Traduction
on- Corrigé Translation
Uncorrected
CR 93/17 (traduction)
CR 93/17 (translation)
Jeudi 17juin 1993
Thursday17 June 1993 The PRESIDENT: ~l'easbee seated. Mr. Cahier.
Mr. CAHIER: Mr. President, Memberosf the Court,it is not without
emotionthatan international juristpleads beforeyou, and 1 wish to
4
tellyou that it is an honourand aprivilegeforme to appear before the
Courtin this casebetween Libya and Chad.
The task fallingto me todayis to examine the period fr1 om19 to
the conclusionof the 1935TreatybetweenItaly and France. The period
is fairly fertilein eventssincetreatieswere concluded betweet nhe
protagonists ofOur history,GreatBritain,Franceand Italy,States
which engagedin negotiations on an ever largescale. 1 nevertheless
have no desireto overtaxyour attention, for two reasons. First,Libya
and Chadhave dwelton thoseeventsat somelengthin their pleadings
and, second, theyhave hardly modified the existing situat inrnegard
to the boundary delimitatit onatis the subjectof the dispute before
you.
But whatwas the situation in1919? My colleagues speakin egarlier
have demonstratedto you that, between thFerenchand Italian colonial
possessions in Libya,the boundarywas notdelimited apart from the line
from the Mediterranea to Ghadamès. Al1 the rest of the boundary line
was uncertainty, even if Fran and Italy thought they had righ insthe
region,but rights not expressed precisely a whichdeservedto be, for
the sake ofarrivingat a genuine deli...atio of the boundary. The
situationwas to be completedby theconclusion, in 1915,of a more
precise instrument,namelytheLondonAgreementthatprovided for some
....
1 1 colonial compensation for Italy.In 1919,therefore, thevar vas over,
---
the allies hadwon and it might havebeen supposed thatin that great
global negotiation leadi togthe Treatyof Versailles Francewould attempt,in the lightof the LondonAgreement,to delimit thatLibyan
boundarywith Italy. As we have seen,negotiationsno doubt tookplace
in May 1919,but the French proposa(lsescribedas scantyby Tittoni,
the ItalianMinisterfor Foreign Affairsinhis speechto Parliament on
29 September1919)proved insufficient and certai notysuch as might
compensatethe effortmade by 1taly.inthe-war.foughtsideby sidewith
theAllies.
That,Gentlemen, is the legal landscapwe discoverwhen - if you
will allow me the expression the curtain rosien 1919. From the
chronological poinof view,we should first examine tT heeatybetween
Great Britain anF drance,sinceit was concludedon 8 September1919,
while that betweenFranceand Italy came on 12 September1919. The
reason1 preferto dealwith the second before the fir istthatthe
latterhardlyconcernsthe present dispute. The pointis thatits
preambleindicates that itwas concludedin pursuanceof Article13 of
theTreatyof Londonand that its purposewas "determination of the
boundary between Tripolitan and the French possessionosf Africa inthe
sector from Ghadamè to Toummo,a sectornot featuringin the present
dispute.
1 wishmoreoverto emphasize the term employ inArticle1 of that
Agreement, namelyfixing of the boundary.This proves once morwehat
the LibyanGovernment has alwaysargued: thain this sector therweas
no boundary delimitedsince,otherwise,the termused would not havebeen
fixing butmodification.
ThatExchangeof Notesbeingextremely precisa end perfectly clear
(theCourtwill findthe textin the Memorial of Libya,International
Accordsand Agreements,Ann. 18), there wouldbe no causeto dwellon it - if the opposing party had not, in accordancewith a method rather toits
liking,strivento give it a meaningthat in no way derivesfrom the text.
Chad considers,in the firstplace, that the 1919Treaty, deciding
that Toummo constitutesthe south-westward end-pointof Libya, confirms
t
Italy'sacceptanceof the boundaryof Tripolitaniashown on the map
appendedto the Anglo-FrenchDeclarationof 1899.(MC,..p..203).
That assertionis surprising, to Say the least. The 1919 Agreement
containsno referenceto the map. Now, the Treatycannot confinu
somethingthat it does not mention.
What is more, needlessto recall, themap was notappendedto the
1899 Declaration.
As my colleague,Mr. Sohier,has indicated,that map did not inany
way and couldnot establish aboundary,particularly sincenone of the
Partiesto the Agreementhad a sovereignright over the territory.
But the imaginationof Our honourable opponenti ss fertileindeed
when they asaertthat it can be deducedfrom the 1919 Agreement that,
from Toummo,the boundary forms a bendas it runs north-eastwardand cuts
the Tropic of Cancerat longitude 16" East of Greenwich,that is, the
startingpoint of the Anglo-Frenchlimit of 1899 (MC,p. 201, and CMC,
p. 355).
... 1 have read andre-readthe Franco-ItaliaA ngreement of 1919several
--- 13 times andhave failedto findthe slightest indication o afboundary
delimitationeast of Toummo. It is not evena matter of being able to
Say that a textdoes not haveto be construedwhen it is clear; in this
case thereis quite simplyno text to construe. The delimitationof the
boundary goes from Ghadamès toToummo and stops there. Beyond that point everything remat ionbe done. The Treaty itself
recognizesthiswhen statingthat:
"theGovernmentof His Majesty the King of Italyand the
Governmentof the Republic have reachedan agreementon the
following points, while reserving other pof intsfuture
consideration".
Those "otherpoints"necessarily concerned delimitati ofnthe
boundaryto the eastof Toummo sincethe Agreement makes no mentionof it
and it was the only partremainingto be delimited, the part between
Ghadamès and the Mediterranean havb inegn delimitedin 1910.
Accordingto the Governmentof Chad,the 1919Agreement,by being
set in the contextof the compensation promise to Italy in Article13 of
the Treatyof London, shows that Italy recognized the territorial
status quo, even though questioninit politically (MC,pp. 201-202).
That assertionis hardlycorrect. Italydid not recognizethe
territorialstatus quo, for it was heir - as the Libyanpleadingshave
shown - to the rightsof the Ottoman Empirein the region. That being
said,thoserights werenot clearlyestablished and did not enablea
boundaryto be preciselydelimited. There consequentle yxisted a
territorial dispute between Fran and Italyin the region,as moreover
recognizedin Article13 of the Treatyof London.
For, after mentioningthe principle of compensation in favo our
14
Italy,it adds: *
wparticularlyas regardsthe settlementin her favourof the
questions relativteo the frontiersof the Italiancoloniesof
Eritrea, Somalilana dnd Libyaand the neighbouring colonies
belongingto Franceand Great Britain".
If precise frontierh sad existed atthe time, the Treaty woulof
coursenot have mentioned "questions relati toethe frontiers"; it
would have sufficetdo insertthe principleof compensation in regardto frontiers. If the Treatycites "questions relativ to the frontiers",
this is becausesome frontiershave yet to be delimited and theries
uncertaintyabout the rights of the Partiesin some regions.
Thepurposeof Article13 of the Treatyof Londonwas thereforeto
enableItaly,when delimitation was effected,to rely thereonin orderto
obtaina boundaryline to its advantageand, in the event of doubtas to
the reciprocalrightsof the Parties,to have such rightsestablishedin
its favour. Hence Italy,in the negotiations within the SupremeAllied
Counciland its Commission,adoptedthe compensation stance. Those
negotiations,it must beadded, occupied only fourmeetings held,to be
v
precise,on 15, 19, 28 and 30 May 1919. It is hard to see how,in such a
short spaceof time,the Partiescouldhave engagedin an in-depthlegal
examinationof their respective right in the region.
What it came to in realitywas a global politicanlegotiation,and
the fact that Italy sought a mandate ovTergo provesthis. Now by
adopting a politicasltance,that based on Article 13 of the Treatyof
London,Italydid not renounce anyof its rightsand itdid not legally
recognizeany statusquo. If it couldreachan agreement, so much the
better,as happenedwith the 1919Treatyfor the Ghadamès-Toummoboundary
line; ifnot, too bad. Italywas subsequently to negotiate, asthe ,V
1919 Treatymoreover indicates" ,while reservinogther points forfuture
*considerationW.
It is in thisway that theCommission understooi dt since in its
report, after mentionin the Italianrejectionof the Frenchproposals
regarding the boundaroyf Libya,it adds: "Italythereby intendsto keep
the Africancolonial questioonpen betweenit and France." (ML, Italian
Archives Annex, p. 28). That being so, inasmuchas Article13 of the
Treatyof Londonhad not beenfullyapplied - as the FrenchGovernment
realized sincean interna1note of the FrenchMinistryfor Foreign AffairsStatesthat "Italywill alwaysbe able to rely on Article 13 of
_..
the Treatyof London,a terrainon whichit is very difficult tr oefuse
16
- - to talk" (MC,Ann. 148) - the situationregarding thesouthem boundary
of Libyawas notmodified bythe 1919Treaty between Franc and Italy.
There wereno boundaries separatin the two colonialPowersbefore1919;
nor were there anyin 1919. Italy-andFranceeach. retained-anyrights
theyhad inthe region,but from1915onwardsItalypossessed a further
right, that arisin fromArticle13 of the Treatyof London.
The only effect,therefore,of the September1919 Treatywas to
delimit the boundar yn the Ghadamès-Toummoectorand nothingelse.
Seekingto give it a consequenceon the southernboundaryis forcing
reality, for theries nothingof the sort in the textor the context,or
in the circumstancesof the Treaty's negotiation.
While 1 have been ablto be briefas regards consideratio of the
1919Treaty between Franc and Italy, 1 must dwellat greaterlength on
theTreatyof 8 September 191c 9oncludedbetween GreatBritainand
France. A curioustreatyit wassinceit concemed the southem boundary
of Libyaand so wasboundto encroachon Italy'srights,or at the very
leaston the rightsthatItalybelievedit possessedin the region.
Italywas not associatedwith or even informedof the existenceof that
Agreement,which was - to Say the leas- improperand unfriendlysince
it wasdirectlyconcerned by its object. That provesthat the two
Parties cannothavehad clear consciences abouIttaly. A funnyway it
was ofapplyingthe Treatyof London,and strange"compensation"!
For a full grasof the scopeof thatTreaty, wemust go backa
momentto the 1899Declaration.It will be recalledthat,accordingto
its Article2, the courseof theboundaryof Frenchterritorycouldnot
in any event go beyond the 2d 3rdreeof longitude.
17 On this point,the
1919 Agreementextendsthatboundaryto the 24th degreeof longitude. - That part of the Agreementis now shown on the screen(textNo. 59 of the
green file).
Its geographicaleffect can be seen on Map No.58.
But what is more, Article3 of the 1899 Declarationprovided that, %
north of the 15th parallel,the French zone would be limitedby a line
which, nmning from the intersectioo nf the Tropicof Çancer and the
16th degree of longitude,would descend south-eastwardas far as the
24th degreeof longitude,which it would followsas far as its junction
north of the 15th parallel. Now,ccording to the 191A 9greement,and by
way of interpretation,that linewould takea south-eastward direction as
w
far as the 24th degree of longitudea,t the point of intersectionwith
the latitude 1g030'N. That passageof the Treatycan now be seen on the
screen (textNo. 61 of thegreen file).
The difference between th 15th parallel andthat of 19'30' is not
insignificant.Map No. 28, which is in your file and now appearson the
screen,shows theline resulting from the 1899 Declarationt,hat given in
the YellowBook, and that of1919. The difference between these lines
is striking. Furthermore,that line which in 1899 strictly followeda
south-eastorientation becomes in 1919 aneast-south-east line.
According toChad, the line resulting from the 1919 Agreement
differsnot at all, or very little,from that of the 1899Declaration.
Furthermore,the 1919 Agreement is claime tdo do no morethan construe
the 1899 Declaration, whichis said to result fromthe treatypassages1
have just shownyou. Two assertions, two errors: one of fact, theother
of law.
Let us first take the errorof fact,namely that the frontier line
resulting from the 1899 Declarationis supposedlyidentical,or almost
. .
so, to that derivingfrom the 1919 Treaty. Examination of the map before
- - 1 8
you (Map 28) shows that there is a considerable divergenceetweenthe - 1899 lineand thatof 1919. More concretely, thn eew boundaryline (CML,
p. 185)has the effectof according Francea territoryof some
180,000km2, which is equivalentto the combinedareasof Switzerland,
the Netherlands,BelgiumandAustria. Admittedly we are talkingabout
desertterritories and,when setagainst the immensit of the African
continent,the sizeof the aboveEuropeanterritories pales into
insignificance. Al1 the same,a sizeablechunkof territoryis involved
and it is hard to understand how,n the faceof themost elementary
truth,Chad can assertthat the1899line is equivalent, or almostso, to
thatof 1919. The figures are there.
Chad further claimsthat the1919 Treaty construe thatof 1899. 1
have nothingagainstthatassertion, in thattwo States may,by way of
authentic interpretatio modifya treaty. But thatof courseonlyholds
good in the caseof theirmutualrelations.Legally speakingt ,hewhole
reasoningis flawedwhen appliedto thirdStates.
The principleof the relativeeffectof treaties, whetheror not
interpretative,is well establishedin internationallaw. It hasalways
been recognized in authoritative legal opini ond confirmedin
internationalcase-law. Examiningthe effectsof the 1898 Treaty of
Paris,concluded betweenSpainand theUnitedStates, Max Huber, in his
farnouarbitralAwardin the Island of Palmascase,statedthat:
"it is evident thatwhatevermay be theright constructio nf a
treaty,it cannot be interpreta ed disposingof the rightsof
independentthirdPowers." (RIAA Vol. II, p. 842.)
. .
The principlederivesfromthatof the independence and equality of
.- -19
States,whichhas so oftenbeen recognized in many resolutionosf the
General Assembloyf theUnitedNations.It is moreover reaffirme in
Article 34 of the 1969 Vienna Conventioon the Lawof Treaties.
And if thereis one provisionof the 1969Conventionthatcodifiesa
customaryrule,it is well and truly that one. The ruleof the relative effectof treatiesis not questionedon the
othersideof the bar; our colleagues representing thGovernmentof Chad
are too goodjuristsfor that. On the otherhand,theycontend,and on
this point thecannotbe followed, that thedelimitationresultingfrom
e
the 1919Agreementwas opposableto Italy,whilerecognizing that the
latterStatewas in a third-partypositionvis-à-vis.-thAatreement.
1 shalltry to summarizetheir reasoning a faithfullyas possible.
First,thisopposability is claimed to resulfromthe factthatthe 1919
boundarylinewas similarto that of1899 recognizeb dy Italy. Now the
LibyanGoveniment has put paidto that assertion. The twolinesdiffer,
w
1 repeat,considerably.
The Governmentof Chadthenargues that, evenif thelinesdiffer,
that of1919 is stillopposable toItaly. 1 have somedifficulty on this
pointin following the reasoningof Our opponents.
The firstargument stildlerivesfrom the alleger decognitioby
Italyof theAnglo-FrenchAgreementof 1899. My colleague Walter Sohier
has refuted that assertia ond thereis no need to revertto thematter.
Accordingto the second argument, Turkpeyssessedno sovereign
rightoutsidethe limits of Tripolitani so,thatit couldnot transfer
to Italy rightsit did notenjoy(RC,p. 59).
Libyahas arguedon variousoccasions, and will showagain,thatthe
Portepossessedat the timerightsthatwent beyond the limitsof
Tripolitania.But in any case,if theCourt - as we believeit- will
arriveat the conclusiot nhatthe 1955Treaty betweeLnibyaand France
did not delimit Libya's southern boundarit will be for it,initsduty
of delimitation,to determinethe rightsof Turkeyin the region. The
Governmentof Chadmoreover recognizes the existe ofcan Ottoman
presencein 1908 (RC,p. 64), and itis a fact thatat that timneo
Frenchtroopswere present. There can be no doubt-and this is not questionedby Our opponents
(RC,p. 59) - thatby the Treatyof Ouchyof 15 and 18 October1912 Italy
succeededto Turkeyin respectof its territorial rights over the
territorythatwas to becomeLibya. No doubt theTurkishrights, still
not beingprecise,couldlend themselves to discussionand negotiation,
but what is certainis that neitherFrancenor GreatBritainwas entitled
in 1919,by anagreement betweenthem, to disposeof the rightsthat
Italy possessedas the successorState. In no way could the1919 Treaty
be opposableto Italy,which wasunawareof it andwhich,as soon as it
learntof it, constantly rejecte it.
Probably consciouosf thefragilityof itsargument, the Government
of Chad developeda new one in its Repl(p. 56). Accordingto thisnew
argument, Article16 of the 1923 Treatyf Lausanne sanctionetdhe
renunciationby Turkeyof al1 rightsand title whatsoever over or
respectingthe territories situate outsidethe boundarieslaid down in
the Treaty. Again,accordingto Chad:
"thisrenunciationwas not intendedonly forItaly; it also
relatesto the British Empireand France,likewisePartiesto
the Treaty. From thisit can be concluded thaTurkey's
improbable righttso the territoryoccupiedby Francehave, in
any event, beenextinguishedjust as are thoseit couldhave
had in respectof the Britishor Italian colonies includinig,
the latter case,Libya"(RC,p. 59, para. 2.60),
and the Reply addsthat the 1912 Treatyending thewar between Italyand
Turkey,was tes inter alios actaas against Francand Great Britain,
creatingno obligation towardsthosetwo countries.
Even if it had two crutchesto hold it up, this argument wodot
2 2
stay on its feet. Firstof all,it is beyond dispute that the
1912 Treatyof Ouchyhad the effectof transferringto Italy Turkey's
sovereignty overLibya,even ifthe boundaryof that territory hadnot
been entirelydelimited. Not onlydid the international communitof the timetakenote ofit, but Franceand subsequently Great Brita inso gave
it cxpressrecognition.The formerby meansof a unilateral declaration,
formulatedwithout any reservatiot n,enthroughtheAgreement with Italy
of 28 October1912 (ML,International Accord and Agreements,Ann.11). %
The two States, Franceand Great Britain, went batck that
recognition through Artic 10eof the LondonAgreementof 1915,which
read:
"Al1rightsand privileges in Libyaat present belonging
to the Sultanby virtueof the Treatyof Lausanneare
transferred to Italy."(ML,Vol. 11, Am. 2, NO. 12.)
The recognitionby thosetwo States ofthe ItalianrightsoverLibya
w
arisingfromthe 1912 Treatyis therefore cleaa rnd unconditional.It is
extraordinaryt,o say the least,thatChadshould today be arguingthat
that accordwasres inter aliosacta as against GreaBtritainand
France.
To completethis aspect ot fhe problem,1 wouldindicatethatChad's
interpretatioonf Article16 of the 1923Treatyof Lausanneis mistaken.
For Article 16, as1 have alreadysaid,provides:
"Turkeyhereby renouncesal1 rightsand titlewhatsoever
overor respecting the territories situatedutsidethe
frontierslaiddown inthe present Treaty ..."
But what arethe frontierslaiddown in the presentTreaty? They
are the boundariesprovidedfor in Article 2 conceming Bulgariaand
Greece,and in Article3 concerning Syriaand Iraq; together withthe
cessionof islandsin favour of Greece(Art.12) and Italy(Art.15).
The renunciationof al1rightsand titleby Turkey,giventhe
positionof Article16 in the context of the Treaty,can only concern
thoseterritories. There is not a word thereinon Libya.That goes
without sayinbgecause,Turkish sovereignt havingbeen transferred to
Italyin 1912, Turkey couldnot renounce rightsit had beenwithoutfor
over ten years. Continuing our examinationof the 1923 Treaty, wesec that in
Article22 it containsa provisionconcerning Libya,which hasto beread
in conjunctionwithArticle10 of the LondonAgreementof 1915. Under
the latter, as we haveseen,Italy was substitute in Libyato therights
and privileges at presentbelongingto the Sultanby virtue ofthe 1912
Treatyof Ouchy.
What is certainis that in 1915 Great Britaiannd Franceagreethat
al1 the rightsof theOttoman Empire overLibyaare transferret do
Italy. There is no longer any reservation.And thisis a far cry from
Chad'sinterpretation.
There is neverthelessroom forconjecture as to what the terms
"rightsand privileges at presentbelongingto the Sultan"meant in
1915,sinceItalyhad succeededto the OttomanEmpirein Libya in 1912.
The answer is simple,as the Memorialof Libyaand my colleague
ProfessorCondorelli have shown: the 1912Treatyaccordedthe Sultan
certainprivileges. Heetained,for example,a persona1 representative
and some authority in religioa usfairsregardingthe Muslims. While,by
virtueof the 1915Treaty,the rightswere transferred to Italy,the
Treatyof Londonwas obviously not opposable to Turkey. Hence Article 22
of the Treatyof Lausanneof 1923:
"Turkeyhereby recogniset she definiteabolitionof al1 rights
and privileges whatsoever which shenjoyedin Libyaunder the
Treatyof Lausanneof the 18th October, 1912".
This provision,as we can see, is concernewith recognition of the
transferto Italyof the residual rightt shatTurkeystillpossessed in
Libyaunderthe 1912Treaty. As to Franceand GreatBritain,they had
already recognizedsuch transfer in1915. Examination of the relevant
instrumentsthus showsthe artificial natureof Chad'slegalconstruction. In 1919,as in 1923, Italy possessedthe full legal titleinherited
from Turkey. It was therefore legallyjustifiedin protestingagainst
the Anglo-FrenchTreaty of 1919,which encroachedon its claims. Iwas
moreoverto proteston severaloccasions,as we shallbe seeing.
1 wish to emphasize,and Chad acknowledges amuch (MC, p. 190,
para. 182), that this Italianoppositionto the 1919 Conventionas
constantly reiterateuntil the conclusionin 1935 of the Laval-Mussolini
Treaty.
This attitudeis symptomatic: no State,no government would protest
for fourteenyears againstan agreementwhich, byvirtue of the relative w
effectof treaties,is not opposable toit if itwere notconvinced of
beingquitewithin its rights. Such justification may arisefrom either
of the following grounds:
(1) First, Italynever recognizedthe 1899 line beyond which France
undertooknot to go;
(2) Even if thatwere the case,the Agreementof 1919 is altogether
different from that of 1899.
1 considerthat, in the interests of baetter appreciationof those
protests, the reasoning o the ItalianGovernmentshouldbe examined,as
expressedin its notes ofprotest. W
From theoutset,the firstNote ofthe Italianto the
FrenchGovernment, of 12 December1921, is extremely clear;after
showingthat the 1919 lineis different from thao tf 1899, it adds:
"The above considerations makit impossiblefor the Royal
Governmentto recognize theAnglo-FrenchConventionof 1919."
(MC, Anns.98/99.)
The Italian Noteof protestto theBritishGovernmentof
10 December1921 was draftedin more or less the same terms(ML, British
ArchivesAnnex, p. 137). That the 1899linedifferedfrom the1919 oneis reaffirmedin a new
Italian Noteaddressedto the FrenchGovemment on 27 March 1924 (MC,
Ann. 104). However, this latter Nog tees further,owingto the fact
that the 1919 Convention us the termboundary.
Chadmakesmuch of the use of thisterm in the Convention.In its
view,if the 1899Declaration only delimieed-zoneosf influence, the
1919Convention consolidatt ede proposedline intoan actual
delimitation of a frontier(MC, p. 193).
The resultis thatthisallegedauthentic interpretatioi n, 1919,
of the 1899Declaration had the effectnot onlyof modifying the course
of the line indicatedb,ut alsoof modifyingthenature ofthis line. In
1899,two Statesrecognized their mutualterritorial aspirationb s,t no
more thanthat; in 1919 - againin the opinionof Chad - those
two Statescarriedout a genuine territorial partition thetexpenseof
Italy,a thirdStatein relationto thisagreement. And todait is
maintainedthatthis territoriac lhangeand this changein thenatureof
the 1899 linewas opposableto Italy. The latter immediatel detected
the trap. In its diplomatic Notof 27 March 1924,it stated:
"TheDeclaration of 21 March 1899representednothing more than
an apportionmentof spheresof influence, whereasthe
1919Convention ... is anactual delimitatio onf a frontier.
The spiritof thosetwo diplomatic document is accordingly
different,and onehas to acceptthatthe 1919 Convention
fundamentallmyodifiedthe statusquo arising from the
Declarationof 1899...
The Governmentof Italy,for its part, considers itself
fully entitletdo refrainfromrecognizing the existenceof the
Conventionof 8 September1919." (MC, AM. 105.)
In my view,there is accordinglyno possible doubtthat Italy
recognizedneitherthe change in the courseof the line, norits
transformatioinntoa boundary. None of the argumentson whichChad
basesits contention thatthe 1919boundarylinewas opposableto Italy
standsup to an analysisof the facts. Consequently,the Govenment of Chad cannotrelyon Italy9salleged
acceptanceof the line arisingout of the 1899Declaration as resulting
in the opposabilitoyf the 1919line, sincethe lattermodifies both the
courseof the formerlineand itsverynature. a
The argumentthat the1919Convention doesnot modifythe
---
1899 Declaratiobnut interpretsitaccordingto theoriginalintentionof
- - 27
the parties(MC,p. 194) is equally unfounded.
Italyhad no reasonto be concerned with the parties'intention in
concluding the 1899 Declaration,n intentionof which it obviouslycould
not be aware, nothavingparticipated in itsnegotiation. Only thtext
v
of the Declarationcouldbe of concernto Italy; but thistext
-whatever may be saidabout it - in no way foreshadowetdhat ofthe
1919 Convention ,hich- as we have seen- departsfrom it and is
accordinglyres inter aliosacta for Italy.
The Italianpoint ofview wasto be reiterated on severaloccasions,
in particularat the time of theFrenchmilitary incursion into
Tibesti. In its Note of protestof 19May 1930 (MC,Ann. 125),the
Italian Government remindedthe French Governmentthat the latterhad, in
1902,recognized thetthe 1899 Declaration betweF enanceand England
marked,for the French sphere of influencein relationto Tripolitania
and Cyrenaica, a limitwhichthe Government of the Republicdid not
intendto overstep. ThisNote reverted to the fact thatItalyhad never
recognized the Conventionof 8 September1919,as it had profoundly
modifiedthe 1899Declaration, both in its legaland in its territorial
content. The Notewent on to Say:
"this pointis establishew dithout anyprejudicewhatsoeverto
the rightsarising in Italy's favour o outArticle13 of the
Pact of London of... 1915". Hence,over the years,the Italian positio remainedconsistent:
the Conventioonf 8 September1919 is not opposableto it.
ühat did Francereplyto this? It will comeas no surpriseto you
that theFrenchcontention corresponds broad toythatof Chad,as set
2 8 forthin its pleadings. There werenumerousFrenchdiplomatic notes in
- -
replyto the numerous Italianones.
The Frenchcontentionis clearlyset forthin the Noteof
7 February 1923(MC,Ann. 102). It firstof al1 refersto the Exchange
of Lettersof 1 November 1902,in which it is observed that
"oneshouldtake the limitto Frenchexpansion ...to be the
frontierof Tripolitaniaas shownon themap annexedto the
Declarationof 21 March1899, completing the Franco-British
Conventionof 14 June 1898".
Furthermore- accordingto the French Governmen-t the course of the
north-eastern line, beii ngdicated bdots, wasnot a definitive one.
This is particularlyso sinceparagraph3 of the 1899 Declaration before
describingthe line,stated: "It is understood, in principle."
It was furtherthe French Government's view thtahe 1919 Convention
in no way modified the provisioons the 1899 Convention,s is apparent
from its last paragrapw h,ich says so in soany words. And, after
analysing thenew line, the Notegoeson to Say:
"Thisinterpretation, sc olose to theprovisional linoen
the 1899map, slighlyenlargesthe French zoneof influence at
theexpenseof theAnglo-Egyptiad nomain. However,the spirit
of theLondonDeclaration of 1899is respected- and the text
of that instrument didrovidefor that interpretation."
Let us not overlookthatthis Note recognizes the verslight
enlargementof the French zone ofinfluence.But, in its Noteof
21 June 1924 (MC,Ann. 107),the French Government dismiss ehe Italian
argumentthatthis slight territorial increi asfavourof France
amountedto about180,000sq. km. "A few hundredkilometresat most", the French Notemaintains. In
its Note of 5 March 1930(ML,ItalianArchives Annex,p. 701, the French
Governmentasserts:
"the line which,to the eastof Toummo, marksthe limit of the
Frenchpossessions is the line definedby the Franco-British
Agreementof 9 September 1919 interpretin the Franco-British
Declaration of21 March 1899,recognizedby Italy under the
termsof the Franco-Italian Agreemen tf 1 Hovember1902".
Up to this point, thereis some consistencyin the Frenchposition,
even if it is legallyunfounded. But then,threemonths later,the
FrenchGovernment changedits position. It did so by theNote of
25June 1930 (MC,Ann. 127). Accordingto the latter,the 1902 Agreement
between Franceand Italy madeit clear that theterritoryclosedto
Frenchexpansionwas delimitedby the boundaryof Tripolitania, shownon
the mapappendedto the 1899 Declaration. And theNote goes on to say:
"However,an examinationof the said map shows that the
territoryin questionruns fromToummo towards the north-east
up to approximately25O latitudenorth,and thereafterruns due
north. The line defined by Article 3 of the Franco-British
Declaration of1899 coincides with this boundaryat its
intersection with the Tropicof Cancerbut does not cross it,
so thatthe territories which it dividesbetween France and
Great Britain are situated entirelyoutsidethe area reserved
for Italy."
It followsfrom this that the line arisingout of the 1919Agreement
couldnot prejudiceany Italianright.
Hence this line- allegedly opposablt eo Italyunder the
1902Agreement - this line,as 1 was saying, has disappeared;
it no
longerhas the slightest importance ,s in anycase it was situated
outsidethe area reserved for Italy. This is a realconjurer's trick
which deservesapplause.
In any event,the French stance undoubtedl wavered. 1 find
evidenceof this ina letterof 7 August 1928 (ML, FrenchArchives
Annex,p. 360) from de Beaumarchais,FrenchAmbassadorin Rome,to the* FrenchMinisterfor Foreign Affairs, Briandi,n which theAmbassador
givesan accountof a conversationhe had hadwith Mussolini about
negotiations on, inter alia, theLibyanboundary. De Beaumarchais
proposedthatthe oasisof Djadoshouldbe incorporated intL oibyan
territory,but undertwo conditions:
(1) Recognition byItalythatFrancehad fulfilledthe requirements
of the Treatyof Londonof 1915; and
(2) Recognition by Ital of the 1899Agreementrelatingto the
Tripolitanian boundaries.Finally, the Ambassador add thathe had
pointedout to Mussolint ihat "itwas necessaryto definitively determine
the boundaries of Our respectivpossessions".
We must be dreaming. France,which maintainei dn variousdiplornatic
notesthatItaly hadrecognized the so-calledpartitioningof influence
between France and Great Britainis now askingfor such recognition,and
not ofthe 1919 Agreement - whichwouldhave been naturals ,inceItaly
had never recognizedit - but of the 1899one. This is not a runof the
mil1 Frenchinterna1administrativN eote,but an officia1demarcheby the
FrenchAmbassadorto the ItalianHead of State. To tellus today,as
Chaddoes,that theFrenchposition was an invariable oneand thatthis
famous1899line wasopposableto Italy from 1902 onwardsis to distort
reality.
But, independentloyf theserepeatedchangesin the Frenchposition,
the argumentthat the1919Treaty,whose origins go back to the Treaty of
1899, wassituatedentirely outsidethe area reservedto Italy,should be
rejected. One has to choose: eitherthe 1902Agreement concerned both
Tripolitaniaand the line stemmingfromthe 1899Agreement, or it
concerned Tripolitaniaalone. In the former case,it scarcely needs
sayingthat theline stemming fromthe 1919Treatyencroached upon Italy'srights,sincenot only was the course modified to the
disadvantageof that State,but its very naturewas modified. Or the
1902 Agreement concerneTdripolitaniaalone, butin that case theFrench
argumentoverlooks thefact thatin 1912 Italy had succeedet dhe Sublime
Porte inthe regionwith respect toal1 its rights. This succession was
recognizedby France in 1912 and by Franceand Britain in the Treaty of
1915.
Say what one will, this alternativecannotbe circumvented.
Regardlessof which of the twosolutions onechooses,the inescapable
conclusion isthat the1919Agreement affecteI dtaly'srights andthat
Italywas therefore justifiedin its protestsand its refusa1to
recognizeit.
Mr. President, Members of the Court, in its writtenpleadingsLibya
has shown deep divergences betweenthe Britishand French attitudes
regardingthe protestslodgedby Italy after the Agreement 1 of19.
As to Chad, it has sought to minimizethem in order to reachthe
conclusionthat the positionof these two States wasin fact one and the
same. However, facts are facts and the divergence exists,s 1 shallnow
underline byanalysingthe Britishstance.
As 1 have just indicated,on 10 December1921, Italy addressed a
note of protestto the British Government statit ngat it couldnot
recognizethe 1919 Agreement, for the same reasonsas those set out in
the memorandum of 12 December 1921 addressed t the FrenchGovernment,
and alreadyanalysed.
Contrary to FranceB ,ritainis much less sureof its case in
relationto the 1919Agreement. Incidentally, you will findinterna1
British memoranda examiningthis problemin the annexesto theLibyan
Memorial (British ArchivesAnnex, pp. 138-149). From the outset
(p. 138), it is stated that: "In this longand very complicatenote the Italian
Ambassadorhas put his fingeron a certaindiscrepancy between
Our Conventionwith Franceof March21st,1899,and
September 8th,1919relatingto the frontierbetwenBritishand
Frenchpossessions in North-EastAfrica."
On the followingpage, this internal memorandum acknowle thaes,
at the timeof thenegotiationsfor the 1919 Treaty,it was not known
whetherits effectson Italianterritory had been takeninto account,but
itis achowledgedthatthe effectof theTreaty wasto extendthe French
territoriesin the region. And thenote adds:
"On the otherhandwe are partiesto theAnglo-French
Conventionand as such,the Italianshave a rightto protestto
US."
. -.
The same internal memorandugoeson to state,and thisshowsthe
33
- - embarrassmentof the British administratiot n,at it is necessaryto
consult the FrenchGovernent and thatItalycouldbe told, inreply,
that thecourseof the 1899 line gave a generi aldication ofthe
frontier, whichwas interpretedand clarifiedin 1919. But the authorof
thememorandum is underno illusion,forhe adds: "The Italiansare not
likelyto accept this argument."
And takingthe Italianclaimsseriously, he adds:
"Moreover,if we should proveto be wrongand theItalians
rightwe shouldbe in the positionof havingcededto Francean
area to whichwe had no title." (ML,BritishArchivesAnnex,
p. 143.)
Mr. President,Membersof the Court,1 do not thinktoo much
importance shoulbde attachedto internalmemorandaof national
administrations,sincetheir probativf eorceat the international level
is relative; however,theycan givean indication of the circumstances
in whichdecisionswith genuineinternational repercussionsare taken.
In the event,thesedomesticmemoranda merels yhow that the British
administratioins not quitesurehow to replyto the Italianmemorandum, that it is not sure of its rights, that it acceptsat,in 1919,there
was a changein relationto the 1899 Agreement,sinceit recognizes that
territorywas cededto France.
At al1 events, and thiiss what interestuss, the officia1British
replyto theItalianmemorandum doesnot seek to justifythe 1919
Agreement,sayingthat the courso ef the lineof the 1899 Agreement gave
only a general indicatio of the frontierw,hichhad therefore been
interpreted and clarified; as we haveseen,this wouldhave beenin
accordwith the Frenchargument. No, the British memorandumis on more
solidlegalgroundand basedupon a solutionrecommended withinthe
administration (ML,British Archives Annep x,. 147-149).
This British replyof 5 February1923 to the Italianprotest
deservesto be quotedin detail(itwill befoundin the Memorial of
Libya, ItalianArchives Annexp ,p.38-40). It conformsto the Libyan
position. Indeed, accordint go this memorandum, thewres no question
that the Declaration of March 1 and9theTreaty of 1919 "Could inany
way dispose of territory belonginto a third power", an adds thatthe
Declaration of 1899:
"merelydeined the limito sf two spheres ofpolitical
influence ... The situation isnot inany way changeb dy the
conventionof 1919 ... Thisbeing thecase,the convention
doesnot and couldnot disposeof any Italian territor at al1
and if any of the area comprised betwetene two linesreferred
to in the Anglo-Frencdeclaration of 1899and the agreementof
1919 respectivelyis in factItalian territory, the righ ofs
yourExcellency's government ov thatportionof the area are
unaffectedby the convention".
In conclusion,the British memorandum adtdsat:
"If the Italian Governmehntve any rightsof sovereignty
in the areain questionthey can onlyhave been inheritedfrom
the TurkishGovernment."
The BritishGovement was subsequentlt yo adhereto its analysisof
the legal situatio in the region. Libyahas shownin itspleadings how far the Britishposition
divergedfrom theFrenchone. Chadhas soughtto minimizethis
divergence, thougihtis quiteunmistakable.
Franceconsidersthat theTreatyis no more thanan interpretation
of the Declaration of 1899thatit doesnot altermuch in the caseand
that,anyway,Italy isboundby..the.190 Agreement.-0n.theotherhand,
TheAgreementof 1899and
Britainreservesal1 Italy'spotentialrights.
the Agreementof 1919"couldnot disposeof any Italianterritoryat all"
and, furtheron,neitherof thesetwo conventions "couldin any way
disposeof territorybelongingto athirdPower."
* 35 Moreover,it will benotedthatit is State successiot nhat forms
the basisof the Britishposition. If Italyhas rights,theirorigincan
only bethosepossessed by Turkey. In its diplomatic memorandFrance
is silenton thispoint. Havingsaidthis,the British memorandumadds:
"Thequestion whethearny ofthis areaia Italianterritoryis one of
fact,in whichthe onusof prooflieson the ItalianGovernment."
Thereis no doubtthat the burdenof prooffallsupon the party
asserting the existen cea fact. Buhere, inmy pleading,the problem
is not whether Italyad or did not have rights inhe disputearea,the
problemis the effectof the 1919 Treaton the rights Italyclaimed to
possess. Now, contraryto France,which considertshatthis Treatycan
be invokedagainstItaly,Britainis of the view thatit couldhave no
effecton any possibleItalianrights. This is what mustbe stressed
today
The divergence between Franaced Britain is importanalsoas
regardsthenature ofthe line. It will be recalled that,amongother
grounds,Italyhad justifiedthe inopposabilit to itof theTreaty of
1919by reasonof the change itnhenature ofthe line. - 24 -
How doesBritainreplyto this arguments ,inceFrancedoesnot?
Again in thememorandumquoted, the ItalianGovernment pointosut that
the 1899Declarationmerelydefined the limits t ofo politicalareasof
influenceaddingthat: "Thesituationis not in any way changedby the
conventionof 1919."
Membersof the Court, this i aslong way from the Frenchthesis,a
longway froma frontier, for we are stillin the contexotf an
apportionmentof areasof politicalinfluence;and 1 believethe tenn
politicaishouldbe noted. At al1 events,in theview of the British
. .
Government, therweas neverany territorialapportionment. And awee
36
- not claiminganythingelse. Libyamaintains thati ,n 1919,no frontier
delimitationwas made,and thatif it had been,it was notopposableto
Italy.
In orderto explainthisdivergence of interpretation between France
and Britain,Chadhas put forwardan argumentwhichis surprising to Say
the least. We aretold,you are told, Membero sf the Court,that the
Britishinterpretation ie sxplained by the fat ctat, ultimatelaynd
contraryto France,Britainwas notparticularly interesti edthe region
(CMC,pp. 321-322). A curiousargument. If my understanding is correct,
the interpretation give by Franceto the Treatyof 1919should be W
preferredto thatgivenby Britain,becausethe formerhad major
interests in theregionwhich isthe subject ofthe present dispute.
This is a novelmethodof interpretinT greatieswhich willbe sought in
vain in the 1969ViennaConvention on theLaw ofTreaties. In fact,it
is the opposite interpretati thnatshould beadopted, giventhe
self-evidenttruththatan uninterested State willoffera more objective
interpretation. Inaddition,when one isconfrontedby divergent interpretationi st,
is the onemost in keepingwith the elementaryprinciples of
internationallaw that should beadopted.
The Britishinterpretation has the merit of simplicity. It is
supportedby two pillars:
(1) The Declarationof 1899.resulted.in-an-apportionmei ntto tvo
areasof politicalinfluence;
(2) The Treatyof 1919 couldnot alter thisstateof affairs in any
way, nor prejudiceany possible rights that Italypossessedin the region
as heir to the rights of the SublimePorte.
The first argument complie with the principle thattwo States
37
. - cannotsharea territoryoverwhich theyhave no right. Let us not
forgetthat in 1899,neither Englandnor France waspresentin the region
concemed .
The second argument adhere to the least disputed principle of
internationallaw, namely,the principleof the relativeeffectof
treatiesand the principlo ef the successionof States interritorial
matters.
The Chadianinterpretationo ,n the otherhand, isthe productof
veritable legal acrobatics. Accordingto this interpretation, Italy
having in 1902recognizedthe 1899 apportionmeno tfareasof political
influence,in 1919 it must recognize: (a) a genuine frontier
delimitation, whichwas the logical consequenceof thispolitical
apportionment;(b) a changein the courseof the 1899 line, since this
linewas uncertain.
1 have alreadysaid and 1 reiteratethat to allow the thesisof Our
honourable opponenti ss to fly inthe face of the principleof the
relativeeffectof treaties. To acceptit is to abandonone of the most
solidrulesof international law. Thus,1 believe1 'haveshownthatthe Treatyof 8 September1919
between Franceand Britain doesnot have theeffectof establishing a
frontierwhich can be opposedto Italy. In1919,as before, the
situation has not changed,and thereis stillno frontierdelimitation in
the region,which question formt she subjecof the disputebeforeyou.
1 shallpauseonlybrieflyon the 1924 agreement-betwee Britainand
Franceand thatof 1934between Britain and Italy.What happensin
1924? In accordancewith the Declaratioof 1899,a Franco-British
Commissionhad the task of delimiting the frontibertween French
Equatorial Africaand theAnglo-EgyptianSudanon the ground,in
w
conformitywith the indicationgsiven inparagraph 2 of thatDeclaration,
as amended by the Conventio on1919. The Agreementof 10 January1924
takes noteof the work of that Commission.Althoughthe Commissionhad
followed the indicatioi nsparagraph2 of the 1899Declaration, the
demarcationof the frontiershouldhave ceasedat the pointof
intersectionbetweenlatitude 15'45'and 24" longtitudEeast. But the
Commissioncontinued well beyondthatpoint since,accordingto the
1924Agreement(CM, Sec. VIII,para.g, Ann. No. 10):
"Fromthe intersectioonf thewadi and the 24thmeridian
the frontier followtshatmeridiannorthwards upto the point
where it meets the parallelof Latitude19" 30' North".
Hence,the 24th meridian, which wato have beena limitof the
Frenchpoliticalzone,becomesan actualfrontier, complyin gn this
respectwith the 1919 Agreement,the pointreached by thelinedeparting
from theTropic ofCanceris fixedat parallel1g030',which,as we have
alreadyseen, substantiallyencroachedupon the rightsthat Italyclaimed
to have in the region. It will thereforecome as no surprisethat, in a diplomatic
memoranudmof 28 February1924 to the British Government, Itap lyotests
both against the Treat of 1919 and against this demarcatioonf the
frontier (LM, British ArchivesAnnex,p. 180).
At first sight, there is certain alcontradiction between the
British position conveye to Italy-in.the.British.diplomat memorandum
of 1923,accordingto which the 1919 Agreement cannot possibly aff thet
rightsof the latterin the regionand this 1924Agreement. The reasons
for this contradiction esca pe, Membersof the Court, but this
contradiction is of virtuallyno consequencelegally.
In the contextof international relationw s,ere Italyis concerned,
al1 that countsis the British attitudt eo it, namelythat the agreements
between Britainand Francecannot possibly prejudiceItaly'srights in
the region. In any case,by virtueof the principle of the relative
effectof treaties, the 1924Agreement, like the Agreemeo nt 1919,is
not opposableto it, al1 the more so sinceItaly protests.
Franceand Britain can therefore delimit, demarcaa te many
frontiersas they like,yet thesemeasures are completely devoo idlegal
validity sincethey encroach upon the rightsof anotherState. Moreover,
the demarcationceased at the 1g030'paralleland does not continue
westwards,which shows that, in the view of Franceand Britain, this
segment didnot constitutea frontier.
The aim of the Treatyof 20 July 1934between Britain, Egyp tnd
Italy is to delimitthe frontier betweenSudanand Libya and its purpose
is to make it clearthat the SarraTriangle belongs to Libya. The
negotiationswhichprecededthis Agreement havb eeen describedin detail
in the LibyenMemorial(pp.303-314)and there is no point in going over
them again. They showthat Britain recognized that i,n 1899 and 1919
therewas nothing buta delimitation of zonesof influence between France and itselfand thatItalywas presenting itselfas the successor Statto
the rights ofTurkey. But whatseemsto memore importans ttillis the
actualtextof the Treaty.
"Startingfrom the pointof intersectionof 25thmeridian
east of Greenwich witparallel22" north,the frontierfollows
the 25th lineof meridianin a southerldirectionas far as
its intersectiowith parallel20" north; from thispointit
follows parallel0"north.in.a.wester1y.directa iofar as
its intersectiowith 24thmeridianeastof Greenwich;from
thispoint,it followsthe 24th meridianeastof Greenwich in a
southerly directioas far as its junctionwith the frontierof
Frenchpossessions". (LM,International Accord and Agreements
Annex, No. 24).
Thisprovisionof the Treatymust be read in association witah
passagein the Officia1 Communiquof the three governmentswhich is now W
being projecteodn the screen(No.62 in the GreenFile). Let me draw
your attentionto the terms"stillto be fixed",which showsthat in the
mindsof thesegovernments, the frontier line witthe Frenchpossessions
has stillto be delimited.
But one of the signatorieis not justanyone. It is the British
4 1
Government,boundby the Agreementsof 1919and 1924with France.
By expressingitselfas it doeswhen concluding the Treatyof 1934,
the BritishGovemment showsonceagainthat it hasneversoughtto
encroachupon Italy'spossible rights.The limitof Frenchpossessions
is not determined.Accordingto the Treaty,it shouldbe situated
somewherealongthe 24thmeridianin a southerly direction. But where?
It is a mystery.
Hence,at least accordint go thehistoricalbackgroundto this
question,three pointsare possible alonghe 24thmeridian. Eitherthe
pointof intersectionwith the19"30*parallel. But surely notfor
Italy, whichhad protested abouthe 1919 Agreement.Or the one
resultingfrom theYellow Book,namelylgO,or lastly,the 1899courseof - the political zone of influencewhich leadsto the 15O35'parallel. But
other linesare also possiblb eearingin mind Turkey'srightsin the
region.
Membersof the Court, there mawyell bea degreeof incoherence in
the British andFrenchpositions regardina g possible delimitatioonf the
possessionsas betweenFranceand Britain in.the.region. Hy.purposehere
is simplyto showyou that theseincoherences can only be explainedby
the fact that therweas no delimitationand that,if Britainand France,
through the 1919 and 1924Agreements,had wishedto arriveat one, this
delimitationwas not opposableto Italy. The 1934Agreement is
additionalproofof this.
Examinationof the periodbetween 1919 and 1934 shows that the legal
situation regardintghe delimitationof the frontier between Francand
Italyin the areain question, through tht ewo Treaties of1919 and
42
thoseof 1924 and 1934,remainedwithouteffect. There wasno frontier
in 1919,and there is stillno frontier in 1934.
You now have beforeyou a geographical ma(Map No.63 in the Green
File),which showsin 1934the frontiers resulting from the Agreements.
To theWest, the frontier is delimited as faas Toummo, asit is in the
eastbetweenItaly,Egypt and the Sudan. Everything still remain to be
done in the southbetween Italyand France.
Mr. President, Membersf the Court,it remains forme to consider
the Franco-Italian negotiations leadt inthe conclusionof the Treaty
of 1935; theyhave beenexaminedin detailin theLibyanwritten
pleadings and, not wishinto overburden my statement, may, most
respectfully, refeyrou tothosepleadings (ML, pp. 280-302and 314-323).
Thankyou Membersof the Courtfor your attention. May 1 now ask
you to give thefloorto my colleagueLuigi Condorelli, after th morning
breakperhaps. Le PRESIDENT : Je vous remercie Monsieu Cahier. Je pensequ'il
convientpeut-êtremaintenant de prendreune pause avant l'intervention
de M. Condorellijusqu'àla finde la matinée. Je vous remercie beaucoup.
The Court adjoumed from 11.20 -to 11-30a.m.
Le PRESIDENT : MonsieurCondorelli.
Mr. CONDORELLI:
Introduction
Mr. President, Membero sf theCourt,in takingthe floorbeforeyou
again,1 should like to beginby announcing the topicsto whichmY
pleadingwill relate today.
Firstof all,1 intendwithyour permission to suspendthe
historical sequence o efvents for ashort whileand to referto the
geographic maps of Libya fromItaliansources. My aims to determine
whetherit is true, asChadasserts,thatthesemaps confirm the
acceptance by Italy ofthe 1899 orthe 1919lineas thesouthernfrontier
of Libya, or whetheb ry anychance thesemaps do not provethe exact
opposite.
After this study ot fhemaps, in the second partof my pleading1
shalltakeup thehistoryof the disputeat theexact point at which
Professor Cahier stoppi ed his pleading a momenatgo. My taskwill be
to presentto the Court the Rome Agreementsof 7 January 1935, witah
view to showingthat,even though the 1935 Treatydid not finallyenter
into forcein the absence ofan exchangeof ratificationst ,he * Mussolini-Laval Agreementsprovedquite clearlyand definitivelya
conclusionwhich was inany case already self-evidei ntview of al1 the
proofsprovidedby the studyof earlierevents,namely,that before 1935
no frontier had been definedto separatethe Frenchand Italian
possessionseast of Toummo.
In the thirdpart of my statement 1 shallthen-examinesome of the
eventsthat occurred after 1935, in orderto show that thesubsequent
practiceof the Partiesconcerned laterconfirmedthe absenceof a
frontierin the regionin question.
-.
Finally,in the fourthand last part, 1 shalldeal with the Treaty
. - 44
of Peace of 1947and its effectson the present dispute.
PART 1
"THE ITALIANMAPS
1. Concerningthe Chadianargumentthat Italyrecognized the map
appearingin the Livrejaune
Mr. President,Libya'sprevious pleadingh save shown that Italy
never recognized eithet rhe line inthe map published in the Livre
jaune of 1899 or that ofthe Franco-British Conventio of 1919,and in
particular never agreedto considereitherof these lines as the southern
frontiersof Libya. This demonstration will now be supplemented by the
studyof maps of Italianorigin which fullyconfirmits results.
It is true that Chad in its Reply claimsthe contraryto be the
case. Its argument isthat after1902,Italy itselfadoptedthe map in
the Livre jaune and used it in its negotiationswith Great Britain,
being perfectly aware o the fact thatthe map inquestionhad not been
annexedto the 1899 Declaration. But letus at onceexamine the basis of this argument. On page 55
of its Reply, Chad gives a rnapwhichnow appearson the screen. This is
apparentlya partialextractfrom the mapin the Livrejaune, except
that theinsetidentifyingthe variousboundarieshas disappearedand
Italianwordinghas been added in two places, in particularwith regard
to the legend"Anglo-French Declarationof 21.March1899". As you can
. -
see, this legend follows th east-south-eastlinewhich,both in the rnap
- 45
- in the Livre jauneand in this one, misrepresents td hee south-east
line ofArticle 3of the Declaration. You can thereforesee that it is
the same line that appearsin both cases.
Let us now go back to the rnapwhich appearsin the ChadianReply.
The fact thata rnapcontainswords in Italian hardly provea snything.
To derivefrom it any indication of the Italian position,it shouldbe
proved thatthis is an officia1Italianrnapand that ithas been used
by Italyto imply recognitioo nf both the boundaries traceodn it,
particularlythe one of interestto Chad. But our opponents carefully
refrain from proving anythio ng the kind inthat connection.
Where does thisrnapcome from? Its provenanceis indeedunknown.
Chad foundit annexedto a ForeignOffice memorandum concerning certain
discussionsin 1911between Great Britai and Italyon the frontier
between Libyaand Egypt (RC, Ann. 23). This memorandurcnontainsa
referenceto an Italian diplomatin cote,but it is not stated whether
thisnote was accompanied by amap; inany case, Chadhas not annexed
the Italian note. But even ift were admitted for th eake of argument
that thernapin questionwas reallysubmittedby an Italianembassy,
it wouldquiteobviouslyhave relatedto a document used to illustrate
Italy'sposition concernina g frontier which had nothintgo do withFrance,in the contextof negotiation witah State otherthanFrance.
Moreover, thereis no mentionof thenatureof the variouslinestraced
on thismap.
Membersof theCourt,you may well ask whyChad is makingso much
of an elementas dubiousas a map of uncertainorigin,with an ambiguous
Why does Chad
content and comingfromthe archives-ofa..third-country.
rathernot base its analysio sn the many officia1talian maps obefore
and after 1912? The answeris simpleand devastatingfor Our opponents:
it is thatal1 the Italian mapswithout any exception, radically
contradict the allegatio ofsthe opposing Party.Indeed, just likethe
Britishmaps which were show to you by my colleagueMr. Sohier,the
Italian maps shotwhat thelineof Article 3 of the 1899 Declarationuns
due south-east,not east-south-easta,nd clearlyestablishthatno border
line is concerned. In a moment,1 shall havethe pleasureof showing
thesemaps and commentingon them,particularlysince,oddly enough,
Chadseemsto be unawareof their existence.
Before doingso, however,1 shallSay a few wordsaboutan argument,
not cartographicablut related,that theChadian Replyhas derivedfrom
repliesto a parliamentariynterrogatiognivenon 12 December1914by
the UnderSecretaryof Statefor the Colonies,Mr. GaetanoMosca,at
a meetingof the Italian ParliamentRC,Ann. 28). The questionwas
whether an oasis nearhâtwhichhad been occupiedby the Frenchbelonged
to France orto Italy,and the representativoef the Italianovernment
indeed referreidn the groundsforhis reply,both to the
Franco-British Declarati ofn 1899 anto themap "drawnup subsequently"
to the Declaration,inorderto justifythe Italianpointof view.
Accordingto Chad,thisis supposedto provethe importancw ehichItaly
attachedto the 1899Declaration. Frankly,Mr. President,it is hard to sec the logicof this
47 -
argument,which bears no relationto the territorythat is the subjecof
the present dispute. Firstof all,Mr. Moscadoesnot specifythernapto
whichhe is referring.Secondly,it is perfectlyobviousthatMt. Mosca
is referringto the areaof Ghât, oran oasisnear Ghât,whichis in the
westernpart of Libya,on theAlgerianside,not .in-the south: the
be it the onein the Livrejaune or any other,
referenceto themap,
therefore relates onltyo thewesternpartsof Tripolitania, not to the
southernboundary; in otherwords,the lineto whichMr. Mosca refers is
not that ofArticle3 of the 1899 Declaration ,ut the undulatingline
surrounding Tripolitania, which noitsmentionedin any provisionof the
Declarationand which hasneverbeena frontier in the legalsense,
since,as you haveheard,it served as a simple geographic indicato ion
a boundarywhich Francehad undertakennot to cross. It shouldbe borne
in mind in thisconnectionthatMr. Moscacouldnot havereferredto such
an undertaking,sinceit derived from th 1900-1902Agreements which were
still secretat that timeand which,as Libyahas shown, had nothingto
do with southern Libyabut related tothe West. And we should also
rememberthatin 1912Italy still believedwhat France had wrongt loyld
it in1902,namely, that amap was annexedto the 1899 Declaration,
whereasthatwas notthe case.
To tell the trutht,he ChadianReply containsthe curiousassertion
that asentenceof the statementby the ItalianUnderSecretaryof State
impliedhis "perfectknowledge ofthe circumstancesin whichthe 1899 map
had been prepared( "RC,p. 36,note 6). But thisargumentis not very
. .
48 serious,sinceit is basedon a mistranslatioonf the originalItalian:
Mr. Moscareferredto a map (theone in the Livrejaune?) prepared - "pursuant"("inseguito"in Italian) to the 1899 Declaration,and not
"after"this Declarationa ,s Chad alleges(wronglyonly on page 36, since
the correct translatio is giventwo pages further on). The term is
thereforenot "after",but "pursuantto" ("à la suite"in French)and
this term does not necessarilyimplya sequencein time,and in the case
at issue thewords serveto establishthe connectionbetweenthe
Declarationand the rnap: the fact is thatMr. Moscanever suspectedthat
the rnapallegedlyannexedto the 1899 Declaratiow nas in fact afanciful
inventionof Frenchdiplomats:
2. The officia1Italian maps
1 now come to the officia1 Italianaps, whichcan well enlightenus
about Italy's opinionson the questionof Libya'ssouthernborder. Here
we have on the screenthe rnapof Africa publishe dy the ItalianMinistry
of ForeignAffairsin 1906,or fouryears afterthe Franco-Italian
Agreementof 1902. (Thernapappearsin the Libyan Reply,and under
No. 69 on your file.) Severalof the linesappearingon thisrnapare
identified: first,the line representin the Ottoman claimsof 1890,
then a line surrounding Tunisiaand goingas far as Ghadamès(the reason
for this lineis that thernapantecedesby severalyears the 1910Treaty
on the Frontier between Tunisiaand Libya); to the eastwe see,
interalia, the ButrosGhali-Cromer line o f899,separating Egypt from
the Anglo-EgyptianSudanalongthe 22nd parallel:we can also see the
@ linesof the 1899Anglo-French Declaration, in which the line of
Article 3 is represented asrunningdue south-east; and with regardto
the line of Article2, two partsof it are marked, whereasthe one
betweenthe 11th and 15th parallelsof northernlatitudeis stillto be
defined. Membersof theCourt,you will noticethat theundulatingline which
surroundsTripolitaniain the mapin the Livrejaune does not appearon
The general profileof Tripolitania, Cyrenaicaand Fezzanis
thismap.
shown in yellow,whereasthe areato the southand west of the line in
Article3 of the 1899Declarationis shown in white,with a legend in
Italianreading: "areaclaimedby Franceand by.TurkeyV'.
Mr. President,thismap alone showshow erroneous arethe Chadian
allegations concernint ghe significanceand effectsof the Franco-Italian
Agreementsof 1900-1902. One glanceshowsus visually, first of all,
that in 1906 Italyin no way recognized thata frontierof Tripolitania
had been established in 1902. Secondly, Italy notetdhat the
Tripolitanian hinterland was stiltlhe subjectof a dispute between
Franceand thePorte,and that this dispute shoult dhereforebe regarded
as remainingto be settled. Thirdly,it is obviousthat in1906 Italy
was convinced that the line in Article3 ran duesouth-east,and
consequently attachedno importancewhatsoeverto the east-south-east
line appearingin the map inthe Livre jaune. Fourthlyand finally,
from the Italianpoint of view this last-named lin was certainly not
supposedto representa delimitation between Ottoman possessions and
thoseof France,since the territoryto the south-westwas said to be
claimedby both countries.
Let us now turn to another mapnow shown on the screen,that
publishedby the ItalianMinistry ofForeign Affairs in 1912,whichLibya
has givenin its Reply and which appearon your file as No. 70. Among
the linesdrawn in differentcolours,thereis the frontier between Libya
and Tunisiawhich wasthe subjectof the 1910Agreementand which runs
as far asGhadamès. Here again,we donot see the undulatingline
surrounding Tripolitani in the map ofthe Livrejaune,but above al1
the line of Article3 of the 1899 Declarationis once again represented as runuingsouth-east. The same appliesin connectionwith this linein
the 1917map of the Ministry for Coloniew s,ich Libyareproducedin its
Replyunder the symbol LR-16.cand whichyou can now see on the screen
and in No. 71 of your file.
It is surprising,Mr. President,thatnone of the officialItalian
maps that 1 have just shownappearamong the 162 or-so.maps in the
cartographical atlas accommpani the ChadianCounter-Memorial, and that
in spiteof the fact that, for example,the 1906rnapis specifically
mentionedin the documents producedby both Partiesto thiscase. It is
even moresurprisingthat,as we have seen,Chad on the contrary refers
to a truncated copo yf the rnapn the Livrejaune,a copy the source of
which is unknown and the probativeforceof whichseems to dependon the
fact that some Italian wordsappearon it!
But let us go on lookingat themaps, turning to another officia1
rnapthat thatis being shown onthe screen,the one publishedby the
ItalianMinistryfor Colonies in 1926 (No.72 on your file). It is now
ten years later,and thewesternfrontierof Libyahas been established
up to Toummo, sincemeanwhilethe Franco-Italian Agreemen of 1919has
been concluded, asMr. Cahierhas toldyou. But nothingis shom east of
Toummo, sinceno delimitation was tracedpreviously. It will be seen
that on thisrnapthe line of Article 3 of the 1899 Declaration nolonger
appears,but the frontierwith Egypt establishei dn 1924,or two years
earlier, naturally appear in easternLibya.
Let us turn to yet anothermap, the officia1ItalianMap 2 of 1937,
reproducedin the LibyanCounter-Memoriaa lnd in No. 73 of your file.
This timewe see the line ofthe Treatyof Rome of 1935, which1 shallgo
on to discussin a moment. 1 have takenthe libertyof drawingyour
attentionto thisrnapand slightly anticipatint ghe following
considerations in orderto completethe cartographical analysis without * interruption,and also to point out that the one we now see on the screen
is indeed theonly the Italianofficia1rnapwhich does appearin the
Chadiancartographical atlas: it is indeed an extraordinary coincidence
that ouropponents havefoundin theirsearchof the archives only one
officia1Italianrnapwhichwas harmlessto their cause, and have not come
upon any one of thosewhich are seriously.prejudicia1.to.thea irguments.
And now let us go on to the last two maps, first, theone dated 1939
whichyou see here and which correspondsto the one publishedin the
LibyanCounter-Memorial as map No. 54, and then the one of 1941, which
. K7 appearsas No. 74 in your file. 1 do not needto dwell at length on
Jr,
thesetwo maps,for like the 1926rnapwhich 1 showedyou a few moments
ago, they do not containany lineseast of Toummo: since the Treaty of
Rome never finallyentered into force,it was only naturalto indicate
again the absenceof any frontier in the region.
3. The incidentof the Italian school rnapof 1930
Mr. President,Membersof the Court,so far 1 have spokenabout the
officia1Italian maps,but there is anothermap, this onequasi-official
but very interesting,which shouldbe considered briefly,and that is the
school mapof 1930,whichwas the basis of a most instructive diplomatic
incidentbetween France and Italy. Here it is on the screen w
(MapLR 16E). Its historyis recountedin great detailin the Libyan's
submissions (LM, paras.5.278-5.279and Maps Nos. 78 and 79; LM,
paras. 6.200-6.205and Map LR 16E; LR, Vol. II, Supplementary
Ann. No. 5.10),so that 1 need onlygive you a short recapitulation.
Briefly,the problemwas the following:in December 1930, the
FrenchAmbassadorin Rome was informed that a rnapof Africaused in
Italian schoolsshowedLibya ascomprising both Tibestiand a vast area
to the south and to the east of that locality,the effectresultingfrom the colouringof the said area, identicalto thatused forthe remainder
of the Libyanterritory. The French protesteda ,nd after an exchangeof
very detailed correspondence between different ministries conct erned,
ItalianGovernmentreactedto thatprotestby adoptingthe solutionof
leavingthe area in question white, in recognition of the factthat the
. - frontiersin the areahave not yet been..internationally..defi( nedWtof
' 53
the telegramof 22 December1930 from the Ministry of ForeignAffairs,
signedby Mr. Guariglia: LR, Vol. II, Ann. No. 5.10). In the same
telegram,it is indicatedthat the solution was one currently adopted for
both officia1and touristmaps. It maybe gathered that Francehad never
before reacted against map isndicating theabsenceof the frontier in
the areaand thatin orderto satisfyit the 1930 schoolmap was to be
modifiedto confirmthat thefrontier hadindeednot yet been defined.
It will be noted that the solutionadopted musthave been acceptedby
France, since it did not give rise to any further protests.
Mr. President, the1930 incident thus clearly confirms what may be
deduced from the officia1maps,namely,the absenceof a frontierin
the regionwhich isthe subject ofthe present dispute. Moreover,
the incident shows thatFrancehad no objectionto raiseagainst maps
indicatingthe absenceof a frontier.
But one last remart khatneeds to be made concerning this episode is
that the modification ofthe schoolmap, asdecidedupon at governmental
level, clearly showt she extentof the area claimedby Italy.
Unfortunately, Libyw aas unableto find acopy of the modifiem dap in
colour,but only the 'blackand white copieswhichwere published in the
LibyanMemorial(MapsNos. 78 and 79). It may be supposed, however,
that the effectof whitening in accordanc with the instructiono sf the
Ministryof Foreign Affairs tha erea to the east andsouthof Toummo whichappearedin greenish yellow on the 1930rnapmust have beenthat
which is now appearingon the screen. Let us now superimposon the
amendedrnapthe line claimed byLibyabeforeyour Court: here it is on
54
the screen. It is interesting tonotehow close thisline is to the
lower edgeof the area thatthe 1930 schoolrnapindicatedas belongingto
Libya, andwhich thernapmodifiedby the Italianauthorities indicatedas
claimed simultaneously I byalyand France.1 shouldlike to pointout
that thisrnapwith the superimpositio of the lineof the Libyanclaim
appearson No. 77 of yourfile.
4. Conclusionconcerning the Italianmaps
Mr. President, Memberosf the Court,1 have completedthe firstpart
of my statementand it onlyremains forme to draw what1 believeto be
thenecessaryconclusions.
The firstis thatnone of the Italianofficia1and quasi-official
maps, thoseimrnediatel yollowingthe 1900-1902Agreementsor laterones,
show anysouthem borderfor Libya: Italiancartographers expres wsith
perfect consistenc the firm andconstantconvictionof the Italian
Governmentthatthe frontier had neverbeendefinedin the disputed
region,with one sole exception: the 1935 lineappearedin mapsfor a
short period, onltyo disappearwhen it becameclearthat the
Laval-MussolinTireatywas not goingto enter into force.
The second conclusioi ns thata certain numberf Italianmaps up to
1917 do showthe lineof Article 3of the 1899Decelaration, but clearly
specifythat thisline doesnot represent a frontia enrd thatit wasdue
south-east,and not east-south-east.None and absolutlynone of the
officia1Italianmaps reproduce the lineof thernapin the 1899 Livre
jaune, and it is absoluteluntruethatItaly"accepted l'thismap, as
Chad alleges! Mr. President,1 should like to pointout that in its Judgment of
1986,the Chamberof your Courtwhich settledthe frontier dispute
betweenBurkina Fasoand Mali carefullyexaminedthe probative value of
maps when theywere notthe subjectof a specific agreement betwet ehne
parties to a territoria dispute. The Chambernoted thatthe weightof
maps asevidence might Vary according.to..the.irechnical.reliabilia tyd
the neutralityof theirsources,but stressedthat in al1 cases the
proofsin questionwere to be auxiliaryor confirmative in character:
indeed,maps "cannotin themselvesalonebe treatedas evidenceof a
frontier"(p. 583, para. 56). In this contextit must certainly be
admitted,for the same reasons,that themaps 1 have just shown can also
not be consideredin themselvesas evidenceof the absenceof a frontier
in the disputed region. Indeed,Libya carefully refrain frorclaiming
anythingof the kind,since it recognizesthat theItalian maps,however
technically reliablt ehey maybe - and they are indeedreliable- are
certainlynot neutral,but translate the Italianpoint of view into
cartographical images. Yet it is preciselybecausethey are notneutral
that theseItalianmaps are valuablehere in connection with the precise
identificationof the Italianposition. Indeed,the officia1Italian
maps, in view oftheir absoluteconsistency throughout tp heriodunder
consideration,irrefutably provt ehat Italy hasnever recognized either
the existence ofa frontier in theregionor the east-south-east
directionof the line arising frorArticle 3 of the 1899 Declaration. In
otherwords, thesemaps provideno decisiveproof of the absenceof the
frontier,but certainly pure decisively tI hatlyhas never recognized
the existenceof such a frontier. PARTII
ïEBROME AGBEEMgRTSOF 1935
1.The importanceof the RomeAgreements
Mr. President, the timhas now come forme to pass to thesecond
part of my pleading today, relatitngthe Rome Agreement sf 1935.
The Parties'submissionsshowa fundamental divergenc of viewson the
significanceof theseAgreementsand on their impacton the settlemenotf
the presentdispute. Nevertheless, ther is a complete convergencof
viewson one point - and that is already somethignarnely,that these
Agreementsare of capital importancbecausetheirtext,their context
and the circumstance sn whichtheywere concluded brin to light the way
in which the Parties regarded the situation prevai ininge region
concernedin 1935, where the statof the frontierswas concerned.This
importance is certainlnot diminishedby thefact that ratifications
were not exchanged,but on the contraryis enormouslenhanced thereby.
It would obviously servno usefulpurposeto questionnow what
the state ofthe frontiers before 1935 woh ulde been if the "African
Treaty"had entered intoforceand had thussettled the dispute. It was
preciselybecausethatdid not happenthat astudyof the 1935Agreements
-
is exceptionally usefulsincethisstudyenablesus to ascertain whether
Franceand Italy considered in1935 that thewere movinga pre-existing
frontier,or whether,on the contrary,the two countries recogniztedat
theywere establishinga frontier forthe very firsttime. 1 repeat,
thereis a complete convergencof views betweenLibyaand Chad on the
mannerin which the problem arises, altho thehydisagree completelon
the solutionof thatproblem, In order to give the Franco-Italia Treatyof 1935 its properdue,
it shouldof coursebe borne in mind that none of the international
instruments preceding that Trea were explicitlydesignedto definethe
frontierin the disputed area. Our opponents will surelynot deny,
something that is clear from the evidenceitself,namely,that in al1
the century old historyof the present dispute,..the.l9..35eatyis indeed
the only instrument underwhich the twoStatesclaimingsovereignty over
one or another partof the territory to be delimitedin pursuanceof
negotiations specifically concerw nedh delimitation,have plotted
a well determined line, geographical poi bytgeographical point,
specifically expressing the will thus to define"the frontier
separatingLibya fromFrenchWest Africaand French Equatorial Africa
east of TOiJMMO"(Art.2 of the Treaty). You can see on the screen
the line that was negotiatedin 1935.
Mr. President, Memberosf the Court, before proceedin to analyse
the 1935 Agreements,1 shouldlike to make two preliminaryremarks.
The firstis terminological.1 am now speakingof the "Agreements
of Rome" in the plural,and of the "RomeTreaty" - or the
"African Treaty" - in the singular.The reason forthis is that the
Treaty in questionis one,certainlythe most important, but only one,
of the eightinstruments which wer eignedon the same day by the Italian
Head of Government,Mussolini,and by the FrenchMinisterof
Foreign Affairs, Laval. Itouldnot be forgotten that the two States
had wishedto settleon that occasion,by a global arrangement, al1 the
colonial disputeosutstanding between them. Anotherof those
instruments, the General Declaration, makes this perfectly cw learit
stressesthat "...the conventions[in theplural]of today's date having
ensured the settlementof the main questionsthat previous agreementh sad leftoutstanding betweetnhem ...". 1 woulddrawyour attentionto the
word "outstanding":France and Italy thussolemnlydeclaredthatthere
were questions outstandingbetween the twocountries, questions whihcahd
not been previously settled anwdhich wereto be settlednow.
My second remarkis that the Treatyof Rome is the only oneof the
eightinstruments signeodn the samedate,.the.entry.intfc.rceof which
was subjectto theexchangeof ratificationsu ,nder its Article7. Chad
has shownin itsMemorialthatthe other instruments on the contrary,
enteredinto forceimediatelyupon theirsignature, sincetheywere al1
agreements in simplifiedform. May it please the Courtto note that
Libya fully recognizesthe accuracyof thatanalysis: this point may
therefore be regardedas settled, in vieowf the agreementexisting
betweenthe Partieson this particulas rubject.
2. The textof the 1935Treaty
The timehas come to takea closelookat the text of the Treatyand
to note once againsomething which strikesone as soon as one readsthe
first paragrapohf Article 2 and comparesit with the first paragraphf
Article4. To make myremarksclearer,1 have askedthesetwo textsto
be shownon the screen.
In Article 2,concerningthe frontierbetween Libya on the one hand
and French West Africaand FrenchEquatorialAfrica,on the other hand,
it is indicatedthat this frontiewrill be "determined"in themanner
specifiedin the restof the Article:the question is therefore one of
"determining"and not of moving or modifyingprae-existing frontier.
In Article4, on the otherhand,the expression used is completely
different, for there, in connection w thehfrontier between Eritraead
French Somaliland,the referenceis to themodification of a previous
frontier,sinceone lineis to be substituted for another. The wordingis very significant.It isclear that the term wsere
- - chosenwith the greatest care,in orderto emphasizethe convictioo nf
Franceand Italythat theoperations conductedin the twocases were
quitedifferentin nature - delimitation in the caseof Libyaand
rectification of the frontierin the caseof Eritrea. But that is not
al1: the textbeforeyou clearly ..explainthe..legarl.asonsjustifying
the choice of the terms. In the caseof Eritrea,it is specifiedthata
modification of the frontieris concerned, sincea different delimitation
was established previously t bwyo specifically mentioned treaties
the Rome Protocol etc. In the caseof Libya,on the other hand,the
reference had to be to delimitationbecausethe frontier in the areahad
not beenpreviously detennined by any treatyT ,oummobeing,as explicitly
statedin Article2, the "terminal pointof the line fixedby the
ParisAgreementof 12 September1919".
The provisionsof the 1935Treaty areof such- how shall I put it?
- - limpidclarity - that one is almost movt edpity our opponents, forced
as theyare to defenda reallyindefensible argument. Yet their
competence is quiteremarkable:in its Reply Chadpresents atextual
argument,onlyone, it is true,but one whichpurportsto provethat
therewas indeeda frontier in the disputed regionin 1935and that the
1935Treatymoved this frontier in favo ourItaly. The argumentis
basedon a passageof Article 2 in whichit is statedthat the borderline
is so plotted thatsuchand suchlocality"remainsin Frenchterritory":
if theselocalities "remain"in Frenchterritory underthe 1935 Treaty,
Chadmaintains,it is becausetherewas previously anotherwhichwas more
favourable forFrance.
The argumentis extremely subtle,but it is so subtlethat it
becomespractically evanescei nt it is studiedclosely. It can easily
be counteredby pointing out tha Article 2 describe and specifiesthe- effect thatwill arisefrom the delimitatip onovidedtherein: in other
words, itspecifiesthat at certain points the line must bedrawnin such
a way that the placecsitedwillbe situatedon one or the otherside
of the line, but thi sn no way indicates wheretheywouldbe ifthe
delimitation concernw edre notestablished.To sum up, the language of
Article2 is typical of a delimitation.treaty,..indicati.thatthe line
must be plottedon the mapin sucha way that, the frontier once
established, certain localities wil"remain"in the territory of one
of the States, and othei rsthatof itsneighbour.
Moreover, the accurao cy this analysisis confirmedby a perusal
'tr
of the officia1Press Release o f January 1935,in whichthe two parties
explainedthe objectand purposeof the Treaty. The Releasecontains
the followinpghraseconcerning thl eineprovidedfor in Article 2:
"thisline leaves Aozoa und Ouezenti in Italian territo and Bardaïand
Tekroin Frenchterritory".Here is something which definitively
demolishesthe Chadian argument,sinceit is clearthathere againthe
effectof a newly drawn linies beingdescribed, and the wordil ngaves
no room for argumenotn the questionto whom the localitiementioned
belongedbeforethe delimitation - unlessChad,hoistwith its own
petard, if1 may Say so, prefersto admit,for the sakeof consistency
with itsown argument,thatthis phrase fromthe Press Release implies a
recognitionby FrancethatAozouand Ouezenti already belong todLibya
beforethe conclusion oftheTreaty, sincethatinstrument "left"themon
the Italianside ...!
Mr. President, the textof the 1935 Treaty expressetshe intention
of the Parties withtheutmostclarity: thesePartieswere perfectly
aware that thewyere delimitinga frontierin the regionfor thefirst
time. The lineof Article 2, on themap which was submittt ed the - ItalianParliament with the textof theTreaty for purposesof
authorizationof ratificationb,ore the legend"Auovoconfine
meridionale"in Italian(Newsouthernfrontier), which wasundoubtedly
correct, sincea perfectlynew frontierwas indeedinvolved.
Bevertheless,Our opponentsdo not agreeat all,and are makingtruly
superhumaneffortsto derivefromthis.termino1ogy.an.argume which
seems tenuousto Say the least. Accordingto Chad,Italy'sreferenceto
a llnuovconfine"("newfrontier") is tantamountto the implicit
admissionthatan old frontierwas henceforthto be replacedby a new
one, inthe case of Eritreaas in thatof Libya. But unfortunatelt yhis
syllogism, althoug hpparentlyimpeccable,is reallyquite
unsatisfactorys,inceit takesno accountof the fact thatthe adjective
-.
i 6 2 "newlhas a numberof meanings,in Italianas inFrenchand English,and
perhapsin otherlanguages. May1 be permittedto inviteOur opponents
to takea look,for instance,in the most farnousof the great
dictionariesof the French languaget,he Littré,where theywill find
that "nouveau"("new")can certainlymean "autre,qui a changé"("other,
whichhas changed"),but can alsomean "quiest ou apparaîtpour la
premièrefois"("whichis or appearsfor thefirsttime")(Littré,
Dictionnairede la langue françaiseP,aris, Hachette, 1881Vol. III,
p. 757).
3. The press release
1 have just quoted thpressrelease of 8 January1935: this
is clearlya documentof greatinterest, sinceit clarifiesthe
meaning ofthe Treaty ofRome. Itis usefulto note,at this
juncture,that inthis press release,the objectand purposeof the
Treatyis described usintgermswhichare partlydifferent, but
whosemeaning is quiteidentical: it is stilla questionof the "detemination"of the Libyanfrontier, whereas, for Eritrea ,he
word usedis "rectification":this providesyet more confirmation,
were it needed,themeritsof the interpretation ot fhe textof the
Treatythat 1 put forward a momentgo. But what is even more
suggestive, sinceon thisoccasionwe are concerned with a fresh
proof,is the factthatthe press releasd eescribes-thestrip which,
40 years later,would generallbye referredto as the "Aouzoustrip"
as "territoriesthusrecognized as belonging toLibya". Here is
what is said so limpidly aneffectively:the Treatyof 1935,
contraryto what Chadwouldhave us believe, did not attribute
. .
Frenchterritories to Italy,but recognizedas Italianterritories
63
-. situatedin a non-delimitedareawhoseappurtenance to Italy France
had previouslycontested.
1 stillhave to indicate whatprobativeforcecan be attributed
to the pressrelease. To answer this question it shouldfirstbe
noted thatthis is the officia1 jointpressrelease distribute to
the press followintghe offficial ceremonoyf signingthe Rome
Agreements,and which waspublishedby the pressin bothcountries.
It goeswithoutsayingthat it is well knownthatpress releases of
thiskind are duly negotiate by thedelegations of the parties
concerned. Our press releast ehereforeconstitutes apublicand
officia1 declaratio by Franceand Italy,by meansof whichthe two
States explainjointlyand bycommonaccord what the purposeand
meaningof the 1935 Treatyis.
Your case-law ishighly instructivon the legalnature ofthis
typeof document. In your Judgmentof 19 November1978 inthe
Aegean Sea Continental Shelcase (I.C.J. Reports 1978p. 39,
paras.95-96)your Court observed tha "t[thereis] no rule of
internationallaw whichmightprecludea joint comuniquf érom constituting an international agreemen ..ll; to establish whether
this is or is not the case,your Courtsaid that everything"depends
on the natureof the actor transaction to which the Communiqué
givesexpression" whereas the form is not very important. Andthe
Court concludes,in this case, that
"in determining whatwas indeed thenatureof the actor
transactionembodiedin the ... Communiqué, the Court mus htave
regardaboveal1 to its actual terms and tothe particular
circumstancesin which itwas drawnup".
In two otherwell-knownJudgments,your Courthas established that,
ultimately,"the sole relevant questioi ns whether the language employed
in anygivendeclaration does reveala clear intention ..."of the author
. 64
or authors. This is in the Case concerning the Templeof Preah Vihear,
Judgment, I.C.J. Reports 1961,p. 32; and in the Nuclear Tests,
Judgment, I.C.J. Reports 1974,pp. 267-268,para.45).
In Our case, things couldnot be clearer, considerin tghe terms,the
circumstancesand the purposeof the pressreleaseof 1935. Withouta
shadowof doubt, the intentio nf Franceand Italywas to officially
explainthe meaningand scopeof the 1935 Treaty. The communiqué therefore
occupies pride of place in the interpretation of this Treaty,since it
constitutesan agreementaimed at elucidatin the legal significanc of
another agreement concluda ed the same timeby the same Parties. In other
words,we are inthe fieldof authentic interpretation; more precisely,
we are facedwith this authentic interpretati oofna contextual nature
which is discussedin Article31, paragraph2 (a),of the 1969 Vienna
Conventionon the Law of Treaties. 1 would pointout that the Vienna
Convention gives prideof place,as regards the interpretatio on a treaty,
to the context, and that thelatter means in the first place "Any agreement
relatingto the treaty which was made betweenal1 the partiesin connection
with the conclusion of the treaty." Let me say, in conclusion,that it is difficult to imagia ne
international instrumew ntichbetter fits this definitionthan the press
releaseof 8 January 1935.
4.The exposé des rotifs
So far,1 have leftasidethe mostexplicitand definitive
confirmationof all, thatwhich, soto speak, crownsthe demonstratio1 n
have justmade. 1 adoptedthis approach in orderto underline from the
outsetthe strangeneso sf the remarkon page 80 of Chad'sReply,
accordingto whichwhat results from the exposédes motifs 1 am now
going to discuss and that accompanies the French draft legislation
authorizing the ratificati ofnthe 1935 Treaty is"theonlydiscordant
. . note" in relationto Chad'sposition. A curiousremark if one thinks of
LA
YU the coherent bundle ofevidenceand clues 1have gathered and illustrated
so far and which can be added tothosestemmingfrom the travaux
préparatoires!
Afteral1 thatthewritten Libyan pleadingshave emphasized on this
point, 1 haveno need todwellat any further lengthon this exposé des
motifs. May 1 Say that, through thdeocumentin question, the French
Governmentindicated why it was askingits Parliament to adopt the
legislation authorizin the ratificationof theTreatyof 1935. In other
words,the Govemment wishedto persuadethe French Parliament to say
yes, by showingit the advantages of theTreatyand the problemsit would
have dispensew dith: an operation which, moreovew r,s wholly successful
sincethe FrenchSenateunanimously votedin favour, whereas th Chamber
of Deputiesdid so with the crushingmajorityof 55 votes to 9. What was
the Government'sargument? It was borrowedp ,ractically verbatim,from
a Quaid'Orsaymemorandumof 1935 (ML,French Archives Annex Vol. 3,
p. 426). This is the wording usei dn the essentialpassageof the-
exposédes motifs that1 should likeprojectedon the screenand an
extractof which is includedin No. 67 in your file. The relevant
passage is wordedas follows:
"the 1919 Agreement left Italy aFrancewithout a formally
agreedfrontiereastof Toummo,sinceRomehad always refused
to recognizethatthe lineof demarcation fixedby the
Franco-British Accordof 1899and 1919betweenthe Frenchand
British zonesof influence.couldf,or Italy,-servas a
physical frontier between sovere territories".
A little furtheorn inthe samedocument,it is pointed out that,
from1928onwards(thedateof the occupatioo nf the Fezzanby Italian
troopsduringthewar againstthe Senûsiya),
"it seemed thatthe absenceof frontierswouldbe anobstacle
to the local authoritiesf the two countriesas regards
CO-ordinatingtheiractionto policeandmonitorthe tribes"
(translationby theRegistry).
Theseare officia1admissions, madb ey the FrenchGovernmentto its
Parliamenton 26 February 1935, admissio nsichcompletely destrot yhe
Chadianthesis,just as,moreover,theydestroythe entireconvoluted
edificethatFrancehad claimed to erecton the basisof the
Franco-Italian Agreemenots 1900-1902. In fact,as will be noted,in
1935 the FrenchGovernmentpubliclyand explicitly recognize the
complete accuracoyf the argument presentbed Libyato your Court:
more preciselyi,t recognized
primo: that, priorto 1935,therewas no "formally agreed
frontier",eastof Toummo,and even,quitesimply,that there was
(second passage )n "absenceof frontiers"which implies among other
thingsthatFrance was in no way allegingthat,owingto the absenceof
agreements,the frontiermighthave resulted frosmomethingelse,from
effectivitéor someotherfactors, - therewas anabsenceof frontiers;
secundo: the FrenchGovernment alsp oubliclyand officially
acknowledgedin 1935thatItaly "hadalwaysrefusedto recognize", as a
"politicalfrontier",not only thelineresulting from thF eranco-British Agreementof 1919,but also that envisaged tb hye Franco-British
Declarationof 1899! In short,France fully recognize (anddoes so in
1935!)that theFranco-Italian Agreemeno ts 1900-1902 cannobte
interpretedas implyingacceptance by Italyof the lineof 1899 or 1919
as frontier. This isexactly the opposit of what Chad is today alleging
1
beforeyour Court, and Chad should.be.asked.houit .camaintain.withsuch
assurance athesisso clearly demolished b sucha host of decisiveand
mutually corroborativ proofs.
1 shallnow concludemy examinatioo nf this exposé des motifsand
. - would liketo do so by briefly recalling internatioc nale-law relating
..r
to the probativeforceof thistypeof interna1government document
issued tonational parliarnents. It istrue that, the arbitration
tribunalhave ruled,on 12 February1985,on a dispute between Guina ead
Guinea-Bissau,it considered that, strict speaking,thesedocuments
werenot part of the travaux préparatoires stricto sensu,yet
neverthelesstook them intc oonsiderationquiteclearlyas travaux
préparatoiresin the broadsense (RDGIP,1985,p. 515,para.70).
However,your Court, without concerningitselfwith argumentsabout
vocabulary, did not hesitateto considerthat "the intention ...is put
beyonddoubt"by the explanations givenby a government in theexposé de W
motifs" accompanying a nationalprojet de loi (Aegean Sea Continental
Shelf, Judgement, I.C.J. Reports1978, p. 27, para. 66). Essentially,
what is decisive is therefore thefactthat the intention should be
clearlyexpressed, as indicated inyour Judgmentquotedearlier. In Our
case,the intention of the FrenchGovernment is perfectlyclear onthe
subjectof the reasons which, in my view,render ratificatio of the 1935
Treaty highly desirable: it is becausethisTreatyfinallyestablished a
frontierwhere - as the FrenchGovernment publicly assure -d therehad
hitherto been an "absenceof frontiers". . . * 5. The fate of the 1935Treaty
? 69
1 comenow to the end of the second part of my statement. 1 wish to
recallthat the fact that the 1935 Treaty fai toedome into force was
due to a decisionof the Italian Government, which,despiteal1 the
pressuresto which itwas being subjectedby France, considered tha the
territorial sacrifices envisag bydItaly, especialla ys regardsLibya,
were not justifiedinasmuchas France hadnot fulfilledits obligations
regarding the Ethiopianaffair, particularli yn that it had not stoodup
for Italy before the Leago ue Nationsas a resultof the general
indignation provokedby Italy'saggressionagainstEthiopia. 1 note that
thereis no disagreement between the Parti assto the reasonswhy no
ratifications were exchanged,so that there is no point in dwellingat
lengthon thispoint. Needlessto Say, the factthat it did not come
into forcein no way detractsfrom the importanceof the Treaty for
present purposesw ,hich is that it constitutes evidence tha in 1935
France officiallr yecognized thanto prior treaty hadvalidly delimited
the frontier to the east of Toummo.
As for the questionas to how far the1935 Treaty should bt eaken
into accountby the Court when,having ascertainet dhe non-existenceof
a boundaryin the area that is the subjectof the dispute,it will face
the task of carrying out thdeelimitation, 1 shallhave the honourof
presentingLibya's views on Tuesdayof next week.
PART III
EVEiVTSBETWEEN 1935AND THE END OF THE WORLDWAR
1. General
1now come to the thirdpart of my oral statement for today, which
coversthe period from th 1935 RomeAgreementsto the end of the Second
WorldWar. In outline,the period coulb de splitinto twosections. The first,up to the end of 1938,is markedby a climateof
70
expectation:on eitherside,preparations go ahead for the entry into
forceof the 1935 delimitation,steps are takenwith a view to that,or
worries arise overthe uncertaintycreatedby the protracted procedures
for the exchangeof ratifications.
The secondsection,which runsfrom 1939 to-thePeaceTreaty of
1947,sees Franceand Italy draw backto theirpre-1935 positions.
France, forinstance, havingbeen unableto persuadeItaly to exchange
ratifications,was to affect forgetfulnesof everythingit had openly
concededin 1935 and, withquiteremarkableaplomb,resumedits
traditional claim that theast-south-eastline of theLivre jaune of
1899,as construed bythe Anglo-FrenchConventionof 1919,formedthe
southernboundaryof Libya. For its part,Italywas to upholdthe idea
that theboundary had stiltlo be determinedin the light bothof the
Ottomantitleand of the Italianrightsbased on the LondonAgreement
of 1915.
It must straightawaybe recalledthatno fresh negotiation was to
take place betweenthe States,both being soondrawn into the turmoilof
the Second WorldWar. The existingsituationas to the questionof the
southernboundarythereforeunderwentno furthermodification, at least W
up to the time of Italy'sexit from thstage. Two episodesfrom that
perioddeservehighlighting, however,sincethey clearly confirm the
absenceof delimitation.
2. The Jef-Jef incident
The firstof thoseepisodeswas that calledby Chad the Jef-Jef
incidentof 1938,a minor incident thatthe otherside has strivento
blow upquiteout of proportionin orderto infersome significance
clearlynot present. Chadmakes out the episodeto prove that Italy recognized thesovereig'ntof France overtheAozou strip, whereas in
71
- - realitythe only inference onceanmake is that the twoStates were
stickingto their respectivpeositions.What is more, the incident took
placeat a timewhen the fateof the 1935 Treaty stilhlung in the
balance andnot, as Chadhas thenerveto claim,at a time whenit had
become clearthatthe Treatywouldneverenter intoforce.
The whole storarises from the drillingwork on a well thatItaly
had decidedto carry outin April1938 in a place situateidn the part of
the contestedzonerecognized by the 1935 TreatyasItalian. You can see
on the screenwhereJef-Jefis exactly. Thatwork,startedoff with
labourers,was interruptedby the Frenchforces before being resumed
briskly bythe Italianmilitaryand completedwithout the Frenchforces
daring,thistime,to interveneto halt it. Diplomatic notes were
neverthelessexchangedin orderto specifythe respective pointosf view
(MC,p. 214 et seq.; CML,p. 374 et seq.). Regardlessof the
language usedon eitherside,Italyclearlyachievedits aim of formally
establishingsovereigntyin the zoneby carryingout civilengineering
worksand leaving marksindicatingthat theplace concernelday within
Italianterritory(seeFileon the Jef-Jefincident, CMC,Vol. IV,
p. 541). But it is also true thatn the Frenchside this conductof
Italywas questioned, thougwhith extrememoderation,in thename of
continuityof Frenchsovereigntyin the zonepending thepossibleentry
intoforceof the 1935Treaty. It is certain,however,thatFrance,
72 while keeping vaery l.oprofile,did not bowto the Italianpointof
view; it is also certainthatno documenttestifiesto any Italian
assentto France'sattitude.On the contrary,the Counter-Mernorioal
Libya hasshown(p. 374 et seg.) thatItaly maintaineidts convictions
and positionregardingthe ownershipof the territoryin question. Chad,in particular, completed lystortsrealitywhen it claimsthat
the ItalianAide-Mémoireof 3 May 1938 implied recognitiobny Italyof
the 1919 lineas the southem boundaryof Libya. If suchhad been the
case,Italywouldhave had to apologizeforviolatingthe territorial
sovereigntyof France. Yet Italy madeno suchapology. On the contrary,
Italywas the one toprotestagainst the decisionof the.French military
to prevent continuatioof thework; and it was Italy which, withou the
slightest hesitation, notifi Francethat thework was goingto resume,
and had no thoughtsatal1 about seekingany permission!Furthermore,
thatwork was indeed continueadnd completed withouhtindrance. Given
suchan attitudeon Italylspart, one mighh tave expectedstrongand
immediatereactions froFmrance. The Quai d'Orsayin facttook a month
and a half to respond,on 20 June,with an extremely conciliatonryte in
which,aftera reminderof France'sposition of principle it promptly
declared the inciden closed sincethe workhad been completed(MC,
p. 215). To see in al1 that aformof assentto France's position sn
the partof Italy isa matter,it seemsto me, ofthe most unbridled
fantasy.
It is true that in the ItaliaAide-Mémoire of 3 May theplacein
questionwas describedas being situated
"in the zone betweetnhe presentboundaryof Libyaand
the boundary resulting from the Mussolini-Laval Agreement
of 1935".
But this undeniabl clumsydraftingis far from justifying the whole
73
. - construction thaC thadwouldlike to baseupon it. For the expression
"present boundary was takenfrom thereportof the Governor-Genera olf
Libya,Balbo,noted asthe stoutest defende of Italy'sterritorial
rightsover the Libyan hinterland. Without any doubt, the wor ins
question referret do the existinge facto situationon the ground of
the Italian and Frencharmed forces,and not to the de jure situation. * Aeedlessto say, both Govemor Balbo and theItalianGovernmentknew
perfectlywell that just a few years before,on 9 June 1934, Italyhad
firmly protestedagainstthe establishment of a French fortifiedpost at
Tekro,well to the south of Jef-Jef,just as it had protestedin a
perfectly constantmanner,between1921 and 1934, againstthe
Anglo-FrenchConventionof 1919...That-is the-diplornati.andpolitical
contextin which the 1938document must quite obviously beconstrued.
. 7 4 4. The discussion.of 1941 on the demilitarizedzonewithin the
frameworkof the drmisticeCommission
It falls tome now to say a few words abouta second episode,that
of theexchangeof letters between General GrossP i,esidentof the
Franco-Italian Armistice Commission of 1941, a the Frenchauthorities
on the subject ofthe200 km demilitarizedzone to beestablished along
the Libyanboundaries,in accordancewith the 1940Armistice Convention
between the two countries. 1 shall only say a few words about it because
the Parties havealready covered the subjet ctoroughly in writingnd,
above all, becauseit would be pointlessto dwell on a topic from which,
with the bestpossible goodwilln ,o usefulargumentcan be derivedfor
settlement of the presentdispute.
True, Chad is not in agreementsince,on the contrary,it attempts
the impossible toextractfrom the relevant materialfanciful evidence of
instances of assenton the part of Italy. Butin reality anunbiassed
perusalof thematerialin questionsufficesto show,at the endof the
day, that the two Stateshad simplyrevertedto their traditional
positions in viewof the fact that the Rome Treaty of 1935 hafinally
not entered intoforce.
The whole storymay be summarizedthus. Noting that theboundary
had never been determined,General Grossipropoaedto France,on
12 March 1941, that the demilitarizedzone be computefrom the1935 * line. In the eyesof the Italians, thatline couldbe provisionallyused
pendinga futuredelimitation, sinceit was the only one resultingfrom
an instrument negotiated Ibyaly (eventhoughthe 1935 Treatyhad not
entered intoforce). The Frenchauthorities tooka long timeto react.
Aftera somewhatconfusedinterna1debate complicated b the current
situation(sincetheVichyGovernment was.incontrolx, .the..response
7 5
finallycame twomonthslater,on 14 May 1941. It comprised the
counter-proposa1 tuose the 1899-1919line instead,sincefor Francethat
line had beenaccepted byItalyin 1900-1902, whereas Italyhad "objected
to" the 1935Treaty.
As we can see, thereis nothing particularlnew up to here.
Forgettingthe explicitadmissionsit had made in 1935, Francresumed
its traditional positiwonth which weare familiar. But where things
takequitea different turna ,t leastas Chadsees it, is on the occasion
of the Italianresponseto the Frenchcounter-proposal. Accordingto the
Counter-MemoriaolfChad,thatresponsewas a veritable capitulatio n,
more no less,Italy having been incapab ofequestioningthe worthand
soundnessof the Frenchargument.
What inventiveness!Quitefrankly,it is hard to understand how the
otherside can readso many thingsintoa shortletterof 14 July in W
whichGeneral Grossistates: (1) that thequestionof the boundary lies
outsidethe cornpetencef theArmistice Commissio and will findits
place amongthe problemsto be clearedup afterthe war; and (2) that
for the applicatioof the armisticethatquestion is of no practical
importanceand can thereforeremainunsettled. 1s thata capitulation?
But itis quitethe opposite: For ontwo occasions the letterstates
that for Italythe southernboundaryof Libyahas not been delimited,
despitewhat Francecla2ms. Why otherwise wouldGeneralGrossirankthe
boundaryquestion amongthe issuesto be cleared up afterthewar? Why - otherwisewouldhe affirmthat for the timb eeing thequestioncan remain
76
"unsettled"? Inshort,it is clear thatthroughGeneralGrossi'sletter
the Italianauthorities were definitely questioninFrance'sposition
that the southernboundaryof Libyahad alreadybeen established, by the
mere factof explicitlyindicating that for Italythat boundaryremained
to be determinedin the future.
One conclusionstandsout: afterthe periodof the Rome Agreements
France,by overlooking theexplicitrecognition of 1935 thatno boundary
had everbeen delimitedin the disputed region,resumedits old argument
that the boundary alreadyexistedsinceItaly hadsupposedlyaccepted
in 1900-1902 theline of 1899-1919. Italy, forits part,never bowed
to the Frenchcontentionand held fast to its position,namely that
the delimitationremainedto be establishedand shouldbe effected with
due regard to itsterritorialrights,as accruingto it from the Ottoman
heritageand under the LondonAgreement of 1915.
PART FOUB
The 1947 Peace Treatyand thesouthernboundary ofLibya
1. General
The timehas come to begin the fourthand last parof my statement
of today. 1 shallnow discussthe international instrumentthat brought
about Italy'sexit from the scene,namelythe 1947 PeaceTreaty. Atthe
end of the SecondWorld Warthe Peace Treaty dismantlethe Italian
colonial empire; ItalyhusdepartedfromLibya,havingbeen compelled
to renounceal1 its African possessionsi,ncluding everrightand title
to them,as provided in Article23, paragraph1, of the PeaceTreaty. In
77 accordancewith Article23, paragraph2, Libya continuedunderFrenchand
British administratiopendingits "final disposal"a,s providedin the
Treaty (thatis, accessionto independence).And, as you are aware,the decisionsrelating to thematterwere ultimatelytakenby the
UnitedNationsGeneral Assembly,failingthe decisionthat the
fourPowers were unableto make withinthe one-year time-limi laid down
in the Treaty. Sir Ian Sinclairwill deal with thiswholematter
tomorrowmorning.
In this finalpart of my statement1 intendto discussbriefly the
effectof the Peace Treatyon the questionof the boundariesof Libya.
Thissubjecthas been dealtwith at length inthe pleadingsof the
Parties,so that itwill sufficeto bring out its essentia llements.
The first pointto be made is that the Peace Treatydid not provide
.ir
for the intangibilitoyf the boundariesof Libya and the other former
Italiancolonies; on the contrary,it laid down that the boundariesin
questioncouldbe the subjectof an "adjustment",this is the termused,
"adjustment",by cornmoagreementof the fourPowers withina time-limit
of one year. This provisionis readily explaineidf regardis had, in
particular,to the factthatFrance,on the one hand, and Egyptjon the
other, wereplanningto put forwardterritorial claima st theexpenseof
Libya, whichwas why the Peace Treatyprovided for thepossibilityof
modifying,of adjusting,if necessary,the boundariesof the territoryin
question. W
Secondobservation: the PeaceTreatydid not transferto the Powers
sovereignty overLibya, asChad incorrectlymaintainsin its Reply;
the Peace Treatygrantedthe Powersonly the rightto continueto
"administer"Libya, as well asthe rightto take certainimportant
measureswithina shorttime-limit.
There can be no questionthat Italylssovereigntywas extinguished
78
by virtueof Article 23. This did not, however,involvea transferof
sovereignty, but aperiodof waitingand suspension which was to be
closedonly by the decisionon the finaldisposa1by Libya. In any event,thereis no pointin goingintothisquestion morefullysince -
as will be seenshortly- it is of no particular significance, whatever
Chadmay Say.
2. The failure to notify theranco-Italianreaties concerning Libya
underArticle 44 of the Treatyof Peace
One of the topicsdiscussed-inthe.Partiess1ubmissionsconcerning
the Treatyof Peaceis the questionof the consequenceosf the factthat
none of the Franco-ItaliatreatiesconcerningLibya werenotified by
Franceto ItalyunderArticle44 of theTreatyof Peace. ThisArticle
providesthatbilateral treatie not notified by thPeowerconcernedto
Italy"shallbe regardedas abrogated". In view of thisspecificlegal
rule,Libyamaintainedthatafterthewar, and therefore in 1955,the
Franco-Italiatreatieson which Chadbasesits claimscouldnot be
consideredto be in force.
But Chaddoesnot share this viewb ,elievingthat the treatiesin
question did not haveto be notifiedbecauseafter thewar Italywas no
longer concerned, havingostal1 its rights andtitlesin relationto
Libya. Yet thisreasoning is to oasty,sinceit failsto take into
accountthe very clear wordingof Article44, whichprovidesfor the
abrogation in the event onon-notificatioonf "al1such treaties",
namely, al1 "pre-warbilateraltreatieswith Italy". In otherwords,
eachAlliedor Associated Power mus know thatif it "desiresto keep in
79
forceor revive" any pre-warbilateral treat yith Italy,it must notify
sucha treaty. It is clearthat therulesof Article44 were designedto
applyto al1 the treaties coverb ed thedefinition provided, witho any
exceptionand it musttherefore be presumedthatFrancedid not notify
the two Franco-Italit aneatiesof 1900-1902and 1919becauseit did not
want themto be kept inforce. Moreover, thisassmption is whollyjustifiedwhen one thinksthat,
80'
through another provisioin thesame Treaty,in Annex XI,the Four
Powers,as 1 have said,reserved the right t"adjust",in otherwords to
modify theLibyan frontiers. France,in fact,had aspirationsin that
regard,as 1 pointed out afew momentsago. This being so, it was
completely logicalfor Francenot$0 notify-thetreaties-withItalythat
it consideredto be relatedto the Libyanfrontiers: not becausethese
treatiesno longer concernedItaly,but because,for France,it was more
appropriate, preciselyt,o disposeof theminorder to pave theway for
the "adjustments"it was seekingto obtain. Allowme to pointout that,
*rlr
on page 123 of its MernoriaChad openly admitted thatt is indeedin
thismanner that France's conduct ito be explained.Subsequently,in
its Reply,realizingthat the truthis harmfulto its case,Chad sought-
a littletardilyif the truthbe told - to changeits plans.
It is certainthat Franceardentlywishedto modify the Libyan
frontiersto its advantage,both in theWest and in the south (MC,
Ann.212); throughArmex XI of the PeaceTreaty, Franchad provided
itselfwith the means to make thesemodificationquite legally,if it
managedto obtainthe consentof the otherPowersor, later,that ofthe
GeneralAssembly; it goes withoutsaying that,to be consistent, France -
had to excludethe entireset ofbilateralprovisions whichfixedthese
frontiers(or which it had almost alwasaid it was convinced fixed
them,with the remarkable exceptioof 1935). This waspreciselythe
point of the decisionnot to notify theseprovisions, thereyringing
about their abrogationsubjectto seeking torevivethem ata laterday
if need be).
It shouldbe noted thatthesemotivesled Franceto notifyneither
the Franco-Italiangreementof 1919(whicheffectively drew a frontier
whosemodification was stronglydesiredby the French),nor theAgreementsof 1900-1902. In reality,as we well know,the
above-mentionei dnstruments hanot delimited any frontiepra,rticularly
in the regionwhichconcernsus. But Franceinitially maintaine the
contrary, andcontinuedto do so for decades, changing courise 1935,
thenreturningto the pointof departuresubsequently.It would
therefore have beenwholly logicatlo notify-theAgreementsin question,
sincethe Frenchterritorial aspirations also relat ind,he post-war
period, to the territories situa northof the 1899lineand the 1919
line.
Mr. President, Memberosf the Court1 now cometo my finalpoint.
3. Effectof the Peace Treaty on Article13 of the 1915 London Treaty
The foregoing consideratio nsd not touchupon the questionof the
survivalof the obligationprovided inArticle13 of the 1915 Treaty of
London becausethe régimeof Article44 referredonly to bilateraland
not to multilateralagreements.The fateof Article13 following the
succession from Ital to Libyais thereforegovernedby thepertinent
principles of generalinternationallaw, inthe absenceof a
jus specialeof a conventional natur establishedin the PeaceTreaty.
It is thennecessaryto refer,as Libyahas demonstrated, to the
principles setforthin Article11 of theViennaConvention on Succession
of Statesin respectof Treatiesand to note that,to the extentthat
Article13 ofthe 1915Treaty lays downan obligationthatdevolvesupon
Franceto theadvantage of Ital and thataffectsthe settlement of a
question relatintgo the delimitatioof theboundaryof Libya,the fact
of Italy'slossof sovereignty over Liby cannotextinguish the
obligationin question,whichremainsin force forthe benefitof Libya.
Chaddoesnot agreewith thisanalysis, which Libya hasdevelopedat
lengthin its Counter-Memorial; Chad'sthesison thispointis that,on
the contrary,the obligationof Franceto Italy derivingfromArticle13 endedwith the Peace Treaty byreason ofItaly'srenunciation of its
colonialrightsand titles. But thisthesisfailsto answer the real
question. It is indeedan incontrovertible fact tha in 1947 Italy lost
the rightto benefit underArticle13; that goeswithoutsaying,and
Libya is carefulnot to disputeit. But this in no way rulesout the
1
fact that Libya,once it came into existence, inherited the legal title
derivingfromArticle13, as it withoutany doubt inherited al1 the other
Italian and Ottomantitles capableof affectingthe settlement of the
questionrelatingto the delimitation of the boundary.
Clearly,Chad cannotblowhot and cold at thesame time. In other
J
words, either Chad arguesthatLibya isin no degree the successoo rf
Italy concerninLgibyanterritory,in which case it must accept the
consequencethatLibyaneitherenjoys theterritorial righto sf Italynor
is boundby the like obligations lai upon the latter; or Chad
acknowledges thaL tibya succeededto Italy concerninLgibyanterritory,
in whichcaee it cannotescape theconsequence that the colonial heritage
receivedby Libyacomprises not only constrain and obligations but also
advantagesand rights.
In conclusion,it may be observed that at theend of the Italian
period,as at the start,the territory of Libya wasnot delimited in the
south,as France moreover explicitly recognii zne1935. After 1947,
therefore, that delimitatih ond still to be effectedwith dueregardto
the relevant legal argumena tsd titles,as receivedby Italy fromthe
Ottoman Empire and as transmittedby Italyto Libya. Italyhad not only
not renounced any of its titles but had colle( ctedhence transmitted
to Libya) a fresh title arising from Artic 13eof the LondonAgreement
of 1915.
Thankyou, Mr. President.
0422c Le PRESIDENT : Je vous remerciebeaucoup,MonsieurCondorelli.
L'audiencereprendrademain à 10 heures et nous entendrons alors
sir Ian Sinclair. Je vous remerciebeaucoup.
The Court roseat 1 p.m. .s...% . .. .. -,.,,-<7ï.*UXP.rr-
,*9 ,%y '* 7 .:,.f?
Non- Corrige ., .. 'J Traduction
: I,' i 4-3
Uncorrected . . ?..r-.-Qc--..IW1\-iPC Translation
m.'. I '
CR 93/17(translation)/Corr.
(Englishonly)
5 July 1993
Page 34, 14th line, for "boundary" read "limitw
Page 38,2nd line,deletethe word "the"following"only"
Page 39, 5th line, beforethe finalword "thewinsertinvertedcommas
Page 41, 2nd line from foot, for "pure" read "prove"
Page 44, 8th line from foot, for "West" read East"
Page 51,4th line, for "a formerly"& "an";
9th line from foot, delete"formerly"
Page 52, 6th line from foot, for "Judgment" & "case-law";
4th line from foot, for "my" read "its",and
for "render"& "renderedw
Page 53, 9th line, for "as a resultof" read "inthe face of"
Page 63, 6th line, for "logical" read "illogical"
Translation