law of delimitation between tw o former colonies of the same colonial power.

According to the Chamber of the Court:

47 “international law does not effect any renvoi to the law established by the colonizing
State, nor indeed to any legal rule unila terally established by any State whatever;

French law — especially legislation enacted by France for its colonies and territoires
d’outre-mer — may play a role not in itself (as if there were a sort of continuum juris,
a legal relay between such law and interna tional law), but only as one factual element

among others, or as evidence indicative of what has been called the ‘colonial
heritage’, i.e., the ‘photograph of the territory’ at the critical date” ( ibid., p.568,
para. 30).

35. Such is the status accorded by the hitherto well-established jurisprudence of this Court to

acts of colonial law in relation to international la w: “one factual element”, Members of the Court,

125
CMBF, p. 73, para. 3.23. - 38 -

a mere factual element, I would be inclined to say. In this respect, the Court is following the

jurisprudence of its predecessor, the Permanent Cour t of International Justice, which stated in the

case concerning Certain German Interests in Polish Upper Silesia : “From the standpoint of

International Law and of the Court which is its organ, municipal laws are merely facts which

express the will and constitute the activities of States, in the same manner as do legal decisions or

administrative measures.” (Merits, Judgment No.7, 1926, P.C.I.J., SeriesA, No.7 , p.19.) A

factual element, therefore, but — we would also point out — “one factual element among others”.

Consequently, the 1927 Arrêté and its Erratum, in themselves, rank only as “evidence of a

boundary having ‘de facto value’ at the time”, as noted by the Chamber of the Court in the

above-mentioned Burkina Faso/Republic of Mali case. And if this act of internal law is affected by

a factual error, as in the case with the Erratum where it refers to the Bossébangou sector, then it has

no place as an element of fact in the case file of these proceedings. My colleague Professor Klein

will look at this in greater detail in his presentation this afternoon.

B. Burkina Faso’s choice to dispense with the facts

36. As the Court has doubtless noted, Burkina Faso’s Counter-Memorial essentially focuses

on the documents furnished by Niger. It is hardly surprising, therefore, that “the Memorial of

Niger places [our opponent] in a difficult position” or that our opponent is, by its own admissi
on,

only able to give “a cursory response” 126. And this is not — as Burkina Faso claims with its usual

48 degree of courtesy— because Niger’s written pleadings are based on “a series of assertions and

vague comments . . . inconsistently argued and lack[ing] legal foundation” 127.

37. Burkina Faso’s difficult position is evident in its Counter-Memorial, moreover: while

criticizing the numerous documents furnished by Niger, in particular to substantiate the conclusions

drawn from the Delbos/Prudon Agreement between 1927 and 1960, Burkina Faso somewhat

cryptically concedes — the text in question is in brackets — that the various “examples” provided

128
by Niger in support of its argument are “no doubt the fruit of extensive research by Niger” .

12CMBF, p. 1, para. 0.2.
127
CMBF, p. 1, para. 0.2.
12CMBF, p. 30, para. 1.27. - 39 -

38. Even though convinced of the faultlessness of the title constituted by the 1927 Arrêté and

its Erratum, Mr. President, Burkina Faso could have opted for the second hypothesis contemplated

by the Chamber of the Court in the Burkina Faso/Republic of Mali case with regard to title and

effectivités, whereby the effectivités confirm the title. But no, Members of the Court, our opponent

clings to the rock of its title and fails to offer even the slightest shred of evidence of effectivités or

boundary delimitation practice in support of its position.

39. Of course, I cannot believe that this decision not to search through the archives, an

approach which is so radically opposed to that of Niger, has been taken lightly by Burkina Faso. It

can only be a reasoned choice in a legal strategy which expects the Court to decide this case on a

sentence — a single sentence — confirming a course which, in its view, is perfectly clear.

40. However, in choosing to adopt that stance, in failing to carry out the documentary

research, our opponent has locked itself into its certainties regarding the 1927 texts ⎯ texts which

are so dazzlingly clear that they can sometimes be blinding. In so doing, it has omitted to bring

before the Court information which might have help ed the latter to establish the legal truth. Niger

can only regret that fact. It just so happens that the Court does not refrain from performing its

function of passing judgment and responding to a requ est to settle any disputed points of a frontier

which has already partly been delimited, simply because one of the Parties believes that there is

nothing to dispute.

41. The Court has exercised that function, ev en in a case where the frontier was determined

by international legal instruments which were not contested by the Parties, by carefully examining

49 all the available material and, where necessary, carrying out its own checks. That is what I shall

now demonstrate in this final part of my presentation.

III. The Court agrees to specify the course of a frontier which
has already been delimited

42. Mr.President, Members of the Court, Burk inaFaso points out in its Memorial that the

“primacy of title” over effectivités and boundary delimitation practi ce “was vividly confirmed in

Cameroon v. Nigeria” 12. However, Burkina Faso remains silent on the fact that, in that case, the

129
MBF, p. 61, para. 2.18. - 40 -

Court also interpreted the legal title in the light of various documents produced by the Parties, and

of the realities on the ground. It agreed to specify several sections of a frontier which had already

been determined by a legal instrument whose valid ity was challenged by neither of the two Parties

to the dispute. May the Court allow me to cite in full the relevant passage of the Judgment of

10 October 2002 in that case:

“The task which Cameroon referred to the Court in its Application is ‘ to specify
definitively’ [emphasis added by the Court] the course of the land boundary as fixed
by the relevant instruments of delimitation. Since the land boundary has already been
delimited by various legal instruments, it is indeed necessary, in order to specify its

course definitively, to confirm that those instruments are binding on the Parties and
are applicable. However, contrary to wh at Cameroon appeared to be arguing at
certain stages in the proceedings, the Court cannot fulfil the task entrusted to it in this
case by limiting itself to such confirmation. Thus, when the actual content of these

instruments is the subject of dispute between the Parties, the Court, in order to specify
the course of the boundary in question defi nitively, is bound to examine them more
closely. The dispute between Cameroon and Nigeria over certain points on the land

boundary between Lake Chad and Bakassi is in reality simply a dispute over the
interpretation or application of particular provisions of the instruments delimiting that
boundary. It is this dispute which the Court will now endeavour to settle.” ( Land and
Maritime Boundary between Ca meroon and Nigeria (Cameroon v. Nigeria:

Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002 , pp. 359-360,
para. 85.)

43. The Court then goes on to make a number of observations in this exercise of

interpretation for the purposes of specifying the frontier. I shall cite only two of the most telling
130
examples .

50 44. First example . On the frontier in the Kohom River sector, Nigeria claimed that

paragraph17 of the Thomson-Ma rchand Declaration of 1931— whic h was the legal title in that

case — was “defective”. The Court agreed and declared that its task “is accordingly to determine

where the drafters . . . intended the boundary to run in this area when they described it as following

the course of a river called ‘Kohom’”.

The following part of the Court’s reasoning is of great interest for the present case, because

the Court explains its approach. It states:

“101. In order to locate the course of the Kohom, the Court has first examined
the text of the Thomson-Marchand Declara tion, which has not provided a decisive
answer... The Court has therefore ha d to have recourse to other means of
interpretation. Thus it has carefully examined the sketch-map prepared in March 1926

130
See also the reasoning of the Court’s Judgment on th e course of the frontier in the KeLand andtor,
Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment,
I.C.J. Reports 2002, pp. 363-364, paras. 93-94; and in the sector from Ngosi to Humsiki (ibid., p. 365, paras. 95-96). - 41 -

by the French and British officials which served as the basis for the drafting of
paragraphs18 and 19 of the Thom son-Marchand Declaration.” ( Ibid., pp.366-367,
para. 101; emphasis added.)

45. It is precisely such an approach that Niger requests the Court to adopt in the present case,

on the same grounds.

46. Second example. On the frontier in the Jimbare and Sapeo sector, Nigeria first noted that

the wording of the Thomson-Marchand Declaration is “defective in many respects” in regard to

that part of the land boundary described in paragrap hs 35 to 38 of the Declaration, and proposed to

clarify it. According to Nigeria, “the intenti on of the British and French Governments had since

1920 [i.e., 11years before the adoption of the Th omson-Marchand Declaration] been to attribute

Jimbare to France and Sapeo to Great Britain.”

In this connection, Nigeria pointed out that:

“on 12 November 1920 a joint proposal to this effect had been signed by
W.D.K.Mair, a British District Officer, and CaptainLouisPition, representing the

French administration (hereinafter the “Mair-Pition Joint Proposal”) following a
delimitation mission on the ground”.

That proposal was subsequently incorporated into a document signed on 16 October 1930, referred

to as the “Logan-Le Brun procès-verbal”. This document, drawn up afte r the Thomson-Marchand

Declaration was prepared but before it was signe d, “was intended to set out a solution on the

51 ground to the difficulties created by the text of the Thomson-Marchand Declaration and that it has

been respected since then by both Parties” (ibid., p. 382, para. 141).

Nigeria contended that some of the proposals in that procès-verbal had been incorporated

into the 1931 map annexed to the Declaration. In its view, “it is the map which should therefore be

followed and not the text of the Declaration, since this ‘does not accord with the extensive practice

on the ground for the past three quarters of a century’” (ibid., pp. 381-382, para. 141).

47. In Cameroon’s view, however, “the text of the Thomson-Marchand Declaration

should . . . be adhered to” (ibid. p. 382, para. 142).

48. Members of the Court, let us listen to the Court’s response as it emerges from

paragraphs143, 144 and 145 of its Judgment of 10October2002 (ibid., pp.382-383). In

paragraph 143, the Court states:

“The Court notes that the interpretation of paragraphs35 to 38 of the

Thomson-Marchand Declaration poses problems, since the description of the - 42 -

boundary therein appears both to contain a series of material errors and, in certain
places, to contradict the representation of that boundary on the 1931 map appended to
the Declaration. The Court further notes that, in practice, Sapeo has always been

regarded as lying in Nigerian territory.” (Emphasis added.)

49. In paragraph 144, it explains:

“The Court will first address the Sapeo area. After carefully studying the maps
provided by the Parties and the Logan-Le Brun procès-verbal, the Court finds that, as
Nigeria claims, it is indeed the boundary described in that procès-verbal and not that
described in the Thomson-Marchand Declaration which was transposed onto the

1931 map appended to the Declaration.” (Emphasis added.)

50. Lastly, in paragraph 45, the Court continues and concludes:

“Turning next to the situation in the Ji mbare area, the Court notes that, contrary

to what occurred in regard to Sapeo, the modification of the boundary provided for in
the Logan-Le Brun procès-verbal was not transposed onto the 1931 map appended to
the Thomson-Marchand Declaration in respect of the Jimbare area. The course of the
boundary on the map is as described in th e Declaration. The Court nonetheless takes

the view that it is the course as described in the Logan-LeBrun procès-verbal which
must also prevail here. As the Court h as just found, the Logan-LeBrun course in
effect corresponds to the intention of the au thors of the Declaration throughout this
region.” (Emphasis added.)

52 51. As you can see, Members of the Cour t, the Court’s clear approach in the Cameroon v.

Nigeria case removes all doubt ⎯ if any still remained ⎯ that your Court specifies and corrects the

course of a boundary which has already been determined by a legal instrument that is not contested

by the Parties as a legal title for the purpose of de termining the course of the boundary. Moreover,

the Judgment of 10October2002 shows that the Cour t interprets the title in the light of physical

and geographical characteristics, local agreemen ts concluded following field missions, as well as

maps and boundary delimitation practice; the Court identifies the material errors in the title and

corrects them in order to obtain the line that confor ms as closely as possible to the intention of the

authors of the legal title.

52. Niger respectfully requests the Court to do th e same in the present case. In so doing, the

Court will simply be following its own jurispruden ce, from which there is no justification for it to

depart in the present case. In so doing, the Court will fully accomplish its task of settling the

dispute brought before it in a way that leaves no room for ambiguity and, thereby, of eliminating

any obstacles to the implementation of its decision.

53. Mr. President, Members of the Court, I am well aware that I have made severe demands

on your attention. I hope that it was not too much to suffer. I beg your indulgence in advance and - 43 -

thank you sincerely for your patience. Mr. President, that concludes my oral argument. May I ask

you now to call ProfessorJeanSalmon so that he may present Niger’s arguments relating to the

frontier in the Téra sector.

Thank you once again for your kind attention.

The PRESIDENT: Thank you, Mr. Kamto. I now give the floor to Professor Salmon so that

he can begin his pleading on the boundary in the Téra sector. You have the floor, Professor.

SMAr.MON:
53

T HE BOUNDARY IN THE T ÉRA SECTOR

1. Mr. President, Members of the Court, counsel for Niger now invite you on a journey along

the frontier. I shall present the situation in the Téra sector and my colleague, Pierre Klein, that in

the Say sector.

2. It being understood that, in the Téra sector , Burkina Faso’s theories of clear and artificial

straight lines are unfounded, we find ourselves in a situation where it is necessary to determine

what was the western boundary of Tillabéry cercle between two points 150km apart, namely

Tong-Tong and the endpoint of the boundary where it meets Say cercle.

3. The basic document which must never be ove rlooked is the Decree of the President of the

Republic of 28December1926, which reincorporat es into the Téra region (at the southern

boundary of Tillabéry cercle) those cantons which had previously formed part of that region

between 1899 and 1910, when they belonged to Niger. Of that region— whose origins were

traced by ProfessorTankoano— we have some sketch -maps. [Slide CMN, fig.1, p.22, or

mapC[47]] The first is a sketch-map which groups the cantons of the Téra subdivision within

Dori cercle 13. Highlighted in yellow is the wester n boundary, with which we shall become

familiar [Slide of the Boutiq sketch-map, CMN, fi g.2, opposite p.28 (Note: the map is missing

from the text)]. The second sketch-map is that prepared by Captain Boutiq in 1909 13, which

shows only the segment where that boundary meets Say cercle at the northern tip of the salient.

131
MN, Ann. C [47].
132
MN, Ann. D 1. - 44 -

The third is the sketch-map drawn by Captain Coquibus, of which we have indirect evidence thanks

133
to the Delbos sketch-map of 17December1927 [Slide of the Delbos sketch-map]. On this

sketch-map, the same curved boundary can again be seen, here in red. [End of slide]

The 1927 texts do not provide us with a great deal of information. Along this stretch of the

boundary, the Arrêté of 31August1927 adopted the following points: Tong-Tong, a junction on

the Téra-Dori motor road and, lastly, the boundary of Say cercle near to and to the south of

54 Boulkalo [Slide of the “new frontier” map]. The Erratum is no more forthcoming. I shall illustrate

this using the 1:1,000,000-scale “new frontier” map 134which, as we have seen, was transmitted to

all the interested parties on 6October1927. Again, three points: the Tong-Tong astronomic

marker (1), the Tao astronomic marker (2) and the point where the boundary of Say cercle reaches

the salient (3).

The “new frontier” map shows the same genera l curve of the line and has the advantage of

indicating exactly where that line meets the boundary of Say cercle at the northern tip of the

salient; however, in view of its scale, this map contains very few topographic details.

4. It has already been stated at some length that this map offers few indications to give

meaning to a text which is defective over a stretc h of approximately 150 km. As explained earlier,

two methods should be combined in order to identify the boundary more precisely.

The first is to rely on the work of the ad ministrators who, throughout the entire colonial

period, had to resolve practical probl ems which arose in respect of their cercle boundaries; the

second requires us to follow the line shown on the 1960 IGN map.

For their part, the administrators recorded the traditional boundaries which they had been

applying for years, conserving de facto boundaries of sorts. The inaccuracy and imprecision of the

Erratum, its lack of clarity and its deficiencies led the administrators on both sides of the

boundaries to work together — and I stress that point — to supplement its text by maintaining the

traditional canton boundaries of their respective cercles and subdivisions.

One of the documents furnished by our opponent is a good illustration of the role assigned to

those administrators by the Dakar authorities. On 7June1938, the Directorate of Political and

133
MN, Ann. C 20.
134
MN, Ann. D 13. - 45 -

Administrative Affairs of FWA requested from the Chef du Cabinet Militaire (i.e., from the

Geographical Department) a sketch-map showing the division into cantons of various cercles,

135
including those of Say and Tillabéry . The response from that military department is revealing:

“The Atlas of Cercles is currently being revised, but this is a very lengthy and

painstaking task that will require the participation of the local administrative
55 authorities, which at present are the only ones able to define ⎯ at least

approximately — the canton boundaries.

In most cases, these are de facto boun daries which have never been defined by
texts.”136

This was an official recognition — by the general authorities of FWA — of the legitimacy of

the subsidiary role played by administrators in interpreting and therefore clarifying on the ground

the defective texts. In so doing, the administrators do not modify the text , as Burkina Faso

claims 137, which would have required a new official act; rather, they interpret it, thus filling in the

gaps in a manner which respects the 1926 Decree of the President of the Republic, from which the

boundary originated.

5. The second method consists in using the I GN map. That map, you will remember, was

previously referred to in the context of the wo rk carried out by the Joint Commission and of the

Agreement of 28March1987. That Agreement stated that “[s]hould the Arrêté and Erratum not

suffice, the course shall be that shown on the 1:200,000-scale map of the Institut Géographique

National de France, 1960 edition” 138. In a way, this granted the map the status of subsidiary title.

It should not be forgotten that the care taken when drafting that map was not limited to the

purely cartographic aspects; the map provides an accurate representation of the colonial

boundaries as they were seen on the ground by the drafters during the completion surveys on the

basis of information obtained from the local authori ties. Furthermore, since the details shown on

the IGN map are those closest to the critical date of the uti possidetis juris, and since the map was

prepared on a scale of 1:200,000, Niger considered it legitimate to rely on this subsidiary source,

particularly in this sector.

13Note No. 521 CM2 from the Geographical Department, date d 25 June 1938, on the subject of the sketch-maps
requested by Captain Urvoy (CMBF, Ann. [6]).
136
CMBF, Ann. No. 6.
137
See, for example, CMBF, paras. 1.34 and 1.39.
13MN, Ann. A 4. - 46 -

The same conclusion is reached by following not the rules which were applicable for the

Joint Commission, but by adopting the general rules of international law, as those were described

by the Chamber of the Court in the Burkina Faso/Republic of Mali case:

“The Chamber cannot uphold the information given by the map where it is
contradicted by other trustworthy information concerning the intentions of the colonial
power. However, having regard to the date on which the surveys were made and the
neutrality of the source, the Chamber considers that where all other evidence is

56 lacking, or is not sufficient to show an exact line, the probative value of the IGN map
becomes decisive.” ( Frontier Dispute (Burkina Faso/Republic of Mali), Judgment,
I.C.J. Reports 1986, p. 586, para. 62; emphasis added.)

Accordingly, as Niger wrote in its Memorial:

“unless we find [and I am referring here to the sector in question] abnormal deviations

in relation to the texts or manifest lacunae in the information on the canton
boundaries, and subject to the necessary cau tion where the hesitation of the map’s
drafters is reflected in gaps in the line of crosses, these results should in principle
serve as a guide to determine the course of the inter-colonial boundary in 1960” 13.

6. Niger has scrupulously adhered to this policy, only deviating from the IGNline for

reasons which, as we shall demonstrate in our subsequent presentations, are all founded in law:

⎯ at Vibourié, on account of the existence of a colonial marker which was unknown to the

drafters of the map;

⎯ at Petelkolé, because of an agreement which w as reached after independence relating to road

works and the establishment of a joint border post;

⎯ at Oussaltan, owing to information dating from the colonial period which is not contradicted by

the map, moreover, which prudently shows a line of broken crosses in this area;

⎯ and, finally, at the point where the boundary meets that of Say cercle, for a number of reasons

which will be explained by Professor Klein.

Well, Mr.President, Members of the Court, si nce you have been so very well behaved, we

shall continue our story this afternoon.

The PRESIDENT: Thank you, Professor Salmon. The Court will meet again this afternoon

at 3 p.m. The sitting is closed.

The Court rose at 1 p.m.

___________

139
MN, p. 91, para. 6.16.