Non corrigé Traduction
Uncorrected Translation
CR 2012/21 (traduction)
CR 2012/21 (translation)
Mardi 9 octobre 2012 à 10 heures
Tuesday 9 October 2012 at 10 a.m. - 2 -
10 The PRESIDENT: Please be seated. The sitting is open. Judge Donoghue has informed me
that she is unable to be present on the Bench today for reasons duly communicated to me. We shall
hear the continuation of the first round of oral argument of Burkina Faso, and I give the floor to the
counsel and advocate of Burkina Faso, Professor Jean-Marc Thouvenin. You have the floor, Sir.
Mr. THOUVENIN: Thank you, Mr. President.
T HE SAY SECTOR ⎯ FROM THE S IRBA AT BOSSÉBANGOU
TO THE BOTOU BEND
1. Mr. President, Members of the Court, yesterday Burkina Faso presented the course of the
boundary from the Tong-Tong astronomic marker to th e River Sirba at Bossébangou. My task this
morning is to continue that presentation of the frontier line from the River Sirba at Bossébangou to
the point which is termed for convenience “the beginning of the Botou bend”. I will first
endeavour to demonstrate that there is no justication for the line claimed by Niger, before
presenting the frontier as it results from the applicable texts.
I. The line claimed by Niger
2. Niger’s position, as has already been ex plained in detail, leads it to disregard
systematically both the text of the Erratum and the line shown on the 1960map, in favour of the
line shown on various maps and sketch-maps which the States have not accepted “by joint
agreement of the Parties” for th e determination of their common frontier. Essentially, it emerges
that, in Niger’s view, the frontier in the Say sect or corresponds to alleged “traditional” boundaries
of cercles, and not to the line described by the 1927 Erratum.
3. This is in clear contradiction witthe 1987Agreement and the Special Agreement
bringing the case before the Court. I shall not dwe ll on that; no more, Mr. President, than I shall
dwell on the legal inconsistency of the thesis of alleged “traditional boundaries”, which has already
been demonstrated by ProfessorsPellet andFo rteau, or on the impossibility of locating those
alleged boundaries, since Niger’s Counter-Memorial adds not hing in this regard to its first written
pleading, which Burkina has alread y refuted. On this point, I would refer the Court to Burkina’s - 3 -
1
11 Counter-Memorial . I shall therefore confine myself here to replying to the two arguments put
forward by Niger concerning the section of the frontier which runs in a straight line from the
intersection of the River Sirba with the Say para llel to the beginning of the Botou bend. I would
recall that the Erratum describes this section of the frontier as follows: “From [the intersection of
the River Sirba with the Say parallel] the frontier, following an east-south-east direction, continues
in a straight line up to a point located 1,200 m to the west of the village of Tchenguiliba.”
4. According to Niger’s first argument, this line established by the Erratum has “no basis in
the situation prior to the adoption of the Erra tum and was never confirmed in the subsequent
practice” 2. It argues, on the contrary, that there ar e numerous representations of the boundary in
this area, dating from both before and after 1927, which show not one straight line but a line
divided into two segments 3. This argument will not detain us for long.
5. Firstly, it is inadmissible because it is based on documents, in particular sketch-maps,
which have not been accepted by joint agr eement of the Parties under the terms of the
1987 Agreement. Moreover, even if it were possible to rely on these documents for the purposes of
determining the course of the boundary, they could only be used to deal with any instances where
the Erratum might not suffice. However, the Erratum’s description of this section, which is formed
4
of one straight line, cannot be said not to suffice. Even Niger acknowledges this .
6. Secondly, it is erroneous in law, since even supposing that an informal “boundary” existed
in this area before or after 1927, such a boundary would reflect effectivités which cannot take
precedence over the legal title, the Erratum. There is impeccable case law to confirm this 5.
7. Furthermore, supposing that the said effectivités were established, those which date from
the period between 1932 and 1947 woul d also have no legal effect, since, as Professor Alain Pellet
reminded us yesterday, after being dissolved in 1932, Upper Volta was reconstituted in 1947 within
its 1932 boundaries. Consequently, anything which might have affected the course of the boundary
12 between 1932 and 1947 must be disregarded. Yet the post-1927 maps, which Niger cites to justify
1CMBF, pp. 115-123, paras. 4.30-4.44.
2CMN, p. 92, para. 2.2.21.
3
MN, p. 116, para. 7.35.
4CMN, p. 92, para. 2.2.21.
5MBF, pp. 59-61, paras. 2.14-2.19. - 4 -
the line that it claims, date from this precise period 6, whether it be the road map of 1934 7 or the
8
General Political and Administrative Map of 1939 . As for the sketch-maps on which our
opponent believes that it is possible to rely, they ar e characterized by the fact that they are either
not dated or were drawn up dur ing the period between 1932 and 1947 9. None of them therefore
has any legal significance and none can take precedence over the line as established by the
Erratum.
8. Niger presents its second argument as being “even more crucial” than the first ⎯ which,
as we have just seen, is not at all crucial or even relevant. According to Niger, “for over fifty years
now, the two States have agreed to consider that their common frontier in this sector passes through
a point located on the road between Niamey and Ouagadougou, 14kms from Mossipaga (Niger)
10
and 17kms from Kantchari (BurkinaFaso)” . Consequently, it argues that the course of the
boundary between the point where the River Sirba intersects with the Say parallel and the
beginning of the Botou bend does not follow one straight line, but a broken line passing through
that point.
9. In support of this statement, Niger’s Counte r-Memorial refers, by way of justification, to
paragraph7.38 of its Memorial. Here Niger writes, firstly, that the frontier point in question is
undisputed between the two States and, secondly, that it would appear “always to have been clearly
11
accepted by Burkina Faso” . The same statements are expanded in the Counter-Memorial, where
Niger states that the existence of this frontier point has “never been disputed by the Parties” 12 and,
furthermore, that a “subsequent agreement [was] re ached by the two States on this point [prior to
independence]” and that, in concluding that agreem ent, the latter “deliberately resorted to another
13 boundary line” from the one indicated by the Erratum 13. Niger concludes that this “subsequent
agreement takes precedence over the definition of the boundary given by the 1927 Erratum”.
MN, p. 117, para. 7.37.
7
MN, Ann. D 16.
8
MN, Ann. D 18.
9
MN, p. 117, para. 7.37.
1CMN, p. 92, para. 2.2.21.
1MN, p. 118, para. 7.38.
1CMN, p. 92, para. 2.2.21.
13
CMN, p. 93, para. 2.2.21. - 5 -
10. Reading this, one would expect Niger to produce an instrument revealing the agreement
of the two States to derogate not only from the Erratum, but also from the 1987 Agreement and the
Special Agreement referring the case to the Court. However, Niger produces nothing except its
own statements which, though reiterated, are not substantiated in any way.
11. This is not surprising, since Burkina has never agreed with its neighbour on this point
and has never given any sign of accepting the modification of the line established in the Erratum.
Moreover, it is sufficient to read the records of the discussions that the Parties have held since 1964
to be convinced that the agreement cited by Niger does not exist: neither the Protocol of
Agreement of 1964 nor the 1987Agreement mentions an “agreement” of the Parties concerning
this alleged frontier point which derogates from the Erratum; as for the discussions held after 1987
by the Commission on Demarcation, which I reported on yesterday, they attest to the fact that the
alleged agreement cited by Niger does not exist, since the consensual line of 1988 shows the
frontier as a straight line between the intersectio n of the Sirba with the Say parallel and the
beginning of the Botou bend.
12. Mr. President, these arguments, together with those already put forward by Burkina in its
14
written pleadings , conclude its demonstration that the line claimed by Niger in the Say sector is
not justified. By contrast, Burkina’s position in th is sector, as in the others, moreover, consists of
applying the law which the Parties have agreed is applicable and which they have asked the Court
to apply. I shall now turn therefore to the presentation of the course of the frontier claimed by
Burkina Faso.
II. The line resulting from the methodology adopted by the two States
13. In this regard, Niger rightly states that Burkina Faso’s approach “closely follow[s] the
methodology adopted by the two States to determ ine the course of the frontier”, “the Parties
[having] decided to give clear precedence to the 1927 texts and [having] only provided for recourse
to other documents ⎯ in particular the 1960 IGN map ⎯ in the event that those texts should ‘not
14
CMBF, pp. 115-135, paras. 4.30-4.75. - 6 -
14 suffice’” . Niger also points out, again rightly so, th at Burkina’s approach remains “in line” with
16
this methodology . I shall now explain it.
14. The Erratum describes the frontier as fo llows: after reaching the River Sirba at
Bossébangou, it
“almost 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 fron tier, following an east-south-east direction,
continues in a straight line up to a point located 1, 200 m to the west of the village of
Tchenguiliba.”
15. This description, with which we are now well acquainted, contains three types of
information. It mentions: frontier points(A), the directions followed by the line in several of its
sections (B), and the general shape of the line (C ). I shall now address each of these three groups
of information in turn, beginning with the frontier points.
A. The description of the frontier points
16. The Erratum specifies the position of three of these:
⎯ the River Sirba at Bossébangou – for convenience we have termed it point P;
⎯ the point where the River Sirba meets the Say parallel – which we have called point P3; and
⎯ the point located 1,200 m to the west of the village of Tchenguiliba ⎯ this is the beginning of
the Botou bend.
17. The Parties have agreed on the geographical co-ordinates of this last point. The first two,
points P and P3, can also easily be located.
(a) Point P
18. PointP, defined as “the River Sirba at Bossébangou”, is easily identified, since even
though the village of Bossébangou is not strictly speaking “on” the Sirba, in the sense that it is
located on the right bank of that river, this villa ge is nevertheless barely 500 m from the course of
15 the river, which the inhabitants use constantly for various activities. Captain Fabry, M.D. indicates
in his report of 9 April 1936: “At Bossébango . . . people go to collect water from the Sirba, which
15
CMN, pp. 2-3, para. 0.3.
16
CMN, p. 3, para. 0.5. - 7 -
17
is less than 500m from the village, they go there to wash, to fish...” . Clearly, therefore, the
“River Sirba at Bossébangou” refers to the place on th e right bank of the Sirba which is closest to
Bossébangou and which the villagers regard as naturally forming part of the village.
[Slide 1]
19. To determine the precise location of this po int, it is sufficient to draw a straight line
between the Tao astronomic marker and the centre of the village of Bossébangou, and to place
pointP at the point where this line intersects with the right bank of the River Sirba. The
geographical co-ordinates of this point are 13°21' 06.5"N and 1°17'11"E. The Court will find
more detailed explanations of this point in Burkina’s Memorial 18. I note that Niger has not
19
contested them .
[End of slide 1]
(b) Point P3
20. It is just as straightforward to determine the location of point P3, which is at the point
where the frontier, turning back to the south after turning back up towards the north-west to form a
salient, cuts the River Sirba at the level of the Say parallel. According to this description, this point
is situated at the intersection of three lines:
⎯ the straight line running from north to south, fro m the place where the frontier “turns back to
the south” under the terms of the Erratum;
⎯ the line formed by the River Sirba; and
⎯ the Say parallel.
21. As a rule, the advantage of this kind of d escription is that it is sufficient to know the
course of at least two of these lines to know the position of the point that is situated at the
intersection of all three. In this case, we know the course of the River Sirba and it is easy to draw
20
the Say parallel, since we know the location of Say . Point P3 is therefore situated at the
intersection of those two lines.
17MN, Ann. C 62.
18
MBF, pp. 104-108, paras. 4.18-4.23.
19CMN, p. 81, para. 2.2.11.
20[MBF, p. 143], footnote 404. - 8 -
16 22. The result of this exercise nonetheless lacks precision, since the Say parallel cuts the
River Sirba from east to west at several points: it cuts it first on its right bank, then at the level of
its median line, and finally on its left bank.
23. However, the text of the Erratum makes it possible to consider with certainty that the
frontier point lies on the right bank of the River Sirba. As has been said, this point is after all at the
intersection not of two lines but of three, the third being the line which the Erratum tells us “turns
back” to the south to reach this point P3. But th e Erratum specifies that before reaching that point,
this north-south section “again cuts the Sirba”. However, if this line, which is the frontier line,
“cuts” the Sirba, it cannot stop at the bank that it reaches first, the left bank, nor
can it stop at the
level of its median line. In order to “cut” th e Sirba, the frontier, arriving from the north, must
necessarily cross it and reach its right bank.
24. It therefore follows from all the information given in the Erratum that point P3 must be at
the intersection of the right bank of the Sirba with th e Say parallel, that is to say, at the point with
the co-ordinates latitude 13°06'10.7"N and longitude 0°59'40.0"E. As we can see, the text of
the Erratum provides sufficient information to determine the location of point P3.
25. Nevertheless, Niger contests this conclusion, claiming that “the expression ‘at the level
21
of the Say parallel’ [used by the author of the Erratum] [is] merely indicative” . It states that the
proof of this is, firstly, that the documents writte n preparatory to the official 1927texts suggest a
22
flexible interpretation of the expressi on “at the level of the Say parallel” and, secondly, argues
that if this were not the case, one or more of th e four villages listed in the Erratum as having to be
left to Niger would be on the Burkina Faso side.
26. Niger develops its first argument as follows:
“the Record of Agreement of 10Febr uary1927, which served as a preparatory
document for the Arrêté général of August 1927 and for the Erratum which corrected
the latter, was evidently less precise on the matter. Thus it stated that the boundary of
Say cercle in this area consisted in ‘[t]o the south-west, a line starting approximately
from the Sirba at the level of the Say paralle l and running as far as the Mekrou’. This
clearly can b23 confirm that the text of the Erratum should not be read too literally on
this point.”
21CMN, p. 86, para. 2.2.15.
22
CMN, p. 87, para. 2.2.15.
23MN, p. 115, para. 7.32. - 9 -
17 27. Here our opponent explicitly acknowledges th at the Erratum fixes the point that we are
calling “P3” with formidable precision. This is the only point of agreement between the Parties,
since all of the rest militates in favour of rejecting Niger’s argument.
28. First, at the risk of taxing the Court’s pa tience, it is necessary to repeat once again that
this Record of Agreement is not one of the docum ents accepted “by joint agreement of the Parties”
for the purposes of determining the course of their boundary in accordance with the
1987 Agreement. In any case, even if it were, this Record of Agreement, which is not a regulatory
text and is of a solely preparatory nature, cannot take precedence over the Erratum which is, on the
contrary, a regulatory text and the text that was ultimately adopted.
29. Next, what Niger fails to mention is that the Arrêté of August 1927 ⎯ and I do mean the
Arrêté and not the Erratum ⎯ repeated the notion that the frontier started “approximately from the
Sirba at the level of the Say parallel and [ran] as far as the Mekrou”. Its repetition of these words
clearly shows, moreover, that this text was relying on the travaux préparatoires of February 1927.
But it is precisely because it repeated these words a nd, in so doing, described the boundary of the
colonies unsatisfactorily, in particular by relying on the imprecise description of boundaries of
cercles, that the Erratum was drafted with a view to correcting it. It is clear that if the author of the
Erratum had intended the reference to the Say para llel to remain “approximate”, as it was in the
text of the Arrêté, then he would have been perfectly at liberty to repeat the initial wording. Given
that he was fully informed of the existence of this approach, the fact that he did not follow it
indicates not that he wanted to confirm that a pproach, as Niger suggests, but that he knowingly
renounced it in order to describe a precise rather than an approximate frontier point.
30. Ultimately, on closer inspection, what Niger is seeking to have prevail over the terms of
the Erratum is not so much the travaux préparatoires of February 1927 as the Arrêté of August of
the same year which, as I have just recalled, expressly made the reference to the Say parallel an
approximate one. However, in so doing, Niger not only commits an error in law, since the Erratum
was adopted precisely in order to correct the Arrêté, but also mires itself deeper into inconsistency - 10 -
since it is also pleased to point out, but rightly th is time, that the Erratum “quite simply replaced
the operative part of the text of the Arrêté” 24.
18 31. In contrast to that first argument, which would appear to disregard the text of the
Erratum, Niger’s second argument takes precisely the oppos ite line. It consists of maintaining that
a literal interpretation of the Erratum, to which it suddenly gives priority, cannot result in a line
which leaves to Niger all the villages mentioned in that text as having to be included in the salient,
referring to Tokalan, Tankouro and then Boborgou Saba.
32. This argument is just as weak as the pr evious one, as Burkina has already noted in its
Memorial and Counter-Memorial, since the villages of Tokalan and Tankouro are quite simply
impossible to locate 25, and especially since, as Niger itsel f states, those villages had probably
26
disappeared in 1927 . Furthermore, Niger appeared to acknowledge its mistakes regarding the
location of the village of Tokalan in its Memo rial, and merely set forth an unsubstantiated
hypothesis, according to which that village “would be very close to . . . the village of Tangangari,
to the east of Takatami” 27. On reading the Counter-Memorial, it would appear that this hypothesis
has now been confirmed, since Niger asserts that:
“further research and a comparison of the maps and sketch-maps contemporary to the
official texts of 1927 with more recent maps ⎯ in particular the 1960IGN map ⎯
make it possible to locate the site of the former village of Tokalan on the eastern edge
of the pool formed by the arms of the rivers Faga and Yamanou” 28.
It also implies that it has discovered the village of Tankouro.
33. By way of further research, Mr.President, Niger merely produces extracts of maps and
sketch-maps covered with notes which Niger itsel f has added and which are, in fact, utterly
incomprehensible 29; it would therefore be very hard for me to pass any comment on them, apart
from noting their most blatant inconsistencies.
24CMN, p. 5, para. 0.9.
25MBF, pp. 144-145, paras. 4.118-4.119; CMBF, p. 125, para. 4.48.
26
MN, p. 113, para. 7.28.
27
MN, p. 115, para. 7.31.
28CMN, p.88, para. 2.2.17.
29CMN, p. 89-90. - 11 -
[Slide 2]
34. The first inconsistency is that sk etch-maps 1 and2 on page 90 of Niger’s
Counter-Memorial show Takalan first to the south-west and then to the north-west of Kouro.
[End of slide 2]
[Slide 3]
35. The second inconsistency is that Tankouro is added in red on sketch-map1, but we do
19
not know on what basis this was done; moreover, it appears considerably further to the west on the
Blondel-La Rougerie map, reproduced on page 89 of the Counter-Memorial, which we can see here
on the right of the screen.
36. Something else which can be ascertained from the new discoveries unveiled by Niger in
its Counter-Memorial is the technique it uses to carry out its so-called “further research”. This
map, reproduced on page89 of the Counter-Mem orial and purporting to represent “The four
30
villages of the salient attributed to the Colony of Niger by the Erratum of 5 October 1927” , which
you see on the right-hand side of the slide, is a good illustration of that technique. The background
map is the 1926 Blondel-La Rougerie map, but if you look closely at it, you will find that it has
been altered by means of various additions whic h do not appear on the original. A number of
villages are underlined (Takalan, Kouro, Alfassi), which is not the case on the original map.
Moreover, another village not shown on the original map, Tankouro, appears here. However, at no
point does Niger state or give the impression that the map it has reproduced has been
“supplemented” by Niger itself in order to bear out its arguments.
[End of slide 3]
37. By way of a third argument to contest the location of pointP3, Niger finally ends up
citing, amid utter confusion, a village which the Erratum does not mention as being left to Niger by
the salient but which has always, according to our opponents, been considered part of Niger, both
before and after the Erratum was adopted. This village is Boborgou Saba, which it assimilates with
Dogona 31.
30
MN, Ann. D 9.
31
CMN, pp. 90-91, para. 2.2.18. - 12 -
38. The first source of confusion is that the b asis for Niger’s argument has changed here. Its
submission no longer consists of relying on the Erratum and contending that its very wording rules
out the notion that point P3 lies at the intersection of the River Sirba with the Say parallel; instead,
it now rejects the text of the Erratum, because, it claims, it conflicts with one of Niger’s effectivités
from both before and after 1927. Here again, Niger seeks, mistakenly, to give effectivités
precedence over the title, which, as we know, they cannot replace.
20 39. The second source of confusion is that Niger asserts in its Counter-Memorial that it has
referred in its Memorial to “documents from the colonial period which establish” ⎯ and it does
indeed say “establish”, Mr. President ⎯ “the boundary between the colonies of Niger and Upper
32
Volta on the colonial road at a point situated four kilometres south-west” of Boborgou-Saba . Yet
there is nothing in the Memorial to support this, unless it is a reference to Annex C 35, which has
nothing to do with the “establishment” of a boun dary, since it is a report of the census tour
conducted from 9 to 23 March 1930 by Sergeant Labitte.
40. The third source of confusion is that Niger’s Counter-Memorial dismisses this
AnnexC35 as entirely irrelevant, since according to footnote283, it was reproduced by mistake
instead of the “correct” document, a sketch-map reproduced in Figure16 on page91 of the
Counter-Memorial.
[Slide 4]
41. However, doubts inevitably remain about this document, which Niger entitles
“Sketch-map showing the boundary 4 km from Boborgou Saba”.
42. As produced in the Counter-Memorial, the sketch-map is incomplete, and it is the
incomplete version which you see on the screen. Th e full version of the sketch-map is, however,
shown in Annex C 36 of Niger’s Memorial.
[End of slide 4]
The title of that Annex C36 indicates that th e sketch-map was drawn by SergeantLabitte
and is “undated”. Niger thus acknowledged, when producing this document as an annex to its
Memorial, that it was impossible for it to date this sketch-map. Yet, in its Counter-Memorial, we
32
CMN, p. 91, para. 2.2.18. - 13 -
find it asserting that this sketch-map was drawn in 1930, on the occasion of the tour which led
Sergeant Labitte to draw up the report contained in Annex C 35.
43. That is a highly dubious assertion. Firstl y, the sketch-map in question has no title, no
“official” author, and no date. Admittedly, the na me “Sgt Labitte” appears at the bottom of the
sketch-map, but it is written in pencil, whereas th e majority of the entries on the map are made in
ink. This is therefore an addition whose origin is uncertain.
21 44. Secondly, we are bound to note that the sketch-map in Annex C 36 cannot be connected
to the 1930 census report. That sketch-map clea rly has nothing to do with a census, since its
purpose is merely to give the distance in kilometres between Niamey and various villages.
45. Furthermore, when we refer to the aforementioned tour report, we find that in
Boborgou-Saba, “24taxpayers, with 72bovids, reside in Upper Volta” 33. Clearly, therefore,
Sergeant Lafitte had located Boborgou-Saba in Upper Volta, not in Niger, contrary to what appears
to be indicated by the sketch-map.
46. In the final analysis, Mr.President and Members of the Court, Niger is seeking to set
confused and unsubstantiated speculation against wh at it acknowledges itself to be the clear terms
of the Erratum. Yet it is obviously the text of the Erratum that must take precedence.
[Slide 5]
On the basis of that text, the location of point sP andP3 can be determined as I have just
shown, whilst the point corresponding to the beginning of the Botou bend does not raise any
difficulty.
B. The descriptions of the directions followed by the line
47. The text of the Erratum does not of cour se merely describe the frontier points, but also
states the direction followed by the line, either from those points onwards or before it reaches them.
Three references to direction should be noted.
33
MN, Ann. C 35. - 14 -
(a) “almost immediately turns back up towards the north-west”
48. The first reference to a direction is that after pointP, the frontier “almost immediately
turns back up towards the north-west”.
[End of slide 5. Slide 6]
This statement is entirely consistent with the description of the line followed by the frontier
before reaching point “P”, since coming from the Tao marker, which is situated to the north-west of
22 that point, the frontier can perfectly well “turn back up” towards the north-west, but not
immediately, unless it were to “retrace its steps”, which is of course not an option.
49. Two details are provided by the text.
50. The first one, as I have just mentioned, is that the frontier does not turn back up to the
north-west immediately; instead, it does this “almo st immediately”. That means that it continues
to run westwards for some distance after reaching pointP, before “turning back up” towards the
north-west.
51. Burkina has shown in its Memorial that th is section of the frontier must of necessity
34
follow the course of the River Sirba upstream, following its right bank .
[End of slide 6. Slide 7]
There are at least three arguments to support this conclusion.
52. Firstly, the evidence that the frontier continues along the river before starting to turn back
up towards the north-west is provided by the fact that the purpose of its turning back up in this way
is to leave to Niger the villages situated on the left bank of the river. This means that before it turns
back up, the frontier does not leave the left bank of the River Sirba to Niger, and therefore that
bank remains part of Upper Volta. Of course, th e same result can be achieved whether the frontier
35
follows the right bank of the river or its median line, or thalweg, as Niger points out .
53. However, and this is the second point, anot her detail in the text of the Erratum provides
confirmation that the frontier does not run along the median line, nor along the left bank, but
remains on the right bank. When it arrives at point P, the frontier actually “reaches” the right bank
of the River Sirba at Bossébangou, as I have already demonstrated; and since the text gives no
34
[MBF], pp. 139-141, paras. 4.101-4.105.
35CMN, p. 82, para. 2.2.12. - 15 -
further details of its course until the point where it turns back up towards the north-west, the
conclusion must be that it remains on the right bank of the River Sirba until that point. Otherwise,
the text would have had to state that the frontier follows the median line of the river before almost
immediately turning back up towards the north-west, which it does not state.
54. Finally, as a third point, the 1960 IGN map also confirms this line, so that even if it were
necessary to consider that the Erratum’s descrip tion of the frontier in the area did not suffice,
23 which, as I have just shown, is not the case here, the right bank of the River Sirba would still have
to be taken as constituting the frontier between the two States from point P until the point where the
frontier starts to turn back up towards the north-west.
55. Just a word, if I may, Mr.President, on a frontier point left unspecified in the Erratum,
namely the point we have called “P1”, which marks the end of the section of the frontier which we
have just described and the start of the upward tu rn towards the north-west. The Erratum refers to
this point only indirectly, so that various hypotheses are possible, the only condition being that as it
turns back up from this point towards the north-west, the frontier l eaves to Niger the village of
Alfassi, the northernmost of the four villages mentioned by the Erratum. Consequently, as Burkina
states in its Memorial, since reference to the Erratum, quite exceptionally, does not suffice here, we
36
should turn to the 1960 map in order to establish exactly where this point is situated .
[End of slide 7. Slide 8]
On that basis, the co-ordinates of pointP1 can be established as latitude13°19'53.5"north
and longitude 1° 7' 20.4" east.
56. I come now to the second detail provided by the text of the Erratum regarding the
direction taken by the frontier after reaching the Ri ver Sirba at Bossébangou. The text states that
the frontier has to turn back up “towards” the nor th-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.
57. Here again, there are various possible courses that the line could follow, and the Erratum
does not enable just one of them to be selected. There are several ways in which the line can turn
back up towards the north-west in order to form the “salient” which it is intended to begin creating.
36
MBF, p. 148, para. 4.127. - 16 -
The only constraints imposed by the Erratum are th at the line should poin t towards the north-west
37
and that it should pass to the north of Alfassi . Here too, it transpires that the text of the Erratum
does not suffice to describe the course of the frontier, and therefore reference should be made to the
line on the 1960 IGN map in order to determine this segment of it.
[End of slide 8. Slide 9]
24 58. However, there is no need to refer to the 1960 map when it comes to the second and third
references to direction given by the text.
[End of slide 9]
(b) “turning back to the south”
59. The second reference to direction provided by the Erratum is that, after turning back up
towards the north-west for some distance, the frontier “turns[s] back to the south”, reaching the
intersection of the River Sirba with the Say para llel at the point we have called“P3”. That
direction is distinguished by its complete precision. The direction is south, and the text leaves no
room for the slightest degree of vagueness, as would have been the case had it used the words
38
“towards the south”, following the example of ot her indications of direction which it contains . It
should be noted that Niger has raised no objection to this literal interpretation of the text. I shall
come back to the resulting line very shortly.
(c) “an east-south-east direction”
60. The third reference to direction, just as clear as the previous one, concerns the line drawn
between point “P3” and the beginning of the Botou be nd. Here again, a precise direction is given,
in this case “east-south-east”. There is no need to demonstrate this further, since Niger does not
39
contest it .
C. The general shape of the frontier line
61. Finally, the text gives two indications as to the shape taken by the line and the way in
which that shape is obtained.
37MBF, p. 149, paras. 4.128-4.129.
38
MBF, p. 146, paras. 4.121-4.123.
39CMN, p. 92, para. 2.2.21. - 17 -
62. Firstly, when it turns back up towards th e north-west after point [P], it does so “almost
immediately”, as a result leaving to Niger, on the left bank of the River Sirba, a “salient”
encompassing four villages, before it turns back to the south and reaches point P3.
63. A “salient” is a geometric shape for which there is no standardized outline, and so the
mere reference to a salient, without any further de tails, does not allow its shape to be determined
straight away. However, two pieces of inform ation provided by the Erratum allow the general
25 shape of this particular salient to be worked out. It emerges from the Erratum that this salient is
made up of two lines. The first “turns . . . up” towards the north-west “almost immediately” after
point P. No further description of it is provided. In other words, the description of it given in the
Erratum does not “suffice”, and that is why, as I ha ve just shown, we should take it that here the
line follows that shown on the 1960 IGN map. [Slide 9] The second line, which starts at the point
where the previous one comes to an end, “turn[s] ba ck to the south”. The straight line of which it
forms a segment can easily be established, since we not only know that this a straight line running
from north to south, hence a meridian line, but also that it passes through point “P3”. [Slide 10]
On the basis of those pieces of information, the sketch-map on this slide shows the western edge of
the salient as it results from the text of the Erratum. [Slide 11] And here you have an overlay of the
last two sketch-maps, which shows the final shape of the salient. The position of point P2, which is
at the north-east corner of the salient, can easily be worked out, since it lies at the intersection of
the meridian passing through point P3 with the line shown on the 1960 IGN map turning back up
towards the north-west to form the salient. [Slide 12]
64. I now come, very briefly, to the second in dication as to the shape of the salient provided
by the Erratum. According to the text, when the frontier leaves point P3 and continues its course in
an east-south-east direction, it runs “in a straight line”. The only comment called for by that point
40
is that it does not raise any difficulties. [Slide 13]
65. In conclusion, Mr. President, Members of the Court, Burkina contends that Niger’s claim
in the Say sector is without foundation, and that the course of the frontier is as follows:
40
CMN, p. 92, para. 2.2.21. - 18 -
⎯ from the point where the frontier reaches the Ri ver Sirba at Bossébangou, the frontier follows
the right bank of the River Sirba from east to west until point P1, situated on its right bank;
⎯ from that point, P1, the frontier follows the line shown on the 1:200,000-scale map of the
Institut Géographique National de France, 1960 edition, until the point referred to as P2;
⎯ from that point, the frontier runs in a straight line southwards, ending at the intersection of the
right bank of the River Sirba with the Say parallel;
⎯ from that point, the frontier runs in a straight line as far as the beginning of the Botou bend.
26
66. Mr.President, Members of the Court, that concludes Burkina’s pleading regarding the
course of the frontier between the Tong-Tong marker and the beginning of the Botou bend. I
should like to thank you for your kind attention, and ask you to give the floor to Professor Pellet.
The PRESIDENT: Thank you, Mr. Thouvenin. I now give the floor to Mr. Pellet.
Mr. PELLET: Thank you, Mr. President.
T HE DEMARCATED PORTION OF THE FRONTIER ⎯ CONCLUSION
1. Mr. President, Members of the Court, as I said yesterday morning, Burkina Faso and the
Republic of Niger agree in principle on the subject of the dispute submitted to you. They both
interpret Article2 of the Special Agreement as requesting the Court “to put an end, with the
authority of res judicata, to the entire frontier dispute between the Parties”1⎯ the full text of the
Special Agreement is provided at tab3.23 of your folders. They further agree that this request
includes the demarcated portion of the frontier42.
2. Nevertheless, Mr.President, to be perfec tly frank, the authorities of Burkina have two
concerns. Firstly, when the Special Agreement was being negotiated, they were concerned by
Niger’s reluctance to include the two sections at e ither end of the frontier line in the definition of
43
the subject of the dispute . Today, they are concerned to note that not only did Niger make no
reference whatsoever in its submissions to Article 2, paragraph2, of the Special Agreement, but
also that in its written pleadings ⎯ Niger’s pleadings ⎯ it asserts, in a number of places, that “the
41MBF, p. 5, para. 0.14; see also MN, pp. 47-48, para. 3.22; CMBF, p. 5, para. 0.6; or CMN, p. 4, para. 0.7.
42
See MBF, p. 91, para. 3.36; MN, p. 48, para. 3.22; CMBF, p. 2, table, point 2; CMN, p. 4, para. 0.7.
43See MBF, p. 3, para. 0.14; p. 78, para. 3.11; or CMN, p. 4, para. 0.7. - 19 -
only stretch of the frontier concerned by the present dispute runs from the astronomic marker of
44
Tong-Tong to the beginning of the Botou bend...” , which does not include the demarcated
portions.
27 3. We sincerely hope that we are not being unf air to our friends from Niger, but we wonder
whether their quietly persistent denial of the exis tence of a dispute in respect of those demarcated
sections should not be seen as some form of disguised objection to admissibility (or is it to
jurisdiction?): “no dispute, no action”. And we would certainly feel more reassured about Niger’s
intentions, if it included in its submissions a request that confirmed the one made to the Court in
Article 2, paragraph 2, of the Special Agreement.
4. As the Agent of Burkina Faso said yesterday morning, it is very important for his country
that the Court should fully complete the task entrusted to it by the Parties in the Special Agreement
of 24February2009. That is why, at the risk of repeating to some extent what we wrote in
Chapter III of our Memorial ⎯ due to the fact that Niger has not replied ⎯ I shall return, briefly, to
the scope of the second paragraph of Article2 of that Agreement(I), before recalling that the
demarcation, on which the Parties agreed, confirms the positions of Burkina Faso as to the method
to be used to determine the delimitation of the remainder of the disputed frontier (II)
I. The scope of Article 2, paragraph 2, of the Special Agreement
5. Mr. President, regarding the first point, the sc ope of Article 2, paragraph 2, of the Special
Agreement, I believe two questions arise:
(1) what does the “Parties’ agreement” referred to in this provision consist of? And
(2) what is the task of the Court under this provision?
[Slide 1: The demarcated sectors]
6. The answer to the first question is not as obvious as it might seem. A simple reminder of
the chronology of events is sufficient to explain why there may be some confusion:
⎯ the Special Agreement was signed on 24 February 2009;
⎯ it refers to what has been translated into English by the Registry as an “agreement” ⎯ though,
with due respect, that is not quite right; an “ entente” is, I think, something less formal than an
44
MN, p.48, para.3.23. See also MN, p.45, para.3.16; CMN, p.4, para.0.7; p.8, para.0.15; p.16,
para. 1.1.2; p. 47, para. 1.2.3; p. 54, para. 1.2.19. - 20 -
“agreement” ⎯ it refers, then, to an “agreement”, for which it does not provide a date ⎯ “it”
being the Special Agreement, not the Registry ⎯, and with good reason: it was in fact on the
same day, 24February2009, that the Foreign Ministers of the two States “also adopted the
28 experts’ proposal for a joint field mission to agree on the co-ordinates of the boundary markers
45
in Sectors A and B referred to in the Special Agreement” ;
⎯ on the following 3July (more than four months after the Special Agreement was concluded),
the directors of the national geographic institutes of the two countries signed a joint
communiqué indicating the co-ordinates of th e markers and the method used to ascertain
them 46;
⎯ on 17July2009, the Minister for Foreign Affair s of Burkina wrote to his Niger counterpart
proposing to embody the agreement (“ entente”) of the Parties in an exchange of Notes, a draft
of which he enclosed 47;
48
⎯ the Minister of Niger replied on 8September with counter-proposals , to which the Minister
of Burkina agreed on 8 October, though he in tu rn suggested a few adjustments to the wording
proposed ⎯ mainly in respect of ascertaining the co-ordinates of the unmarked endpoints of
“sectorB” (“from the beginning of the Botou bend to the River Mekrou”), which was to be
done at a further meeting between the experts 49;
⎯ that further meeting took place on 15 October 2009 and, once the co-ordinates of those points
50
had been ascertained , the Minister for Foreign Affairs of Burkina repeated his proposal of
29 October 51, which was accepted on 2 November 2009 . 52
45
Joint Communiqué of the meeting of Foreign Ministers for negotiation and signature of the Special Agreement
seising the International Court of Justice, 24 February 2009, MBF, Ann. 98, p. 3.
46
[Record of the work of the Joint Survey Mission to ascert ain the co-ordinates of the markers constructed on the
frontier between Burkina Faso and the Republic of Niger, 3 July 2009, MBF, Ann. 101.]
47Letter from the Minister for Foreign Affairs of Burkina Faso to the Minister for Foreign Affairs of Niger
regarding the draft exchange of Notes embodying the agre ement between the Parties on the delimited sectors of the
frontier, 17 July 2009, MBF, Ann. 102.
48
Letter from the Minister for Foreign Affairs of Niger to the Minister fo r Foreign Affairs of Burkina Faso
regarding the draft exchange of Notes embodying the agre ement between the Parties on the delimited sectors of the
frontier, 8 September 2009, MBF, Ann. 103.
49
Letter from the Minister for Foreign Affairs of Burkina Faso to the Minister for Foreign Affairs of Niger
regarding the draft exchange of Notes embodying the agre ement between the Parties on the delimited sectors of the
frontier, 8 October 2009, MBF, Ann. 104.
50
Record of the meeting to ascertain the co-ordinates of the unmarked points in Sector B, 15 October 2009, MBF,
Ann. 105. - 21 -
29 7. It is this exchange of letters dated 29 October and 2 November 2009 which constitutes the
“agreement on the results of the work of the Joint Technical Commission on Demarcation” referred
to in Article 2, paragraph 2, of the Special Agreem ent, signed more than eight months earlier. It is
only from this date that the content of the provisi on became “palpable”, so to speak. And what,
Mr. President, is that content?
8. It ensues from the exchange of letters that “the records of the experts’ work [of 3 July and
15October2009 are considered] to represent [the Parties’] agreement within the meaning of the
above-quoted provision of the Special Agreement” . The list of the co-ordinates accepted by joint
agreement of the Parties in those records appears on page 95 of Burkina’s Memorial; Niger has not
contested those data. The sketch-map now on the screen ⎯ if it is legible ⎯ provides a graphical
illustration of the line ⎯ which we will see again later on in diagram form ⎯ in the two sectors of
the frontier (“A” and “B”) covered by this agreement. I shall return briefly to their description in a
moment.
[End of slide 1]
9. As I recalled, it is this agreement (“entente”) that the Court is kindly requested to place on
record by conferring on it the force of res judicata. Admittedly, this is a precaution. However, as I
have already had occasion to state 5, it is not redundant, contrary to Niger’s assertion :54
⎯ Burkina has grown accustomed to Niger’s ab out-turns, which have not facilitated the
settlement of the dispute;
⎯ the Parties’ “entente ” on this demarcated portion of the frontierwas the subject of a very
informal agreement, while, as we know only too well, Niger is quick to hold such agreements
null and void when the necessary requirements are not fulfilled, as can be seen from its
about-turns in respect of the consensual line of 1988 and the political compromise of 1991;
indeed, this “entente” is enshrined only in the Special Agreement bringing the matter before the
51
Letter No.2009-004874/MAECR/SG/DGAJC from the Minister for Foreign Affairs of Burkina Faso to the
Minister for Foreign Affairs of the Republic of Niger, 29 October 2009, MBF, Ann. 106.
52
Letter No.007505/MAE/C/DAJC/DIR from the Minister for Foreign Affairs of the Republic of Niger to the
Minister for Foreign Affairs of Burkina Faso, 2 November 2009, MBF, Ann. 107.
53
See CR 2012/20, para. 31 (Pellet).
54CMN, p. 4, para. 0.7. - 22 -
Court; ultimately, it will derive its legal force from the authority of res judicata, with which
the Parties request the Court to invest it;
30 ⎯ this is not a dispute that has been settled ⎯ even partially ⎯ but, as both Parties also agree,
one that will only be fully settled once the course of the entire frontier, includingthe sectors
which are the subject of this “ entente” that is so difficult to define (and not only difficult to
define, but subsequent to the Special Agreement), becomes res judicata by virtue of the
forthcoming judgment;
⎯ this confers greater stability on the solution thus to be established than would a mere
agreement ⎯ particularly such a vague “entente”: res judicata can only be called into question
in the event of the discovery of a new fact within the meaning of Article 61, paragraph 1, of the
Statute of the Court, and this under the latter’s strict control; whereas an “ entente” ⎯ a highly
ambiguous word in law ⎯ may be called into question, without it being possible, unless agreed
otherwise, to submit any ensuing dispute to an impartial third party.
10. Members of the Court, for all these reas ons Burkina Faso urges you not to “overlook”
this part of the task entrusted to you by the Pa rties in the Special Agreement of 24 February 2009,
notwithstanding Niger’s disinclination to confirm it and to define its precise scope. As we have
amply demonstrated in our Memorial 55, there is nothing to prevent the Court from granting the
joint request of Burkina Faso and the Republic of Niger, and I do not think it useful to return to this
subject: even though Niger shows little enthusiasm in this regard, it has raised no objection.
11. I merely wish to recall further that the Parties’ agreement (“entente”) includes the
endpoints of their common frontier: Mount N’Goum a in the north, and the intersection of the
former boundary of the cercles of Fada and Say with the Mekrou in the south. These points
correspond to the tripoints with Mali, on the one hand, and with Benin, on the other. It so happens
that, in both cases, the Court was also called upon to rule on “bilateral” frontiers, firstly between
Burkina and Mali (which it did by the Judgment of the Chamber of 22December1986 5), and
secondly between Benin and Niger (which it did by the Judgment of another Chamber, dated
55
MBF, pp.89-92, paras.3.32-3.39 (1. The Court’s participation in the comprehensive settlement of the frontier
dispute between the Parties).
56
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 650, para. 179.A.8). - 23 -
31 12 July 2005 ). Nevertheless, there is a slight difference between the two decisions: in the second
Judgment (of 2005), the Chamber adopted a slightly less precise solution, in so far as it referred to
the point where the median line of the River Me krou reached “the boundary of the Parties with
58
Burkina Faso” , though it did not define that boundary ⎯ which it could not do without
determining the rights of Burkina, which was not present at the proceedings. In this case, however,
the problem is not the same: a ruling by the Court on the point of intersection between the
Burkina/Niger frontier, on the one hand, and the Niger/Benin frontier, on the other, would in no
way violate the principle of consent to jurisdiction, since the latter country ⎯ Benin ⎯ has
received a Judgment which is res judicata for it, indicating in advance that that intersection ⎯ that
tripoint ⎯ is opposable to it.
12. We therefore believe, Mr. President, that in these very specific circumstances, the Court
can indeed determine the delimitation of the entire frontier, including the endpoints constituted by
the tripoints with Mali and Benin, as provided for by the Parties in their agreement (“entente”) of
29 October and 2 November 2009.
II. Remarks on the methodology used to carry out the demarcation
13. Mr. President, there is another reason why I believe our friends from Niger are wrong to
disregard the demarcated portion of the frontier, and that is the methodology which was used to
demarcate that section and which should have been used as a model for demarcating the portion of
the frontier whose delimitation is challenged by Nige r. That methodology follows to the letter the
recommendations of the 1987 Agreement (to which, I recall, the 2009 Special Agreement refers);
in order to carry out the demarcation, the Parties
⎯ referred first and foremost to the Erratum of 5 October 1927, and
⎯ in the few cases where they considered that th e Erratum did not suffice to determine the exact
course of the frontier, they referred to the 1960 IGN France map,
⎯ without taking any other elements into consideration.
57
Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 151, para. 146.4).
58
Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 151, para. 146.4). - 24 -
14. This leads me to an aside, Mr. President, which I consider not to be without importance.
Repeatedly in its written pleadings, Niger tak es issue with Burkina’s position regarding the
32
59
completeness of the delimitation of the entire frontier . However, this is precisely what the Parties
accepted in their 1987 Agreement: unless they agre e to take other documents into account, the
Erratum — supplemented if necessary by the 1960 map, should the Erratum not suffice — defines
the frontier in its entirety. That is clear. No doubt there may be instances where the description of
a line in a text may not be sufficient to perform the demarcation of a frontier (even then, good sense
must prevail, and we cannot declare that something “does not suffice” when we simply disapprove
of it, as Niger repeatedly does), but that cannot be possible in the case of a map on which the whole
length of the frontier is depicted (albeit in br oken lines)— a map whose relevance and accuracy
Niger is keen to underline:
“the scale of the [1960] map at 1:200,000 is sufficiently detailed. It also has a solid
technical basis, at least from a cartogra phic point of view. The coverage of
toponyms ⎯ which was notoriously rudimentary in earlier maps by the Army
Geographical Section and later the IGN ⎯ is as complete as knowledge of occupation
on the ground allowed. The hydrographic and orographic detail, prepared from aerial
photographs and refined by field surveys, is of excellent quality. Finally the
indications of the boundaries are based on information obtained from the local
authorities ⎯ even if they are sometimes tentatively represented by discontinuous
lines of crosses, inasmuch as the information on which they were based could not
always be fully relied on ⎯ and their sinuous nature suggests that they were prepared
with some care.” 60
15. Of course, I do not endorse all those remarks— in particular the last two— but no
61
matter: the fact is that the 1960 maps (they are in fact a “collection of sheets” ) “were prepared
with particular care, combining the most up-to-d ate techniques of the time with detailed work on
the ground” 6. It does not follow that they should be c onsidered as the preferred reflection of the
63
“colonial heritage”, as Niger affects to believe , since the boundary line which is depicted there
does not reflect the frontier title constituted by the 1927 Erratum; however, as the Chamber of the
Court noted in [1986 in Burkina Faso/Mali] on the subject of the same 1960 map:
59CMN, p. 2, para. 0.3; pp. 9-10, para. 0.17; pp. 34-35, para. 1.1.23; p. 45, para. 1.1.33.
60
CMN, p. 44, para. 1.1.32, which reproduces MN, p. 75, para. 5.14 ⎯ footnote omitted; see also MN, pp. 55-59,
paras. 4.25-4.32.
61
CMN, ibid.
62MN, pp. 58-59, para. 4.30.
63See MN, p. 59, para. 4.30; p. 75, para. 5.14; or CMN, pp. 43-45, para. 1.1.32. - 25 -
“The Chamber cannot uphold the information given by the map where it is
33
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
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.)
16. It is in this spirit that the Parties agreed, in Article2 of their Agreement of
28March1987, that the map was a subsidiary means for determining the course of the frontier,
which must be used (but which may only be used) if the Erratum does not suffice. And that is also
how it was understood by the competent authorities of the two countries when they proceeded to
demarcate the frontier on those bases between Ma y 1987 and May 1990. During that process, the
Joint Technical Commission on Demarcation consis tently relied on the only documents designated
64
in the 1987 Agreement .
17. That process is described in Burkina’s Memorial 65, where it can be seen that:
⎯ both countries considered that the frontier was delimited and that all that remained was its
demarcation on the ground;
⎯ the technical experts responsible for that demarc ation consistently relie d on the text of the
Erratum and not on the map, which was used only to identify the “defining points” of the
frontier and to plot the line adopted by joint agreement — in other words, it was not necessary
to have recourse to the line shown on the map;
⎯ once that line had been plotted, markers were erected in the specified locations.
18. As can be seen from the report of the meeting of the Joint Technical Commission on
Demarcation of 15 May 1988, there were only two problem points:
34 “first, the geographic location of the villa ge of Takabangou and, second, the location
of the frontier line from the Say parallel to another village named Tyenkilibi or
Tyenkiliba” 66.
64See the report of the meeting of the Joint Technical Commission on Demarcation of the Burkina-Niger Frontier,
Diapaga, 12-15 May 1988, 15 May 1988, MBF, Ann. 80; report of the fourth meeting of the Joint Technical Commission
on Demarcation of the Burkina-Niger Frontier, Niamey,26-28 September 1988, 28Septem ber 1988, MBF, Ann. 81;
report on completion of the survey of the proposed demarcation of the Niger-Burkina frontier, 28 September 1988, MBF,
Ann. 82; report of the second ordinary session of the Join t Technical Commission on Demarcation of the Burkina-Niger
Frontier, Ouagadougou, 23-28 July 1990, 28 July 1990, MBF, Ann. 87.
65
MBF, pp. 76-78, paras. 3.5-3.8.
66Report of the meeting of the Joint Technical Commission on Demarcation of the Burkina-Niger Frontier,
Diapaga, 12-15 May 1988, 15 May 1988, MBF, Ann. 80. - 26 -
[Slide 2: Sector A of the demarcated portion of the frontier]
19. I mentioned this episode yesterday 67, but will return to it because it is very significant.
Informed by that process,
“[t]he Commission noted that the line along this part of the frontier was based on that
of the French National Geographic Institu te (IGN France) 1:200,000 map, not on
Arrêté No. 2326 of 31 August 1927, as clarified by its Erratum of 5October1927,
both of which were designated in the agreement signed by the two Governments in
March 1987 in Ouagadougou.
The technical specialists explained that their position was based on the frontier
line as recorded in the report of the m eeting between specialists from Niger and
Burkina held from 21 to 23 May 1986 in Ouagadougou.
It was apparent that this line was an interpretation of the above-mentioned
Arrêté and Erratum. The Commission considered that the technical staff were not
authorized to adopt a procedure that deviated from the decisions of the two
Governments. They were accordingly instructed to reconsider the 110km portion in
question within eight (8) days, complying with the texts designated in the Agreement
68
and Protocol of Agreement signed by the two Governments.”
In other words, the technical experts were made to revise their sketch because it did not follow the
line described in all simplicity in the Erratum, that is to say, because they had “interpreted” the
entirely sufficient terms of the Erratum with the help of the line shown on the map, a map to which
they had erroneously given precedence over the 1927 text.
20. With regard to the segment of the frontier which runs from the Say parallel to the village
known as Tyenkilibi, this could be done on the b asis of the Erratum without any particular
problems 69. On the other hand, despite every effort, the “ruins of the village of Tokebangou”
mentioned in the Erratum could not be found. As indicated in the report on completion drawn up
70
by the technical experts (and annexed to the report of the fourth meeting of the Joint Technical
35 Commission on Demarcation 7), “[i]t had to be acknowledged that the basic text [referring to the
Erratum] did not suffice and recourse was had to the map”; but that map, which mentions the
village of “Tokabougou”, is also silent on the ruin s of the ancient village of Tokébangou. Faced
67
CR 2012/[19], para. 49 (Pellet).
68
Above-mentioned report of 15 May 1988, MBF, Ann. 80; emphasis added.
69See the report on completion of the survey of the proposed demarcation of the Niger-Burkina frontier,
28 September 1988, MBF, Ann. 82.
70Report on completion of the survey of the proposed demarcation of the Niger-Burkina frontier,
28 September 1988, MBF, Ann. 82.
71Report of the fourth meeting of the Joint Technical Commission on Demarcation of the Niger-Burkina Frontier,
Niamey, 26-28 September 1988, 28 September 1988, MBF, Ann. 81. - 27 -
with this twofold insufficiency, both on the ground and on the map, the experts proposed a median
72
solution on the basis of the information provided by the inhabitants of the region .
21. What 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.
22. However, this does not vindicate Niger, wh ich, in instances which it declares are similar,
chooses to “replace” the line shown on the 1960 map with that a ttributed to the territorial
subdivisions prior to the 1926 Decree of the President of the French Republic and the Arrêté of
1927. Here, the experts of the two countries adhered more closely to the text of the Erratum, since
it indisputably describes a line: instead of falli ng back on the course of the frontier shown on the
map and drawing a straight line between Bellé Banguia (which is point4 on the sketch-map
currently on the screen) and Mount Douma Fendé (whi ch is located at point6 on the slide)— a
line which would nevertheless join points4 and6 on the 1960 map (this can also be seen on the
sketch-map) — the experts agreed to fix an interm ediate point corresponding to the likely location
of the ruins of Tokébangou which are mentioned in the “basic text”, so as not to omit a defining
point of that text. In other words, the experts declined to give precedence to the line shown on the
map over the line in the Erratum, even though the latter does not suffice— however, giving
precedence to the map would not have been in compliance with that reference text.
23. And since we are looking at this sketch-map, Mr.President, let me make a brief
comment: this sketch-map clearly shows that the technical experts, with the approval of the Joint
Technical Commission and then of the political authorities of the two countries, determined the
course of the frontier in the two sectors whose delimitation Niger does not contest:
36 ⎯ on the basis of the Erratum,
⎯ all the points in which, and only those points, were accepted as being “defining” points and
then marked,
⎯ the course on which the two States agreed being made up of segments of straight lines joining
those defining points to one another.
[End of slide 2. Slide 3: Sector B of the demarcated portion of the frontier]
72
Report mentioned above in note 70. - 28 -
24. The same observation applies to the sketch-map showin g sector B of the demarcated
portion of the frontier: where the course of the frontier does not follow the river, it is made up of
straight-line segments which join all the points listed in the Erratum of 5 October 1927. And those
segments can be relatively long: the segment running from where the course of the Tapoa meets
the former boundary of the Fada and Say cercles (point 31 on the sketch-map) to the point where
that same boundary intersects with the course of the Mekrou is at least 60 km.
[End of slide 3]
25. Mr. President, Members of the Court:
⎯ the 1927 Erratum is the frontier title which enables the frontier between the two countries to be
completely determined;
⎯ the Erratum was the law of the Parties when th ey agreed on the demarcation of the two end
portions of their common boundary;
⎯ its insufficiencies should not be exaggerated — th ey are few and far between and very limited;
and
⎯ where they do exist, they can be resolved by having recourse to the 1960 IGN France map;
⎯ it being understood that under no circumstances can the line shown on that map contradict the
line resulting from the Erratum.
These lessons which can be drawn from examining the demarcated part of the frontier are
applicable in all respects to the delimitation of the portion on which the Parties have been unable to
agree.
26. Mr. President, Members of the Court, that concludes the first round of oral argument of
Burkina Faso. On behalf of our Agent, our team and myself, I should like to thank you for
listening so patiently and attentively. - 29 -
37 The PRESIDENT: Thank you, Mr. Pellet.
That brings to an end the first round of oral argument of Burkina Faso. The Court will meet
again on Thursday 11October2012 at 3p.m. to hear the first round of oral argument of the
Republic of Niger. The sitting is closed.
The Court rose at 11.20 a.m.
___________
Traduction