Non corrigé Traduction
Uncorrected Translation
CR 2012/25 (traduction)
CR 2012/25 (translation)
Lundi 15 octobre 2012 à 10 heures
Monday 15 October 2012 at 10 a.m. - 2 -
10 The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
second round of oral argument of Burkina Faso. I now give the floor to
Professor Pellet, counsel
and advocate for Burkina Faso. Mr. Pellet, you have the floor.
Mr. PELLET: Thank you very much, Mr. President.
M ETHODOLOGY AND APPLICABLE LAW
1. Mr. President, Members of the Court, Professor Salmon ⎯ whom I shall not call an “old
1
friend” , since he has the spirit and vivacity of youth, but a very dear friend ⎯ JeanSalmon told
you when he broke off his address for the lunch break last Friday that “si nce you ha[d] been so
2
very well behaved, [they would] con tinue [their] story [that] afternoon” . This is a telltale
admission. Yes, Members of the Court, our oppo nents and friends have been telling you a story,
which is at times fascinating ⎯ since they are so gifted ⎯ and at other times moving, because
storytellers know how to appeal to the feelings of their audience. But like all stories, it is a fantasy,
and should no doubt have been preceded by the us ual warning whereby: “any resemblance to real
events” ⎯ and we should add “and to positive law” ⎯ “is purely coincidental”.
2. Unfortunately, after the enchantment, it is time to come back to reality and lex dura. Time
to realize that we are here before a court, which states the law with the consent of the Parties and to
the extent granted by that consent; a court whose task is not to review the undertakings of the
3
States, but to ensure that they are implemented ; whose task is not to redraw frontiers that it
finds ⎯ or that one of the Parties finds ⎯ more satisfying or more c onvenient or more attractive,
but to say where the frontiers lie, in accordance wi th the applicable law (which here Burkina and
Niger have defined exhaustively); whose task is not to achieve an “equitable solution”, which
would be appropriate in a maritime delimitation, but to base itself on (not only to “take into
Voir CR 2012/22, p. 2[7], para. 8 (Salmon).
CR 2012/23, p. 56, para. 6 (Salmon).
3
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 229; see alsoAcquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., SeriesB, No.7 ,
p. 20; Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment,
I.C.J. Reports 1952, p. 196; South West Africa (Ethiopia v. South Africa), Second Phase, Judgment, I.C.J. Reports 1966,
p. 48, para. 91. - 3 -
11 consideration”, but to base itself on) the instruments designated as relevant ⎯ and only those
which are relevant ⎯ in order to (fully) resolve the frontier dispute between the Parties.
3. Therefore, we must, for example, distan ce ourselves from the myth of the “Temps béni
des colonies” [the good old colonial days] extolled by a popular French singer 4. Unfortunately,
there are not many “nice colonizers”, and France ⎯ I am the first to be sorry ⎯ was no exception.
And while some administrators on the ground we re no doubt concerned about the feelings and
interests of those who were known as the “natives”, the decisions taken in Paris or in Dakar (and it
was only there that the decisions that concern us could be taken) ⎯ those decisions were based
instead on what people believed there (in Paris and in Dakar) to be in the interests of the colonial
power in regions that were newly occupied and as yet little known. Those interests may have been
misunderstood, but ⎯ no matter what our friends on the other side say ⎯ they led the French
authorities to adopt frontiers that were often arbitrary and rough-hewn. And ours is no exception.
4. Mr.President, my colleagues and I are sorry to break the spell and to have to describe a
less poetic and idyllic reality than the one drea mt up by our opponents. Without any claim to
originality, we shall describe that reality according to the following plan:
⎯ first of all, I shall return to the questions of methodology and applicable law which have taken
up the majority of Niger’s arguments; I shall take the opportunity to give our replies to the
questions put by Judges Bennouna and Donoghue;
⎯ Professors Jean-Marc Thouvenin and Mathias Forteau will then share the task of explaining
both why the ⎯ tortuous ⎯ line claimed by Niger is in fact a work of fiction, and how the one
we propose is the only one that complies with th e principles applicable to the delimitation of
the disputed frontier, and this in turn for both the “Téra sector” and the “Say sector”;
⎯ finally, Mrs.SawadogoTapsoba, Co-Agent of Burkina Faso, will make a few concluding
remarks before reading out our final submissions.
4
Michel Sardou, Au temps des colonies; lyrics available at: http://www.lyricsmania.com/le_temps_
des_colonies_lyrics_michel_sardou.html. - 4 -
I. The subject of the dispute
12
(reply to Judge Donoghue)
[Slide 1: Judge Donoghue’s question]
5. Mr. President, at this very late stage in the proceedings, I do not believe it is necessary to
return in detail to the subject of the dispute brought before the Court. However, the question posed
by JudgeDonoghue last Friday provides me with an opportunity to clarify, usefully I think, one
particular aspect thereof.
6. In order to reply, I must return to a detail of terminology. In the French text ⎯ the only
authoritative text ⎯ of Article 2, paragraph 2, of the Special Agreement, the Parties ask the Court
to “donner acte . . . de leur entente”; the translation by the Registry reads “place on record the
Parties’ agreement”. As I said last week 5, with all due respect for the work of the Court’s
translators and interpreters, I am not entirely convinced by this translation and I think that
“understanding”, for example, would ha ve been a better translation for “entente” than the word
“agreement”.
7. That said, the question posed by Judge Donoghue is whether this “entente” is binding on
the Parties. Our reply is this ⎯ and I would also refer, if I may, to what I said on the subject last
Tuesday 6: it will be when the Court has placed it on record. The reasons for this reply (which is
based first of all on the very terms of that provision in the Special Agreement) are the following:
(1) we find it most regrettable ⎯ and I say this very solemnly on behalf of Burkina Faso ⎯ that the
Agent of the Republic of Niger has affirmed that his country “has ratified” (“ratified”,
Mr. President)
“the exchange of Notes between Nige r and Burkina Faso of 29October and
2 November 2009 . . . in accordance with Articl7e of the Agreement of
28 March 1987, which provides:
‘The result of the demarcation wo rks shall be embodied in a legal
instrument, which shall be submitted for signature and ratification by the
two Contracting Parties’.” ;7
5CR 2012/21, p. 27, para. 6 (Pellet).
6
Ibid., pp. 29-30, paras. 9-10 (Pellet).
7CR 2012/22, p. 13, para. 14 (Bazoum); emphasis added. - 5 -
13 and counsel for Niger added: “the process of ratifying that agreement has been concluded in
Niger” 8; Niger has not provided any evidence to support its claim in this regard ; in any event,
for its part, Burkina has not ratified this exchange of letters, which has not been registered by
either of the Parties with the United Nations ;
(2) if this exchange of letters constitutes a treaty within the meaning of international law, subject to
ratification under Article7 of the 1987Agreemen t, as the Agent of Nige r asserts, then it has
not, in any event, been “officially recognized” under international law, to use Niger’s phrase in
respect of the consensual line of 1988 and the political compromise of 1991 9; it has indeed not
been ratified by both States; consequently, pursu ing this line of reasoning, it remains legally
non-binding between the Parties;
(3)it is precisely because Niger, in cases such as this, considers itself not to be bound by
incomplete agreements 10 ⎯ and in strictly legal terms it is not wrong ⎯ that the authorities of
Burkina requested that paragraph 2 of Article 2 should be inserted in the Special Agreement;
11
(4)and furthermore, as I recalled in my pleading last Tuesday , the Parties’ “entente” ⎯ the
understanding ⎯ constituted by the exchange of letters of 29 October and 2 November 2009 is
subsequent to the conclusion of the Special Agreem ent and will only derive binding force from
your judgment, Members of the Court.
8. It is only once this “entente” ⎯ this understanding ⎯ has been placed on record in that
judgment that the frontier dispute submitted to the Court by the Parties will be completely resolved.
I hope, Judge Donoghue, that I have answered your question clearly.
[End of slide 1]
II. The applicable law
9. Mr. President, a few words now on the applicable law — and I do indeed mean “the law”.
14 [Slide 2: Comparison between the Benin/Niger and Burkina Faso/Niger Special Agreements]
8CR 2012/22, p. 24, para. 3 (Salmon); emphasis added.
9
CMN, p. 15, para. 1.0; p. 47, para. 1.2.2; pp. 54-56, paras. 1.2.19-1.2.23.
10
See in particular CR 2012/22, p. 32, para. 20 (Salmon); pp. 43-44, paras. 29-30 (Kamto).
11CR 2012/21, pp. 29-30, paras. 7-9 (Pellet). - 6 -
10. Members of the Court, I am not telling you anything new when I recall that this is very
clearly defined by Article6 of the Special Agreemen t of 24February2009. It is a fairly unusual
provision — firstly, because it exists (a number of special agreements have no equivalent clause —
for example, that adopted by Burkina and Mali in 1983, which contains but a passing reference to
the uti possidetis principle in its Preamble 1); and secondly, because when a special agreement
contains such a clause, that clause is usually very general. Such is the case with the 2002 Special
Agreement in the Benin/Niger case, under the terms of which:
“The rules and principles of international law applicable to the dispute are those
set out in Article38, paragraph1, of the St atute of the International Court of Justice,
including the principle of State succession to the boundaries inherited from
colonization, that is to say, the intangibility of those boundaries.”
11. The wording of Article 6 of the 2009 Speci al Agreement is very similar to that which I
have just read out, except for two differences. The first — the equation between succession to the
colonial boundaries and their “intangibility” — appears to me to be fairly trivial. Not the second.
The reference to the Agreement of 28 March 1987 between Burkina and Niger is, on the contrary,
crucial.
[End of slide 2. Slide 3: Articles 1 and 2 of the Agreement of 28 March 1987]
12. It is not a slight difference: throu gh its silence, the Special Agreement in the Burkina
Faso/Republic of Mali case referred back to general internati onal law; the Special Agreement in
the Benin/Niger case did not go very much further: the rules and principles of international law in
Article38 and the uti possidetis juris represent no great commitment. However, the reference to
the 1987 Agreement is another matter altogether, and it is far more restrictive:
⎯ the frontier between the two States is that described in the 1927 Arrêté, as clarified by its
Erratum — that and no other;
⎯ it being understood that it is only “[s]hould the Arrêté and Erratum not suffice [that] the course
shall be that shown on the 1:200,000-scale map of the Institut Géographique National de
France, 1960 edition, and/or any othe r relevant document accepted by joint agreement of the
Parties”.
12
http://www.icj-cij.org/docket/files/69/10664.pdf. - 7 -
This, Members of the Court, is the law, the lex specialis, which is binding on the Parties and
likewise on the Court.
15 13. Well, Mr. President, I can already see — or at least guess at — the indignant reactions of
13
my opponents and friends; I can hear their imprecati ons: “fetishistic... view of the [text]” !
“Freudian obsession” 14! “Passion for protocol” 15! “It regards the Erratum... as sacred” 1! No,
no! I am simply reading the provisions of a treaty adopted freely and knowingly by the Parties and
which has the force of law between them.
14. And I would add that, if there is any fetishism, our opponents are just as guilty of it.
They are clearly not fussy about formality: they admit with good grace that “[t]hose boundaries
were in reality de facto boundaries, only rarely laid down in texts” 17and that, in the region with
which we are concerned, no text of any legal valu e has ever defined the boundaries of the colonial
18
districts as between the heads of those same districts , even though those individuals had no power
to delimit the inter-colonial boundaries (indeed, they did not even have final responsibility for
intra-colonial delimitation); and they accept without any particular scruples that sketch-maps
which are undated and of uncertain provenance ma y constitute admissible and decisive evidence.
Their obsession, however, lies elsewhere — and in particular in the 1986 Judgment of the Chamber
of the Court in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) , which
they recite as if it were a breviary!
15. Mr.President, I have the greatest resp ect— affection almost!— for that founding
Judgment, which I myself cited on a number of oc casions last week— and Burkina Faso most
certainly has no complaints in that regard, as recalled by our Agent last Monday 19. However, it
must be referred to judiciously, while keeping in mind the (sizeable) difference that exists between
13
CR 2012/22, p. 36, para. 9 (Kamto).
14
Ibid., p. 31, para. 20 (Salmon).
1CR 2012/24, p. 38, para. 19 (Klein).
1CR2012/22, p.26, para.7 (Salmon), a nd p.36, para.9 (Kamto); CR2012/23, p.15, para.12 (Salmon). See
also CR 2012/23, p. 14, para. 10 (Salmon), or CR 2012/24, p. 37, para. 19 (Klein).
1CR 2012/22, p. 23, para.23 (Tankoano).
1See, for example, CR2012/24, p.11 , para.10 (Salmon) [Gar nier/Lichtenberger “agreement” concerning the
installation of the Vibourié marker]; CR2012/24, p.14, para. 15, and p. 18, para. 18 (Salmon) [Roser/Boyer
“agreement”].
1CR 2012/19, p. 13, para. 2 (Bougouma). - 8 -
the two Special Agreements: that of 1983 did not re fer to an agreement betw een the Parties. Our
Special Agreement, that of 24 February 2009, does so ; and this is a formal agreement, not a mere
16 “understanding” of uncertain legal significance, but a treaty which expressly states on the basis of
which instruments the frontier should be determined.
16. On the other hand, of course, whenever th e special law which the Parties have adopted is
not relevant for settling the present dispute, and thus does not lead to the exclusion of some of the
rules which, in the absence of an agreement, were applied by the Chamber in 1986, there is nothing
to prevent — and indeed everything to recommend — reference to the Judgment of the Chamber.
This is particularly true in respect of the uti possidetis principle, on which my friend Maurice
Kamto delivered an excellent speech— excellent, but far too abstract. Indeed, he failed to take
account of the fact that, in our case, it must be applied while taking full account of the Special
Agreement; of the reference in the latter to the 1987 Agreement; and of the exclusive role which
that agreement accords, on the one hand, to the 1927 Arrêté and its Erratum, and on the other, in
the alternative, to the 1960 IGN France map. That is the applicable law, and that above all else .
17. Moreover, and with this (important) provi so, we have no complaints about the masterful
20
presentation delivered by Professor Kamto on the general uti possidetis principle — it is the way
he seeks to apply it to the present case which is the source of our misgivings. And, in particular,
his uncompromising — might we say formalistic? — view of the critical date. He wants a single
critical date, and we have to choose — or, rather, he proclaims that the only critical date to be taken
into account is the dates of independence: 3-5 August1960 (let us not quibble over a couple of
days which, in any case, are not important — to our case, at least) 21.
18. Mr. President, I myself am not in the least bit fetishistic — at any rate, not so far as the
critical date is concerned. And I am more than ready to accept that the critical date for the
application of the uti possidetis principle in our case is August 1960. However, this is of very little
practical importance — and for at least two reasons:
20
CR 2012/22, pp. 33-35, paras. 2-5.
21
See ibid., p. 37, para. 11. - 9 -
17 ⎯ firstly, the notion of a critical date is not unequi vocal: it is, of course, used to determine the
date for the application of the uti possidetis principle, but it is also relevant for establishing the
22
date on which a dispute crystallized ;
⎯ secondly, and more generally, the term serves, in practice, to identify any date where pause
must be taken in order to assess the status quo (be this territorial or otherwise).
19. Such was the approach of the Chamber of the Court in the Burkina Faso/Republic of
Mali case. The Chamber began by explaining that a first critical date was the dates of
independence, on which is fixed, to use its right ly celebrated expression (which was also recalled
23 24
by Maurice Kamto ), the “photograph of the territory” which constitutes the “colonial heritage” .
But as my dear opponent also recalled, “the uti possidetis... settles the question of the date on
which the colonial heritage should be consider ed, but not necessarily the issue of the precise
content of that colonial heritage” 2. And that is why the 1986 Chamber had to go back in time in
order to determine that “content” — i.e., the c ourse of the frontier; it found that the Law of 1947
reconstituted Upper Volta within its 1932 boundaries, which were not modified subsequently;
accordingly,
“the Chamber’s task in this case is to indi cate the line of the frontier inherited by both
States from the colonizers on their accession to independence . . . [T]his task amounts
to ascertaining and defining the lines whic h formed the administrative boundaries of
the colony of Upper Volta on 31December1932.” ( Frontier Dispute (Burkina
Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 632, para. 148.)
20. The same applies to our case: 1960 relate s back to 1947, which relates back to 1932.
However, we have to go a little further back in time, since 1987 (by virtue of the Parties’
Agreement of 28 March) in fact “bestrides” — so to speak — this entire period, and refers directly
to the 1927 Erratum, while fast-forwarding to the 1960 map should that Erratum not suffice.
[End of slide 3]
22
See, for example: Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 698, para. 117; see also Sovereignty over Pulau Ligitan
and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002 , p.682, para.135; Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgm ent, I.C.J.Reports2008,
pp. 27-28, paras. 32-36.
23
CR 2012/22, p. 37, para. 12 (Kamto).
24
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 568, para. 30.
25CR 2012/22, p. 37, para. [17] (Kamto). - 10 -
18 21. Mr.President, the methodology to be follo wed in the present case is fixed in the same
way.
III. Questions of method
22. The house of cards constructed by Niger ⎯ the “story” which its counsel have
invented ⎯ is summed up as follows by Professor Salmon: after asserting that “the 1927 texts” (he
is referring to the Arrêté and its Erratum) are only “one piece of evidence of the frontier line,
among others”, he adds:
“Upstream of the 1927texts, Niger recalls that those texts were adopted
pursuant to the Decree of the President of the Republic of 28 December 1926 . . . and,
therefore, that their only possible purpose can be to give effect to the reorganizations
of cercles and cantons for which that Decree provides. It believes that it is therefore
reasonable to examine the preparatory acts carried out by the two colonies concerned
in order to prepare the implementing arrêtés.
Downstream, it is necessary to consider how the 1927 texts were applied on the
26
ground by the colonial authorities in order to remedy their insufficiency.”
23. Were it not for the sincere respect that I have for Professor Salmon, I would say that he is
barking up entirely the wrong tree. And I have to say that I find it hard to see why you would find
the intellectual complexity of the edifice dreamt up by our opponents “more appealing” ⎯ those
are his words ⎯ than solving an equation, which the Par ties have submitted to you, in which there
27
are indeed “no unknowns” . Why complicate matters when they can be perfectly simple? Even
before this Court, problems are sometimes presented in simple terms ⎯ I am thinking, for example,
28
of the case of the Aouzou strip , of which certain aspects of today’s case are reminiscent: as in
that case, we have one instrument, the 1927E rratum, with which the frontier line must be
compatible; it is sufficient to apply it ⎯ even, where necessary, to interpret it; to interpret it, not
to betray it, even though, all too often, “to interpret is to betray” ⎯ apologies to our excellent
19 interpreters! ⎯ traduttore, traditore. And when it is found not to suffice ⎯ not to suffice, rather
than not to satisfy ⎯ it is necessary to refer to the IGN France map of 1960. All of this ⎯ no
doubt because it is too simple ⎯ arouses the indignation of our opponents.
2CR 2012/22, p. 28, para. 12 (Salmon).
27
Ibid., p. 31, para. 19 (Salmon).
2See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 6; see, in particular,
p. 25, para. 51. - 11 -
A. The alleged imperfection of the Erratum
[Slide 4: The course of the frontier]
24. First sign of indignation ⎯ and first error: the text of the Erratum is said to be
29
“imperfect, imprecise, incomplete on cer tain points and erroneous on others” . Niger sees
evidence of this in the fact that, as soon as it was enacted, “there were [supposedly] many
complaints within the two colonies over the uncertainties in connection with the territorial
30
boundary” . We are reaching the heart of the story, Mr . President: oh yes, the line in the Erratum
gave rise to protests, including, and indeed in particular, on the part of the administrators of Dori
31
cercle (as ProfessorKlein has repeated ⎯ but what difference does that make?). However,
without exception, none of these protests concerned the existence and mandatory nature of the line,
and very few referred to its lack of clarity. On the contrary, as we have shown 32, the local
administrators criticize a line which they understa nd and with which they are perfectly familiar!
Just one example, Mr.President: in 1929, Taillebourg, the Commander of Dori cercle , goes to
great lengths to obtain a modification to the Erratum; “I realize”, he writes, in particular to his
counterpart in Tillabéry (but he conducts a very extensive campaign!), “I realize that my request
has a weak foundation , and I am only making it because of the increasing difficulties which the
prescribed boundaries, now that they are being rigorously observed, are causing in Dori cercle” 33.
25. Similarly, our friends on the other side of the Bar ⎯ and foremost among them the Agent
of Niger himself ⎯ have asserted many times that, as soon as the two countries gained
independence, their leaders “made numerous efforts to identify the precise line of the frontier” 34.
20
With all due respect, that is not quite right, Mr. President: the two countries did not seek to identify
their common frontier (at least, if we regard “identify” as a synonym of “delimit”); they
29CR2012/22, p.28, para.11 (Salmon); see also CR2012/ 22, p.31, para.20 (Salmon); CR2012/22, p.39,
para. 16 (Kamto); CR 2012/23, p. 27, B (Klein); p. 45, para. 31 (Kamto); p.54, para. 4 (Salmon); CR 2012/24, p. 16,
para. 15 (Salmon).
30CR2012/22, p.11, para.8 (Bazoum); see also CR2012/ 22, p.39, para.16 (Kamto); CR2012/23, pp.28-29,
paras. 9-10 (Klein).
31CR 2012/23, p. 26, para. 7, or pp. 28-29, para. 9 (Klein).
32See CR2012/19, p. 2, par. 5, and CMBF, pp2. 9-37, para. .26-1.39, in particular. 3-36,
paras. 1.29-1.36.
33Letter No.418 from the Commander of Dori cercle to the Commander of Tillabéry cercle dated
19 August 1929, MN, Ann. C 27, p. 2; see also his letter of 9 August 1929, MN, Ann. C 24, p. 3.
34
CR 2012/22, p. 12, para. 10 (Bazoum); see also CR 2012/23, p. 33, para. 15 (Klein). - 12 -
immediately endeavoured to demarcate it on the ground, to mark it out on the basis of the Erratum.
That was the case from 1964 onwards; it is what they attempted to do in the 1980s; and it was
with a view to demarcating the frontier that they concluded the Agreement of 28 March 1987. And
not without some success (even though the solution which was adopted still needs to be invested
with the authority of res judicata): as I demonstrated last week 35, it was by relying on the Erratum
(with the exception of one instance where it did not suffice, that inadequacy being overcome in
accordance with the provisions of the 1987Agreemen t) that the two sectors of the frontier which
are the subject of the agreement ⎯ the understanding ⎯ which is referred to in Article2,
paragraph2, of the Special Agreement were mark ed out. Moreover, the consensual line, which
was adopted at the fourth meeting of the Joint Technical Commission on Demarcation, in
36
September 1988 , is based almost exclusively on the 1927 Erratum; the “almost” being explained
by the fact that the 1960 IGN France map was consulted to determine the course of the frontier in a
segment situated in the sector running from Bos sébangou to the intersection of the Sirba with the
Say parallel 37 ⎯ also in accordance with the provisions of the 1987 Agreement.
26. Admittedly, not having been the subject of a formal treaty, this consensual line is not
binding on Niger 38in the manner of one that derives fro m a conventional text. The matter is
settled. However, as the Chamber of the Court made clear in the Gulf of Fonseca case, although
“[n]o account could be taken by the Cham ber of any negotiating concessions which
might have been made as to the position of the limit . . . the Chamber is entitled to take
account of the shared view in 1881 and 1884 of the Parties as to the basis and extent
of their dispute” ( Land, Island and Maritime Frontier Dispute
(ElSalvador/Honduras: Nicaragua interven ing), Judgment, I.C.J.Reports1992,
p. 406, para. 73; emphasis added).
21 “The significant aspect of the [in our case, 1987 and 1988] negotiations is...
the shared view of the Parties as to th e basis and extent of their dispute.” ( Ibid.,
p. 407, para. 76.)
In any event, although the consensus on the 1988 line admittedly resulted from the consultation
between the two countries’ experts, the line itself is merely the consequence of the straightforward
3See CR 2012/19, p. 65, para. 49 (Pellet).
36
Report 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; see also MBF, cartographic Ann. 15.
37
See MBF, p. 155, para. 4.142.
3See CR 2012/22, p. 44, para. 31 (Kamto). - 13 -
application of the 1987Agreement. I would note , moreover, that this consensual line was not,
strictly speaking, the result of “negotiations”, as our opponents have repeated at length; that is to
say, it was not the result of a bid to seek a new solu tion which would be acceptable to the Parties.
The experts in the Joint Commission were bound by the delimitation “as described” by the
1927 Erratum, and could not depart from it.
B. The Erratum’s inadequacies and the 1960 map
[End of slide 4. Slide 5: Reply to Judge Bennouna’s question]
27. Members of the Court, the Erratum is not incomplete and only very marginally does not
suffice. When ⎯ exceptionally ⎯ that is the case, reference must be made to the 1:200,000-scale
IGN France map of 1960. And that brings me to our reply to JudgeBennouna’s question. That
question is twofold.
28. We must first explain “to what extent ” we agree “to refer to the 1960IGNmap to
establish the course of the frontier” between the Parti es. The answer is, in fact, to be found in the
Agreement of 28 March 1987 and, in particular, Artic le 2 thereof: reference may only be made to
the map if the Arrêté, as clarified by its Erratum, does not suffice; and, in the absence of any other
document accepted by joint agreement of the Parties, first, reference must be made to it and,
second, reference may be made to it alone. This is not fetishism, Mr. President, it is not formalism,
it is not “Freudian”; it is quite simply what is stated in the 1987 text, to which the Special
Agreement refers.
29. But beware: it is not permitted to reverse the order of the factors and take the map as a
starting point, a step which our opponents quite blithely do not hesitate to take. Thus
Professor Salmon, after appearing to admit that the map has been granted “the status of subsidiary
title”, goes on unwaveringly to explain that “Niger considered it legitimate to rely on this
subsidiary source” 39. And my esteemed opponent goes even further ⎯ much further: after
22 admitting that Niger was, therefore, “rely[ing] on” the 1960map, he explains that “Niger has
scrupulously adhered to” its policy of only deviating “ from the IGN line for reasons” based on the
existence “of a colonial marker which was unknown to the drafters of the map”, of an alleged
39
CR 2012/23, p. 55, para. 5 (Salmon); emphasis added. - 14 -
“agreement which was reached after independen ce”, of “information dating from the colonial
period” and for a “number of reasons” ⎯ which he does not elucidate ⎯ in the Say sector 40. No
lengthy comments are necessary; I think it is sufficient for me to point out that:
⎯ no, it is not the 1960 map that must be “rel[ied] on”, but the 1927 Erratum; and
⎯ no, it is not permitted, should that text not suffi ce, to substitute the line shown on the map with
an improbable mishmash of more or less formal colonial documents (generally less rather than
more so, by the way).
If you will permit this bad play on words, Mr. Presi dent (which, incidentally, I am not sure can be
translated into English): the map (carte) appears on a menu imposed by the 1987Agreement ⎯
whether it is appetizing or not is irrelevant; Niger wishes, for its part, to choose the map (à la
carte) in order to satisfy its culinary preferences. It may not do so.
30. Moreover, this is not quite the end of the matter ⎯ as I am quite willing to concede ⎯
since it is still necessary to determine exactly when the reference text does not suffice. Here too, it
seems to me that the answer lies in th e text: it is necessary for the Erratum not to suffice for the
purposes of drawing the frontier line. My friend Professor Pierre Klein has gone to a great deal of
41
trouble to show that the Erratum as a whole suffers from this defect of inadequacy , and has
denounced “the utter frivolity” of Burkina’s position 42 and the presumptuousness of its counsel
who, in splendid isolation, are, he says, obstina tely persisting in denying the obscurity of the
Erratum 4. Yet we are not postulating anything, Mr. President; this is a technical issue, and we are
merely noting that the experts of the two Parties believed, in 1988, that it was perfectly possible to
take the Erratum as the basis for the delimitation, even if it meant falling back on the map in those
cases where that text did not describe the frontier adequately; and in the only instance where the
23 map was unable to compensate for the Erratum, because a name that it mentioned did not appear on
that map, the Joint Commission, in accordance with the letter and spirit of Article2 of the
4CR 2012/23, p. 56, para. 6 (Salmon); emphasis added.
41
See CR 2012/23, pp. 21-34 (Klein).
42
Ibid., p. 21, para. 1 (Klein).
4See, in particular, ibid., p. 22, paras. 2 and 3; or pp. 32-33, para. 15 (Klein). - 15 -
1987Agreement, gave precedence to the Erratum ov er the map by interpreting the text of that
44
instrument .
[End of slide 5. Slide 6: The 1927 Erratum and the 1960 map]
31. Mr President, Judge Bennouna’s question also asks “for which section(s) . . . do each of
the Parties agree to refer to the 1960IGN map to establish the course of the frontier between
them”. The diagram which is now being shown on the screen illustrates Burkina’s position on this
point. The green line is compatible with both the description of the line in the Erratum and the line
shown on the map; the red line represents the lin e described in the Erratum when the line shown
on the map does not coincide with it, and the yellow line ⎯ which is not very easy to make out on
the screen ⎯ represents the line shown on the map when the Erratum does not suffice.
Professors Thouvenin and Forteau will elaborate on these segments of the frontier and explain the
reasons which led the technical experts to think that, in these rare cases (only one as far as we are
concerned), the Erratum did not suffice (I am refe rring to the short segment that I mentioned a
45
moment ago , which is situated in the sector running from Bossébangou to the intersection of the
Sirba with the Say parallel).
32. I hope that I have replied to Judge Be nnouna’s satisfaction, but, in accordance with your
invitation, Mr. President, we reserve the right to supplement this answer by 24 October.
[End of slide 6. Slide 7: Article 2 of the Decree of 28 December 1926]
C. The title and the effectivités
33. Before concluding, Mr. President, I should like, with your permission, to address a final
point which still ⎯ deeply ⎯ divides the Parties in respect of the method to be adopted for the
delimitation in our case ⎯ not in the abstract, and not in the name of lofty principles, but in the
circumstances of our case, which are quite particular. I refer to the relationship between the title
and the effectivités, and the strange idea that our friends on the other side of the Bar have formed of
it. That relationship should, in this case, be appr aised in the light of the relationship that exists
44
See CR 2012/19, pp. 34-35, paras. 20-22 (Pellet).
4See para. 25 above. - 16 -
24 between the Erratum and the Decree of the President of the French Republic of 28 December 1926,
and the conclusions that our opponents draw ⎯ or do not draw ⎯ from it.
34. While listening to them last week, I was st ruck by Niger’s waning interest in this text,
which is nonetheless extremely important ⎯ it is true that, generally speaking, Niger is not very
keen on texts; it prefers “practice”, which is less palpable from a legal point of view. Admittedly,
Professor Salmon affirmed in passing, in his last address, that the decree of 1986 was “[t]he basic
document which must never be overlooked” 46. However, apart from Professor Tankoano’s
historical reminders 47, only Jean Salmon devoted a few brief words to it in his pleading on what he
48
terms the “hypothesis of the artificial and arbitrary nature of the colonial frontier” .
49
35. I shall not go back over the fact that this is not a “hypothesis”, but an observation ⎯
and an observation that is hardly surprising, considering
⎯ the era (the French arrived late in the region and “pacified” it ⎯ a word that was politically
correct at the time ⎯ even later);
⎯ the geography (the region was far from the “centre” of FWA and, whatever our opponents may
say 50, it was sparsely populated ; and it is rather inhospitable ); 52
53
⎯ in a nutshell, the scant knowledge of the colonial authorities ; and their conduct, which was
decidedly less philanthropic than that ascribed to them by Niger 5.
25 36. Returning more specifically to Ar ticle 2 of the Decree of 28December1926,
Professor Salmon essentially makes two statements in this regard, both of which, I am afraid to say,
I believe to be incorrect:
4CR 2012/23, p. 53, para. 3 (Salmon).
4CR 2012/22, p. 21, para. 19 and p. 23, para. 24 (Mr. Tanko ano); see also CR 2012/23, p. 55, para. 4 (Salmon),
and CR 2012/24 p. 24, para. 3 (Klein).
4CR 2012/23, p. 50, paras. 6 and 7 (Salmon).
4See CR 2012/19, p. 44, paras. 4-5 (Pellet); CR 2012/20, pp. 28-30, paras. 68-70 (Forteau).
50
See CR 2012/22, p. 54, para. 13 (Salmon).
51
See CMBF, p. 76, para. 3.30.
52
CR 2012/19, p. 34, para. 16 (Tapsoba).
5CMBF, pp. 88-90, paras.3.61-3.63; Note No. 521 CM2 from the FWA Ge ographical Department, dated
25 June 1938, CMBF, Ann. 6; letter No. 112 of 10 April 1932 and Tour Report from Civil Service Deputy Roser, MN,
Ann. C 45, p. 4; telegram/letter No. 47 from the Head of Say Subdivision to Dori cercle dated 18 June 1935, MN,
Ann. C 61; report from the Head of Téra Subdivision on the census of Diagourou canton, MN, Ann. C 84, p. 5.
54
See above, para. 3 and CR 2012/19, pp. 48-49, paras. 15-16 (Pellet). - 17 -
⎯ firstly, “[t]he fact that the Presidential Decree expresses itself in terms of cantons, that is to say
identifiable local administrative units which al ready existed in 1910... certainly does not
imply any wish to establish a line of an arbitrary and artificial nature” 55;
⎯ secondly, and in particular, at the same time as asserting that “Niger has not lost sight of”
paragraph2 of Article2 of the 1926Decree (which is now showing on the screen), my
opponent declares in peremptory fashion that “t he Governor-General’s action in describing the
boundary resulting from the transfers effected by the Decree could only have a declaratory
effect, and not a constitutive one” 56.
Some brief words on each of these strong statements.
37. The first is doubly questionable. To begin with, the phrase according to which the
cantons were “identifiable local administrative unit s” is admirably ambiguous: they were, of
course, territorial units whose existence, administrative centre and territorial basis were known;
but, as regards their precise boundaries, that is another matter. ProfessorTankoano claimed that
57
the colonial authorities were simply “working on a jigsaw puzzle, always with the same pieces” .
But that is not the issue: to be able to “work on” such a puzzle, the pieces have to be drawn. For
the boundaries of the cantons adjoining the other colony concerned, a drawing exists: the Erratum
of 1927, which delimited the territory of the two colonies; elsewhere, as our opponent moreover
points out, the boundaries were generally de facto, “rarely laid down in texts” 58and uncertain.
38. Thus, even in August1954, the Head of Téra Subdivision found “like most of [his]
predecessors that an exact delimitation of this canton of Diagourou [of which the Chief admitted, in
1920, not to know the boundaries 59] is absolutely impossible, despite the never-ending claims and
60
26 disputes to which this situation gives rise” . Furthermore, the reports of the meetings between the
local administrators intended to try to resolve such disputes do not really support Niger’s thesis: it
is because there were problems with the boundari es between neighbouring divisions that those
55CR 2012/2[2], p. 50, para. 6 (Salmon).
56
Ibid., para. 7.
57
CR 2012/22, pp. 22-23, para. 23 (Tankoano).
58Ibid., see above, para. 14.
59See MN, Ann. C 45, p. 4.
60Report from the Head of Téra Subdivision on the census of Diagourou canton, p. 5, MN, Ann. C 84. - 18 -
meetings or field trips took place. A nd the uncertainty surrounding those boundaries ⎯ up until
the 1950s, on the eve of independence ⎯ is hardly surprising; as an administrative body it was still
young (it should not be forgotten that Upper Volta and Niger became autonomous colonies in 1919
and 1922 respectively), and the precise delimitation of the cantons was probably not its primary
concern: as I said last Monday, France treated everywhere like its own back-yard 61. Moreover,
herein lies the second criticism that can be levelled at our opponents: it is difficult to see how they
can assert that the 1926Decree does not “imply an y wish to establish a line of an arbitrary and
62
artificial nature” . It does not, in fact, imply anything: it does not concern the delimitation and
leaves the task of determining “the course of the boundary of the two Colonies in this area” 63 to the
Governor-General of FWA, who had the power to do so. At the very most, one might draw the
conclusion that this boundary did not exist or that it was not sufficiently precise ⎯ otherwise, it is
not clear why the Governor-General would have been given the task of “determin[ing its] course”.
39. In actual fact, this common-sense observati on kills two birds with one stone: not only
does it show that the colonizer was not as completely confident as Niger’s counsel regarding pre-
existing boundaries between identifiable local subdivisions ⎯ cercles or cantons; it also shows
that Professor Salmon’s second statement whereby the Arrêté “could only have a declaratory effect,
and not a constitutive one” is unfounded ⎯ or rather it would be founded if the Governor-General
did not have the power to decide on “the incorporation of a territory into a particular colony”, as
my opponent put it 64when referring to Professor Tankoano’s very clear presentation 6; however,
he did indeed have the power to determine the precise composition of the territorial divisions in his
27 jurisdiction, and of the inter-colonial boundaries: the 1926 Decree invites hi m to exercise that
power in the region concerned. Acting on that invitation, he would adopt the Arrêté, and then the
Erratum, of 1927.
61See CR 2012/19, p. 61, para. 44 (Pellet).
62
CR 2012/22, p. 50, para. 6 (Salmon).
63
MBF, Ann. 26.
64CR 2012/23, p. 50, para. 7 (Salmon).
65Ibid., pp. 17-19, paras. 7-19. - 19 -
66
40. And the latter, whether our opponents like it or not , is the territorial title on which,
Members of the Court, you must rely in order to deliver your judgment. The colonial effectivités
have no role to play, other than a confirmatory one, as the Chamber of the Court explained in
Burkina/Republic of Mali, from which I quote:
“Where the act corresponds exactly to law, where effective administration is
additional to the uti possidetis juris , the only role of effectivité is to confirm the
exercise of the right derived from a legal title. Where the act does not correspond to
the law, where the territory which is the subject of the dispute is effectively
administered by a State other than the one possessing the legal title, preference should
be given to the holder of the title.” ( Frontier Dispute (Burkina Faso/Republic of
Mali), Judgment, I.C.J. Reports 1986, pp. 585-586, para. 63.)
41. Professor Kamto has the wrong hypothesis, Mr. President. We are in one, or perhaps the
other, of the two hypotheses that I have just men tioned, but certainly not in the one in which my
opponent and learned friend has positioned himself, the one in which the title is purported not to
have effected the delimitation. The Erratum “d etermines the course” of the disputed frontier along
67
its entire length. The uti possidetis speaks here with the most certain of voices . And in this
connection, I would repeat 68, the 1986 Judgment does not constitute a precedent that can be
invoked in the present case: the Parties were careful to specify, in Article 2 of the 1987 Agreement
to which the Special Agreement refers, the fron tier title on which they rely and the evidentiary
material which they may invoke ⎯ the Erratum itself and, on a subsidiary basis, the 1960map.
The Burkina/Republic of Mali case was completely different in this respect; the principle of the
“free admissibility of evidence”, to which Niger clings 69, was fully applicable in that case. It is
28 quite simply inappropriate to claim, in our case, that “the 1927 Arrêté and its Erratum are one piece
of evidence of the frontier line, among others” 70.
42. And the same of course applies, Mr. President, to the cartographic evidence, in respect of
which the Chamber of the Court had the following to say in 1986, despite the fact that no
6See in particular CR 2012/22, p. 26, para. 7 (Salmon).
67
See CR 2012/22, p. 38, para. 15; p. 39, pa ra. 16; or p. 45, para. 32 (Kamto) ⎯ see Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 386, para. 41.
68
See above, paras. 15-16.
6See CR 2012/23, pp. 39-42 (Kamto).
7See CR 2012/23, pp. 45-52 (Kamto). - 20 -
conclusive title had been adopted by joint ag reement of the Parties, as is the case in our
proceedings:
“Whether in frontier delimitations or in international territorial conflicts, maps
merely constitute information which vari es in accuracy from case to case; of
themselves, and by virtue solely of their ex istence, they cannot constitute a territorial
title, that is, a document endowed by international law with intrinsic legal force for the
purpose of establishing territorial rights.” ( Frontier Dispute (Burkina Faso/Republic
of Mali), Judgment, I.C.J. Reports 1986, p. 582, para. 54.)
“The only value they possess is as evidence of an auxiliary or confirmatory
kind, and this also means that they cannot be given the character of a rebuttable or
juris tantum presumption such as to effect a reversal of the onus of proof.” ( Ibid.,
p. 583, para. 56; emphasis added.)
43. Mr. President, tales often tell of Sirens, whose song is said to bewitch ⎯ and be the
undoing of ⎯ sailors. Our opponents have tried to entice you with ballads ⎯ sometimes rather
cacophonous ones ⎯ of the realities on the ground, of the frontier “in practice”, of ethnic
boundaries scrupulously respected by the colonizer. Fond of him as I am, I am not entirely sure
that Jean Salmon has the charm of the Sirens (he does have other charms); but I am convinced,
Members of the Court, that you will not lose yoursel ves in the complex labyrinth of Niger’s thesis,
and that you will adhere to the more discreet and austere rigours of applying the legal rules which
the Parties, in their wisdom, have asked you to apply.
44. That concludes my pleading. Jean-Mar c Thouvenin and Mathias Forteau will now apply
the method I have just outlined to the two sectors of the frontier (which we only refer to as such, I
would recall, for the sake of convenience, since ther e is only one frontier). Members of the Court,
thank you very much for listening, and I would ask you, Mr. President, to be so kind as to give the
floor to Professor Thouvenin.
29 The PRESIDENT: Thank you very much. I give the floor to Professor Thouvenin, although
he is rather a long way from the podium.
T HE COLONIAL EFFECTIVITÉS CLAIMED BY N IGER
[Slide 1]
1. Mr. President, Members of the Court, during the oral pleadings last Friday, Niger argued
that the line it claims in the Téra sector basically follows the 1960 IGN line, from the Tao - 21 -
71
marker — and not before, except in respect of the Petelkolé and Oussaltane enclaves . Niger also
spent a few minutes considering the case of Bangaré. Except at Petelkolé —and I shall come back
to that in a moment— this line is entirely based on effectivités which are at odds with the title,
namely the Erratum, which immediately leads to the conclusion that it should be rejected.
Nonetheless, in order to acquaint the Court fully with the issues involved, I shall return to the
arguments put forward by Niger and show that, in any event, the alleged effectivités provide no
support whatsoever for the line that it claims.
[End of slide 1]
I. The Petelkolé enclave
72
2. As to the Petelkolé enclave, the lengthy arguments expounded by Professor Salmon call
for four observations. First, our opponent asser ts that Petelkolé “appears neither on Delbos’s
sketch-map, nor on that of Prudon” 73. This is odd. I have here a sketch-map produced twice by
Niger, in AnnexesC13 and C14 to its Memorial. [Slide 2] “[I]t is the Delbos sketch-map of
June 1927.” 74 With my glasses on and the map the right way up, I can see Petelkolé on it. [Slide
3] And it is on the Upper Volta side of the boundary.
30 3. Secondly, the unfruitful— not to say impenetrable— analysis provided by the lead
counsel for Niger concerning the 1932Roser report 75reveals a basic misunderstanding of that
document on his part. (This document could perhaps be removed.)
4. Roser and Boyer were— to quote ProfessorSalmon— “the two cercle commanders” 76.
According to the Roser report 77, Mr. Boyer was the Head of Téra canton.
5. Counsel for Niger also argued that, in 1932, the two administrators “were interpreting the
course of the line in the Erratum... in cartographic terms, in accordance with the new frontier
7CR 2012/24, p. 13, para. 14 (Salmon).
7Ibid., pp. 13-18, paras. 15-17 (Salmon).
73
MN, Ann. D 3; CR 2012/24, p. 14, para. 15.
74
See the letter of 7 September 2012 from the Minister for Fo reign Affairs of Niger to the Registry of the Court
correcting a number of material errors, Annex.
7CR 2012/24, pp. 14-16, para. 15 (Salmon).
7Ibid., p. 14, para. 15 (Salmon).
7MN, Ann. C 45. - 22 -
78
map”. We are told that Roser regarded it as “the official map” . This is an extrapolation.
Nowhere in the entire report did Mr. Roser mention the “new frontier” map.
6. What ProfessorSalmon did not say, and this is not an extrapolation but is clear from
simply reading this report, is that Petelkolé was not a cause of concern for Roser. [Slide 4] The
issue that was the real focus of interest in Upper Volta for the Commander of Dori cercle was “the
triangular salient whose apexes are Higa, Nabambori and Tingou”. And the main reason he wished
79
to have the Erratum corrected was because the boundary it established had cut into this salient .
[Animation]
80
There is Professor Salmon’s melon ; sliced “with a single blow of a machete”.
7. That is the reason why Roser proposed including the following text in a further Erratum:
“The boundary between the cercles of Dori and Tillabéry shall be defined as it
was by Administrators Delbos and Prud’hon in 1927. In particular, in the area of the
Higa-Nabambori-Tingou triangle, it shall be defined by the two mountain chains
81
known as the Great and the Little Sesséra.”
31 8. Mr. President, Members of the Court, I am well aware that Niger is not arguing for that
green line which you can see on the screen, since it has a selective reading of what it calls the
Roser/Boyer Agreement. But if there was such an agreement 82 — quod non — , as it insists, and if
83
that agreement established “exactly where the boundary lay in practice, to the nearest kilometre” ,
as Professor Salmon asserts, then it really is that green line that Niger claims.
9. Thirdly, Niger believes that it is possible to conclude from a sketch-map of Diagourou
canton— a sketch-map whose author is unknown and which Niger says was prepared in 1954,
although this is not indicated on the document it has produced — that Petelkolé belongs to Niger 84.
Basically, Niger opposes this sketch-map to the title constituted by the Erratum. [Slide 5] The
weakness of the argument is self-evident.
7CR 2012/24, p. 14, para. 15 (Salmon).
7MN, Ann. C 45.
80
CR 2012/22, p. 55, para. 15 (Salmon).
81
MN, Ann. C 45.
8CR 2012/24, p. 15, para. 15 (Salmon).
8Ibid., p. 16.
8Ibid., pp. 16-17, para. 15 (Salmon). - 23 -
10. Fourth and lastly, Niger changes its mind on the position of the juxtaposed frontier post
between Niger and Burkina, established on the basis —on the sole basis — of the much-discussed
report prepared by the Bilateral (Burkina-Nige r) Committee on the identification of sites for the
85
installation of juxtaposed control posts on the Ouagadougou-Dori-Téra-Niamey road .
11. I stated last Monday that that Committee had no power to draw or recognize the frontiers
86
between Burkina and Niger . Professor Salmon replied scathingly that “both States were perfectly
entitled to decide to establish a juxtaposed control post and, at the same time, to determine where
87
their frontier passed” .
12. True enough, both States can of course decide to modify the course of their frontier.
However, that Committee could not , as it had no competence in that regard. Furthermore, it was
headed, on the Burkina side, by the Regional Director for infrastructure, transport and habitat in the
Sahel and, on Niger’s side, by a technical adviser from the Ministry for Infrastructure . Neither of
them had the power to conclude a frontier agreement.
13. Moreover, it is rather shocking to hear coun sel for Niger rely on this report, which dates
32
from June 2006 88, as a basis for Niger’s territorial claim over the Petelkolé enclave.
14. On 2February2006, four months before that Committee reported on its work, the
PrimeMinister of Niger sent a letter to his BurkinaFaso counterpart, in which he wrote the
following:
“As you know, the work of demarcating our frontier has been suspended since
1990 . . . As you also know, our two governments have decided to maintain the status
quo until frontier demarcation operations are completed. This interim measure, which
has been restated regularly on the occasion of meetings between Ministers,
administrative frontier authorities and the h eads of the defence and security forces of
our two countries, was intended primarily to ease, and indeed avoid, disputes arising
from an erroneous interpretation of the ag reed frontier line... To achieve a
permanent resolution of these problems, I believe that it is urgent and necessary to
resume the work of demarcating our frontier by providing the appropriate resources to
the Joint Technical Commission on Demarcation.” 89
85
Ibid., p. 17, para. 16 (Salmon).
86
CR 2012/20, pp. 39-40, para. 39 (Thouvenin).
8CR 2012/24, p. 18, para. 16 (Salmon); see also CR 2012/22, p. 30, para. 18 (Salmon).
8CMN, Ann. A 24, Report of the Bila teral (Burkina-Niger) Committee on the identification of sites for the
installation of juxtaposed control posts on the Ouagadougou-Dori-Téra-Niamey road, 9 June 2006.
8MN, Ann. A 10, Letter No. 000082 from the Prime Minister of Niger to the Prime Minister of Burkina Faso
dated 2 February 2006. - 24 -
15. So,
⎯ on the one hand, in February2006, the Prime Minister of Niger solemnly reminded the
PrimeMinister of BurkinaFaso that, in orde r to avoid any erroneous interpretation of the
agreed frontier line — the agreed line meaning the line agreed in 1987 —, a status quo was in
effect, by joint agreement of the Parties, until the Joint Commission established by the
1987 Agreement had completed the demarcation operations;
⎯ on the other hand, last Friday, counsel for Niger argued that it was obvious that the conclusions
formed by a committee in June 2006 — a committee with no competence regarding the frontier
and whose conclusions are clearly erroneous — were opposable to Burkina.
16. Mr. President, Members of the Court, in law, once it was agreed between both States, as
Niger solemnly recalled in February 2006, that th e status quo had to be observed until the official
demarcation work had been completed, what is obvious is that the isolated acts of technical
officials cannot be opposed to either State in respect of their common frontier.
33 17. Moreover, although counsel for Niger take the opposite view, the Agent of Niger does
not. At this podium last week, he stressed that since their independence, the efforts of the two
States had
“resulted in the delimitation and demarca tion of only half of the frontier. Unable to
agree on the remainder, in February2009 the two States signed the Special
Agreement whereby they entrusted the Cour t with settlement of that part of the
90
frontier which was still in dispute.”
He also referred to the frontier “in the sector from the astronomic marker of Tong-Tong to the
beginning of the Botou bend, on which no agreement could be reached” 91. The Agent of Niger
before the Court is therefore not aware that the two States have reached agreement on the course of
the frontier around Petelkolé, for the very simple reason that no such agreement has been reached.
II. The Oussaltane enclave
18. As to the Oussaltane enclave, I shall make only a few comments here concerning the
three main arguments heard during the oral pleadings.
90
CR 2012/22, p. 13, para. 13 (Bazoum).
91
Ibid. - 25 -
19. In order to prove that Oussaltane belonged to Niger during the colonial period, it was
first suggested that: “[T]he members of certain tribes stated that Oussaltane, where they were
living, was part of Téra Subdivision” 92. If I understand this correctly , in Niger’s view, statements
by private individuals amount to colonial effectivités. In international law, effectivités consist of
“the conduct of the administrative authorities” 93.
20. Reference was then made to a letter from the Head of Téra Subdivision dated
94
24 May 1935 . Niger considers that this document “confirmed that Oussaltan encampment ‘is in
the territory of Téra’” 95. In fact, what emerges from this letter is the opposite effectivité, since an
attentive reader of this letter will learn that it is Dori in Upper Volta— or rather, which was
previously in Upper Volta, subsequently to become Upper Volta once again, since we are in
1935 — it is Dori which exercised administrative aut hority over Oussaltane in 1935. It is stated in
34
the letter that: “Boulohoré [a person’s name] was handed the notification in Oussalta by a
representative from Dori.” 96 Having said that, I agree that the argument is inadmissible, since we
are in 1935, when Upper Volta had already been dissolved.
21. Finally, counsel for Niger presented as further evidence to show that Oussaltane belongs
to Niger a document from 1951, in which: “the He ad of Téra Subdivision, in a telegram/letter of
11 July 1951 to Tillabéry cercle, uses exactly the same wording as the Roser/Boyer Agreement of
April 1932” 97. One is inclined to say “So what?” But, to tell the truth, the other Party was indeed
right to draw the Court’s attention to that document, the really relevant excerpt of which reads as
follows:
“During the meeting of 29June [we ar e in 1951] in Téra, the Commander of
Dori cercle stated again that he believes it is important to demarcate the boundary on
the basis of the Erratum . . . of 1927, by connecting the Tao boundary marker directly
98
with Bossébangou.”
9CR 2012/24, p. 18, para. 18 (Salmon).
93
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63.
94
CR 2012/24, p. 19, para. 18 (Salmon), and CMN, Ann. C 60, Letter No. 161 from the Head of Téra Subdivision
to Tillabéry cercle dated 24 May 1935.
95
CR 2012/24, p. 19, para. 18 (Salmon).
9CMN, Ann. C 60.
9MN, Ann. C 73.
98
MN, Ann. C 73, Official telegr am/letter No. 70 from the Head of Téra Subdivision to Tillabércercle dated
11 July 1951, inc. reproduction on a scale of 1:500,000 of a sketch-map by Mr. Delbos. - 26 -
It is hard to discern here any colonial effectivité of Niger’s regarding Oussaltane. However, it is a
very enlightening reaffirmation of the title — the Erratum — and of the view taken of it in 1951.
III. Bangaré
22. Members of the Court, I will now turn very briefly to Bangaré. I must say that we felt
there was a certain nervousness on the other side of the Bar when this village came to be
mentioned.
23. It must be said that Niger’s argument is essentially based on the idea that the outline of
Diagourou canton had been established during the col onial period, whereas the documents it
produces show exactly the opposite.
24. This is the case with Administrator Ro ser’s report of 1932, which Niger has unwisely
used as a cornerstone of its edifice. Referring to the Chief of the Diagourou, Roser explained in his
report that “[i]n 1919 or 1920, he was given a te rritory, without precise boundaries, that forms the
35 current canton of the Diagourou. He himself acknowledg es that he does not know the boundaries
of his canton.” 99
25. And again this is the case w ith the 1954census of Diagourou canton, 22years later,
which can be found in the case file 10. The other Party deduces from it that Bangaré belonged to
101
Niger . But the most relevant section of the documen t is to be found on page13. Referring to
Diagourou canton, the report reviews:
“the problem of the territorial boundaries, which arises periodically whenever there is
any discussion about land. As was noted in the first section, the artificial nature of the
canton and the recent arrival of many of t hose concerned do not allow the boundaries
to be determined in a clear and definitive manner, since that would stir up old grudges
and jealousies . . . The current of state of affairs must therefore be maintained.”
26. Two quite essential pieces of information emerge from this:
⎯ first, the boundaries of Diagourou canton were, according to the colonial administration,
“artificial”. Indeed, the Erratum draws a stra ight, and therefore artificial, inter-colonial
boundary, which is consequently the western boundary of Diagourou canton;
99
MN, Ann. C 45.
100
MN, Ann. C 84, Report from the Head of Té ra Subdivision on the census of Diagourou canton dated
10 August 1954.
10CR 2012/24, p. 21, para. 19 (Salmon). - 27 -
⎯ second, it was difficult in 1954 to establish the boundary on the ground in a clear and definitive
manner, because the colonial administration an ticipated trouble with the local populations,
precisely because the boundary was artificial.
In terms of colonial effectivités, this document directly contradicts Niger’s argument.
27. Professor Salmon said he was puzzled when he heard and later read my statement of last
102
Monday , before declaring— without further ado— that all my remarks were inaccurate, and
that we had to take his word for it, because he told you in all sincerity that everything I said was
103
“misconceived” . Indeed, he would be quite prepared to give the Court a summary of his views
in that regard.
36 28. I will not comment on that. So as not totax the Court’s patience, I would refer it to all
the observations I made in my statement last Mond ay afternoon, which are relevant in Burkina’s
104
view, and which I reaffirm here .
29. Thank you, Mr. President. I would now ask you to give the floor to Professor Forteau.
The PRESIDENT: Thank you, ProfessorThouvenin. I will give the floor to
Professor Forteau after the break. We shall take a 20-minute break. The sitting is suspended.
The Court adjourned from 11.15 a.m. to 11.35 a.m.
The PRESIDENT: Please be seated. You have the floor, Professor Forteau.
Mr. FORTEAU: Thank you, Mr. President.
THE “T ÉRA SECTOR ”
THE LINE AS DESCRIBED IN THE ERRATUM BETWEEN
TONG -TONG AND BOSSÉBANGOU
1. Mr. President, Members of the Court, in this first part of my presentation I shall attempt to
respond to Niger’s claims that the line as descr ibed in the Erratum does not consist of two
straight-line segments in the Téra sector. In the kind words of Professor Salmon, I shall thus
10Ibid.
103
Ibid.
10CR 2012/20, pp. 41-45, paras. 50-61 (Thouvenin). - 28 -
105
continue this morning the “truly confusing” explanations which I had the honour of setting forth
last Monday.
2. Before doing so, it is worth recalling the substance of Niger’s argument, which relies
entirely on the following — as yet unsubstantiated — syllogism: the boundary of the 1927 Erratum
was not meant to be anything more than a reproduction of the traditional canton boundaries;
106
however, “a boundary between inhabited and juxtaposed cantons cannot form a straight line” ;
therefore, the line must be sinuous. QED.
37 3. In order to show that this syllogism does not hold true, it is enough to recall, first, how the
Erratum should be interpreted, and then how it has been interpreted.
I. How should the Erratum be interpreted?
4. In respect of this first point, several remarks are called for — and you will find the text of
the Erratum at tab 1 of the judges’ folder.
5. First, the frontier title as constituted by th e Erratum is a legal instrument which must be
interpreted in terms of its purpose. This is neither debated nor debatable: its purpose was to effect
a delimitation, as required by the Decree of December 1926.
6. In order to achieve this, the author of the instrument, the Governor-General of FWA, did
not have umpteen methods at his disposal for delimiting the territory of the colonies — unless one
considers that he did not intend to effect such a delimitation, as Niger suggests against all reason 107.
There are only two ways to delimit an administrative boundary or a frontier: by referring to a
natural feature (a river, for example) or by in dicating frontier markers which are to be joined
together by an artificial line.
7. If the decision is made to draw an artific ial line, the presumption — in the absence of any
indication to the contrary — is that the boundary fo llows a straight line. Niger did not contest last
108 109
week that such a presumption exists , a presumption which can be seen in the jurisprudence
10CR 2012/23, p. 14, para. 11 (Salmon).
106
CMN, para. 1.1.22.
107
See CR 2012/22, p. 52, para. 11 in fine (Salmon) (“had the authorities wished to delimit it”).
10CR 2012/23, p. 21, para. 23 (Salmon).
10CR 2012/20, pp. 29-30, para. 69 (Forteau). - 29 -
and which, moreover, ProfessorSalmon made himsel f when he stated that the boundaries of Say
cercle, as defined in the Arrêté of August 1927, are made up “of straight lines, with the exception
110
of the river boundaries” , despite the fact that the passage he cited contains no mention of straight
lines.
8. If one reads the Erratum in the light of these remarks, the sense of the text is clear: in
certain sectors, it refers expressly to natural featur es; in others, it does not, mentioning only the
frontier markers through which the line must pass — such is the case with the Téra sector. It
follows that, since the author of the Erratum di d not choose to follow a natural boundary in this
38 sector, an artificial line was adopted. To claim otherwise is contrary both to the text and to its
purpose.
Thr. structure of the text of the Erratum is also revealing; these are textual
considerations on which Niger rema ined completely silent last week, despite the fact that the
1987 Agreement refers to the frontier “as described” by the Erratum.
10. When reading the Erratum, it is apparent that its draftsman is following the course of the
line with his pen: “[t]he boundaries”, states th e Erratum, “are determined as follows”: “[ a] line”,
which starts from the heights of N’Gouma, and then passes in turn through a number of points until
it reaches Tong-Tong; “ this line [the author of the Erratum is still following the same line, he has
not lifted his pen] then turns towards the south-east, cutting the Téra-Dori motor road at the Tao
astronomic marker located to the west of the Ossolo Pool, and [again, his pen has not moved from
the line he is following] reaching the River Sirba at Bossebangou”. “It [the same line again, his
pen has still not moved from this line] almost immediately turns back up”, etc.
11. The text is thus crystal-clear: it was indeed a complete boundary that the author of the
Erratum intended to delimit by referring to the various successive points through which a single
line passes. In other words, the boundary, in 1927, is delimited in full.
12. For its part, Niger claims that in fact, from the Tao marker, the course of the boundary is
sinuous. However, if that were true, it would have been described as such in the Erratum — as it
110
CR 2012/23, p. 11, para. 4 (Salmon). - 30 -
was, for example, in the case of the Botou bend, which we shall come back to. The fact is that this
was not done by the author of the Erratum in this sector.
13. In this sector, to recall the apt word s of Professor Kamto, the Erratum “provides
111
sufficient information to determine the exact course of the frontier” : it passes through three
points, without following a natural frontier or pa ssing through any other intermediate points:
therefore, the frontier consists of straight-line segments.
II. How has the Erratum been interpreted?
39
14. Niger, however, criticizes Burkina for a dopting a totally “disembodied” approach to the
Erratum 112. Let us look, therefore, for the sake of completeness, at how that Erratum has been
interpreted, first by Niger, and then by the colonial authorities and administrators.
A. Niger’s interpretation
15. I shall not go back over the views expressed by the Niger authorities in 1988 during the
work of the Joint Commission, a point which was addressed a few moments ago by Professor
113
Pellet .
16. Nor shall I go back over the authentic ministerial interpre tation of 1991, which is along
114
very similar lines , and in support of which the counsel for Niger have not offered any additional
115
arguments to those put forward in its Counter-Memorial .
17. On the other hand, it should be noted that the line claimed by Niger is not compatible
with its own argument that the 1927 boundary was supposed to follow the de facto canton
boundaries and, therefore, could not take the form of “a straight line” 116.
18. In the Say sector, as in the Téra sector, Niger itself has recourse to a great number of
straight lines. In particular:
[Slide 1: The line claimed by Niger — the straight-line segments up to the Tao astronomic marker]
11CR 2012/23, p. 37, para. 7 (Kamto).
112
See, for example, CR 2012/23, p. 28, para. 9 (Salmon).
113
See above, speech of Alain Pellet.
11See CR 2012/20, p. 30, paras. 72-73 (Forteau).
11See CR2012/23, p.44, para.28 (Kamto); ibid., p.14, para.11 (Salmon); see the response in CR2012/20,
p. 30, p. 73 (Forteau).
11CMN, para. 1.1.22. - 31 -
⎯ in the entire marked sector from the Mali tripoint to the Tong-Tong marker;
⎯ then from Tong-Tong to Vibourié, and from Vibourié to Tao;
[Slide 2: The line claimed by Niger — the straight-line segments from the “tripoint”]
⎯ likewise from the alleged “tripoint” to the end of the salient;
⎯ as well as up to the beginning of the Botou bend;
⎯ and from the Botou bend to the tripoint w ith the Mekrou, except for where the Erratum
expressly indicates a natural boundary.
40 19. This is an awful lot of straight lines for a text which, we are told by those on the other
side of the Bar, was supposed to reproduce the de facto canton boundaries which could not be
straight lines. Nor does it tally with Professor Sa lmon’s assertion that “Niger does not agree that
the boundary in the Téra sector . . . is composed of straight lines” 117.
[Slide 3: Line claimed by Niger in the first sector]
20. In fact, Niger itself has recourse to straight lines in this sector up to the Tao marker;
then, for reasons which it has failed to make clear, all of a sudden at the Tao marker — as can be
seen on the sketch-map— Niger has a change of heart and out of the blue claims a frontier line
following a large number of natural features and based on purported effectivités. Why is what was
appropriate upriver from Tao no longer appropriate downriver from it? The question remains.
[End of Slide 3]
21. Moreover, Niger does not dispute that the term “ s’infléchir” used in the Erratum reflects
a change in direction between two straight-line segme nts to either side of the turning point — here
the Tong-Tong marker. Although I must admit to being a little confused by Niger’s arguments on
this point.
22. On Friday morning, Professor Salmon asser ted that Niger did not accept that the line as
described in the Erratum consists of two straight- line segments to either side of Tong-Tong. This
strong affirmation would, however , be contradicted that very day... by the same Professor
Salmon! These are the two contrasting arguments wh ich were put forward either side of the lunch
break.
117
CR 2012/23, pp. 12-13, para. 7 (Salmon). - 32 -
[Slide 4: Course of the line between Tong-Tong and Tao]
23. On Friday morning, Professor Salmon first argued that
“Niger, too, accepted that there were two strai ght lines . . . Niger, which relies here on
an intermediate boundary point— the Vibourié marker— is clearly not contending
that this represents an interpretation of the Erratum, since it departs from it” 118.
24. The line claimed by Niger between Tong-To ng and Vibourié, and then up to Tao, is thus
said not to be an interpretation of the Erratum. Indeed, Niger confirms here that it departs from the
line as described by the frontier title, someth ing which is both entirely unfathomable and
41 completely at odds with the law decl ared applicable by the Parties. A contrario, this implies,
moreover, that the line as described in the Erratum directly connects the markers of Tong-Tong and
Tao.
25. On Friday afternoon, however, Professor Salmon stated that
“[i]t is clear that Niger has never claime d that the establishment of the [Vibourié]
marker had the effect of moving the line laid down by the 1927 Erratum but, while it
is necessary to follow what that text says, this was a case of it being interpreted...
Niger sees this agreement [of 1935 relating to the establishment of a marker at
Vibourié] as a simple interpretation of the 1927 Erratum” 119.
26. It appears this time, therefore, that the line claimed by Niger in the vicinity of Vibourié is
indeed an interpretation of the Erratum, someth ing which Niger had denied that morning. The
whole thing is very confusing, with the excepti on of the conclusion drawn by Professor Salmon:
120
“[t]he boundary in this sector therefore c onsists of two straight-line segments” . In other words,
Niger accepts that the line as described in the Erratum is made up of straight-line segments at the
level of the Tong-Tong turning point.
B. The interpretation of the colonial authorities and administrators
27. I now come, Mr.President, to the interpretation of the Erratum adopted during the
colonial period ⎯ once again, purely in the alternative, since the text of the Erratum suffices in
itself.
[Slide 5: Sketch-map of Téra Subdivision submitted by Niger]
11Ibid., p. 14, para. 11 (Salmon) (emphasis added).
119
CR 2012/24, pp. 12-13, para. 12 (Salmon).
12Ibid., pp. 11-12, para. 11 (Salmon). - 33 -
28. For the period prior to 1927, Niger has shown us a great many times its “lucky
sketch-map”, which is cl aimed to represent the traditional boundary of Téra Subdivision in 1910,
and which the 1927 Erratum was supposed to endorse. That sketch-map proves nothing, however:
in the first place, the map is described in Nige r’s Memorial as a “sketch-map with no date (but
subsequent to 1932) or legend” 121; it is thus not a reliable document, a fact which Niger has failed
to bring to your attention during these hearings; secondly, the sketch-map does not show a sinuous
line, but the opposite.
29. Niger admits, moreover, that there is no colonial document prior to 1927 which describes
these boundaries. It is thus hard to see where Niger has unearthed its purported “1910 boundary”.
[End of slide 5]
42 30. We would, however, note in passing the abundant evidence of an artificial line in this
sector:
⎯ the sketch-map of Captain Coquibus, dating from shortly prior to 1910 (1908), which has not
122
been found, but on which Niger places such reliance ; that 1908 sketch-map— that
“Coquibus sketch-map”— was described in 19 27 as “only show[ing] theoretical lines and
points” 123 (“conventionnelle[s]” meaning here an artificial line, and not a “treaty line”, as it
has unfortunately been translated in the E nglish version of the annexes to the written
pleadings) *;
⎯ AdministratorPrudon likewise says of this Coquibus sketch-map of 1908 that it showed a
“theoretical boundary line”, and that “the fields of the natives lay astride the boundary
following the existing theoretical line” 12;
⎯ ProfessorSalmon indeed pointed out that the line proposed as the new boundary by
125
AdministratorsDelbos and Prudon in 1927 “depart[ed]” from the boundary “drawn” by
121
MN, Ann. C 47.
122
See CR 2012/23, pp. 15-18, paras. 13-16 (Salmon).
12MN, Ann. C 20.
Note by the Registry: in the official Registry translation of the annexeconventionnelle[s]” is rendered as
“theoretical” or “notional” — with a single exception: Niger’s Annex C15, where, in one instance, “treaty” has been used
instead of “theoretical”.
12MN, Ann. C 15.
12CR 2012/23, p. 16, para. 14 (Salmon). - 34 -
126
Coquibus in 1908 , since Prudon, as ProfessorSalmon tells us, “described a certain part of
the line as theoretical”, while Delbos “cons idered that it included ‘notional lines’” 127(again in
the sense of artificial);
⎯ moreover, as Niger recognizes, the ⎯ differing ⎯ lines proposed by Delbos and Prudon
128
“played no role in the delimitation effected by the Governor-General” . In other words, their
proposals aimed at deviating from the theoretical and notional lines of Captain Coquibus were
not adopted.
31. What happened after the adoption of the Erratum?
32. Niger presents us with the image of an Erratum which allegedly harmoniously co-existed
with clarifications on the ground effected by the colonial administrators, who thus, without ever
43 doing violence to the text, or to the intention of its draftsman, made good the deficiencies,
remedied the imprecisions and corrected the incons istencies in the text, so as to end up with the
sinuous boundary which Niger proposes to you today 129. In short, the colonial administrators
gradually managed to establish a line which in 1927 was only pencilled in. That is not correct,
either in law or in fact.
33. I would first of all remind you that the colonial authorities, acting under the authority of
the Governor-General of French West Africa, were required by Article 2 of the corrected Arrêté of
1927 not to supplement it, but to “implement it”.
34. I would further point out that what Niger describes as clarifications or supplementations
of the Erratum in this sector are in reality di sagreements with it, which led to proposals for
amendments ⎯ which came to nothing.
35. I would likewise add that the documents in the file clearly show that, during the colonial
period after 1927, there was no doubt that the Erratum did indeed provide for a complete line in
this sector, consisting of two straight lines.
12MN, Ann. C 15 (“[t]he theoretical boundary line drawn by Captain Coquibus”).
127
CR 2012/23, p. 16, para. 14 (Salmon).
12CR 2012/23, p. 17, para. 15 (Salmon).
12CR 2012/23, p. 54, para. 4 (Salmon) - 35 -
[Slide 6: 1920 sketch-map, “new frontier betwee n Upper Volta and Niger of 1927 to a scale of
1:1,000,000]
36. Niger first relies for support on this point on the cartographic evidence, brandishing what
it calls the “map of key importance” of 1927. According to ProfessorSalmon, “the course of the
boundary shown on it is in total contradiction with [Burkina’s] own theses” 130.
37. If you will allow me, Mr. President, I would make the following comment.
38. First, this sketch-map is undoubtedly wrong in certain respects: in particular, the
boundary does not reach the River Sirba at Bossébangou, contrary to what the Erratum provides. I
shall come back to this shortly.
39. Even on the — erroneous — assumption that this map is entirely faithful to the Erratum,
does it assist Niger’s arguments? Assuredly not, and for a number of reasons:
⎯ the map shows the various frontier points specifi ed in the Erratum; in the Téra sector—
leaving aside the mistake over Bossébangou — the line on the map connects those points and
44
those points only, with continuous lines (and not with a broken line allegedly requiring
clarification); nor is there any question here of a sinuous line, passing through intermediate
points: before the salient, there is Tong-Tong an d then Tao, and that is it; and between these
points, lines connecting them directly;
⎯ moreover, the map shows that, where the boundary of a canton needed to take a sinuous
course, as is the case for Botou canton, in the Say sector ⎯ shown at the bottom right of the
map ⎯ the author of the Erratum drafted the text accordingly, giving a series of frontier points
and referring to natural features and villages;
⎯ that is an extremely important point; Professor Salmon has told us several times that the Say
sector was less densely populated, less well-known, with fewer inhabitants, than the Téra
sector 131. However, in that sector (the Say sector), the draftsman of the Erratum considered
that it was necessary to describe ⎯ and did describe ⎯ a complex, sinuous course. Since the
Téra sector was better known than the Say sector, it is difficult to see what would have
prevented him from doing the same thing between Tong-Tong and Bossébangou, if it had been
130
Ibid., pp. 18-19, para. 18 (Salmon).
13CR 2012/23, p. 12, para. 6 (Salmon). - 36 -
apparent that this was required. The fact is that in this sector the Governor-General of French
West Africa adopted an artificial line, without any twists and turns. The contrast with the
Botou bend is neither fortuitous, nor without significance;
⎯ finally, Professor Salmon explained to us that the form of the line between Tong-Tong and the
start of the salient “is of a curved line and not of two straight lines” 132. That is to admit, in any
event, that the line is not a sinuous one: in fact the sketch-maps from the period show the
boundary as a series of straight or almost straight lines, but never as a sinuous one, or with
133
enclaves, as Niger today claims it to be after the Tao marker ;
[Slide 6bis: Add Niger’s superposed line to sketch-map No. 5 at tab 17 of Niger’s judges’ folder]
⎯ the fact remains that it suffices to lay a ruler on the 1927 map to see that it provides in reality
for a boundary in the form of two straight lines; that is clear, moreover, from the orange line
45 superposed by Niger on sketch-map No. 5 at tab 17 of its judges’ folder, which you can see on
the screen.
[End of slide 6bis]
40. Niger has ultimately sought to give the impression that, following the adoption of the
Erratum, there were no further references to a boundary consisting of two straight lines. However,
Niger has argued by omission, refraining from mentioning the many documents from the colonial
period that I submitted to the Court last week, all of which showed that the colonial administrators
had understood that the Erratum described an artificial boundary, composed of two straight lines,
134
running from Tong-Tong, to Tao, to Bossébangou .
41. It is true that Professor Klein referred to the letter from the Commander of Dori cercle of
9 August 1929, which, in his view, was evidence of “lack of precision in the terminology” used in
135 136
the Erratum in the Téra sector . But that is not what that letter shows . In the letter, the
Administrator proposes that the current boundaries should be “modified” in order to escape what he
calls the “rigours of the 1927 delimitation”. He accordingly proposes to submit a request “to
13Ibid., p. 20, para. 20 (Salmon).
133
See MN sketch-maps, Anns. D 5, D 10, D 11, D 13, D 14, D 15, D 16, D 17, D 18, D 19, D 20 and D 22.
134
CR 2012/20, pp. 28-29, para. 68 (Forteau).
13CR 2012/23, p. 26, para. 7 (Klein).
13See MN, Ann. C 24. - 37 -
mitigate the rigours of the 1927 delimitation”. He fu rther states that the Erratum speaks not of
“cantons, only of boundaries” and recognizes that this difference is “crucial”. The same expression
(“the rigour of the official texts”) can be found in a letter from the Commander of Dori cercle of
137
14 August 1929 .
42. It is symptomatic, moreover, that in a lette r just prior to that cited by ProfessorKlein,
dated 31July1929, the Commander of Dori cercle expresses no alarm at the imprecision of the
boundary in this sector; on the contrary, referring expressly to the delimitation effected by the
Erratum, he states that he would like “Téra to agree to apply a little less precision in relation to the
boundaries between Dori and Tillabéry” 13. A little less precision, and not a little more precision.
Here we see once again an attempt to escape the rigours of the delimitation in the Erratum.
46 43. In a letter of 19August1929, this same Commander of Dori cercle again refers to the
potential problems created by the “official bounda ries [of 1927], if they are rigorously complied
139
with” . In other words, there is no doubting the fact that the Erratum completely defined the
course of the boundary. What was causing problems was not the imprecision of the boundary, but
its excessive rigour.
44. On 6 February 1932, the Chef de cabinet of the Lieutenant-Governor of Upper Volta in
his turn describes the Erratum boundary in the Téra sector as “a boundary that is simply a line on
140
the map” . In short, an artificial one.
45. On 10 April 1932 Civil Service Deputy Roser interprets the Erratum as describing a line
which “takes no account of the reality”, and the eff ect of which is to locate the village of Bangaré
141
“to the west, on the Volta side, of the famous ‘line’” . That is indeed what the famous
double-straight-line boundary does, as ProfessorSalmon ultimately admits 142. Roser accordingly
calls for “modification of that boundary”, which, as we know, would never happen.
137MN, Ann. C 25.
138MN, Ann. C 23, p. 2.
139
MN, Ann. C 27.
140
MN, Ann. C 44.
141MN, Ann. C 45.
142CR 2012/24, pp. 19-20, para. 19 (Salmon). - 38 -
46. The episode of the Vibourié marker confir ms this. ProfessorSalmon asserts that “it is
the straight line invented by Burkina Faso wh ich does not pass through” this boundary marker
established in 1935 143. However, this is totally at odds with the Record of Agreement relating to
the installation of that marker, which clearly states that the boundary in this sector “follow[s] a
notional straight line starting from the Tong-Tong astronomic marker and running to the Tao
144
astronomic marker” . It would be hard to make it any clearer. This extract from the 1935 Record
of Agreement would be incorporated expressis verbis six years later in the Description of Tillabéry
cercle of 1941, in direct connection with the delimitation effected in 1927 by the Erratum 145.
47. On 19 May 1943, there is a further reference to the “official Dori-Téra boundary fixed by
the 1927 Arrêté and, as you know, purely theoretical and artificial” 146; on 11July1951 there is
47 again a reference to the “boundary on the basis of the Erratum . . . of 1927 . . . connecting the Tao
147
boundary marker directly with Bossébangou” ; on 24 December 1953, to “the Tao-Sirba line of
the arrêté”, which was more “theoretical” than the proposals by Delbos in 1927 for a series of
148
straight lines .
48. No question of sinuous boundaries, boundaries on the ground, gradual adjustments of an
allegedly imprecise line. What emerges from all of these documents is clear: the Erratum provided
for an artificial delimitation, in the form of two straight lines, between the Tong-Tong and Tao
markers and Bossébangou.
49. The fact remains that locating the three boundary points on the frontier in this sector is
not entirely straightforward. The co-ordinates of the Tong-Tong marker are given in the Special
Agreement. And Niger has not at any time chal lenged the co-ordinates gi ven by Burkina for the
point where the frontier reaches the River Sirba at Bossébangou. There only remains a very minor
disagreement between the Parties over the co-ordin ates of the Tao marker. Niger does not explain
14Ibid., p. 12, para. 12 (Salmon).
144
MN, Ann. C 56.
145
MN, Ann. C 65, last page.
14MN, Ann. C 67.
14MN, Ann. C 73.
14MN, Ann. C 79, p. 2. - 39 -
how it calculated its co-ordinates14. Moreover, contrary to what Professor Salmon claims, Burkina
has not confused the Tao marker, said to be located in the actual village of Tao, with the Tao
astronomic marker 150. The co-ordinates used by Burkina for this frontier point are those in the data
sheet for the Tao astronomic marker of 1927, which is expressly marked: “New Upper
Volta-Niger frontier” 151. The location of this point is thus not open to dispute.
50. Mr.President, Members of the Court, that concludes Burkin a’s presentation on the
course of the frontier in the Téra sector as describ ed in the Erratum, which, between Tong-Tong,
Tao and Bossébangou, consists of two straight lines.
48 T HE “S AY SECTOR ”
THE STARTING POINT OF THE FRONTIER IN THE S AY SECTOR
1. Mr. President, having therefore dealt with the first section, we can now turn to the second,
which is the “Say sector”. I shall say a few word s about the frontier’s starting point in this sector
before Professor Thouvenin takes over for the continuation of the line.
2. As we know, the Erratum fixes this point on the River Sirba at Bossébangou. Niger, for
its part, disregards that point in favour of what it considers to be the former “tripoint” between the
cercles of Tillabéry, Dori and Say.
3. In reply to Professor Klein’s presentation on the subject, I shall start by reasoning as if
Niger were right (I), before explaining why it is wrong (II).
I. If Niger were right (quod non)
[Slide 1: Niger’s tripoint]
4. I shall, however, give a preliminary word of explanation about the sketch-map now being
shown, in order to ensure that what follows is properly understood. The red line is the line
described in the Erratum, whic h reaches Bossébangou and then continues in a westerly direction
before forming the salient, which runs to meet our point P2, the apex of the salient, before the
frontier runs back down to the south. If, like Nige r, we think in terms of a “tripoint” between three
14See CMBF, paras. 0.14 and 3.4.
150
CR 2012/24, p. 13, para. 14 (Salmon).
15MBF, Ann. 41. - 40 -
152
cercles, then under the terms of the Erratum, that point would be Bossébangou . For its part,
Niger believes that the apex of the salient is furt her to the north and, moreover, that it corresponds
to the former tripoint. According to Niger, th e Erratum therefore made a mistake when it adopted
Bossébangou as a frontier point instead of Niger’s “tripoint”. Even assuming that Niger was
right ⎯ for the time being I am reasoning as if that were the case ⎯ it would still be necessary to
determine the precise location of that tripoint.
5. During the first round of oral argument , we wondered aloud about the method used by
Niger to find the co-ordinates of its tripoint. Let us take a look at the answers which
Professor Klein provided.
6. Firstly, he asserted that there is no instrume nt of delimitation prior to 1927 defining that
point 153. This obviously complicates Niger’s task, sin ce, that being so, it is asking the Court to
49 give precedence to a point which was neither established nor defined by a colonial text before
1927, over the one which was expressly defined by the Governor-General of FWA in the
1927 Erratum.
7. Secondly, Professor Klein maintained that it was possible to rely on a number of sketch-
maps, but conceded that they were not entirely reliable ⎯ indeed, they feature only a bipoint, with
154
the sole exception of Captain Boutiq’s very crude sketch-map of 1909 . Niger’s esteemed
counsel went on to declare that “Niger clearly h as sufficient sources to identify the position of this
tripoint” 155. It is all very well for Niger to assert this , but we are still in the dark as to how, on the
basis of these sources which it does not present, it set about establishing the co-ordinates of its
tripoint, which it provides to the nearest second in its Memorial 156.
8. Niger produces a whole series of sketch-map s which feature a salient, yet none includes
157
technical data making it possible to determ ine the precise location of Niger’s tripoint . Niger
thinks, however, that it can deduce from these sk etch-maps not only that the point that it is
15CMBF, para. 4.28.
153
CR 2012/24, p. 30 (Klein).
154
MN, Ann. D 1.
15CR 2012/24, pp. 30-31 (Klein).
15See MN, para. 6.25.
15See MN, Anns. D 1, 5, 6, 7, 9, 10, 11, 14, 15, 16, 17, 18, 19 and 20. - 41 -
claiming is a tripoint, for the sole reason that it is supposedly situated at the apex of the salient, but
also that the point in question is situated to the north-west of Bossébangou, around 30 km from that
village. But once again, on what basis?
9. In its written pleadings, Niger considers that this tripoint corresponds to the village of
158
Nababori or Nabambori, or alternatively to a point which is situated close to that village .
10. However, in making that claim, Niger relies on a document with which its argument is
simply incompatible. As Professor Klein recalled on Friday morning, Delbos had criticized the
Erratum in 1927 on the grounds that it would have been preferable, in his view, for the
inter-colonial boundary to have run towards “Nababori, reaching the Say cercle to the west of
Alfassi and not at Bossébangou, which is further up” 159.
50 11. Two conclusions can be drawn: firstly, since the Erratum, it is Bossébangou which has
constituted the tripoint ⎯ hence Delbos’s criticism; secondly, the point claimed by Niger cannot
be Nababori, since if it were, that point would have been situated not to the north of Bossébangou,
as Niger claims, but to the south of Bossébangou. After all, Delbos states that Bossébangou is
further up than Nababori. I would add, moreover, that Delbos considered that this point was “on
160
the River Cirba” ; thus Nababori would be to the south of Bossébangou and on the Sirba; this is
not the case for Niger’s tripoint. As we can see, therefore, there is nothing to justify this point.
II. The other reasons why Niger is wrong
12. By contrast with Niger’s thesis, the 1927Erratum is clear: it expressly specifies a
frontier point, which it designates as “the River Sirba at Bossebangou”.
13. Niger, however, persists in claiming that the reference to this point is “erroneous”. I will
not go back over everything that has been said in the past week to show that there is nothing to
161
support Niger’s “error theory” so as to enable it to escape the clear text of the Erratum . I will
confine myself to responding to the arguments of ProfessorKlein, and then to making a series of
important concluding observations.
158MN, para. 7.19; CMN, para. 2.2.5; CR 2012/24, p. 31, para. 11 (Klein).
159
CR 2012/23, p. 30, para. 12, citing MN, Ann. C 20; CMN, para. 2.2.5.
160
See MN, Ann. C 16.
161See CR 2012/20, pp. 47-57, paras. 7-38 (Forteau). - 42 -
14. I now come to Professor Klein’s arguments.
15. In the first place, he argues that the fact that in this case a treaty ⎯ the
1987 Agreement ⎯ specifies the frontier as that “described in the... Erratum” does not prevent
Niger from invoking the error in order to escape th e terms of the Erratum. However, no argument
is put forward in support of this notion 162, which contradicts your own decision of 1994 in the
163
Libya/Chad case. Enough said!
16. Secondly, Professor Klein admits that in 1927 there existed no text delimiting Say cercle.
That complicates the search for his “tripoint”, since this is supposed to be located at the intersection
of the boundaries of three cercles. According to Niger, however, “between 1899 and 1910” 164, and
51
indeed, more precisely, between the time when Say cercle appears and the time when, in 1910, the
tripoint disappears (I would point out, incidentally, that in 1901 the boundaries of Say territory had
yet to be defined 165), thus in less than six months, “this cercle did indeed have boundaries [the term
boundary must be understood here in its stri ct sense], which gradually became what may
legitimately be called ‘traditional boundaries’”, on the basis of which the tripoint can be
identified 166.
17. We were already familiar with the “w ild custom” or the “VHS [Very High Speed]
custom” 16; now Niger has invented the HST boundary ⎯ “the High Speed Traditional boundary”!
In less than ten years, in a region that was uninhabited or unexplored, traditional colonial
boundaries of a purely pragmatic nature are said to have been born and fixed once and for all in
1910, with such certainty and geographical precision that they tied the hands of the
Governor-General of French West Africa 17years la ter, when he was preparing the Erratum! Is
that really convincing?
18. Failing this, in reality, as sole indication of the precise boundaries in the area in 1910,
ProfessorKlein relies on the “new frontier” sketch -map of 1927, which, without further ado, he
162CR 2012/24, pp. 25-26, para. 5.
163CR 2012/20, pp. 49-50, paras. 13-14 (Forteau).
164
CR 2012/23, p. 53, para. 3 (Salmon).
165
CR 2012/20, p. 52, para. 24 (Forteau).
166CR 2012/24, p. 26, para. 6 (Klein).
167See inter alia, R.-J. Dupuy, Coutume sage et coutume sauvage, Mél. Rousseau, 1974, pp. 75-89. - 43 -
substitutes for the title constituted by the Erratum ⎯ without even feeling obliged to transit via the
1960map, despite the fact that the latter is the only one referred to in the 1987Agreement as a
168
subsidiary source should the Erratum not suffice . Niger would certainly have some trouble in
showing that the Erratum does not suffice here; moreover, as you can see on the screen, the line on
the 1960 map, like the Erratum, passes through Bossébangou.
19. On the other hand, that is not the case with the line on the “new frontier” map of 1927,
which, as we have just seen, does not pass thr ough Bossébangou. ProfessorKlein regards this as
proof that the draftsman of the Erratum made a mistake. I regard it, on the contrary, as proof that it
was the draftsman of the map who made a mistake. It was the draftsman of the map who was
supposed to follow the line described in the Erratum, and not vice versa. Admittedly, the Court did
have regard to this sketch-map in the Burkina/Republic of Mali case. However, ProfessorKlein
52
only quotes part of the relevant passage from the 198 6 Judgment: it is true that the Court began by
stating that,
“even if [the 1927 map] cannot be shown to have been drawn up by [the colonial]
administration, it remains certain that the map’s compiler, having perused the
governing text, and possibly the accessible maps, had acquired a very clear
understanding of the intention behind the text , which enabled him afterwards to lend
that intention cartographic expression”.
20. But the Court was careful to add the following sentence (which Professor Klein fails to
quote): “That does not mean that the map necess arily conveys the correct interpretation of the
Erratum.” ( Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 ,
p. 646, para. 171.)
21. In fact, in the case of Bossébangou, this is manifestly not the correct interpretation, since
the draftsman of the map does not make the boundary line run as far as the frontier point at
Bossébangou.
22. Finally, ProfessorKlein takes good care to avoid mentioning the numerous documents
subsequent to 1927 which confirmed that th e line was indeed intended to pass through
Bossébangou, and that Bossébangou is indeed the re levant frontier point. Last Monday I cited a
168
CR 2012/24, pp. 26-27, paras. 7-8 (Klein). - 44 -
169
large number of these, which leave not the slightest doubt in this regard . There is a deafening
silence from Niger on this point.
23. A final series of observations, Mr. President, on the error theory invoked by Niger — an
illusion, which needs to be dispelled. Niger has told us repeatedly that the Erratum is mistaken, in
170
that it amputates Say cercle of part of its territory, for the benefit of Upper Volta . Niger’s
reasoning is as follows: the tripoint was traditionally located to the north-west of Bossébangou and
thus, by not making the boundary run to that tripoint, but moving it to the east to pass through
Bossébangou, the Erratum was prejudicial to Say cercle and to Niger Colony. But is that really
what happened, in historical terms?
[Slide 2: The delimitation according to the Arrêté of August 1927]
24. We first note that, by comparison with the Arrêté of August 1927, the Erratum moved the
line not from west to east (from left to right, in simple terms), as Niger claims, but in the opposite
53
direction: thus paragraph1 of Article 1 of the Arrêté of August1927 fixed the tripointbetween
Tillabéry cercle, Say cercle and Upper Volta ⎯ here it is, the famous tripoint ⎯ on “the River
Sirba (boundary of Say cercle), near to and to the south of Boulkalo”; that is to say, as you can see
on the screen, to the north- east of Bossébangou, and not, as Niger claims, to the north-west of that
village; the same tripoint is to be found on th e sketch-map appended to the Record of Agreement
of 2 February 1927 171; let us also listen to Delbos, who, in his letter of 17December1927, does
not contest the August1927 Arrêté on this point and, furthermor e, states the following: coming
from the north, “CaptainCoquibus [he is refe rring here to CaptainCoquibus’s map of 1908]
172
travelled in a south-easterly direction a nd finished south of Boulkabo not Bossébango” : that is
precisely what the Arrêté of August 1927 does.
[Slide 3: The delimitation according to the Arrêté, and to the 1927 Erratum]
25. By moving this tripoint to the south, to Bossébangou, the Erratum was prejudicial not to
Niger Colony, but to Upper Volta 173.
169CR 2012/20, pp. 57-63, paras. 39-64 (Forteau).
170See, for example, MN, para. 2.2.10.
171
See Ann. MBF 30, sketch-map, left-hand page.
172MN, Ann. C 20, p. 1.
173See MN, Ann. C 21, p. 2. - 45 -
26. That explains why, immediately after the adoption of the Erratum, it was the Commander
of Dori cercle , Delbos, in Upper Volta, who complained of the delimitation effected by the
Erratum, which, he observed in particular, had taken from the colony Yagha canton, which lay
174
between the August 1927 line and that of October 1927 . This also explains ⎯ as we pointed out
just now ⎯ that it was the Dori authorities, on the Upper Volta side, who would complain in the
months to come about the “rigour” of the 1927 delimitation.
27. No trace, on the other hand, of any protest from the Commander of Say cercle , which,
however, Niger now tells us today, was the major lo ser in the 1927 delimitation. That tells us a lot
about the alleged existence of a tripoint where Niger locates it. And it bears repeating: in reality,
Say cercle lost nothing in 1927; on the contrary, it gained a salient.
54 28. Moreover, this was in no sense an immemori al salient, as Niger believes, since while it
appears for the first time on the 1909 sketch-map of Captain Boutiq, it does not appear to have
existed one year before on the more frequently u sed map of Captain Coquibus, drawn in 1908. It
was precisely on that 1908 map (which the Parties have been unable to find, but which the
Governor of Niger had in his possession) that the latter relied on 26 January 1926 when submitting
a version of it in outline form in order to indicate the territorial changes which he was seeking (and
175
which he would succeed in obtaining) from th e Governor-General of French West Africa . The
“outline map” appended by the Governor of Niger to his letter of 1926, which is now on the screen
and which you will find in more legible form at tab 3 in the judges’ folder, contains four important
pieces of evidence:
[Slide 4: Sketch-map appended to the letter from the Governor of Niger of 26January1926
(Ann. MBF 24)]
⎯ the tripoint was located in 1908 on the Sirba; the letter from Delbos of December1927, to
which I have just referred 17, confirms that it was this same point, “Boulkalo”, that
CaptainCoquibus reached in 1908, and that it was also this point which would be adopted in
the Arrêté of August 1927;
17MN, Ann. C 20, p. 2; and MN, Anns. D 2 and D3.
175
Ann. MBF 24
17MN, Ann. C 20, p. 1. - 46 -
⎯ there is, moreover, no salient at the level of this tripoint;
⎯ the cantons which the Governor sought to have transferred to his colony (and in
December1926 his claim would succeed) ⎯ cantons the list of which was read out to us by
177
ProfessorSalmon last week ⎯ are located along the right bank of the River Niger: from
south to north, we have Dargol, Songai, K okoro, Logomaten and Gorouol. All of these
cantons are located to the east of the town of Téra, hence at some distance from the sector
which is today in dispute between the Parties. I am almost inclined to describe these cantons
as “glued” to the bank of the River Niger ⎯ and with good reason, since, as the Governor of
Niger explains in that same letter of January 1926, these cantons “originally extended” to either
side of the River Niger; these were thus rive rine populations. The Governor of Upper Volta,
55 when informed of this claim by the Governor of Niger, would moreover refer a few days later,
regarding the territory of which he has been told that he is to be dispossessed, to “the part of
178
Dori Cercle on the left bank of the river, as far as Téra” (as far as Téra, and no further) , and
that applies also to Diagourou, which is not shown on this map, but which is located on the
maps of the period to the south-east of Téra;
⎯ fourth and final item: the line ending at the tripoint on the Sirba is indeed not straight, but
curves markedly towards the east, and not to th e west: in other words, it points towards the
River Niger. The 1927 delimitation will thus, once again, in this respect also, be very generous
to the Colony of Niger, since not only does it in August draw a straight line passing to the
south-west of Téra, but it also fixes the endpoint of that line not at Boulkalo, but further south,
at Bossébangou.
29. To sum up, if there were “an historic error” to be corrected, it would be for the benefit of
Upper Volta, and not the reverse. We wish, how ever, to reassure both the Court and Niger;
Burkina has said and repeated: it does not confu se history and law, and it accepts the colonial
179
heritage as fixed by the Erratum of 1927, however rigorous it may be .
17CR 2012/22, p. 51, para. 9 (Salmon).
178
MBF, Ann. 25.
17CR 2012/19, p. 44, para. 4 (Pellet). - 47 -
30. In conclusion, Mr. President, if there was a mistake, it was not the mistake that Niger
claims. However, this debate is irrelevant , for the boundary, “as described” by the frontier title,
was definitively fixed in October 1927 on the River Sirba at Bossébangou. End of story.
Members of the Court, I thank you kindly for your attention, and I should be most grateful,
Mr.President, if you would give the floor to my colleague and friend, Jean-MarcThouvenin, for
his presentation of the line of the frontier from Bossébangou.
The PRESIDENT: Thank you, Professor Fo rteau. I would now ask your colleague,
Professor Thouvenin, to continue with Burkina Faso’s oral argument. You have the floor, Sir.
56 Mr. THOUVENIN: Thank you, Mr. President.
T HE LINE FROM B OSSÉBANGOU TO THE BEGINNING OF THE B OTOU BEND
1. [Slide 1] Members of the Court, I come before you again today to describe the course of
the frontier in what has, up to now, been called th e “Say sector”. Allow me to point out straight
away that the use of this phrase by Burkina, pur ely for the sake of convenience, has strictly no
meaning within the law.
2. I stress this point, Mr. President, because on Friday, Niger cast a series of spells, at which
it is adept, in an attempt to make us believe that the Erratum gives way before some kind of
principle of inviolability of the boundaries of this territorial entity which Niger has dubbed the
“traditional” Say cercle.
3. It is in fact not true to say, contrary to what Professor Salmon claimed, that “the sole
change effected by the Erratum of 5 October 1927 to the traditional shape of Say cercle is the
removal of Botou canton, which remains in Upper Volta” 18. The purpose of the Erratum, in
delimiting two colonies, was never to enshrine the so-called traditional course of the boundaries of
Say cercle.
4. Moreover, this is demonstrated by the fact that, clearly, the shape given to Sacercle by
the inter-colonial boundary ⎯ by implication, since that was not its purpose ⎯ changed between
the Arrêté of August 1927 and the Erratum of October correcting it. In August, Say cercle was
180
CR 2012/23, p. 12, para. 5 (Salmon). - 48 -
delimited, in the north-east, by the River Sirba from its mouth, that is to say from the River Niger,
as far as Bossébangou. From that point, i.e., from Bossébangou, the boundary immediately turned
back up to the north-west to form a salient. The Arrêté states: “[f]rom this point [Bossébangou] a
salient”. At that time, therefore, Say cercle included a salient consisting of a line running
north-west from Bossébangou [Slide 2]. This did not pose a problem, since the boundary coming
from Tao did not arrive at Bossébangou, but ⎯ as we have just indicated ⎯ further east on the
Sirba, near Boulkalo. After Tao, therefore, the boundary took the following course: coming from
Tao, it arrived in a straight line at the Sirba, a few kilometres north-east of Bossébangou, that is to
say at Boulkalo. From there, it followed the River Sirba upstream ⎯ from east to west ⎯ as far as
57 Bossébangou and, from there, it turned back up to th e north-west to form a salient. The north-west
boundary of Say cercle had the same shape.
[Animation]
5. The Erratum could not retain this solution, for the simple reason that it establishes that the
boundary coming south-west from Tao arrives not east of Bossébangou, but directly at
Bossébangou. It could not, therefore, retain the principle of a salient starting immediately from
Bossébangou, since the line coming from Tao would have had to turn back upon itself from
Bossébangou. That is why it simply moved the salient towards the west ⎯ it made it slide
westward ⎯, by stating that this salient does not start immediately from Bossébangou, but “almost
immediately” after the line has reached the River Sirba at Bossébangou. Ultimately, it shifted the
whole line resulting from the Arrêté of August 1927 towards the west, to the detriment, moreover,
of Upper Volta, and to the great benefit of Niger. In any event, and this is what matters here, the
colonial administration had absolutely no intent ion of respecting any traditional boundary of Say
cercle. [End of slide]
6. Apart from its untenable argument on the intangibility of the boundaries of Say cercle,
what does Niger say about its own line? Very little. We have heard criticism of Burkina’s line and
of the Erratum, but hardly anything about Niger’s line: - 49 -
⎯ the Court heard the text of the Erratum being read out, by Professor Salmon, with emphasis on
181
its rough edges ⎯ the salient, the line turning back to the south ⎯ while the 1927
sketch-map was being shown on the scr een, as if the two corresponded, whereas ⎯ on the
contrary ⎯ the 1927 sketch-map clearly does not comply with the text of the Erratum; in
addition,
⎯ Niger projected a sketch-map which, we were told, showed a line that “deviates from that
shown on the IGN map in the sector of Bossébangou and in that of the ‘four villages’, for . . .
various reasons . . . [but] [o]n the other hand, . . . is much closer to, if not the same as, the 1960
line in respect of the southern part of Say cercle” 18.
58 7. It should be noted that th is line, claimed by Niger, with which the Court is now familiar,
does not respect any ⎯ and I repeat, any ⎯ of the terms of the Erratum of 1927 describing the
sector from Bossébangou to the beginning of the Bo tou bend, apart from the position of the latter
point. The point on the Sirba at Bossébangou is omitted and replaced by a fantastical “tripoint” or
bipoint ⎯ it is no longer very clear; Professor Forteau mentioned that just now. The salient has
fallen by the wayside. The Say parallel and the Ri ver Sirba never meet. And finally, the straight
line between the latter point and the beginning of the Botou bend is folded in two.
8. I shall not spend any longer refuting this line, and will now endeavour to counter the
criticisms levelled against Burkina’s line by Niger.
9. Professor Klein would have it that this line is the result of “supposedly scientific
extrapolations from the text of the Erratum” 183. As regards extrapolations, I actually believe that
our opponents could teach us a thing or two. However, Mr. President, the work carried out by
Burkina is far more modest than our opponents clai m. It is simply respecting the 1987 Agreement,
that is to say, it considers that the frontier is as described in the Erratum and, where that description
does not suffice, that the line is as shown on the 1960 map. With all due respect to our
opponents ⎯ for whom, in the words of Oscar Wilde, “a mist makes things wonderful” ⎯ ours is a
clear approach, a method, which does not have the charms of uncertainty so beloved by Professor
18CR 2012/23, p. 12, para. [4] (Salmon).
182
CR 2012/24, p. 39, para. 20 (Klein).
18CR 2012/24, p. 34, para. 15 (Klein). - 50 -
Salmon, but which enables the frontier to be drawn with certainty, in accordance with the
applicable international law in these proceedings.
I. From point P to point P1
10. More specifically, Professor Klein contested the line claimed by Burkina between point P
and point P1 [Slide 3]. I shall not follow the or der in which he spelled out his objections, but I
shall attempt to reply to all of them.
11. It should be pointed out that the first of these reflects a certain lack of understanding of
184 185
last Tuesday’s oral argument , and of Burkina Faso’s Memorial , since according to my
59 opponent, after Bossébangou, Burkina relies on the line shown on the 1960 map 186. That is not the
case; as I demonstrated on Tuesday, the portion of the line that lies on the right bank of the Sirba
derives from the Erratum 187. It is true that it happens to be shown correctly on the IGN map. So
much the better.
12. My opponent then finds it appropriate, which it is not, to take issue with the line plotted
by the IGN in 1960, “[f]or the simple reas on that it seems to have been created ex nihilo by the
map’s drafters and that no trace of it is to be found on any other document dating from the colonial
188
period” . He adds: “[t]he 1960 IGN map is— I repeat— the only one to follow this course,
without any basis in the 1927 texts or in any subsequent practice” 18. I urge Niger to reflect on this
analysis, which is no less valid for the Téra sector than for the Say sector: indeed there is not a
single document, not a single map, from the colonial period which shows the boundary in the Téra
sector in an even remotely similar manner to the one plotted on the 1960 map.
13. Nevertheless, in attacking the line on the 1960 map in this way, Niger has chosen the
wrong target. If the 1960 cartographic line can be used to determine the course of the frontier, in
the event of the description in the Erratum not sufficing, it is quite simply because Niger and
Burkina concluded a sovereign agreement to that effect in 1987. It is therefore immaterial whether
18CR 2012/21, pp. 14-15, paras. 14-19.
185
MBF, pp. 104-108, paras. 4.18-4.23.
186
CR 2012/24, p. 29, para. 10 (Klein).
18CR 2012/21, pp. 14-15, paras. 18-19 and p. 16, paras. 23-24.
18CR 2012/24, p. 29, para. 10 (Klein).
18Ibid. - 51 -
190
the line has “any basis in the 1927 texts”, to use the words of my opponent , something which
remains questionable. For it is precisely in the event of the Erratum not sufficing to describe a line
which can be plotted on a map that the 1960 cartographic line ⎯ which therefore cannot correctly
illustrate the Erratum, apart from correctly illustrating that it does not suffice ⎯ becomes relevant.
60 14. Professor Klein further notes that: “[i]f th e drafters of the 1927 texts had intended the
boundary to follow the course of the Sirba in this area, they would obviously have said as
191
much” . However, the innermost thoughts of the dr afters of the 1927 texts are, in truth,
immaterial here. What matters is the sovereign decision taken by Niger and Burkina in 1987. And
they decided that their frontier was as described in the Erratum. Therefore the only question is
whether, from the description given in the Erratum, the frontier can be seen as following the right
bank of the River Sirba. And on Tuesday, basing my self solely on that description, I demonstrated
that to be the case 192.
15. [Slide 4] Declaring himself to be baffled, my opponent then wonders out loud before the
Court:
“even taking into account the precise words of the Erratum and the fact that it refers to
a line which does not turn back up immediat ely, but “almost immediately”, in the
opposite direction to the one from which it came, should it not be expected that the
line resulting from that description would look like the one you see on the slide before
193
you now?” .
This is the dotted red line showing on the screen.
16. Quite frankly, Members of the Court, this is not to be expected at all. The line shown by
Professor Klein “immediately turns back up towards the north-west”. The Erratum, for its part,
states that it almost immediately turns back up. I have just explained the origins of this phrase.
“Almost” is a word which has a meaning. If I told the Court that my pleading was almost finished,
I would be lying; but let us suppose that I say so in seven or eight minutes’ time: it does not mean
that it is finished, but that it is not finished yet – and that it will be shortly.
190Ibid.
191
CR 2012/24, p. 29, para. 10 (Klein).
192
CR 2012/21, pp. 14-16, paras. 14-24.
193CR 2012/23, p. 25, para. 6 (Klein). - 52 -
17. [Slide 5] Burkina therefore concludes that there has to be a portion of frontier after it has
reached Bossébangou and before it starts to turn back up towards the north-west. It is this portion
that necessarily follows the River Sirba.
II. The “salient”
61
194
18. [Animation] I now come to what my opponent refers to as the “salient of four
villages”, while at the same time asserting, with a touch of humour, that “[i]t is clear” 195that there
196
is no salient in this area . Three points are to be noted.
197
19. First point: contrary to what my colleague contends , Burkina’s argument regarding
the salient does not consist in relying entirely on the cartographic line. [Animation] Recourse to
this line is required only in respect of the sec tion running from point P1 to point P2. For the
remainder of the salient, the description contained in the Erratum is sufficient to draw the frontier.
20. Second point: I am sorry, Mr. President, but I am afraid I cannot comment in detail on
198
Friday’s oral pleadings regarding the exact location of the four villages . I understood very little,
except as regards the location of Tankouro, which is one of the four villages referred to in the
Erratum. Firstly, Niger has not carried out th e additional research which it promised in its
Counter-Memorial; secondly, it put together an obscure collection of maps which produced
contradictory results regarding the location of Tankouro— which everyone agrees, moreover, is
impossible to determine; and thirdly, it then c oncluded that Tankouro is of course located at the
place which is most favourable to its argument 199. The method is, I am sure you will agree, very
odd and unconvincing.
19CR 2012/24, p. 31, para. 11 (in fine) (Klein).
195
Ibid., p. 32, para. 12 (Klein).
196
Ibid.
19Ibid.
19Ibid., pp. 32-34, paras. 12-15 (Klein).
19Ibid., pp. 33-34, para. 15 (Klein). - 53 -
III. At the level of the Say parallel
21. [Slide 6] My opponent returns to sketch -map No.16 in Niger’s Counter-Memorial and
continues to rely on this “piece of evidence” to dispute the frontier resulting from the Erratum, in
spite of Burkina’s criticism, arguing that the latter has not challenged its authenticity 200.
62 22. It is of course for the Court to determine the evidentiary value of this document, which, I
would merely point out, is of uncertain provenan ce, date and purpose and also incompatible with
the Erratum, which is the regulatory text, the 1987 Agreement, the 1987 Protocol of Agreement and
the 1960 IGN map.
23. Furthermore, Burkina was reproached with betraying the terms of the 1927 Erratum,
whereas we on this side of the Bar would claim to be adhering to them. It is true that for the
purposes of my presentation last Friday, I said that point P3 lay “at the intersection of the River
Sirba with the Say parallel”. Of course, I do not dispute that the word “intersection” is not in the
text of the Erratum, according to which the frontier “turning back to the south... again cuts the
Sirba at the level of the Say parallel”.
24. Nonetheless, “intersection between the Sirb a and the Say parallel” is precisely what the
text of the Erratum means.
25. Those are not the words u sed because that is not the type of language employed in
territorial delimitation. The phrase used to e xpress the idea that a frontier passes through a point
where a line and a parallel meet is: “at the level of”. We find it, for example, in the 1972 treaty
delimiting the frontier between Morocco and Algeri a. The reason for using such language is
obvious: when we look at a map of the meridians, a parallel is nothing other than a “level”.
IV. From point P3 to the beginning of the Botou bend
26. [Slide 7] As to the last portion of the frontier, from point P3— the intersection of the
Say parallel with the Sirba— to the beginning of the Botou bend, the Court is now very familiar
with the respective arguments: in Burkina’s view, in accordance with the crystal-clear description
201
in the Erratum — the Parties agree on that — , the frontier is a straight line. According to Niger,
it is composed of two straight lines.
200
Ibid., pp. 34-35, paras. 16 (Klein).
201
CR 2012/24, p. 36, para. 18 (Klein). - 54 -
63 27. In order to justify its position, Niger clai ms that there is an international agreement,
reached several decades ago 202, which had the effect of modifying the line established in the
203 204 205
Erratum . This agreement is informal . It is said to be a matter of acquiescence .
28. Burkina is thus said to have acquiesced, since its independence, in the frontier not
passing where the Erratum says it passes. And, according to ProfessorKlein, “the positions
adopted by its experts in the context of the Joint Commission’s work in 1988 do not change
206
anything” .
29. In fact, however, it is not the Joint Commission which invalidates Burkina’s so-called
acquiescence. It is Niger itself which, by si gning the 1987 Agreement, freely accepted that the
frontier which has the force of law is the one described by the Erratum, supplemented where it does
not suffice by the line shown on the 1960 map. Ther e is no mention in the 1987 Agreement of the
previous informal agreement referred to by Nige r. Therefore, even supposing that it did indeed
exist — quod non—, it would simply have been repudiated as a consequence of the
1987 Agreement. Did Niger protest? Did Niger assert, after 1987, that the Erratum could not have
force of law in respect of the section of the frontier between point P3 and the beginning of the
Botou bend? No, it did nothing of the kind. Ho wever, such protests should have been made by
Niger’s Joint Commission experts in 1988, and at all subsequent meetings. The only protests made
by Niger relate to the 1991 compromise, even though that compromise accepted the
much-discussed course consisting of two straight-line segments claimed by Niger.
30. In truth, it was not until last Friday that Burkina first heard about this alleged
acquiescence, purportedly dating back several decades. I think, Mr. President, that in order for an
acquiescence to have the effect of modifying a fron tier line, we need rather more. In the case
concerning Sovereignty over PedraBranca/PulauBatu Puteh, Middle Rocks and SouthLedge ,
your Court considered that:
20CR 2012/24, p. 36, para. 18 (Klein).
20Ibid.
204
Ibid., p. 38, para. 19 (Klein).
20Ibid.
20Ibid. - 55 -
“any passing of sovereignty over territory on the basis of the conduct of the Parties . . .
64 must be manifested clearly and without any doubt by that conduct and the relevant
facts. That is especially so if what may be involved, in the case of one of the Parties,
is in effect the abandonment of sovereignty over part of its territory.”Sovereignty
over PedrBaranca/PulaBuatu Puteh, Middle Rocks and Sout hedge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 51, para. 32.)
31. In the present case, what is clear and beyond all doubt is that Niger and Burkina freely
agreed, not tacitly but by treaty, that the frontier between the two countries is that described by the
Erratum. And, by making reference to the 1987 Agreement, the 2009 Special Agreement further
confirms, if there were any need, the complete absence of any tacit agreement whatsoever to
modify the resulting frontier.
32. [Slide 8] Mr. President, Members of the Court, that concludes my statement today and
those of counsel for Burkina Faso in the present case. We thank you for your kind attention, and I
would ask you to call the Co-Agent of Burkina Faso, who will make a few brief concluding
remarks and read out Burkina Faso’s final submissions.
The PRESIDENT: Thank you, MT r.houvenin. I give the floor to
H.E. Ms Salamata Sawadogo Tapsoba, Co-Agent of BurkinaFaso and Minister of Justice. You
have the floor, Madam.
Ms SAWADOGO TAPSOBA: Thank you, Mr. President.
1. Mr.President, Members of the Court, in the absence of Burkina Faso’s Agent, who has
had to leave The Hague for compelling reasons and who has asked me to co nvey his apologies to
you, I have the honour to conclude my country’s second round of oral argument in my capacity as
Minister of Justice, Keeper of the Seals, and Co-Agent of Burkina Faso.
2. Our counsel have presented Burkina Faso’s lega l argument. It is easy to summarize it. It
is very straightforward: we are simply asking the Court to confirm the course of the frontier as it
results from the 1927 Erratum, supplemented, where necessary, by the line shown on the 1960 map
of the Institut Géographique National de France, should the reference text not suffice to determine
the course of that frontier definitively. And we are asking you to do that, Members of the Court,
65
both for the demarcated sectors of the frontier, which are the subject of the “agreement”
(“entente”) between Burkina and Niger referred to in Article2, paragraph2, of the Special - 56 -
Agreement, and for the portion of the frontier which is disputed by Niger. Such is the object of the
submissions which I shall read out in a few moments.
3. Before that, with your permission, I shoul d like to make some brief remarks of a general
nature.
4. Firstly, we were somewhat surprised by th e many changes made by the Republic of Niger
at the last minute— and just last week, during its first round of oral argument— both to its
argument and to its claims. One day the frontier line is curved; the next, in the same sector, it is
broken into sections; and the third, it is straight ⎯ before Niger reverts back to one or other of its
earlier positions. The 1927 Erratum is the reference document for the frontier; then it becomes one
piece of evidence among many others. And quite frankly, Mr.President, claiming that these
about-turns are due to the “discovery” of new fact s is not sufficient justification: none of the
documents annexed to the Counter-Memorial (and there is nothing to say that these were
discovered belatedly) justifies Niger’s “changes of direction” between its Memorial and its
Counter-Memorial. And Niger certainly cannot cite the discovery of new facts as justification for
its— often drastic— changes of position between the close of the written proceedings and the
hearings last week: neither Party has filed any new documents in the Registry of the Court.
5. These variations, not to say these about-turns, in Niger’s arguments have not helped our
defence, and I should like to state, Mr. President, that we would vigorously object before the Court
if, during their second round of oral argument, our brothers from Niger were to present a new
argument or a previously unseen submission. We ag reed, at Niger’s request, to be heard first, but
on condition, of course, that the equality of the Parties is fully respected.
6. My second remark is a general one concerning Niger’s attitude towards the delimitation of
the frontier. I have no wish to dash the hopes that were raised when the experts of the two Parties
66 accepted the 1988 consensual line, whose adoption could so easily have prevented the present
dispute; however, for reasons which escape us, Nige r has refused to grant official recognition to
this solution, even though it seems obvious. Convin ced that an unsatisfactory agreement is better
than satisfactory legal proceedings, Burkina declared itself ready to ratify the political compromise
of 1991 — even though it was not to its advantage; the Republic of Niger ultimately disowned it.
And that is why, Members of the Court, we are standing here before you today at the end of these - 57 -
proceedings— satisfactory proceedings, most certa inly, since we have complete confidence that
the solution you adopt will be in accordance with th e law, but proceedings which have been taxing
and costly for both our countries, and which could eas ily have been avoided. And that is also why
we are asking you to address all the Parties’ requests set out in Article2 of the Special
Agreement— in order to put an end once and fo r all to the frontier dispute between the two
countries. This dispute is, as recalled by the Agent of Burkina Faso at the opening of these
hearings, the only shadow over our relations with the sister Republic of Niger.
7. And now for my third and final — more ge neral — remark. We have said it often during
these proceedings, but it is certainly not “redundant” to repeat it one last time: the case before you,
Members of the Court, is particularly straightforw ard. It is straightforward because the Parties —
and now you — are able to rely on a frontier title which is much clearer and much more complete
than those covering the majority of Africa’s fron tiers— where such titles exist. I do not dare
imagine what would happen if you were to succumb to the “charms” of the effectivités or “living”
colonial boundaries, so as to challenge or even simply to “complement” or “clarify” the line in the
1927 Erratum, which is sufficient in itself: th at would open a Pandora’s Box and encourage States
in Africa (and elsewhere, no doubt) to call into question the best-established frontiers for the most
tenuous of reasons. Your list of cases would certain ly grow, but I am not convinced that this is
necessary, or something you would wish for.
8. Mr.President, before I read out the final submissions of Burkina Faso, I should like to
offer our sincere thanks to you and all Members of the Court for listening to us patiently and
attentively, and to express once again the complete confidence that my country has in the Court.
We should also like to thank the Registrar and every member of the Registry’s excellent team,
whose professionalism, efficiency and readiness to help have been much appreciated, as well as the
67 interpreters ⎯ in a “unilingual” case, those in the other language booth have a particularly arduous
task. I must not forget to thank our counsel and advocates, and our entire team, who have spent a
great deal of time preparing our case and these pleadi ngs, with special thanks to our cartographers
for all the work they have done. Finally, I must thank our brothers and sisters from Niger, whom I
salute once more by saying that the Government and people of Burkina Faso are convinced that the - 58 -
judgment rendered by the Court will help to st rengthen further the good relations which exist so
felicitously between our two countries.
9. Mr.President, Members of the Court, in accordance with the provisions of Article60,
paragraph 2, of the Rules of Court, I shall now read out the final submissions of Burkina Faso.
In view of all the considerations set out in its Memorial, its Counter-Memorial
and its oral argument, Burkina Faso has the honour to request that it may please the
International Court of Justice to adjudge and declare that the fr ontier between Burkina
Faso and the Republic of Niger follows the course described in paragraph5.1 of its
Memorial, the precise written co-ordinat es of which are reproduced in the written
submissions that we have transmitted to the Registry of the Court.
In accordance with Article7, paragraph4, of the Special Agreement, Burkina
Faso also requests the Court to nominate, in its Judgment, three experts to assist the
Parties as necessary in the demarcation.
Mr. President, Members of the Court, thank you for your kind attention.
The PRESIDENT: Thank you, Your Excellency. The Court takes note of the final
submissions which you have just read out on beha lf of Burkina Faso. The Republic of Niger will
present its second round of oral argument on Wednesday 17October from 3p.m. to 6p.m. The
sitting is closed.
The Court rose at 1 p.m.
___________
Traduction