Letter to the Registrar dated 31 October 2012 from
the Agent of Burkina Faso
[Translation]
Comments of BurkinaFaso on the Republic of Niger’s reply to the question put by
Judge Bennouna
1. In accordance with the opportunity which it has been given, BurkinaFaso considers it
helpful and appropriate to make the following brief comments on the replies given by Niger orally 1
and subsequently in writing 2 to the question put to the two Parties by JudgeBennouna on
12 October 2012.
2. Burkina does not consider it necessary to reply further on this occasion to the arguments
contained in that reply which merely repeat elements already set forth by Niger in its Memorial, its
Counter-Memorial and/or its oral arguments and which, as Burkina has already demonstrated, have
no basis and lack any probative value. We shall confine ourselves here to a number of comments
that relate directly to the question put by Judg e Bennouna concerning the extent to which, and for
which section(s), Niger agrees to refer to the 1960 IGN map to establish the course of the frontier.
3. It is important to note first of all in thisregard that, despite its lengthy comments, Niger
again replies only in part to the question asked. In both its oral and written replies, it confines itself
to explaining in which instances its line does not follow the one on the 1960 map. At no point,
however, does it make clear “to what extent”, in its opinion, the line shown on the map should be
followed.
4. In fact, in neither its written or its oralpleadings did it present a consistent argument in
that regard. Thus:
⎯ in the Téra sector, it claims that it follows in part the line shown on the 1960 map, since, in its
view, the map reflects the 1960 effectivités, and then deviates from it when it considers that this
is not the case;
⎯ conversely, and in striking contrast, in the sector of the “salient of four villages”, it rejects the
line shown on the 1960 map precisely because, in its opinion, it is based on the effectivités
which existed in 1960.
In Niger’s view, the justification for the line on the 1960 map in the north is the reason for its
rejection in the south. According to Niger’s latest explanations, the reason for disregarding the line
on the 1960 map in the Say sector is that it “appears to be based on the positions of those
1
See CR 2012/26, pp. 35-36, para. 5 (Salmon).
2See letter from Niger of 24 October 2012 providing additional information (hereinafter “written reply of Niger”). - 2 -
3
above-mentioned villages which still existed in 1958-1959, as they were at that time . . .[;] [the
resultant line] makes it impossible to leave to Niger... a ‘salient which includes the [four]
4
villages’ in question, as they were located in 1927 ”.
5. Niger’s approach, which is inherently inconsistent, cannot be reconciled with the
provisions of Article 2 of the 1987 Agreement. T hus Niger cannot show why that article entitles it
to disregard — as Niger does repeatedly — both th e text of the Erratum and the line shown on the
1960map, in favour of other documents, such as, for example, the “m aps from the colonial
5
period” . In respect of those points, Niger persists in not applying Article2 of 6he
1987 Agreement, as Burkina emphasized in its oral reply to Judge Bennouna’s question .
6. The “extent” to which Niger adopts or rejects the 1960 line is therefore clearly dictated by
opportunism. It should moreover be empha7ized that , after insisting in oral argument on the fact
that the only critical date is 1960 , Niger claims in its reply to Judge Bennouna, that having before
it a legal title adopted in 1927, the relevant “photog raph of the territory” is not that of 1960, but
8
that of 1927 .
7. During its oral argument, Niger maintained that the 1960 IGN France map constituted “the
best photograph of the colonial legacy at a date close to independence” 9. This firm affirmation is
contradicted in many respects by Niger’s reply to Judge Bennouna’s question.
8. Niger recognizes first of all that the line on the map is incorrect at the level of the
Tong-Tong marker, through which it does not pass, in contravention of the Erratum . 10
9. Niger also recognizes that the line on th e map is incorrect between the Tong-Tong and
Tao markers. In this sector, both Parties have recourse to one (Burkina) or two (Niger) artificial
straight line(s) which do not correspond to the si nuous line of the 1960 map. In its written reply,
3
Ibid., p. 4. Niger’s argument that the village of Alfassi was not located in 1960 in the same place as in 1927 is
incorrect. Alfassi was temporarily relocated to the right bank of the Sirba from 1928 to 1932 owing to sleeping sickness,
which was rife in the area at that time. It is this temporar y situation which is shown by Annex F to Niger’s written reply.
The village was subsequently returned to its present lo cation (the 1960 location) on the left bank of the Sirba.
Consequently, the current location of the village of Alfassi corresponds to the 1927 location, to which the Erratum refers
since it locates the village on the left bank of the River Si rba and not on its right bank. The excerpt from the report by
Captain Fabry, M.D. of 9April1936 also confirms that the village of Alfassi was “on the Sirba” before its temporary
relocation (see MN, Ann. C 62, last tw o pages). The same applies to the 1960 map. However, the map contained in
Annex G to Niger’s written reply, on which the latter solely re lies to locate the village of Alfassi — even though it is not
a document accepted by joint agreement of the Parties — is clearly incorrect since it does not locate Alfassi on the River
Sirba.
4
See letter from Niger of 24 October 2012 providing additional information (hereinafter “written reply of Niger”)
5
Written reply of Niger, p. 4.
6
See CR 2012/25, p. 21, paras. 28-29.
See CR 2012/22, pp. 35-39, paras. 7-16 (Kamto).
Written reply of Niger, pp. 4-5.
CR 2012/26, p. 35, para. 2 (Salmon).
10
Written reply of Niger, pp. 1-2. - 3 -
Niger itself describes the sinuous line of the 1960 map in this sector as “unusual” 1. It also
states— and this supports Burkina’s final submissions— that “ [b]oth the 1927 texts and the
Delbos/Prudon sketch-maps, and the official new frontier map, adopt, in the section between
Tong-Tong and Tao, a line which is straight or very slightly curved ” . In so doing, Niger now
accepts unreservedly that in this sector, first, the 1927 Erratum suffices, and then that the latter did
indeed adopt a frontier taking the shape of an artificial line (which must be “straight”, since the
Erratum describes no curve— a fortiori, no “slight” curve— between the Tong-Tong and Tao
markers).
10. However, Niger claims that, in this sector , account should be taken of an “agreement” of
1935 which led to the establishment of a marker at Vibourié. Burkina has already explained in
detail why this “agreement” [it is an intra-coloni al agreement] does not have the significance that
Niger attaches to it . It should simply be added that, according to Niger, “the Vibourié marker . . .
14
escaped the notice of the [1960] map’s drafters” . In Niger’s opinion, the map’s drafters thus
strictly observed the “colonial legacy” of 1960 15, while at the same time nonetheless forgetting to
include what Niger describes as a “colonial marker” 16established by an “agreement” between
colonial authorities which constituted, again acco rding to Niger, “the only agreement between
cercles, subsequent to 1927, which was e xpressly approved by a higher authority” 17. Niger’s
argument again completely contradicts the idea that the 1960 map is “the best photograph of the
colonial legacy at a date close to independence” 1. Moreover, it leads Niger to disregard the line
both in the Erratum and on the 1960 map, again in violation of Article 2 of the 1987 Agreement . 19
11. Niger’s approach is all the more inconsiste nt given that, after the Tao marker, it claims a
line on grounds that are completely the opposite to those relied on up to that marker. As we have
seen, Niger does not adopt the line shown on the map before the Tao marker on the ground that, in
its view, the line on the map is “unusual”, which is perfectly correct since the sinuous line on the
map is not referred to anywhere in the text of the Erratum, which defines the frontier sufficiently in
this sector. On the contrary, Niger believes that it must retain the line on the map between the Tao
marker and what Niger insists on calling the “tripoint”, even though, there too, the line on the map
is “unusual”. Niger does not explain why the secti on that runs to the Tao marker and the section
that runs from there should be treated differently.
12. Nor is that in line with the “methodology” that Niger claims to use. It considers that the
line on the 1960 map should be followed, except in the event of “abnormal deviations in relation to
11Written reply of Niger, p. 2.
12Written reply of Niger, p. 2; emphasis added.
13
See CMBF, p. 35, para. 1.34, footnote 137 and Sec. 2. 1., pp. 82-85, paras. 3.44-3.52; and CR 2012/20,
pp. 35-36, paras. 42-51 (M. Forteau).
14
CR 2012/26, p. 36, para. 6 (Salmon).
15
Niger says that it is convinced “of the care with wh ich the drafters of the 1960 map had represented the
probable boundaries of the cantons as they existed in practice at the critical date” (CR 2012/26, p. 35, para. 4 (Salmon)).
16
CR 2012/23, p. 56, para. 5 (Salmon).
17CR 2012/24, p. 11, para. 10 (Salmon).
18CR 2012/26, p. 35, para. 2 (Salmon).
19
See the written reply of Niger, p. 2 “ . . .”. - 4 -
20
the texts” ; and that such “abnormal deviations in relation to the texts” make it necessary to have
recourse to artificial straight lines between T ong-Tong and Tao. There is no explanation why
Niger does not adopt the same approach for the section starting at Tao. In both cases (before/after
Tao) the line on the map contains “abnormal devia tions in relation to the texts”, since those
deviations are not referred to in the relevant te xt — the Erratum — which can in no sense be said
“not to suffice” in this sector.
13. Niger’s argument is all the more curious given that it is precisely in this sector (between
Tao and Bossébangou) that, as Niger stated in its Counter-Memorial, “the indications of the
boundaries [given on the 1960 map]... are some times tentatively represented by discontinuous
lines of crosses, inasmuch as the in formation on which they were based could not always be fully
21
relied on . . .” . In that regard, Niger referred to “the necessary caution [to be exercised] where the
hesitation of the map’s drafters is reflected in gaps in the line of crosses” 22. These hesitations—
Niger recognizes this in its Memorial — obliged it in this sector (between Tao and its “tripoint”) to
“[connect] the gaps between sections” reproduced on the map 23. The fact that the line on the
1960map is the most hesitant and the least reliable in precisely the sector where Niger relies on
effectivités (between Tao and the “tripoint”) clearly reveals the weakness of Niger’s argument
based on such effectivités. By contrast, once again, we can only note that in this sector the Erratum
describes the frontier in a clear and sufficient manner.
14. To the south of the Tao marker, Nige r considers it necessary to deviate again and
repeatedly from the line shown on the map on the gr ounds that, in its view, it is not “justified”.
This applies:
⎯ at the level of the village of Petelkolé 24 and at the level of Ousalta ; 25
⎯ at the level of Bossébangou, to which Niger prefers a so-called “tripoint” ; 26
⎯ between this “tripoint”, the intersection of the Sirba and the Say parallel 27, and what Niger
28
terms the Gouina “boundary post” .
2CR 2012/26, p. 35, para. 4 (Salmon); em phasis added. Niger subsequently abandons this method, stating that
“Burkina, on the other hand, regards these texts as evidence of the application of tErratum. However, that is not the
point which is the purpose of our demonstration. This document is relevant in that it is evidence of the de facto boundary
which was applied on the ground”, ibid., p. 37, para. 7. Niger is thus arguing here for a de facto boundary without
querying any longer its abnormal deviation in relation to the texts — namely in relation to the legal title. See also ibid.,
p. 40, para. 10:
“Our opponents have sought to discredit Roser’ s position, arguing that in so stating he was
basically contradicting the Erratum. However, I believe that, once again, looking at the matter from the
current perspective, that criticism does not hold up, for we are talking here abouteffectivités, and the
information that Bangaré has always been located on Niger’s territory, provided by Roser, Commander of
Dori cercle, undoubtedly carries particular weight.”
2CMN, p. 44, para. 1.1.32; emphasis added.
22
Ibid.; emphasis added.
23
MN, p. 100, para. 6.26, final bullet point.
24
Written reply of Niger, p. 2.
2Written reply of Niger, p. 3.
2Written reply of Niger, p. 4.
2Written reply of Niger, Ann. H.
28
Written reply of Niger, p. 3. - 5 -
15. It follows that, on the section of the frontier that runs from the Tong-Tong astronomic
marker to the beginning of the Botou bend, Niger’s line follows the line on the 1960 map for only
33percent of the distance in question. This show s the weight attached in reality by Niger to the
1960map, which it seeks at all costs to estab lish as constituting “the best photograph of the
colonial legacy”.
16. Lastly, it should be noted that, in clear contravention of the 1987Agreement, the line
claimed by Niger deviates from both the Erratum and the line on the map along extensive sections
of the frontier. In particular:
⎯ it does not connect the markers of Tong-Tong and Tao, either by a single straight line— in
accordance with the Erratum — or by following the line on the 1960 map;
⎯ from the Tao marker, it does not run to Bossébang ou, which, however, is referred to in the
Erratum as a frontier point, and shown as such on the 1960 line;
⎯ Niger’s line does not form a salient, the first side of which should run in a north-west direction,
according to the text of the Erratum and the line on the 1960 map; it replaces it with a simple
change of direction at the “tripoint”, a change which heads in a south-west direction, and not a
north-west direction;
⎯ Niger’s line does not run to the Sirba at the leve l of the Say parallel, in contravention of the
Erratum and the 1960 line;
⎯ it does not run to the beginning of the Botou be nd in a straight line, as expressly provided in
the Erratum; nor does it follow the — different — line plotted on the 1960 map;
⎯ indeed, from the “tripoint” to the beginning of the Botou bend, Niger’s line deviates
completely from both the Erratum and the line on the map; it rejoins the line on the map only
at the very end, at the “Gouina frontier point”, which is not compatible with the clear text of
the Erratum, which here, describing it suffici ently, specifies a single straight line as far as
Tchenguiliba, and not two straight lines.
(Signed) D Jr.rôBe OUGOUMA
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Written comments of Burkina Faso on Niger's reply to the question put by Judge Bennouna at the end of the hearing held on 12 October 2012 (translation)