Summary of the Judgment of 3 February 1994

Summaries of Judgments, AdvisNot an official documentof the Internationa
l Court of Justice

CASE CONCERNING THE TERRITORIAL DISPUTE
(LIBYANARAB J'AMAHIRIYAICHAD)

Judgment of 3 February 1994

In its Judgment in the case concerning the Territorial Review of theproceedings and statement of claims

Dispute (Libyan Arab JamahiriyaIChad), the Court found. (paras. 1-21)
that the boundary between Libya and Chad!is defined by The Court outlines the successive stages of the pro-
the Treaty of Friendship and Good Neighbourliness con- ceedings as from the time the case was brought before it
cluded on 10August 1955between France ;mdLibya, and (paras. 1-16) and sets out the submissions of the Parties
determined the course of that boundary (cf. sketch-map (paras. 17-21). It recalls that the proceedings had been
No. 4).
The Court was composed as follows: President Sir instituted by two successive notifications of the Special
RobertJennings;Vice-presidentOda;JudgesAgo,Schwebel, Agreement constituted by the 1989 "Framework Agree-
Bedjaoui,Ni, Evensen,Tarassov,Guillaume, Shahabuddeen, ment [Accord-Cadre] on the Peaceful Settlementof the
AguilarMawdsley,Weeramantry,Ranjeva,Ajibola, Herczegh; Territorial Dispute between the Great Socialist People's
Judges ad hoc Sette-Canrara,Abi-Saab; RegistrarValencia- Libyan Arab Jamahiriya and the Republicof Chadw--the
Ospina. notification filed by Libya on 31 August 1990 and the
communicationfromChad filed on3 September 1990,read
in conjunction with the letter from the Agentof Chad of
20 September 1990.
In the light ofthe Parties' communicationsto the Court,
and their submissions, the Court observes thatLibya pro-
The full text of the operative paragraph isas follows: ceeds on the basis that there is no existing boundary, and
"77. Forthese reasons, asks the Court to determine one, while Chad proceeds on
THECOURT, the basis that there is an existing boundary, and asks the
Court to declare what that boundary is. Libya considers
By 16votes to 1,
(1) Findsthattheboundary betweenthe GreatSocial- that the case concernsa dispute regarding attributionof ter-
ist People's Libyan Arab Jamahiriya and the Republicof ritory, while in Chad's view it concerns a dispute over the
Chad is defined by the Treaty of Friendship and Good location of a boundary.
Neighbourlinessconcluded on 10August 1955between The Court then refersto the .linesclaimed by Chad and
.theFrench Republic and the United Kingtiomof Libya; by Libya, as illustrated in the attached sketch-mapNo. 1.
(2) Finds that the course of that boundary is as Libya's claimis onthe basis of a coalescenceof rights and
~follows: titles of the indigenous inhabitants,the SenoussiOrder,the
From the point of intersection ofthe 24thmeridian Ottoman Empire, Italy and Libya itself; and that of Chad
east with the parallel 19"301of latitude north, a is on the basis of a Treaty of Friendship and GoodNeigh-
straight line to the point of intersection of the Tropicbourliness concluded by France and Libya on 10 August
of Cancer with the 16th meridian east; and from that 1955, or, alternatively, on French eflectivitks, either in
point a straight line to the point of intersection of theelation to, or independently of, the provisions of earlier
15th meridian east and the parallel 23" of latitude treaties.
north;

on sketch-map No.ndi4on page 39 of this Ju.dgment.ration, The 1955 Treaty of Friendship and Good Neighbourliness
between France and Libya
IN FAVOUR:President Sir Robert Jennings: Vice- (paras. 23-56)
President Oda; Judges Ago, Schwebe:l, gedjaoui, Havingdrawn attentionto the long and complex histori-
IVi,Evensen, Tarassov, Guillaume, Sh.ahabuddeen, cal background to the dispute and having enumerated a
Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola,
I-Ierczegh;Judge ad hoc Abi-Saab; number of conventional instruments reflecting that history
AGAINSTJ:udge ad hoc Sette-Camara." and which appearto be relevant, the Court observes thatit
is recognized by both Parties that the 1955 Treaty of
Friendshipand Good Neighbourliness between France and
Libya is the logical starting point for consideration of the
issues before the Court. Neither Party questions the valid-
ity of the 1955 Treaty, nor does Libya question Chad's
Judge Ago appended a declaration to the Judgment of right to invoke against Libya any such provisions thereof
the Court. as relate to the frontiersof Chad. The 1955Treaty,a com-
Judges Shahabuddeen and Ajibola appended separate plex treaty, comprised,in additionto the Treaty itself, four
opinions to the Judgment of the Court. appended Conventions and eight annexes; it dealt with a
Judge ad hoe Sette-Carnaraappendeda dissenting opin- broad rangeof issues concerning the futurerelationshipbe-
ion to the Judgment of the Court. tween the two parties. Itwas,provided by article 9 of the
Treaty that the Conventions and annexis appended to it
formed an integral part of the Treaty. One of the matters
specifically addressed wasthe question of frontiers, dealt
with in article and annex I. SKETCH-MAP No.4
Boundary Line

determined by the
Court'sJudgment
NB:hnmnionrf boundrriain&utd
bypckolinma&owntor
J illwtmive purpom only. The Court then examines article 3 of the 1955 Treaty, The fixing of a frontier depends on the will of the sov-
together with the annexto whichthat article refers, in order ereign States directly concerned. There is nothingto pre-
to decide whether or not that Treaty resulted in a conven- vent the:parties from deciding by mutual agreement to
tional boundary between the territoriesof the Parties.It ob- consider a certain line as a frontier, whatever the pre-
serves that if the 1955Treaty did result in a boundary,this vious status of that line. If it was already a territorial
furnishes the answer to the issues raisedby the Parties: it bounda~y, it is confirmed purely and simply. If it was
would be a response at one and the sametime to the Libyan not previously a territorial boundary, the agreement of
request to determine the limits of the respective territories the par1:iesto "recognize" it as such invests it with a

of the Parties and to the request of Chad to determine the legal force which it had previously lacked. International
course of the frontier. conventions and case-law evidence a variety of ways in
Article 3 of the Treaty begins as follows: which such recognition can be expressed. The fact that
"The two High Contracting Parties recognize that the article3 of the Treaty specifies that the frontiers recog-
frontiers between the territories of Tunisia, Algeria, nized are "those that result from the international instru-
French West Africa and French Equatorial Africa on the ments" defined in annex I means that all of the frontiers
one hand, and the territory of Libya on the other, are result fiom those instruments. Any other construction
those that result from the international instruments in would be contraryto the actualterms of article 3and would
force on the date of the constitution of the United King- render c:ompletelyineffective the referenceto one or other
dom of Libya as listed in the attached Exchange of of those instruments in annex I. Article 3 of the 1955
Letters (Ann. I)." Treaty refersto the international instruments"envigueur"
Annex I to the Treaty comprises an exchange of letters (in force) on the date of the constitution of the United
which, after quoting article 3, beginsas follows: Kingdom of Libya, "tels qu'ils sont difinis" (as listed)
in the attached exchange of letters; Libya contends that
"The reference is to [I1s'ugit de] the following texts: the instruments mentioned in annex I and relied on by
-the Franco-British Convention of 14 June 1898; Chad were no longer in force at the relevant date. The
-the Declaration completing the same, of 21 March Court is unable to accept these contentions. Article 3
1899; does not refer merely to the international instruments
-the Franco-Italian Agreementsof 1November 1902; "en vigueur" (in force) on the date of the constitution
-the Convention betweenthe French Republic and the of the IJnited Kingdom of Libya, but to the international
Sublime Porte, of 12 May 1910; instruments "en vigueur" on that date "tels qu'ils sont
dcifinis" (as listed) in annex I. To draw up a list of gov-
-the Franco-British Conventionof 8 September 1919; erning instruments while leaving to subsequent scrutiny
-the Franco-Italian Arrangement of 12 September the question whether they were in force would have been
1919." pointless. It is clear to the Court that the parties agreed
The Court recalls that, in accordance with the rules of to consider the instruments listed as being in force for
general international law,reflected in article31ofthe 1969 the purposes of article 3, since otherwise they wouldnot
Vienna Convention on the Law of Treaties, a treaty must have referred to them in the annex. The text of article 3
be interpretedin good faithin accordance with the ordinary clearly conveys the intention of the parties to reach a
meaning to be given to its terms in their context and inthe
light ofits object and purpose. Interpretationmustbe based definitive settlementof the questionoftheir common fron-
above all upon the text of the treaty. As a supplementary tiers. Article and annex I are intended to define frontiers
measure, recourse may be had to means of interpretation by reference to legal instruments which would yield the
such as the preparatory work of the treaty andthe circum- course of such frontiers. Any other construction would
stances of its conclusion. be contrary to one of the fundamental principles of inter-
pretation of treaties, consistently upheld by international
According to article 3 of the 1955 Treaty, the parties jurisprudence, namely, thatof effectiveness.
"recognize [reconnaissent]that the frontiers .. .are those The object and purpose of the Treaty as stated in the
that result" from certain international instruments. The preamble confirm the interpretation of the Treaty given
word "recognize" usedin the Treaty indicates thata legal above, inasmuch as that object and purpose led naturally
obligation is undertaken. To recognize a frontier is essen- to the definition of the territory of Libya, andthus the defi-
tially to "accept" that frontier, that is, to draw legal con- nition of its boundaries.
sequences from its existence,to respect it and to renounce
the right to contest it in future. The conclusions which the Court has reached are further
In the viewofthe Court,theterms ofthe Treaty signified reinforced by an examination of the contextof the Treaty,
that the parties thereby recognized complete frontiersbe- and, in particular, of the Convention of GoodNeighbour-
tween their respective territoriesas resulting fromthe com- liness between France and Libya, concluded betweenthe
bined effectof all the instruments listed in annex I; no rele- parties at the same time as the Treaty, as well as by the
vant frontier was to be left undefined and no instrument travazu:priparatoires.

listedin annex I was superfluous.It would be incompatible
with a recognition couched in such terms to contend, as
Libya has done, that only someofthe specified instruments Thefrontier line
contributed to the definition of the frontier, or that a par- (paras. 57-65)
ticular frontier remained unsettled.Soto contend would be
to deprive article 3 of the Treaty and annexI of their ordi- Having concluded that the contractingparties wished,by
nary meaning. By entering into the Treaty, the parties the 1955Treaty, and particularlyby its article 3, to define
recognized the frontiersto which the text of the Treaty re- their common frontier, the Court examines what is the
ferred; the task of the Court isthus to determine the exact frontier between Libya and Chad which results from the
content of the undertaking entered into. international instruments listed in annexI. (a) Totheeast of the lineof 16" 10ngitu~de "the limitto Frenchexpansion inNorth Africa, asreferred
(paras. 58-60) to in the above-mentioned letter. .. dated 14December
1900, is to be taken as corresponding to the frontier of
'TheFranco-British Declarationof 1899,which comple- Tripolitania as shown on the map annexed to the Decla-
ments the Convention of 1898, defines a line limiting the ration of 21 March 1899".
French zone (or sphere of influence) to the north-east in The map referred to could only be the map in the Livre
the:direction of Egypt and the Nile Valley, already under jaune, which showed a pecked line indicating the frontier
British control. It provides in paragraph 3 a!;follows: of Tripolitania. That line must therefore be examined by

"It is understood, in principle, that to the north of the the Court.
15thparallelthe Frenchzone shallbe limitedto the north- (c) Thecompleteline
leastand east by a line which shall start from the point of (paras. 63-65)
intersection of the Tropicof Cancerwith the 16thdegree
#oflongitude east of Greenwich (13'40' east of Paris), It is clear that the eastern end-point of the frontier will
shall run thence to the south-east until it rneets the 24th lie onthe meridian 24" east, which is here the boundary of
degree of longitude east of Greenwich (:!1°40' east of the Sudan.To the west, the Court is not askedto determine
Paris), and shall then, follow the 24th d.egree until it the tripoint Libya-Niger-Chad; Chad in its submissions
meets, to the north of the 15th parallel of latitude, the merely asks the Court to declare the course of the frontier
frontier of Darfour as it shall eventually bmeixed." "as far as the fifteenth degreeeaSrof Greenwich". In any
Differentinterpretatio~lsofthis text were possibIe, since event, the Court's decisionin this respect, as in the Fron-
the:point of intersection of the line with the 24th degree of tier Dispute case, "will .. .not be opposable to Niger as
lorigitude east was not specified, and the original text of regards the course of that country's frontiers" (I.C.J. Re-
thc Declaration was not accompanied by a map showing ports 1986,p. 580, para. 50). Between 24" and 16"east of
the:course of the line agreed. However, a Sewdays after Greenwich, the line is determined by the Anglo-French
the: adoption of that Declaration, the French authorities Convention of 8 September 1919: i.e., the boundary is a
published its text in a Livrejalrne including a map. That straight line from the point of intersection of the meridian
m2~p showed the line as running not directly south-east,but 24" east withthe parallel 19'30'north to the point ofinter-
rather in an east-south-east direction, so as to terminate at
approximately the intersection of the 24" meridian east section of the meridian 16"east with the Tropic of Cancer.
with the parallel 19"of latitude north. Fromthe latter point, the line is determined by the Franco-
Italian exchange of letters of 1 November 1902,by refer-
For the purposes of the present Judgment.,the question enceto the Livrejaunemap: i.e., this line, as shownon that
of the position of the limit of the French zone may be re- map, runs towards a point immediately to the south of
garded as resolved by the:Convention of 8 September 1919 Toummo; before it reaches that point, however, it crosses
sig,nedat Paris between Great Britain and France, supple- the meridian 15" east, at some point on which, from 1930
mentary to the 1899 Declaration. onward, was situated the commencement of thc boundary
between French West Africa and FrenchEquatorial Africa.
Its concluding paragra.phprovided: This line is confirmed by references in the Particular
"It is understood that nothing inthis Convention preju- Convention annexed to the 1955 Treaty to a place called
#dicesthe interpretation of the Declaratic~nof the 21st Muri Idie.
.March,1899,accordirlg to which the words in Article 3 Chad, which in its submissions asks the Court to define
'... shall run thence to the south-east until it meets the the frontieras far west as the 15"meridian, has not defined
:24thdegree of longitude east of Greenwich (21"40'east the point at which in its contention the frontier intersects
#ofParis)' are accepted as meaning ' ... sh.allrun thence that meridian. Nor have the Parties indicated to the Court
.ina south-easterly direction until it meets the 24th de- the exact coordinates of Toummo in Libya. However, on
gree of longitude east of Greenwich at the intersection the basis of the information available, and in particular the
of that degree of longitude with parallel 1g030'degrees maps produced by the Parties, the Court has come to the
of latitude'." conclusion that the line of the Livrejaune map crosses the
Th.e1919Convention prc:sentsthis line asan interpretation 15'meridianeast atthe pointof intersectionofthat meridian
of the Declaration of 1899; in the view of the Court, for with the parallel 23" of north latitude. In this sector, the
the purposes of the present Judgment,there is no reason to frontier is thus constituted by a straight line from the latter
categorize it either as a confirmation or as a modification point to the point of intersection of the meridian 16" east
of the Declaration. Inasmuch as the two Stites parties to with the Tropic of Cancer.
the Convention are those that concluded the :Declarationof
Subsequentattitudesof theParties
1899, there can be no doubt that the "interpretation" in
question constituted, from 1919 onwards, and as between (paras. 66-71)
them, the correct and binding interpretation of the Decla- Having concluded that a frontier resulted from the 1955
ration of 1899. It is opposable to Libya by virtue of the Treaty, and having established where that frontier lay, the
1955 Treaty. For these reasons, the Court concludes that Court considers the subsequent attitudes of the Parties to
the line described in the 1919 Convention represents the the question of frontiers. It finds that no subsequentagree-
frontier between Chad and Libya to the east of the line of ment, either between France and Libya, or between Chad
16' longitude. and Libya, has called in question the frontier in this region
deriving fromthe 1955~ieat~.On the contrary, if one con-
(b) Tothe west of theline of 16" longitbrde siderstreaties subsequentto the entry into forceofthe 1955
(paras. 61-62)
the existence of a determined frontier was accepted and 1955
'The Franco-Italian Agreements (Exchange of Letters) of
1 November 1902 state that acted upon by the Parties. The Court then examines the attitudes of the Patties, Separate opinionofJudgeAji-ola-
subsequent to the 1955Treaty, on occasions when matters
pertinenttothe frontierscameupbefore internationalforums, In his separate opinion, Judge Ajibola generally supports
and notes the consistency of Chad's conduct in relation to the view taken by the Court in its Judgmentthat the Treaty
the location of its boundary. of Friendshipand Good Neighbourlinessbetweenthe French
Republic and Libya of 10August 1955in effect determines
th; boundary dispute betwe& the latter and Chad.
Permanent boundary established He further deals with some aspects of the mode of inter-
(paras. 72-73) pretation of the 1955 Treaty, concentrating in particular
upon such questions as the object and purpose of the
The Court finally statesthat, in its view,the 1955Treaty, Treaty, good faith and the subsequent acts of the Parties.
notwithstandingthe provisions in article11to the effect that - -
"The present Treaty is concluded fora period of20 years", Judge Ajibola also examines the claims and submissions
and for unilateral termination of the Treaty, must be taken of the Parties and particularly those of Libya in relation to
to have determined a pemlanent frontier. There is nothing what is termed "litigation and strategy" on the issue of the
in the 1955Treaty to indicate that the boundary agreed was "borderlands".
to be provisional or temporary; on the contrary, it bears all Finally, he advances two other extrinsic but supplemen-
tary grounds of support for the Judgment of the Court, the
the hallmarks of finality. The establishment of this bound- first being based on estoppel, acquiescence, preclusion
ary is a fact which, from the outset, has had a legal life of and recognition, and the second based on the principle of
its own, independently of the fate of the 1955Treaty. Once
agreed, the boundary stands, for any other approach would utipo.ssidetis.
vitiate the fundamental principle of the stability of bound-
aries. A boundary established by treaty thus achieves aper- Dissenting opinionofJudge ad hoc Sette-Camara
manence which the treaty itself does not necessarily enjoy.
When a boundary has been the subject of agreement, the In his dissenting opinion, Judge Sette-Camara observes
continued existenceof thatboundzry is not dependent upon that the borderlands were never a terra nullius open to
the continuing life of the treaty under which the boundary occupation according to international law. The land was
is agreed. occupied by local indigenous tribes, confederations of
tribes, often organized under the Senoussi Order. Further-
more, it was under the distant and laxly exercised sover-
Declaration ofJudgeAgo eignty of the Ottoman Empire, which marked its presence
by delegation of authority to the local people.
My own view is still the conviction that, at the time of Thc:great European Powers wereengrossedwiththe task
the independence of the new State of Libya, the southern , of carving up Africa but they did not go beyond the distri-
frontier of that country with the French possessions of bution of spheres of influence.
West Africa and Equatorial Africa, between Toummo and
the frontier ofthe Anglo-Egyptian Sudan, had not yetbeen French presence in the borderlands did not occur before
the subject of a treaty delimitation between the parties then 1913, after the Treaty of Ouchy, which put an end to the
directly concerned. I recognize, however, that by con- war between Italy and the Ottoman Empire. Historic title
cluding the Treaty of 10 August 1955 with France, the over the region belonged first to the indigenous peoples,
Government of Libya, which was primarily interested in and eventually passed to the Ottoman Empire, and later to
other aspects of the body of questions to be settled, im- Italy.
plicitly recognized, with regard to that southern frontier, The frictions between the colonial Powers' ambitions
the conclusions which the French Government deduced led to the Fashoda incident, which triggered the negotia-
from the instruments mentioned in annex I to that Treaty.
tions leading to the 1899 Declaration. which established a
It is for that reason that I have decided to add my vote division of ipheres of influence and'limits to the French
to those of my colleagues who have pronounced in favour expansion northward and eastward.
of the Judgment. In fact, in the present case there were two key questions:
(1) Is there, or has there ever been, a conventional bound-
ary between Libya and Chad east of Toummo? (2) Are the
Separate opinionofJudgeShahabuddeen Conventions listed in annex I of the 1955 Franco-Libyan
Treaty of Friendship and Good Neighbourliness actually
In his separate opinion, Judge Shahabuddeen observed boundary treaties?
that the case involved anumber of importantissues relating
to the state of the international community a century ago. As to the first question,Judge Sette-Camarais convinced
Those issues were, however, foreclosed by the answer that there is not now nor has there ever been a boundary
which the Court had returned to what both Parties agreed line, short of the line of the 1935 Laval-Mussolini Treaty
was the threshold question, that is to say, whether the which was not ratified.
boundary claimed by Chad was supported by the 1955 As to the second question, Judge Sette-Camara believes
Franco-Libyan Treaty. The answer given by the Court that none of the treaties listed in annex I qualifies as a
resulted inevitably from the application of the normal prin- boundary treaty: the 1899 Declaration divided spheres of
ciples of interpretation to the provisions of the Treaty. He influence only. The 1902 Barrtre-Prinetti Treaty, a secret
exchange of letters concluded by France and Italy, dealt
did not consider that it was either relevant or necessary to
invoke the principle of stability of boundaries in support with reciprocal respect for interests of France in Morocco
of that answer. The issue before the Court was whether and Italian ambitions in Tripolitania and Cyrenaica and in-
there was any treaty in existence defining the boundary. In truded into territory under the sovereignty of the Ottoman
his opinion, the principle of stability of boundaries did not Empire. The 1919 Convention also divided spheres of
assist in answering that question. influence and dealt mainlywith the Wadai-Darfourfrontier.As to the 1955Treaty, the rock of the Chadianargument, In the opinion of Judge Sette-Camara,it is regrettable
iitsarticle 11 established an agreed duration of20 years. that neithertheCourtnotrhePartiesexploredthecompromise
The Chadian Counter-Memorial itself recognized thatit solution that would have beenthe line of United Nations
Iiapsedin 1975. map No.241, which is closeto the 1935linebut notiden-
The questionof eflectivitkis to be disregarded,since tical to it, or reverted to the 1899 strict south-east line,
there is no evidenceon the point providedby the Parties. which wasat the origin of the dispute and which continues
to appearon very recent maps,for instance, the 1988OAU
In a series oftreaties concluded since 1972by the two map attachedto its Subcommittee's report on theLibya-
countries, thereis no referenceto the existenceof a further Chad dispute.
dispute.
Judge Sette-Camara believes thatthe tiltlesto the terri- Bothlines would have offeredthe advantageof dividing
tory assertedby Libya are valid. Neither Francenor Chad the Tibesti massif betweenthe two countries, which both
presented soundertitles. claim to be essential for their defence.