Non-Corrigé Traduction
Uncorrected Translation
CR 2012/19 (traduction)
CR 2012/19 (translation)
Lundi 8 octobre 2012 à 10 heures
Monday 8 October 2012 at 10 a.m. - 2 -
10 The PRESIDENT: Please be seated. The sitting is open.
The Court meets today, pursuant to Articles43 et seq . of its Statute, to hear the oral
arguments of the Parties in the case concerning the Frontier Dispute (BurkinaFaso/Niger) .
Judge Yusuf, for reasons duly communicated to me, is unable to be present on the Bench today.
Since the Court included upon the Bench no judge of the nationality of the Parties, each of
them availed itself of its right under Article 31, paragraph3, of the Statute to choose a
judge ad hoc. Burkina Faso originally chose Mr. Jean- Pierre Cot; following the resignation of the
latter on 2Apri2l012, it chose MrY. ves Daudet. The Republic of Niger chose
Mr. Ahmed Mahiou.
Article20 of the Statute of the Court provides that “[e]very Member of the Court shall,
before taking up his duties, make a solemn declar ation in open court that he will exercise his
powers impartially and conscientiously”. Pursuant to Article31, paragraph6, of the Statute, that
same provision applies to judges ad hoc.
Although Mr.Mahiou has been chosen as a judge ad hoc in other cases in which he has
made solemn declarations, he must make a new d eclaration in the present case, in accordance with
Article 8, paragraph 3, of the Rules of Court.
Before inviting them to make their solemn d eclarations, I shall first say a few words about
the careers and qualifications of Mr. Mahiou and Mr. Daudet.
Mr.Mahiou, who is of Algerian nationality, is well known to the Court as he has been a
judge ad hoc in three other cases. He is a “docteur d’Etat” of the Faculty of Law of Nancy
University and is “agrégé” in public law and politi cal science. He has held a number of teaching
and research posts in Algeria, France and othe r countries, and has served as Dean of the Law
Faculty at the University of Algiers. Mr.Mahiou was a member of the International Law
Commission from 1982 to 1996 and was elected Chairman of the Commission at its forty-eighth
session in 1996. Mr.Mahiou has represented Algeria at numerous international conferences and
has served on various international bodies. He has been Vice-President of the Unesco Appeals
Board and has acted as an arbitrator in a number of international disputes. Mr.Mahiou is a - 3 -
11 member of various academic institutions and bodies a nd of the Institut de Droit International. He
has published numerous works and articles in various fields of international law.
Mr. Daudet, who is of French nationality, is a Doctor of Law and “agrégé” in public law and
political science. He has held a number of aching and research posts in metropolitan France,
Martinique, Mauritius, Morocco and Côte d’Ivoire. He was a member of the French delegation to
the Group of Experts and later to the United Nations Conference on the international transfer of
technology. Mr.Daudet is Secretary General of the Hague Academy of International Law and
emeritus Professor at the University of ParI (Panthéon-Sorbonne), where he served as First
Vice-President. He is also a member of the Editorial Board of thAnnuaire français de droit
international and a member of the French Society of In ternational Law and the French branch of
the International Law Association. He has published numerous works and articles in various fields
of international law.
I now invite Mr.Mahiou and Mr.Daudet to make the solemn declaration prescribed by
Article 20 of the Statute and I request all those present to
ahiou.r. M
M r. IOU:
“I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.”
The PRESIDENT: Thank you, Mr. Mahiou. Mr. Daudet.
MAr. DET:
“I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.”
The PRESIDENT: Thank you, Mr. Daudet. Please be seated. The Court takes note of the
solemn declarations made by Mr.Mahiou and Mr.Daudet and I declare them duly installed as
judges ad hoc in the case concerning the Frontier Dispute (Burkina Faso/Niger).
I shall now recall the principal steps of the procedure in this case.
12 By a joint letter of notification dated 12 Ma y 2010 and filed in the Registry of the Court on
20July2010, BurkinaFaso and the Republic of Niger transmitted to the Registrar a Special
Agreement between the two States, which was signe d at Niamey on 24 February 2009 and entered - 4 -
into force on 20November2009, whereby their Gove rnments have agreed to submit to the Court
the frontier dispute between them over a section of their common boundary. By the same joint
letter of notification, the two States also communicated to the Court the Protocol of Exchange of
the Instruments of Ratification of the Special Agreement and the exchange of Notes placing on
record their agreement on the delimited sect ors of the frontier, dated 29October and
2 November 2009, respectively.
By Order of 14September2010, the Court fixed 20April2011 as the time-limit for the
filing of a Memorial by each Party and 20January2012 as the time-limit for the filing of a
Counter-Memorial by each Party. The Memorials and Counter-Memorials were duly filed within
the time-limits thus fixed. The Parties then in formed the Court that they did not consider it
necessary to submit additional written pleadings, but that they wished to reserve the right to
produce further documents if required, under Article 56 of the Rules of Court. No request for the
production of such documents has been received by the Court.
In accordance with Article53, paragraph2, of the Rules of Court, the Court, after
ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed
would be made accessible to the public on the op ening of the oral proceedings. Further, in
accordance with the Court’s practi ce, the pleadings without their annexes will be placed on the
Court’s website as from today.
I note the presence at the hearing of the Agents, counsel and advocates of the two Parties. In
accordance with the arrangements regarding the organization of the procedure which have been
decided by the Court, the hearings will comprise a first and a second round of oral argument.
The first round of oral argument will begin t oday and will close on Friday 12 October 2012.
The second round of oral argument will begin on M onday 15 October 2012 and come to a close on
Wednesday 17 October 2012.
13 In accordance with the schedule of hearings dr awn up by the Court, after consultation with
the Parties, Burkina Faso will be heard first. I now give the floor to H.E. Mr. Jérôme Bougouma,
the Agent of Burkina Faso. You have the floor, Sir. - 5 -
Mr. BOUGOUMA:
1. Mr.President, Members of the Court, ma y I begin by greeting you on behalf of the
President, the Government and the people of Burkina Faso, whom I have the very great honour of
representing before you today. I do so all the more calmly and respectfully in that my country has
already had occasion to bring a case before the Court and welcomed the outcome. Despite the
various constraints inevitably imposed by proceedings before the Court for a country lacking in
major resources, BurkinaFaso is, for the second ti me, seeking a ruling from this distinguished
Court in order to settle a frontier dispute with one of its neighbours.
2. It was in 1984 that Burkina, together w ith Mali, submitted to a Chamber of the Court the
frontier dispute between the two countries. Hailed by specialists in international law all over the
world for the basic principles that it established in regard to territorial delimitation between
countries emerging from decolonization, the Judgment of 22December1986 settled to the full
satisfaction of both parties the dispute between them , in accordance with the law and with justice.
That Judgment encouraged African States to approach the Court with confidence in order to settle
their frontier disputes, despite the fact that issu es of sovereignty too often exacerbate passions in
this particularly sensitive area.
3. Having failed in our efforts over a period of almost 40 years to achieve full demarcation of
the frontier by bilateral agreement, we have together agreed to bring the matter before the Court,
whose judgment, “final and without appeal”, will ensure a lasting solution based on law, free of the
uncertainties and ulterior motives generated by political considerations.
4. I note, moreover, that our brothers from Niger have also already seised the Court of a
frontier dispute with another of their neighbours and, like ourselves, have opted to come before you
once again. This augurs well for the welcome th at our two countries will accord to the judgment
that they have asked you to render in the Speci al Agreement signed by them on 24 February 2009.
14 At the same time, Members of the Court, you w ill put an end to the sole issue which clouds the
relations between our two brother countries, which I am pleased to say are, in all other respects,
excellent. - 6 -
5. However, it would be wrong to underestimate the scope of this dispute, which complicates
the efforts of the frontier populations to live together, and which could poison relations between the
two countries.
6. And that is moreover why, in the Pr otocol of Agreement signed in Niamey on
23June1964, Burkina and Niger decided that th ey would not accept any alteration in the status
quo, thus reaffirming the consequen ces of the normal operation of the uti possidetis principle,
which freezes territorial titles as at the date ofdecolonization. Furthermore, in Article10 of the
Special Agreement, the Parties entered into a “sp ecial undertaking” to “refrain from any act of
incursion into the disputed areas”.
7. Mr.President, in paragraph0.19 of its C ounter-Memorial, Niger writes: “the fact that
such incidents are recurrent . . . points particularly clearly to the persistent difficulties faced by the
two States due to the lack of precision in the boundaries decreed by the colonial power in this
sector”. We cannot subscribe to the second part of this statement: contrary to what Niger claims,
this case, by contrast with the majority of fron tier dispute cases, is notable for the precision and
completeness of the frontier inherited by us from the colonial power. That said, it is true that these
incidents do occur and I readily agree that we need to put an end to them, irrespective of who may
have been responsible for them in the past. That will be a major benefit of your judgment,
Members of the Court.
8. However, the work to demarcate our comm on frontier had begun well. In addition to the
Niamey Protocol which I have just mentione d, on 28March1987 the Parties adopted an
Agreement and a Protocol of Agreement which in practice confirmed the delimitation of the
frontier resulting from the Erratum of 5October 1927 to the Arrêté of the Governor-General of
French West Africa of the preceding 31August. It was in the course of the demarcation that the
work ran into difficulties. It should, moreover, be noted that several times an overall agreement
had almost been reached: thus, in September 1988 the experts of the Joint Commission adopted an
agreed line covering the entire frontier; and again, in May 1991, the competent ministers agreed on
a compromise solution designed to put an end to the dispute. Unfortunately, in both cases Niger
went back on its initial approval.
15 [Slide: General view of the frontier between the two States] - 7 -
9. We have nonetheless managed to reach ag reement on the two extremities of the frontier,
which is why the Court, in Article 2 of the Special Agreement, is not asked to delimit the sector of
the frontier from the heights of N’Gouma to the Tong-Tong astronomic marker, or from the start of
the Botou bend to the river Mekrou, but, as regards those sectors, to “place on record the Parties’
agreement on the results of th e work of the Joint Technical Commission on Demarcation of the
BurkinaFaso-Niger boundary”. I recognize, Mr.President, that this is a somewhat unusual
provision, but, if I may use the expression, “onc e bitten, twice shy”, and, accustomed to the
about-turns of our opponents, we wanted this agreement to be confirmed by the Court, so that the
entire course of the frontier should carry the authority of res judicata . Notwithstanding its
1
signature of the Special Agreement, Niger regards this request as redundant . We do not take that
view: your endorsement, Members of the Court, is a guarantee of the stability that we seek.
[Slide off]
10. Mr. President, this case which Burkina Faso and the Republic of Niger have submitted to
the Court can be distinguished from the previous terrestrial delimitation cases of which it has been
seised in two very specific regards:
⎯ First, the Parties are in agreement on the evidentiary material on which they may rely ⎯ to the
exclusion of all other ⎯ and on which the Court may therefore base itself: namely, as recalled
in the Preamble to the Special Agreement, which refers to Article 2 of the 1987 Agreement (as
just mentioned above), to “ Arrêté 2336 of 31 August1927, as clarified by Erratum2602/APA
of 5 October 1927”, and to the additional provision in the 1987 Agreement: “should the Arrêté
and Erratum not suffice, the course shall be that shown on the 1/200,000-scale map of the
Institut géographique national de France, 1960ed ition, and/or any other relevant document
accepted by joint agreement of the Parties”. Si nce no such agreement h as been reached, there
thus remain ⎯ and only remain: the Arrêté as amended by the Erratum and the IGNFrance
map.
16 ⎯ Secondly ⎯ and this follows from the first point— unlike the situation in the majority of
frontier disputes, a single instrument constitut es the reference document on which the entire
1
CMN, p. 4, para. 0.7. - 8 -
course of the frontier can and must be based . Unlike the cases which produced the 1986
(Burkina/Mali) and 2005 (Benin/Niger) Judgments, what the Court is asked to do here is not to
draw a frontier de novo, but to confirm the delimitation of the frontier deriving from the Arrêté
of 31 August 1927 and its Erratum. Basically, th e Court is being asked to confirm an already
existing delimitation in order to ensure a final demarcation on an indisputable foundation.
11. Unlike Niger, Burkina does not believe, Members of the Court, that you should ⎯ or, in
truth, that you can ⎯ go beyond the strict framework laid down by the Special Agreement and the
1987 Agreement. You are not being invited to rule in equity, still less to confirm territorial
usurpations which have o ccurred since independence ⎯ or even prior thereto, when certain
colonial administrators expressed their dissatisfaction at the decisions taken in Dakar. You are not
being asked to rewrite a colonial title which, for once, covers the entire length of the disputed
frontier, or even to determine its validity or ev identiary value, since the Parties themselves have
both accepted it. You are not being invited to substitute your voice for that of the uti possidetis:
2
contrary to what has sometimes happened , the latter speaks here with complete assurance. It
therefore serves no purpose, as Niger asks you to do in its written pleadings, to involve yourselves
in the uncertainties of alleged (and often changing) effectivités, or in the deconstruction of various
frontier incidents, or in the alleged inconsistencies in the cartography of the region. Rather, all that
you need to do is to find that, in the vast majo rity of instances, the 1927 Erratum is in itself
sufficient and, in the very rare cases where it “ does not suffice”, to refer to the 1960 map of
IGN France.
12. And I think I can assure you in advance, Members of the Court: by proceeding in this
way, in accordance with the law sp ecified by the Parties, you will not do violence to the “realities
on the ground”, on which Niger wrongly relies. Those realities are characterized by the
co-existence of nomadism and semi-nomadism, of areas of transhumance and of certain sedentary,
but still relatively unstable habitats ⎯ which explains the frequent disappearance of villages or
17 hamlets referred to in certain documents that are not always necessarily particularly old. It is of
these realities that you have to take account in interpreting the two instruments which establish the
2
See Land, Island and Maritime Dispute (El Salvador/H onduras: Nicaragua intervening), Judgment,
I.C.J. Reports 1992, p. 386, para. 41. - 9 -
frontier between Burkina Faso and Niger, and not the faits accomplis created by settlements
established without proper authority (or under outside influence) by certain populations on one or
other side of the frontier.
13. Mr.President, before presenting the outline of our oral argument and introducing the
distinguished counsel who have been kind enough to agree to assist us, I have two agreeable tasks
to accomplish. First, I am most grateful to the Registrar, Mr.PhilippeCouvreur, and his team at
the Registry for all the assistance and advice that they have been kind enough to give us throughout
the proceedings. Secondly, I should like to than k publicly the Government of the people of
Burkina Faso and all of those who are assisting us in defending the country’s rights in this case of
such great importance to us.
14. I also take this opportunity to offer my warmest greetings to the delegation from our
sister Republic of Niger. Mr.President, afte r this introduction, ProfessorJean-MarcThouvenin
will describe the origins of the dispute and the negotiations which took place between the Parties in
an attempt to settle it. Mr.ClaudeObinTaps oba, Director-General of the Burkina Geographical
Institute, will then make a geographical and cartographic presentation of the disputed frontier.
ProfessorAlainPellet will then take the floor to describe the historical context and the points of
agreement and disagreement between the Parties ⎯ which should bring us to the end of the
morning. This afternoon, ProfessorPellet will briefly take the floor again to describe the broad
lines of Burkina’s position. This will then be explained in greater detail as regards the sectors of
the frontier from the Tong-Tong astronomic marker to the point where it reaches the River Sirba at
Bossébangou, then from that point to the Bo tou bend, by ProfessorsMathiasForteau and
Jean-MarcThouvenin. ProfessorPellet will close our first round of oral pleadings by describing
the demarcated sector of the frontier.
15. I would not wish to end my presentation without reaffirming the full and total confidence
of my country in the Court, and its belief that the judgment which you will render, Members of the
Court, will contribute to further strengthening the friendly relations between our two sister
republics. Your judgment will reinforce these links by resolving one of the rare problems which
they have been unable to settle in full by negotiation. - 10 -
18 16. Members of the Court, I thank you fo r your kind attention and I would ask you,
Mr. President, to give the floor now to Professor Jean-Marc Thouvenin.
The PRESIDENT: Thank you, Minister and Agent. I now give the floor to
Professor Jean-Marc Thouvenin. You have the floor, Sir.
Mr. THOUVENIN: Thank you, Mr. President.
G ENESIS OF THE DISPUTE BEFORE THE COURT ⎯ DISCUSSIONS
BETWEEN THE P ARTIES
1. Mr. President, Members of the Court, it is a great honour to stand before your
distinguished Court once again, for which I offer my sincere thanks to Burkina Faso, on whose
behalf, as our Agent has just said, it is my task this morning to present the genesis of the dispute of
which the Court is seised.
2. Mr. President, it should be noted after tw o rounds of written pleadings that the Parties
offer quite different views of the sequence of events leading up to the start of the dispute, and of the
respective parts they played in that regard.
3. For its part, Niger seems to consider that it is for the Court to settle a dispute that dates
3
back almost one hundred years. Thus , it writes that “persistent difficulties”concerning the
boundary between Upper Volta and Ni ger arose prior to independence 4, in its view as a result of
“the uncertainty regarding the boundary between the Colonies of Niger and Upper Volta as shown
5
in the Erratum of 5 October 1927 correcting the Arrêté général of 31 August 1927” . Niger then
suggests that the two Parties to the present proceedings were at once aware of the fact that they had
inherited a territorial situation that was unsettled, and claims that they ha ve endeavoured to settle
the ensuing dispute “[e]ver since their accession to independence”6.
MN, p. 25, para. 2.1.
4
Ibid, pp. 25-35, paras. 2.2-2.8.
Ibid, p. 25, para. 2.1.
Ibid, para. 3.1, p. 39. - 11 -
4. Regarding the discussions held by the two States since the 1960s, Niger maintains in its
19 Counter-Memorial that Burkina adopted two succes sive and contradictory positions, first adopting
the boundary line recorded by IGN France on the 1960 map before then changing its mind 7.
5. Burkina, for its part, considers that the dispute arose during the post-colonial period, since
a dispute between the two Parties to the present pro ceedings could not, by definition, have arisen
before their accession to independence. And while it is true that the question of the frontier has
been raised repeatedly since the 1960s, Burkina distinguishes two successive and very distinct
phases, during which it has maintained a constant position in respect of the course of the frontier:
the first, so-called “consensual” 8, phase from 1964 to 1990 (I), and a second phase during which it
became clear that there was a legal dispute between the Pa rties, which began in 1990 and will end
only when the Court delivers its judgment (II).
I. Co-operation on the demarcation of the frontier (1964-1990)
6. During the first phase, to which I shall de vote the first part of my pleading, there was
clearly no opposition between the Parties as to th e question of delimiting the frontier, and, on the
contrary, they developed their co-operation ⎯ which was very fruitful, moreover ⎯ with a view to
demarcating their frontier, that is to say mark ing it out. There ensued three agreements: the
Protocol of Agreement of 1964, the Agreemen t of 1987 and its accompanying Protocol of
Agreement. From the outset Niger is mistaken in its presentation of how these came about, when it
states in its Memorial that “[f]rom 1964 onwards the efforts of the two States” aimed to “arrive at a
delimitation and then demarcation of their common frontier” 9: in fact, at that time the Parties
spoke only of demarcation, since the question of delimitation was regarded as already settled,
during the colonial period, by the Arrêté of the Governor-General of FWA, dated 31 August 1927,
as clarified by the Erratum of October of the same year.
7CMN, p. 48, para. 1.2.7; see also CMN, p. 49, para. 1.2.9.
8
CMBF, pp. 48-51, paras. 2.2-2.10.
9CMN, p. 47, para. 1.2.3. - 12 -
A. The Protocol of Agreement of 1964
20
7. Furthermore, it was Niger itself which in 1964 quite rightly saw fit to consider the
discussions on the frontier as solely concerning the demarcation of the frontier line 10, stating quite
firmly that it was not a question of delimitation. The Note Verbale of 17 June 1964 from the
Minister for Foreign Affairs of Niger to his counterpart in Upper Volta is telling in this respect.
You will find a copy at tab 1.1 of the judges’ folder. Niger maintains therein:
⎯ that the frontier was already “established by colonization”;
⎯ that it was in effect “fixed by an Arrêté dated 31 August 1927 of the Governor-General and
clarified by an erratum published in the Journal Officiel of FWA No1 . 201 of
24 September 1927, page 638”;
⎯ that, accordingly, “a fairly precise basic text exists”;
⎯ but that “the markers are lost, and it is curren tly not possible for the representatives of the two
Republics to locate the frontier on the ground precisely”;
⎯ therefore the only possible course of action, in th e view of the Minister for Foreign Affairs of
Niger, was to “[appoint] surveyors from both States to mark out the frontier” 11.
8. Burkina responded favourably to this initiative almost immediately and signed the
Protocol of Agreement of 23 June 1964, which is reproduced at tab 1.2 of the judges’ folder.
9. That instrument was not intended to settle “the delimitation issue”, contrary to what Niger
claims persistently in its Memorial 12; it stated, on the contrary, as did the Minister for Foreign
Affairs of Niger in his Note Verbale cited above , that the “theoretical boundaries” between the two
States had already been fixed, though they had not been marked out on the ground; it goes on to
record the Parties’ agreement to “take as basic documents for the determination of the frontier
Arrêté général 2336 of 31 August 1927, as clarified by Erratum 2602 APA of 5 October 1927, and
the 1: 200,000-scale map of the Paris Institut Géographique National”. In addition, it conferred on
a Joint Commission the task of carrying out the work of demarcation ⎯ the Parties clearly did not
talk of delimitation ⎯ from mid-November 1964.
10MBF, pp. 34-35, paras. 1.39-1.40.
11
Ibid., Ann. 44.
12MN, p. 39, para. 3.1. - 13 -
21 10. Niger interprets the terms of that agreem ent and claims in its Counter-Memorial that the
13
1960 map was referred to “on the same footing” as the 1927 instruments . That is not the case, for
at least three reasons.
11. Firstly, such an assertion by Niger completely contradicts the position it expressed itself
in the Note Verbale just referred to, which was written only five days before the Protocol of
Agreement was signed. That letter, which forms part of the travaux préparatoires of the Protocol
of Agreement, does not even mention that the map exists and adheres strictly to citing the Arrêté
and the Erratum.
12. Secondly, the differences between the fr ontier as established by the 1927 texts and the
line plotted on the 1960 map by the IGN are such ⎯ and we shall have the opportunity to come
back to this later in the pleadings ⎯ that it is absolutely impossible to rely on both of them “on an
equal footing” in order to mark out the frontier.
13. Finally, the experts from Niger and Burk ina who were responsible for implementing the
1964 Protocol of Agreement never interpreted it as giving equal weight to the map and the
Erratum. As evidence, the Niger experts them selves explicitly underlined in 1990 that “the
1:200,000-scale IGNF map, 1960 edition, was c onsidered as a working document because of its
14
technical precision and not because it conformed to the legal texts” .
14. Following the adoption of the Protocol of Agreement in 1964, the demarcation work did
not proceed as quickly as the Parties had hoped. Four years later, in 1968, they considered
entrusting the work of demarcating the frontie r to IGN France, for an estimated cost of
15
10 million CFA francs .
15. Nothing ever came of this plan. Niger is nevertheless inspired by it, and claims in its
Counter-Memorial that the principle adopted by the two States in 1968 of entrusting the task of
installing markers along the frontier to IGN France “was far more than a simple understanding
regarding the procedure to be followed and... also marked a consensus on the actual line to be
adopted”. “[I]n all probability”, it adds, “the IG N would then have carried out the demarcation
13
CMN, p. 42, para. 1.1.30.
14
MBF, Ann. 85 (Report of the extraordinary meeting of the Joint Technical Commission on Demarcation of the
Niger-Burkina Frontier, Niamey, 14 May 1990).
15Ibid., pp. 38-39, para. 1.51; CMN, p. 48, para. 1.2.5. - 14 -
16
22 work on the basis of the line on the 1960 map” . Niger concludes from this “probability” that the
Parties agreed to consider the line plotted on th e 1960 IGN map as a reflection of their frontier.
Moreover, this was corroborated, according to Nige r, by a road map of Upper Volta dating from
17
1963 on which that line appeared. In Niger’s view, Upper Volta had, by virtue of this map,
18 19
“endorsed” , or even “adopted” this line in1963. Niger uses this as an argument to claim that
Burkina Faso has since changed its position 20.
16. Such an argument is completely unfounded.
17. While there was a convergence of view s between the Parties in the 1970s, it was
certainly not in respect of the line drawn on the 1960 map by IGN France, which was never
“adopted”, either by Burkina or by Niger for that matter. At the time, the Pa rties agreed on the fact
that there existed “a basic text” 21 ⎯ I stress the word text, Mr. President ⎯ inherited from
colonization that fixed the frontier, namely the 1927 Erratum 22. This is what the 1964 Protocol of
Agreement reflects. If the States had in tended, as Niger claims, to endorse the line plotted on the
1960 map as the frontier, they would have said so. And they did not. While the map is referred to
as a “basic document” in the 1964 Protocol of Agreement, it is as a base map and, additionally, as a
means of providing any further information relevant to demarcation.
18. As for the fact that the Parties wanted to entrust the task of installing boundary markers
on the ground to IGN France, this in no way imp lies that that body was given carte blanche to
establish the frontier wherever it felt it ought to go.
19. Lastly, in respect of the 1963 road map of Upper Volta 23, Niger is quite wrong to be
surprised that it reproduces the frontier line on th e map produced by the IGN in 1960, since it was
published by the very same IGN, through its office in Dakar. Nor can it possibly be inferred that
1CMN, p. 48, para. 1.2.5; see also CMN, p. 43, para. 1.1.31.
1MN, Ann. D 31.
18
CMN, p. 48, para. 1.2.5.
19
Ibid., p. 42, para. 1.1.31.
20
Ibid., p. 48, para. 1.2.7; see also CMN, p. 49, para. 1.2.9.
2MBF, Ann. 44; emphasis added.
2Ibid.
23
MN, Ann. D 31. - 15 -
23 Upper Volta “endorsed” this line, as there is simp ly no evidence that it represented Upper Volta’s
official position, which, moreover, Niger does not even attempt to argue.
20. In the end, the IGN did not carry out the task the Parties had planned to assign it in 1968.
The two States resumed their work some time later, with the result that the technical experts of the
two Parties agreed on a line in May 1986. Niger makes out that this is of great importance,
whereas it was simply a draft, established for purel y technical reasons, since the sole item on the
agenda of the meeting between the technical experts in May 1986 was “[the] estimate of the costs
of the demarcation of the Niger/Burkina frontier” 24. Moreover, Niger stressed this in its
25
Memorial , before shifting position in its Counter-Memorial, where it would have us believe that a
final frontier line was agreed upon at that meeting 26.
21. In any event, the results of the 1986 work were not conclusive, since they were partially
rejected in 1988 by the Joint Technical Commission on Demarcation established by the
1987 Protocol of Agreement.
B. The Agreement and Protocol of Agreement of 1987
22. Niger evidently does not understand the significance of the position adopted by the Joint
Technical Commission in 1988 when it rejected the line of 1986. Niger in fact claims that the
decision taken by the Commission in 1988 was the result of an about-turn by Burkina, which
27
thereby repudiated the position it had adopted in 1986 . Yet the 1988 decision can hardly be said
to reveal any inconsistency on the part of Burkina, given that the 1987 Agreement and its
accompanying Protocol of Agreement were si gned between 1986 and 1988 . Not only do those
texts clearly confirm the delimitation of the frontier between the two States, they also specify the
demarcation procedure which they agreed to fo llow. The Joint Commission established by the
24 1987Protocol of Agreement was therefore, in 1988, bound by those texts and could in no way
derogate from their provisions.
2MBF, Ann. 69.
25
MN, p. 40, para. 3.3.
26
CMN, pp. 48-49, para. 1.2.7.
2Ibid., p. 49, para. 1.2.9. - 16 -
23. Thus, while part (and only part) of the line adopted by the technical experts in 1986
could not be endorsed at the meeting held in 1988, it was obviously not on account of a change of
mind by Burkina, but because their work was not in accordance with the sovereign decision of the
two States in 1987. In the unanimous opinion of the Commission, composed of an equal number of
members from Niger and Burkina, that line had been established on the basis of the 1960 map, and
not the 1927 texts, which was unacceptable because “the technical staff were not authorized to
adopt a procedure that deviated from the decisions of the two Governments” taken in 1987, which
clearly indicated that the frontier was as described in the Erratum. The Commission therefore had
no choice but to ask the technical staff to “rec onsider the 110km portion in question within
eight(8)days, complying with the texts designate d in the Agreement and Protocol of Agreement
signed by the two Governments” 28.
24. However, it is true that our opponents blithely ignore the terms of the Agreement and
Protocol of Agreement of 1987, which are nonetheless key elements in the history of the
discussions concerning the frontier. They are reproduced at tabs 1.4 and 1.5 of the judges’ folder.
The main articles of the Agreement of 18 March 1987 read as follows:
“Article 1
The frontier between the two States sh all run from the heights of N’Gouma,
situated to the north of the Kabia ford, to the intersection of the former boundary of
the cercles of Fada and Say with the course of the Mekrou, as described in the Arrêté
of 31 August 1927.
Article 2
The frontier shall be demarcated by boundary markers following the course
described by Arrêté2336 of 31August1927, as clarified by Erratum2602/APA of
5 October 1927. Should the Arrêté and Erratum not suffice, the course shall be that
shown on the 1:200,000-scalemap of the Institut Géographique National de France ,
1960edition, and/or any other relevant doc ument accepted by joint agreement of the
Parties.
Article 3
There is hereby established a Joint T echnical Commission on Demarcation,
whose composition and powers shall be defi ned by a Protocol of Agreement between
the two States.”
28
MBF, Ann. 80. - 17 -
25 25. For its part, the main object of the Protocol of Agreement is to establish how the Joint
Commission on Demarcation should function. It shoul d be recalled at this point that its task is
precisely determined in Article4, since it is responsible for “ marking the frontier, in accordance
with the provisions of Articles1 and 2”. The said Articles 1 and 2 leave the Commission no
discretion to decide whether the line on the 1960 map is pertinent or not, since Article 2 states that
it is only in the event that “[the Arrêté and Erratum should] not suffice, [that] the course shall be
that shown on the 1:200,000-scale map of the Institut géographique national de France ,
29
1960 edition, and/or any other relevant document accepted by joint agreement of the Parties” .
C. The consensual line of 1988
26. On the basis of the 1987 Agreement and Pr otocol of Agreement, the Commission’s work
initially proceeded apace. It led to agreement the very next year on a consensual line, which
complied with the provisions of the 1987 Agreement to the letter. Mr. President, Members of the
Court, you will find a reproduction of the consensual line at tab 1.6 of the judges’ folder. The way
in which this consensual line was drawn up is accurately recorded by Niger in its
Counter-Memorial:
“Following the fourth meeting of the Joint Technical Commission,
representatives from both States noted that ‘[t]he experts [were] thus unanimous as to
the map interpretation and the field survey of the boundary line defined in the basic
documents cited in the Agreement and 30 Protocol of Agreement, signed in
Ouagadougou on 28 March 1987’ . The representatives of the two States thus agreed
on a line based on the interpretation of the basic texts which they represented on two
composites of 1:200,000-scale maps (1960 IGN map). That is 31at, in its written
proceedings, Burkina Faso calls the ‘consensual line’.”
27. Mr. President, whilst Burkina can easily endorse that observation from Niger’s
Counter-Memorial, the same cannot be said for the other analyses set out therein.
28. Our opponents contend that “[the consensual line of 1988] proved to be no more
32
consensual than that of1986” , the evidence for this, in thei r view, being that “the Joint
26 Commission noted a significant number of places where the line “differ[ed]” from the one resulting
2MBF, Ann. 73.
3MBF, Ann. 81.
31
CMN, p. 50, para. 1.2.10.
3Ibid., p. 50, para. 1.2.11. - 18 -
from the basic texts, the line on the 1960 IGN map “and from certain administrative realities on the
33
ground” . This apparently raised doubts for Ni ger, doubts which were said to have been
“confirmed by the field mission conducted from 17 to 21April1990 by the national directors
responsible for frontier matters of the two countries at the request of the Joint Technical
Commission on Demarcation” 34.
29. Members of the Court, Niger is straying here into explanations which are entirely
without merit and actually rather preposterous.
⎯ Firstly, the existence of differences between th e consensual line and the line on the 1960 IGN
map in no way implied a lack of consensus regarding the former, unless one were to suggest
that the consensual line must of necessity have “stuck” to the line on the 1960 IGN map ⎯ an
absurd notion since, on the contrary, the said Joint Commission did not consider part of the line
accepted by the experts in 1986 as relevant precisely because it merely reproduced the line on
the 1960 map.
⎯ Secondly, the fact that the course of the frontier having the force of law between the Parties
might be at odds with certain realities on the ground had indeed been contemplated by the
Protocol of Agreement of 28 March 1987, wh ich expressly laid down the procedures for
making the realities on the ground comply with th e frontier line. Article15 mentions the
possibility of the frontier “pass[ing] through structures or other properties”, without however
requiring that its course be altered to avoid th is problem. And Article19 states that after
demarcation of the frontier has been completed, “n ationals of each State who are not originally
from the State where they are residing, and who decide to remain there, shall forthwith become
subject to the jurisdiction, laws and regulations of the latter State”. The Parties were thus in
perfect agreement on the principle according to which the reality on the ground had to be
adapted to the course of the frontier, and not the reverse.
⎯ Thirdly, even though Niger did have “doubts” about the consensual line of 1988 – and I use
Niger’s own terms here when mentioning doubts – this only happened two years later, as a
result of a change in the composition of Niger’ s delegation to the Joint Commission. In this
33
CMN, p. 50, para. 1.2.11.
3Ibid. - 19 -
27 matter, Burkina’s Minister for Territorial Administration explains in a report to the Head of
State:
“As of February 1990, when the Niger Chairman of the Commission was
in France for training and had been temporarily replaced by Niger’s
Topographical Director ⎯ the counterpart of the Director-General of the
Burkina Geographic Institute ⎯ certain tensions began to arise, in particular
35
among the technical experts in the field.”
⎯ And lastly, these “doubts” were not “confirmed.. . by the national directors” in April1990,
contrary to what is claimed by Niger, referring to a document which provides no evidence of
this. MBF Annex 85, cited in footnote 144 of Niger’s Counter-Memorial, says nothing of the
kind. This document is the report of the ex traordinary meeting of the Joint Technical
Commission on Demarcation of the Niger-Burkina Frontier, held in Niamey on 14 May 1990, a
meeting during which Niger’s de legation, and that delegati on alone, reversed its position
completely by calling into question the consensual line. As for the field mission conducted
36
from 17 to 21April1990 which Niger men tions enigmatically in its Memorial , there is no
37
record of it in the file. A technical field mission was conducted from 5 to 12 June 1990 in an
attempt to survey the villages of Alfassi, Kouro, Takalan (Tokalan), Tankouro and Kogori. But
the mission report does not provide any confirmation whatsoever of the “non-consensual”
nature of the 1988 line, or of any so-called “doubts” as to its relevance, as implied by Niger.
30. Mr. President, the fact is that Niger called into question the consensual line of 1988 from
May 1990 onwards (it had started to cause tens ion within the Commission as of February 1990),
38
not before, and certainly not “as soon as the situation on the ground was first assessed” .
Furthermore, it is not the aforementioned assessments on the ground to which Niger refers in order
to justify its radical change of position in May 1990, but a 1:1,000,000 map, whose scale alone
39
demonstrates that it simply cannot show points of detail on the ground . Two months later, in
July 1990, Niger put forward new arguments, all of a theoretical nature and with no connection to
28 “realities on the ground”: it was on that occasion that two new theories emerged, as novel as they
35MBF, Ann. 88.
36CMN, p. 50, para. 1.2.11.
37
MBF, Ann. 86.
38CMN, p. 51, para. 1.2.14.
39MBF, Ann. 85. - 20 -
were short-lived, for they have since been abandoned, one being that that the frontier took the form
of a “curve” between the Tong-Tong astronomic ma rker and the River Sirba at Bossébangou, the
40
other that Takalan and Takatami were one and the same village .
31. In its Counter-Memorial, Niger critici zes Burkina for presenting Niger’s position on the
interpretation of the course of the frontier as being based on “short-lived” beliefs 41, and maintains
that on the contrary the said position was “repea tedly reiterated” in April1990, July1990,
42
November 1990 and February 1991 .
32. However, Members of the Court, which position is Niger talking about? Is it the position
according to which the frontier does not reach th e River Sirba at Bossébangou, put forward in
May1990, supported by the 1927 map 43, then abandoned just two months later, in July the same
44 45
year , to be adopted again only in the context of the present dispute ? Are we to seek the
“repeatedly reiterated” position claimed by Nige r in the line between the Tong-Tong astronomic
marker and the River Sirba at Bossébangou, whic h at one point it sees as a curve, as asserted in
July 1990 46 , then as consisting of straight -line sections as it accepted in 1988 47 and 1991 48, then
once again as a curve in 2001 49, finally conceding, before th e Court, that this position is
50
“debatable” ⎯ not to say untenable ⎯ and henceforth defending a line made up of a combination
51
of sections ? It would be cruel to repeat here the fu ll list of Niger’s inconsistencies, which are
29 already set out in Burkina’s Counter-Memorial 52. But it is nonetheless astonishing to see our
opponents state in writing the extent to which their position has been “repeatedly reiterated”.
40MBF, Ann. 87.
41
CMN, p. 51, para. 1.2.14.
42
Ibid., p.1-52, para. 1.2.14.
43
MBF, Ann. 85.
44
Ibid., Ann. 87; see also CMN, Ann. C 130.
45CMBF, p. 54, paras. 2.17-2.19.
46MBF, Ann. 87.
47Ibid., Ann. 81.
48Ibid., Ann. 89.
49
Ibid., Ann. 94.
50
MN, p. 70, para. 5.9.
51
CMBF, p. 53-54, paras. 2.15-2.16.
52
CMBF, p. 52, paras. 2.14-2.23. - 21 -
II. The crystallization of the dispute
33. It is Niger’s abrupt change of positi on in 1990, when it called into question the
consensual line of 1988, which marks the start of the period of crystallization of the dispute. The
Parties were nonetheless able to resolve it, on a temporary basis, by means of a new agreement
reached in May 1991 ⎯ a copy of this compromise agreement is reproduced at tab1.7 of the
judges’ folder.
A. The May 1991 compromise
34. The 1991 compromise solution appears to be a partial recognition of Burkina Faso’s
claim, since it goes back to the consensual line of 1988 ⎯ i.e., the line described in the Erratum ⎯
between the Tong-Tong marker and the River Sirb a at Bossébangou, whereas in the next section,
which runs from the River Sirba at Bossébangou to the River Mekrou, the compromise grants
satisfaction to Niger by following the line on the 1960 map.
35. Having said that, neither Burkina nor Nige r relies on this agreement as having the force
of law in the present case. Niger does, however, claim that when this compromise was reached the
Ministers of both States “noted that the 1927 Arrêté and its Erratum did not suffice” 53. This is pure
54
fabrication, the Ministers never having noted anything of the kind . Our opponents had,
moreover, been slightly more prudent in their Memorial, where they merely contend that the
Ministers had found some “lacunae in relation to the implementation of the Arrêté of 1927 and its
Erratum” 55, although even that is not correct, since actually the Ministers had merely noted the
56
lacunae in relation to the implementation of the texts by the Joint Commission on Demarcation .
In fact, they simply noted that the Joint Comm ission was unable to settle the matter, and they
decided to settle it themselves by adopting a political solution.
30 B. The repudiation of the 1991 compromise and the partial failure of subsequent discussions
36. As we know, this political solution did not last for very long, once again due to another
sudden change in Niger’s position. Since then, Ni ger has been trying to justify itself through legal
53CMN, p. 52, para. 1.2.15.
54
MBF, Ann. [89].
55
MN, p. 41, para. 3.5.
56CMBF, p. 52, para. 2.12. - 22 -
arguments, explaining that the line resulting fro m the 1991 compromise did not fully comply with
57
Articles 1 and 2 of the 1987 Agreement , of which Niger turns out to be a fervent defender on this
point ⎯ whereas elsewhere it does its utmost to ignore that Agreement in its written submissions to
the Court. This justification in any case seems abst ruse, since, as an international agreement, the
1991 Agreement could perfectly well depart from th e terms of the 1987 Agreement, which indeed
it did, by giving a political compromise solution the form of an agreement. The justification cited
by Niger thus serves only to conceal the fact that it had once again changed its mind and no longer
wanted the political solution which it had itself negotiated and accepted.
37. Nothing significant happened between 1991 and 2001, and it was not until the fourth
ordinary session of the Joint Technical Commission on Demarcation of the Frontier, held in
July 2001, that the debates were resumed, allowi ng clarification of the points of agreement and the
points of disagreement between the Parties 58. During that meeting a joint committee was created
and entrusted with the task of reviewing the theo retical line of the frontier, that review being
conducted in the light of the Agreement and Protoc ol of Agreement of 1987 and of the Erratum of
5October1927. When concluding its work, th e Commission noted that the frontier was clearly
defined from the heights of [Mount] N’Gouma to the astronomic marker of Tong-Tong ⎯ with the
exception of the ruins of Tokébangou, which it had not been possible to identify ⎯ and from
Tchenguiliba to the River Mekrou, subject to verifi cation of the position of the village of Kogori.
However, it noted that from the Tong-Tong astrono mic marker to the River Sirba at Bossébangou,
the interpretations of the Erratum accepted by Bu rkina and Niger were irreconcilable: for the
former, the frontier was, and still is, composed of two straight-line sections, whereas for the latter,
it followed a curved line ⎯ since then, Niger’s position has changed. Similarly, from Bossébangou
to Tchenguiliba, the Commission noted the difference in the positions held by the two Parties.
31 38. The two sections of the line which were clearly defined in 2001 have not been called into
question since then. The Parties have asked the C ourt to place this agreement on record for them;
my friend and colleague Alain Pellet will come back to this point. This agreement does not cover
the other two sections of the frontier, which run from the Tong-Tong astronomic marker to the
57
CMN, p. 52, para. 1.2.16.
58
MBF, Ann. 94. - 23 -
River Sirba at Bossébangou, and from the Rive r Sirba at Bossébangou to the beginning of the
Botou bend respectively; as far as these are con cerned, it is up to the Court to confirm the line
described in the 1927 Erratum.
39. Mr. President, Members of the Court, that concludes my pleading for this morning. I
should like to thank you very much for your atte ntion and respectfully ask you, Mr. President, to
give the floor to Mr. Claude Obin Tapsoba, unless you now wish to adjourn for a coffee break.
The PRESIDENT: Thank you, Mr. Thouvenin. I would now ask Mr. Claude Obin Tapsoba
to give his geographical and cartographic presentation. You have the floor, Sir.
Mr. TAPSOBA: Thank you, Mr. President.
G ENERAL PRESENTATION
1. Mr. President, Members of the Court, Professor Jean-Marc Thouvenin has described the
diplomatic context of the dispute before you. I am proud and happy to present the geographical
and cartographic framework of this dispute on behalf of my country.
[Slide 1: Situation of Burkina Faso]
2. Burkina Faso, formerly the Republic of Upper Volta, is a landlocked country in the heart
of West Africa with a surface area of 274,200sq km. It is one of the smallest countries on the
African continent. It extends approximately 625 km from north to south and 865 km from east to
west.
3. Its territory lies between latitudes 8 degrees and 16 degrees north and longitudes 6 degrees
and 3 degrees east of the Greenwich meridian. It shares borders with Mali to the north and west,
32 Côte d’Ivoire to the south-west, Ghana and Togo to the south, Benin to the south-east and Niger to
the east.
[End of slide 1]
I. Presentation of the physical, human and economic environment
4. Much of the country is situated on a pe neplain with an average altitude of 300m above
mean sea level. - 24 -
5. It has a tropical Sudanese-type climate, except in the north of the country where the
climate is Sahelian. In both cases, there are two seasons: a rainy season, known as wintering,
which runs from mid-May to mid-October, and a dry season which lasts the remainder of the year.
Rainfall decreases towards the north.
6. Vegetation is savannah-like, with trees in the west, south and south-east and bushes in the
centre and east. The north is characterized by steppe lands and tiger bush.
7. BurkinaFaso’s hydrographic network consists of three main basins: those of the Volta,
the Comoé and the Niger. The frontier region with the Republic of Niger is part of the western
basin of the River Niger, several tributaries of which are relevant in the context of the present
frontier dispute. This is the case for the Béli, the Sirba, the Tapoa and the Dyamongou rivers,
which originate in Burkina Faso territory.
8. According to the final results of the Bu rkina Faso general population and housing census
59
carried out in 2006, the country has a population of just over 14million inhabitants , with a
density of 51.8inhabitants per sqkm. Its et hnographic make-up is diverse. The main ethnic
groups are the Mossi, the Peul, the Gourmantché, the Bobo and the Gourounsi.
[Slide 2: MBF, Administrative map of BF]
9. The capital of Burkina Faso is Ouagadougou. In terms of administrative organization, the
country is divided into 13 regions, two of whic h — the Sahel region and the Eastern region — are
adjacent to the territory of Niger.
33 10. The regions are subdivided into provinces. The Sahel region in the north is made up of
the provinces of Oudalan, Séno, Yagha and Soum. The Eastern region on the southern part of the
frontier comprises the provinces of Gnagna, Komondjari, Gourma, Kompienga and Tapoa.
[End of slide 2. Slide 3: Situation of Niger]
11. The Republic of Niger, which had an es timated population of over 15 million inhabitants
in 2010 60, is made up of eight regions which are subdivided into 36 départements. It covers an area
of 1,267,000sqkm and is landlocked like Burkin a Faso. The majority of Niger’s territory lies
within the Sahara and the Sahel zone. The River Niger runs through the south-west of the country.
59
http://www.insd.bf/fr/IMG/pdf/Resultats_definitifs_RGPH_2006.pdf.
60
MN, p. 3, para. 0.10. - 25 -
Niger shares borders with Mali, Algeria, Libya, Chad, Nigeria, Benin and lastly Burkina. The
départements of Téra in the north and Say in the south, both of which are in the Tillabéry region,
border Burkina.
[End of slide 3]
12. On either side of the frontier which is at issue in the present case, Niger’sdépartements
of Téra and Say and BurkinaFaso’s provinces of Oudalan, Séno and Yagha, as well as those of
Komondjari, Gourma and Tapoa, are very similar in terms of rainfall, climate and vegetation.
13. The aspects I have just mentioned correspond to the present situation. It is important to
point out, however, that the movement of people in space and time, the imprecise nature of colonial
statistics and the lack of monographs of the villages in the disputed sectors in particular mean that
it is not possible to have an accurate picture of demographic changes in the frontier area.
II. The Sahel and Eastern regions
14. Mr. President, Members of the Court, the Sahel and Eastern regions are the regions of
Burkina Faso which are concerned by the frontier dispute before the Court.
[Slide 4: Administrative divisions adjoining the frontier]
34 15. The Sahel region, let us remember, consis ts of four provinces, three of which border
Niger: Oudalan, Séno and Yagha. It is situat ed in the extreme north of the country, between
parallels 13 degrees and 16 degrees north, and is bou nded to the north by the Republic of Mali, to
the east by the Republic of Niger, to the south by the Eastern and Centre nord regions of
BurkinaFaso and to the west by the Northern region. Its population consists mainly of Peul,
Touareg, Gourmantché and Mossi.
[End of slide 4]
16. The desert character of this region limits agricultural production. Nevertheless, it has
great potential for animal husbandry. Pastoralism, characterized by high mobility, is the system of
animal production in the region. In this area, wh ich has an unfavourable climate, this activity is
dominated by nomadic and semi-nomadic population groups for whom pastoralism has always
been the usual way of managing pastoral and water resources. - 26 -
17. The population of these three provi nces was estimated at approximately
625,000inhabitants in the last general populati on and housing census of 2006. It was below
100,000 inhabitants in the 1920s. Fulfuldé is the most widely spoken local language, followed by
Tamachèque.
18. The Sahel region is home to foreign nationals, mainly from Niger and Mali. Some are
residents and others stay there periodically in order to work their fields or to look for pasture or
watering points for their herds. In the absence of forage crops to supplement feed for their herds,
the method of feeding the latter is based on the ex tensive use of natural pasture. Herders are
therefore obliged to travel greater or lesser di stances, depending on the ethnic groups or tribes in
question. They tend to disperse to fairly distant watering points during th e dry season and to come
together again as soon as the rains begin. This practice explains the flexibility and responsiveness
of the population groups in exploiting plant resources whose geographical and temporal availability
are particularly unpredictable.
19. The second frontier region of Burkina Faso c oncerned by this case is the Eastern region.
As its name suggests, it is situated in the east of Burkina, between latitudes 10degrees and
14 degrees north. It comprises the southern part of the section of the frontier which is at issue and
35 consists of five provinces, two of which border th e Republic of Niger. These are the provinces of
Komondjari and Tapoa.
20. The hydrographic network of the northern part of the region consists of the tributaries of
the right bank of the basin of the River Niger. The tributary arms form a local network which
drains mostly into the River Sirba. In th e province of Tapoa, the hydrographic network is
structured around the Tapoa, which is the only pe rmanent watercourse. The lands in the south of
the region are part of the sub-watershed of the Pendjari. The Pendjari and its tributaries do not
flow in the dry season, but a number of permanent pools and reservoirs are situated along its
course.
21. In 2006, the population of the Eastern region was estimated at nearly
1,200,000 inhabitants, in other words about 8 per cent of the country’s population at that time. The
population of the Fada cercle is believed to have been less than 200,000inhabitants in the 1920s.
The most widely spoken language in the region is Gourmantché, followed by Fulfuldé and Mooré. - 27 -
22. The most important point to emphasize is the fact that the demographic pressure has
grown in recent years. For example, in 1975 the province of Séno, which corresponded at that time
to the arrondissements of Dori and Sebba, had some 140,0 00inhabitants and in 1985 it had
approximately 229,000: the population had almost doubled in ten years. During the same period,
the population of Gourma was estimated at 190, 000 inhabitants in 1975, 295,000 in 1985 and
350,000 in 1991; between 1975 and 1991, the population had therefore increased by 82 per cent.
III. The Tillabéry region
23. The Niger region of Tillabéry faces the tw o regions of BurkinaFaso that cover the
frontier which is the subject of the present case. It is bordered to the north by Mali, to the west and
south-west by Burkina, to the south by Benin, to the south-east by the Niger region of Dosso and to
the north-east by the region of Tahoua. It covers an area of approximately 91,000sqkm and is
drained by the River Niger. The population of the Tillabéry region is approximately 1,850,000,
according to the provisional results of the ge neral population a nd housing census carried out in
2001. The landscape has two main features — the fossil valley of Dallol Bosso and the valley of
36 the River Niger— which are dominated by a vast plateau with elevations of between 200 and
61
300 m .
24. The Tillabéry region is the newest of th e country’s eight regions; it was created by
OrderNo.88-20 of 7April1988. It is subdivided into six départements, seven postes
administratifs and 44 communes 62. The départements of Téra and Say border Burkina. According
63
to a source cited by a study analysing the agriculture, forestry and livestock systems in detail as
part of the implementation of the rural develo pment strategy for the Tillabéry region, the
départements of Téra and Say had populations of 414,000 and 230,000 respectively in 2001.
25. As in the border regions of Burkina, agriculture and animal husbandry are the main
activities carried out by the population of the Tillabéry region. However, biophysical disturbances,
which are the result of climate change, amongst othe r things, have an impact on herding methods.
6http://www.pnud.ne/tillabery.htm.
62
http://www.strategie-developpement-rural-niger.org/public/images/ressou….
6DSCN/RGP 2001/CNEDD/2004. - 28 -
Herders in search of transhumance areas are so metimes obliged to spe nd extended periods in
64
neighbouring countries, including Burkina .
IV. Nomadism and transhumance
26. Mr. President, as I have just mentioned, agriculture and animal husbandry are the main
sources of income for people living along the frontier between Niger and Burkina. Animal
husbandry is predominant in the northern part of the frontier area and agriculture in the southern
part.
[Slide 5: Sketch-map showing transhumance routes]
27. In the Sahel in general, of which the dis puted area is part and where most of the people
are nomads, migration is a matter of survival for both people and livestock, since there is a constant
need to find new pastures for herds and lands for subsistence crops. This migration is subject to the
37 forces of nature. Consequently, traditional b ack-and-forth migratory movements in search of
water, pastures or other resources which are essentia l for the health and re production of the herd
follow itineraries and timetables which may change over time.
65
28. This freedom to lead a cyclical nomadic existence across open spaces has occasionally
been restricted, however, even though agreements on nomadism, which existed between the
colonies of the French West Africa group during the colonial period, allowed local governors to
have fiscal and administrative oversight ove r the population groups, without affecting the
66
movement of persons .
29. It should be emphasized that the moveme nts of nomadic peoples are not only a response
to the requirements of traditional techniques for exploiting pasture routes. They are also influenced
by social relationships. Thus, in addition to the criteria already mentioned, the choice of route is
dictated by the existence of areas where it is po ssible to group herds on the basis of family ties.
The existence of conflicts or close ties may prohibit or allow access to watering points or certain
64
http://www.strategie-developpement-rural-niger.org/public/images/ressou….
65
See J.-M. Kambou-Ferrand, 1993, Peuples voltaïques et conquêtes co loniales (1885-1914), Burkina Faso,
Paris, l’Harmattan, p. 355, and the map on p. 357.
66See J.-M. Kambou-Ferrand, 1993, ibid., pp. 355-356. - 29 -
territories. These conditions of access may vary de pending on the seasons, in particular according
to customary land rights or the multiple uses of spaces.
[End of slide 5]
30. Mr. President, Burkina and Niger are two Sahelian countries which very often experience
fodder and water shortages. These shortages are compounded by, among other things, the vagaries
of climate and pressure on the land. In such circumstances, the feeding of livestock becomes a
major concern for people who practise transhuman ce in order to find the pastures and watering
points that are necessary to feed their herds. Th is concern is shared by the leaders of our two
countries, who initiated consultations which have identified transhumance routes between Burkina
67
and Niger with a view to a more effective management of resources .
38 31. The Economic Community of West African States (ECOWAS) is also concerned about
the problems associated with fodder and water shorta ges. It is working alongside States to resolve
the issue by adopting agreements on the cross-border movement of herds 68.
V. Toponyms
32. Mr. President, Members of the Court, appropriating spaces involves naming them. There
are few places in the world without a name. Toponymy is at the heart of society’s relationship with
space. It reflects the cultural and historical values of the social groups involved. In use since time
immemorial, place names constitute the historical and cultural heritage of each people. They
represent the ideas, aspirations and life of the first inhabitants.
33. Naming a territory is a cultural and social act which is related to space, power and time.
Some places were landmarks (a watercourse or a mountain) before people gathered together there
in villages. Place names may allude to particular features such as the topography of the land, the
quality of the soil or the existence of particular trees; this is the case with Vibourié, still called
Wiboria, which means “beautiful trees” in the local language. They may also recall the presence of
a watercourse, a natural elevation or an event; this is the case with Banizoumbou, a district of
67
General report on the consultati on meeting on cross-border transhumance, Dori, Burkina Faso,
19-20 December 2002; http://www.mra.gov.bf/SiteMra/transhumance/rapport-general.html.
6Decision A/DEC.5/10/98 of 31 October 1998 regulating transhumance between ECOWAS Member States. - 30 -
Datambi, which denotes the “place where happiness came”, or Karénakéni — “the place where the
cayman lies down” — in the commune of Bondouré.
34. The same place may have several names simultaneously or successively over time: for
example, Ainé or Haïni, an administrative village in the commune of Falangountou. Similarly,
several places may have the same name. Map No.17 in SeriesD of the Annexes to Niger’s
Memorial is a clear illustration of this. On this map, we find Falangountou between Téra and Dori,
and then we find Falangountou again further to the north in the vicinity of Tong-Tong. This latter
village is written as Jalakountou on the map in Ni ger’s AnnexD7. This is also the case with
Petel Kolé, which is to be found on the Téra sheet and then a second time on the Say sheet.
39 35. In Africa, and in particular in the frontier area between Burkina Faso and the Republic of
Niger, place names have traditionally been used in the spoken language. Places were named by the
people who went there. Their written forms aros e from the needs of colonial administrations,
which started mapping the territories in order to gain a better understanding of the countries and the
continent. The aim was also to inform the authorities at home of routes which had been covered on
the ground.
36. The officials of that time, who came from the colonizing countries, conducted surveys on
the ground, with the assistance of local interpreters, with a view to recording the place names on
the basic maps. Of course, they had transcription and translation problems which distorted certain
place names, sometimes causing them to lose the historical and cultural significance that they are
meant to embody. The colonial administrations also faced suspicion from populations who, in
order to circumvent the supposed aims of the ga thering of information, sometimes gave the wrong
name in order to mislead them. The place names in the area concerned by the dispute between
Burkina Faso and Niger should be seen against this general background.
37. Let us consider, for example, some of the place names used in the Arrêté of
31 August1927, which we will compare with th e names used on the 1:200,000 map published by
the Institut géographique national de France in 1960. We find that:
[Slide 6: Extract from the Téra sheet]
⎯ Arounskoye in the Arrêté is written as Arwaskoy on the map;
⎯ Balébanguia in the Arrêté is written as Ballé Banguia (in two words) on the map; - 31 -
⎯ Tokébangou in the Arrêté is written as Takabougou on the map;
⎯ Doumafendé in the Arrêté but Douma Fèndé (in two words) on the map;
⎯ Tchenguiliba in the Arrêté and fascicle IV of the General Directory of the Localities of French
West Africa is written as Tyenkilibi on the map.
[End of slide 6]
38. Conversely, some names have never change d. This is the case for Tong-Tong, Tao and
Say.
40 VI. Characteristics of the villages and of the habitat
39. Mr. President, Members of the Court, as we saw earlier, the frontier area between the two
countries is occupied by people whose main activities are animal husbandry in the Sahel region and
agriculture in the Eastern region. These activities ha ve left a particular mark on the habitat of the
populations concerned and on their villages.
40. In the Sahel, villages are made up of scattered dwellings, thereby leaving space for the
herds. In this predominantly Peul region, dwelli ngs are typically woven straw huts, which are well
suited to the constant migration of families. The hut s consist of small, lightweight parts in order to
facilitate moves which sometimes involve long distances. The hut, which is the centre of
community life, may be at the same time a kitchen, a dairy and also a place for women to buy and
sell things. This type of dwelling is dictated by the mobility of the nomads, who sometimes have to
take urgent decisions about moving from one place to another. They then relocate to other
temporary sites, sometimes keeping the same place name. This is one of the reasons why places
have the same names, but it can also lead to uncertainty over the location of villages.
41. The movements of nomads and their frequency and scale are very closely linked to the
events of the pastoral year. Over the years, however, the relocation of camps and changes in
pasture involving the movement of herds depend on a number of factors, including the nature of the
soil, the rate of growth and composition of the herbaceous layer, the distribution of watering points
and the areas for grouping herds together. Nevertheless, the need for th e herds to return to
watering points to drink restricts the distances that can be travelled between two watering stops. - 32 -
After the harvest, the nomads move closer to agricultural areas so as to conclude agreements with
farmers who wish to use animal dung to fertilize the land.
42. The dwellings of the Touareg communities, who are also nomads, are equally basic and
precarious. They consist of a wooden frame covered w ith animal skins or straw. However, this is
41 not the only type of dwelling in the region and so me villages consist of grouped dwellings made of
earth.
43. It is this type of scattered, earth-built dwelling that characterizes the villages in the south
of the frontier area, in particular in the Eastern region, where most of the population is sedentary.
The areas between concessions are used as kitchen gardens, while the fields are further away.
44. In this region, huts are built using earth bricks which may or may not then be rendered
with a coat of earth plaster. The roof is made of straw or earth, supported by a wooden frame.
45. Generally speaking, villages consist of several concessions which are under a head of
household. A village chief or a tribal chief in so me areas is responsible for managing the affairs of
the settlement. People who are under the territorial authority of a chief pledge allegiance to him.
VII. Cartographic material
46. Mr. President, Members of the Court, the Parties to the present dispute have produced
graphical material consisting of maps, sketch-map s and drawings from a variety of sources and of
varying quality.
47. Maps differ from sketch-maps and drawings in terms of their geometrical quality and the
accuracy of the details shown on them. They ar e the result of information retrieved from direct
surveys, aerial photographs and satellite images and include a legend, a scale and a great deal of
other peripheral information making up their meta data. Map-making requires the establishment of
a network of markers based on a system of co-ordinates adopted by a country or a group of
countries.
48. The sketch-maps and drawings made to illu strate a territory or a route do not have to
meet the same requirement as maps, which are pr epared in accordance with a technical production
process complying with established standards. - 33 -
49. In the present case, maps have been provided by the Parties, the oldest of which date
from the 1920s. However, none of those maps forms an integral part of the set of titles adopted by
42 the Parties. The other graphical material cons ists of sketch-maps and summaries of sketch-maps
from a variety of sources, often drawn freehand; this means that they do not have the quality
required for locating the objects represented.
50. Neither Party has been able to identify a map officially showing the boundaries between
69
Upper Volta and Niger according to the Erratum of 1927 . Of all the graphical material presented
by the Parties, the 1:200,000 map published by the Institut géographique national de France in the
1960s can therefore be accepted as the most relevant to use as a base map for the visual
representation of the Arrêté and its Erratum. This seems appropriate, because both Parties have
adopted it, despite the errors regarding the repr esentation of the frontier line as it results from the
Erratum.
51. There are shortcomings in some of th e other graphical material provided. Some
sketch-maps have been wrongly classed by Niger as maps. This applies to document No.1 in
Series D of the Annexes to Niger’s Memorial, which the author himself entitled “Sketch-map of the
course of the Niger through Djerma cercle”; the same applies to map No.4 in that series of
Annexes. The sketch-map entitled “Diagourou canton: scale 1:250,000”, included by Niger as
map No. 21 in Series D of the Annexes to its Memorial, contains no date and its author is unknown.
[Slide 7: Extract from the map in Annex D 25 to Niger’s Memorial]
52. In closing, Mr. President, Members of the Court, it is worth remarking that the composite
in AnnexD33 to Niger’s Counter-Memorial consists of maps prepared on different dates. The
Gotheye sheet, published in 1960, was replaced by the 1982edition (AnnexD25 to Niger’s
Memorial), supplementary data for which were collected by the Topographic Service and Land
Registry of the Republic of Niger. It cont ains new place names such as Bouno Kalaï and Déba
(which appears twice, the second time replacing the former village of Doba); Korkoulokou in the
old edition becomes Kokoloukou, likewise Ourou Sawabé becomes Boborgou Saba in the
1982 edition.
69
See Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 583-584, para. 57. - 34 -
43 [End of slide 7. Slide 8: Extract from the Gotheye sheets, 1982 and 1960 editions]
53. Moreover, Banizoumbou, which is mapped as being in BurkinaFaso territory in the
1960 edition, appears in Niger territory at the place where the 1960 map situated Nabamboro.
54. This is why, even though the 1982ed ition of the Gotheye map reproduces the frontier
line of the 1960 edition, Burkina Faso requests the Court, so as to avoid any confusion, to adhere to
the 1960 edition of the IGN map adopted by joint agreement of the Parties.
[End of slide 8]
55. Mr. President, Members of the Court, th at concludes the geographical and cartographic
presentation which it has been an honour and a pleasure for me to make. Mr. President, may I ask
you now to call Professor Alain Pellet.
I thank you most sincerely for your attention.
The PRESIDENT: Thank you, Mr.Tapsoba. I shall give the floor to Mr.Pellet after a
coffee break. The hearing is suspended for 20 minutes.
The Court adjourned from 11.40 a.m. to 12.05 p.m.
The PRESIDENT: Please be seated. You have the floor, Mr. Pellet.
Mr. PELLET:
G ENERAL PRESENTATION
T HE HISTORICAL CONTEXT ; THE POINTS OF AGREEMENT AND DISAGREEMENT
BETWEEN THE PARTIES ; B URKINA S POSITION
1. Mr.President, Members of the Court, it is not without emotion that I stand before you
today on behalf of Burkina Faso. One of the very first cases I had the honour of arguing before the
70
Court was between Burkina and Mali . More than a quarter of a century has passed and
BurkinaFaso stands before you again to seek a settlement to its frontier dispute with its other
70See I.C.J. Pleadings, Frontier Dispute Burkina/Mali (Burkina Faso/RepubliVol. III, pp. 28-38,
CR 86/1, pp. 38-64 and I.C.J. Pleadings, Frontier Dispute Burkina/Mali (B urkina Faso/RepuVol. IV,Mali),
pp. 54-73, CR 86/3, pp. 28-73 and pp. 94-127, CR 86/4, pp. 43-79 and CR 86/5, pp. 6-48. - 35 -
44 neighbour to the north, the RepublicofNiger. I am proud to represent Burkina once again and
grateful to the Government of Burkina for asking me to do so.
2. Mr. President, my task is threefold. First, I shall endeavour to put the dispute submitted to
you in its historical context; I shall then attemp t to identify the points on which the Parties agree
(which are often deceptive) and those on which they disagree (which are often significant). And I
shall conclude this general presentation ⎯ which will continue into the beginning of the
afternoon ⎯ by setting out the broad outline of Burkina’s position.
I. The historical context
3. Mr.President, Members of the Court, Mr.Tapsoba has just presented to you the
geographical and cartographic context of the case before us. ProfessorThouvenin, for his part,
described the immediate genesis of the dispute and the circumstances in which it was submitted to
the Court. It falls to me to describe the wider hi storical context of the delimitation of the frontier
between the two countries.
4. That delimitation is a colonial her itage which is fully accepted by Burkina 7, no matter
how arbitrarily it was determined. However, as the Chamber of the Court which ruled on the
Frontier Dispute (Burkina/Mali) so splendidly explained:
“the maintenance of the territorial status quo in Africa is often seen as the wisest
course, to preserve what has been achieved by peoples who have struggled for their
independence, and to avoid a disruption which would deprive the continent of the
gains achieved by much sacrifice. The essen tial requirement of stability in order to
survive, to develop and gradually to conso lidate their independence in all fields, has
induced African States judiciously to consent to the respecting of colonial frontiers.” 72
5. In our case, colonial arbitrariness appears particularly harsh when you consider the hoops
UpperVolta was put through by the administering power. This did not prevent the belated
establishment of both Upper Volta and Niger as autonomous colonies (A) being rapidly followed
by a precise determination of the course of their common frontier (B), and that delimitation
survived Upper Volta’s chequered history (C).
71
See MBF, p. 69, para. 2.39, Note 213.
72
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 567, para. 25. - 36 -
45 A. The colonial conquest and the establishmen t of the French colonies of UpperVolta and
Niger
6. Mr. President, I shall not return to either pr e-colonial history, which is broadly covered in
BurkinaFaso’s Memorial, or colonial rivalry am ong the European powers, particularly Germany,
England and France ⎯ the famous “scramble for Africa”, which is at the root of the territorial
73
division of Africa that has survived to the present day . In any event, both Upper Volta and Niger
were part of French West Africa as established on 16 June 1895 74 and belonged continuously to the
colonial empire of France. This is important because it follows, in principle, under general
international law, that the determination of the frontier line between the Parties must be appraised
“in the light of French colonial law, ‘dro it d’outre-mer’. Since the territories of the
two States had been part of French West Africa, the former boundary between them
became an international frontier only at th e moment when they became independent.
The line which the [Chamber] is required to de termine . . . was at that time merely the
administrative boundary dividing two former French colonies, called territoires
d'outre-mer from 1946; as such it had to be defined not according to international law,
but according to the French legislation which was applicable to such territories.” 75
7. The fate of these two colonies, moreover, was linked, not to say confused, on two
occasions:
⎯ in the very beginning, when the present-day terr itories of Burkina and Niger were both part of
the Colony of Haut-Sénégal et Niger;
⎯ and between1932 and1947, when part ⎯ approximately 68,000sqkm, namely almost a
quarter ⎯ of Upper Volta was incorporated into Niger (the remaining three quarters being
incorporated into Côte d’Ivoire or French Sudan)
[Slide 1: Haut-Sénégal et Niger in 1904]
8. Haut-Sénégal et Niger was created by a decree of the President of the French Republic
dated 18 October 1904 reorganizing the Government-General of FWA 76. According to Article 1 of
46 thatdecree: “The Colony of Haut-Sénégal et Ni ger... shall encompass the former Territories of
Haut-Sénégal and Moyen-Niger, as well as those forming the Third Military Territory.”
73
See MBF, pp.18-20, paras.1.4-1.7, citing the relvant passages of the Judgments of 22Dec.1986 and
12 July 2005.
74
Decree of 16 June 1895 establishing a Government-General of French West Africa, MN, Ann. B1.
7Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 568, para. 29.
7Decree of 18 Oct. 1904 of the President of the French Republic, reorganizing the Government-General of FWA,
MBF, Ann. 4. - 37 -
9. A product of the dissolution of French Sudan as an autonomous colony by a decree of
77
17 December 1899 , Haut-Sénégal et [Niger] encompassed those areas of French Sudan that had
not been assigned to any of the neighbouring colonies, and thus it included a vast civil territory and
two military territories. The first civil territory roughly corresponded to the south of present-day
Mali and the northern half of Burkina Faso; the second was ⎯ just as roughly ⎯ equivalent to the
southern half of Burkina 78. As regards the third military territory, it included the majority of
present-day Niger 79.
[End of slide 1 ⎯ slide 2: Haut-Sénégal et Niger as of 1 January 1912]
10. The territory of the newly created Colony of Haut-Sénégal et Niger was extended by
decree of 2 March 1907 to Senegal a nd Niger, and incorporated the cercles of Fada N’Gourma and
80
Say . Further, in the Arrêté of the Governor-General of FWA dated 22 June 1910, including the
region of Timbuktu in the Civil Territory of Haut-S énégal et Niger, it was decided to incorporate
into that Territory the parts of Gao, Tillabéry and Djerma cercles situated on the right bank of the
81
River Niger . And, by a decree of 7 September 1911, the Military Territory of Niger was detached
from the Colony of Haut-Sénégal et Niger and established as a separate administrative subdivision
under the direct control of th e Government-General of FWA 82. This subdivision was to be called
83
the “Territory of Niger” from 1 January 1921 , before eventually becoming a fully-fledged colony
84
with effect from 1 July 1922 .
47 [End of slide 2 ⎯ slide 3: The birth of Upper Volta (1919)]
77
Decree of 17Oct.1899 reorganizing the territories havi ng constituted the possessions of French Sudan, MN,
Ann. B2.
78
See the Arrêté of the Governor-General of FWA dated 25Dec. 1899, MBF, Ann.2; see also MBF, p.23,
para. 1.12.
79
Created by Arrêté general of 23 July 1900, MBF, Ann. 3 and MBF, p. 23, para. 1.12.
80
Decree of the President of the French Republic incorporating into the Colo ny of Haut-Sénégal et Niger the
cercles of Fada N’Gourma and Say, 2 Mar. 1907, MBF, Ann. 8.
81
Arrêté of the Governor-General of FWA of 22June1910 in corporating the region of Timbuktu into the Civil
Territory of Haut-Sénégal et Niger, MBF, Ann. 12.
82
Decree of the President of the French Republic in corporating the Military Territory of Niger into the
Government-General of FWA with effect from 1 Jan. 1912, 7 Sep. 1911, MBF, Ann. 13.
83
Decree of the President of the French Republic reorga nizing the Military Territory of Niger and converting it
into a Colony of the Civil Territory of Mauritania with effect from 1 Jan. 1921, 4 Dec. 1920, MBF, Ann. [18].
84
Decree of the President of the French Republic conver ting the Civil Territory of Niger into an autonomous
Colony, 13 Oct. 1922, MBF, Ann. 19. - 38 -
11. The remainder of Haut-Sénégal et Niger w as in turn divided into two separate colonies
85
by decree of the President of the French Republic dated 1 March 1919 . It ensues from Article 1
of this founding text that: “The cercles of Gaoua, Bobo-Dioulasso, Dédougou, Ouagadougou,
Dori, Say and Fada-N’Gourma, currently part of Haut-Sénégal et Niger, shall form a new separate
Colony called Upper Volta.” Upper Volta was born, and the RiverNiger formed the frontier
between Upper Volta and Niger.
[End of slide 3 ⎯ slide 4: The territorial amputation of Upper Volta (1926)]
12. However, following the transfer of the administrative centre of Niger from Zinder to
Niamey, Article2 of the Decree of 28December1926 ⎯ which you will find at tab1.12 of your
folders ⎯ detached certain territories on the right bank of the River Niger from the new Colony of
Upper Volta and transferred them to the Colony of Niger:
“The following territories, which are currently part of the Colony of Upper
Volta, shall be incorporated into the Colony of Niger with effect from 1 January 1927:
1. Say cercle, with the exception of Gourmantché Botou canton;
2. The cantons of Dori cercle which were formerly part of the Military Territory of
Niger in the Téra and Yatacala regions, and were detached from it by the Arrêté of
the Governor-General of 22 June 1910.”
The second paragraph of this provision, Article 2 of the Decree of 1926, is of great importance ⎯ I
shall return to this later; it provided, and I quote: “ An Arrêté of the Governor-General in Standing
Committee of the Government Council shall dete rmine the course of the boundary of the two
Colonies in this area.” 86
Without making any territorial changes between the two colonies (contrary to what Niger
implies in its Memorial 87), the Arrêté of the Governor-General of FWA of 22January1927 gave
effect to the redistribution and determined
48 (1)the constitution of Tillabéry cercle, to consist of the former subdivision of the same name,
Niamey cercle and the part of Dori cercle that had been transferred to Niger;
85
Decree of the President of the French Republic dividing the Colony of Haut-Sénégal et Niger and creating the
Colony of Upper Volta, 1 Mar. 1919, MBF, Ann. 16.
86
Decree of the President of the French Republic establishing the administrativ e centre of Niger at Niamey and
incorporating certain Territories of Upper Volta into the Colony of Niger, 28 December 1926, MBF, Ann. 26.
8MN, p. 17, para. 1.23. - 39 -
(2) the conversion of the part of Say cercle assigned to Niger into a new cercle belonging to Niger
and bearing the same name; and
(3)the incorporation of Gour mantché Botou canton into the cercle of Fada belonging to
88
Upper Volta .
13. This, however, involved a redefinition of the cercles within the two colonies, and not the
determination of the “course of the boundary of th e two Colonies in this area” provided in the
second paragraph of Article 2 of the Decree of 28December1926. The course of that boundary
was determined by the Arrêté of 31August1927, as modified and completed by the Erratum of
5 October of the same year.
[End of slide 4]
B. The determination of the course of the boundary between Upper Volta and Niger ⎯ the
Arrêté of 31 August 1927 and its Erratum of 5 October 1927
14. Before I recall in broad outline how the 1927 Arrêté and its Erratum were drawn up, I
should like to make two general remarks, if you will allow me, Mr. President. They are by way of
response to pages 20to29 of Niger’s Counter-Mem orial, in which Niger strives to show that
“[T]he history of the making of the boundary in no way implied anything artificial or arbitrary in
89
character.”
15. According to Niger, the colonial power showed “a true concern to respect local
90
inhabitants and pre-existing administrative divisions” . This touching and idyllic vision is,
unfortunately, contradicted by the very reasoning that Niger is obliged to follow. Niger cobbles
together a small number of quotations to the same effect, taken out of context ⎯ and it could have
found others: of course, it may be that the French colonial authorities were concerned not to split
up ethnic groups, but this was only when such a division might have the effect ⎯ and I quote a
letter from the Lieutenant-Governor of Upper Volta ⎯ of “compromising, to a greater or lesser
88
Arrêté No. 184 of the Governor-General of FWA providing fo r territorial changes to the Colonies of Upper
Volta and Niger, 22 January 1927, MBF, Ann. 29.
89
CMN, p. 20, B.
9Ibid, p. 20, para 1.1.7. - 40 -
91
49 extent, the interests of sound administration ” . I have taken this phrase from the letter of the
92
Lieutenant-Governor of Upper Volta, date d 28July1920, of which Niger makes much ; but it
neglects to cite this passage (and replaces it with an ellipsis). Likewise, the tribulations suffered by
the regions of Say or Dori, which are moved from Niger to Upper Volta and from Upper Volta
93
back to Niger , owe nothing to the colonial power’s concern for the ethnic unity of the territories
in question: the only purpose is to facilitate th e colonial administration’s “direction and control” 94
of the territories and the inhabitants involved.
16. Quotations taken out of context, then. From this juxtaposed selection, Niger infers that
the colonial administrators were vigilant about ethnic issues, and attached importance to “the
95
human factor” . But which administrators were these? They were local administrators ⎯ and, in
one instance, the Lieutenant-Governor of Upper Volta ⎯ but never authorities with
decision-making powers who could fix the boundaries of colonies. On the other hand, there is the
96
President of the French Republic, empowered to create colonies , and the Governor-General of
FWA, to whom it fell to “determine” ⎯ and I quote the 1902 Decree regarding the powers of the
Governor-General ⎯ “in government council on a proposal from the Lieutenant-Governors
97
concerned the administrative divisions within each of the Colonies of French West Africa” ; these
authorities refused to take account of such objections ⎯ the objections of the local
administrators ⎯ and their decisions ⎯ that is, the decisions of the President of the French
Republic and of the Governor-General ⎯ led to vigorous protests, although actually one often
wonders whether the protesters were driven more by a concern to preserve the integrity of the
9Circular letter No. 713 A.G. of th e Lieutenant-Governor of Upper Volta to the Administrators of the cercles of
the Colony, 28 July 1920, MBF, Ann. 17.
9CMN, p. 22, para. 1.1.10.
93
Decree of the President of the French Republic establishing the administrativ e centre of Niger at Niamey and
incorporating certain Territories of Upper Volta into the Colony of Niger, 28 Dec. 1926, MBF, Ann. 26.
94
Exposé des motifs of the Decree of the President of the French Republic establishing the administrative centre
of Niger at Niamey and incorporating ce rtain Territories of Upper Volta into th e Colony of Niger, 28 Dec,1926, MBF,
Ann. 26.
95
CMN, p. 23, para. 1.1.11.
96
See the Sénatus-consulte of 3May1854, CMN, Anns., SeriesB, No.33. See Frontier Dispute (Burkina
Faso/Republic of Mali) Judgment, I.C.J Reports 1986, p.569, para. 31.
97
Art.5 of the Decree of 1Oct.1902 reorganizing th e Government-General of French West Africa, MN,
Ann.B7, reaffirmed in Art.5 of the Decree of 18Oct. 1904, reorganizing the Government-General of French West
Africa, MBF, Ann. 4. - 41 -
territories for which they were responsible than by ethnic and human considerations. Furthermore,
50 with particular regard to the area we are looking at here, it is worth noting that, in his report which
led to the reconstitution of Upper Volta in 1947, the Inspector of Colonies, Bargues, highlighted the
considerable ethnic diversity of Dori cercle, indicating that these “nomadic or semi-nomadic Sahel
people have close affinities with the other ethni c groups inhabiting Niger and have only trading
relations with the Mossi,” 9; that did not prevent this region from being detached from Niger once
again and reincorporated into the reconstituted Colony of Upper Volta.
17. I come now to my second general remark on the curious reasoning followed by Niger.
Niger sees in the fact that the territories c oncerned were frequently defined in terms of cantons “a
clear will to locate on the ground the boundaries of the cantons concerned as they were in 1910” 99.
Mr. President, that is a very hasty generalization! It is quite correct, as the Chamber of the Court
stated in the case concerning the frontier dispute between Benin and Niger, that at the outset (i.e.,
when Upper Volta was created), “[I]t is by the precise delimitation of the cercles mentioned in
Article 1 of the Decree of 1 March 1919 — a delimitation not effected by the decree itself — that,
from this date, the inter-colonial boundary could be defined” ( Frontier Dispute (Benin/Niger),
Judgment, I.C.J Reports 2005, p. 146, para. 134). But the Chamber of 2005 added straight away ⎯
and just as correctly ⎯ that:
“while the 1919 Decree did not call into question the inter-colonial boundary
determined in 1907, it left unaffected the power of the Governor-General to modify
the boundary in the future by fixing the boundaries of the cercles in question in
accordance with his normal competence in that regard” (ibid.).
This is indeed what he did in the Arrêté of 31 August 1927 – something noted also by the Chamber
in 2005, when it points out, with regard to the case before it at the time, ( ibid., pp. 146-147,
para.135) that “by this arrêté the Governor-General clearly fixed the boundary of the cercle of
Say, and hence the inter-colonial boundary, on the Mekrou” (cf. ibid., p. 147, para. 135). The text
of the Arrêté of 31 August 1927 is at tab 1.13 of your folders.
51 I18. Benin/Niger, the Chamber of the Court was not of the view that “the arrêté of
23July1900 in conjunction with the Decree of 20December1900, which created the Third
98
Mission report No.103 by Inspector of Colonies Bargues on the possible reconstitution of Upper Volta,
30 May 1947, p. 35, MBF, Ann. 38.
99
CMN, p.25, para.1.1.14. - 42 -
Military Territory” determined the boundaries of the latter ( Frontier Dispute (Benin/Niger),
Judgment, I.C.J Reports 2005 , p.122, para.53); likewise, Members of the Court, you cannot
accept that the 1926 Decree of the President of the French Republic determined the boundaries of
Upper Volta. Those boundaries were determined by the 1927 Arrêté of the Governor-General of
FWA, implementing the provisions of Article 2, second paragraph, of the Decree of
28December1926, which required that the G overnor-General determine the “course of the
boundary of the two Colonies in this area”. And both the President of the French Republic and the
Governor-General were right not to be content with the reference made in the first paragraph of that
same provision to pre-existing territorial subdivisions, whose boundaries our opponents are striving
to reinvent. Contrary to what they believe or would have us believe, the Arrêté is constitutive and
not declaratory in character: it does not describe pre-existing boundaries between the two colonies;
it determines them ⎯ that word is moreover expressly used in Article 1.
19. Following on from those remarks, Mr. President, I would like to say a few words about
how this document was drawn up ⎯ and I will be brief, for the Parties have said a great deal on the
100
subject already . So, in telegraphic style:
(1) in order to determine the course of the inte r-colonial boundary, the Governor-General appears
to have consulted the two colonies, whose Lieute nant-Governors in turn consulted the colonial
administrators under their command 10;
(2) a number of documents came out of those cons ultations; the main ones (or in any event those
of which we still have a record) are:
⎯ a Record of Agreement of 2 February 1927 between the Lieutenant-Governor of Niger, and the
102
representative of the Lieutenant-Governor of Upper Volta ; this document may be referred to
as the “Brévié-Lefilliatre Record of Agreement”;
10MBF, pp.29-33, paras.1.28-1.33; CMBF, pp.20-21, pa ras.1.14-1.16,; MN, pp. 16-19, paras. 1.22-1.26;
CMN, pp. 20-28, paras. 1.1.8-1.1.16.
10See, for example, the letter of 27 Apr. 1927 from the Lieutenant-Governor of Upper Volta to the Commanders
of Dori and Fada cercles , (MN, Ann.C11) or the letter from the Commander of Doricercle to the Governor of Upper
Volta dated 27 Aug. 1927 (MN, Ann. C 16).
10Record of Agreement recording the incorporation into th e Colony of Niger of the Territories on the right bank
of the river, pursuant to the Decree of 28 Dec. 1926, 2 Feb. 1927 (MBF, Ann. 30). - 43 -
52 ⎯ another Record of Agreement, dated 10February1927, between the same Lefilliatre (still
acting as representative of the Lieutenant-Governor of Upper Volta) and Mr.Choteau,
representing the Lieutenant-Governor of Niger 103; and
⎯ a third one, dated 9May1927, betw een the Administrators of the cercles of Fada (Coutouly)
and Say (Lesserteur); furthermore,
⎯ the Administrators of the cercles of Dori (Delbos) and Tillabéry (Prudon) conducted a field
104
survey mission, from which apparently all that remains is a sketch-map drawn up by Delbos ,
105 106
and a report and a sketch-map drawn up by Prudon;
⎯ finally, we should add to the list a detailed draft boundary delimitation 107and another
108
sketch-map sent in by Delbos;
(3)Niger acknowledges that the latter docum ents, which were addressed not to the
Governor-General of FWA but to the Gover nors of each colony, “did not, however, reach
Dakar in time to be taken into account in the preparation of the Arrêté of 31 August 1927 fixing
the boundary between the two Colonies” 109; however, this does not prevent Niger from giving
considerable weight to what it refers to in its Memorial as “the Delbos-Prudon Agreement of
110
1927” ⎯ it has prudently refrained from using this term in its Counter-Memorial.
[Slide 5: The line resulting from the Arrêté of 31 August 1927]
20. It is hard to see what weight could be attached to these documents: they were not used in
the drafting of the Arrêté and can therefore not be considered as part of its travaux préparatoires ;
53 what is more, they were produced by colonial administrators who had no power to delimit the
inter-colonial boundary. Furthermore, with regard to the three Records of Agreement of February
103
Record of the meeting between the representatives othe Lieutenant-Governors of Upper Volta and Niger,
10 Feb. 1927 (MBF, Ann. 31).
104
Sketch-map prepared by Administrator Delbos of th e route followed by the Administrators of Dori and
Tillabéry on a mission in June 1927 with a view to delimitation between Dori and Tillabéry cercles (MN, Ann. C 14).
105
Extract No. 25 from the Tour Report of Administrator Prudon dated 4 Aug. 1927 (MN, Ann. C 15).
106
Tillabéry cercle, 1:200,000 sketch-map prepared by Administrator Prudon, June 1927 (MN, Ann. D 3).
107Letter from Delbos, Commander of Dori cercle, to th e Governor of Upper Volt a dated 27Aug.1927 (MN,
Ann. C 16).
108Ibid.
109MN, p. 19, para. 1.25.
110
See, for example, MN, p. 28, para. 2.4; p. 72, para. 5.11; or p. 109, para. 7.19. - 44 -
and May 1927, on the basis of which the Arrêté was drafted 111, it must also be acknowledged that,
insofar as they list the territorial subdivisions which move from Upper Volta to Niger, they are
merely putting into effect the Decree of the President of the French Republic of 28 December 1926.
On the other hand, their signatories would have ex ceeded their powers, were it to be considered
that these documents defined the ⎯ inter-colonial ⎯ boundaries of the territorial subdivisions
112
concerned : as is recalled in Article2.2 of the same Decree ⎯ that of 1926 ⎯ these are to be
determined by the Governor-General alone. At the very most, these documents can be taken as
proposals made to the Governor-General with a view to fixing the course of the boundary.
[End of slide 5 ⎯ slide 6: The line resulting from the Erratum of 5 October 1927]
21. Curiously, we do not have any precise information as to the reasons why the
Governor-General of FWA came to amend his Arrêté and replace it with the Erratum of
5 October 1927 (which is at tab 1.14 in the judges’ folder). As a result, we must rely on conjecture.
There are three, possibly complementary, explanations which appear convincing in this regard:
⎯ firstly, the explanation put forward by the Chamber of the Court in the Benin/Niger case:
“the erratum would seem in effect to have been motivated . . . by a wish not to define
the boundary between Dahomey and Niger in an arrêté whose purpose, as was clear
from its title, was to fix the boundary between Niger and Haute-Volta” ( Frontier
Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 147, para. 136);
⎯ secondly, it is probable that the Governor-General became aware of the confusion, noted by
both Niger and Burkina, resulting from the inclusion in the Arrêté, whose sole purpose was to
determine “the boundaries of the Colonies of Niger and Upper Volta”, of the description of all
113
the boundaries ⎯ including the internal ones ⎯ of Say cercle ;
54 ⎯ furthermore, the Governor-General obviously wanted to correct the imprecision of certain parts
of the 1927 Arrêté, particularly regarding the section running from the River Sirba to the River
Mekrou; whereas the Arrêté went back to the text of the travaux préparatoires of February (on
which Niger relies exclusively), the Erratum adopts a more precise wording.
111
Letter from the acting Director of Political and Admstrative Affairs to the Governor-General of FWA,
July 1927 (CMBF, Ann. 2).
112
See MN, p. 18, para. 1.24.
11See ibid., p.20, para1.26, and p.64, para.5.5; see also CMN. p.37, para . 1.1.26, and pp. 76-77,
paras. 2.2.2-2.2.4; or MBF, p. 137, para. 4.95. - 45 -
22. In any event, the Erratum of 5 October disp els both points of confusion: it restricts itself
to a description of (the full length of) the frontier between Upper Volta and Niger, leaving out any
boundaries between cercles within the same colony. At the same time, it provides details which
did not appear in the text of 31August 114. And this is how, in accordance with the Decree of
26 December 192[6], the course of the boundary between the two colonies has been determined.
[End of slide 6]
C. The incarnations of Upper Volta and the stability of the course of the frontier
23. Members of the Court, that course survives to this day and is that which you are asked to
establish in your forthcoming judgment. It has endured despite the temporary dissolution of Upper
Volta, between 1932 and 1947, and in spite of the changes that were made to the boundaries
115
between cercles during that 15-year period .
[Slide 7: The dissolution of the Colony of Upper Volta]
24. The dissolution of the Colony of Upper Volta by the stroke of a pen, which came about
with the Decree of 5September1932 116, is hardly an endorsement of Niger’s theory of the good
colonizer concerned about the ethnic unity of the territories placed under its control. It led to the
sharing of the Mossi country between Côte d’Ivoire and French Sudan (present-day Mali) and to
the reorganization of the cercles concerned, including the redefinition of their constituent parts and,
as a result, the inter-colonial boundaries.
25. I do not see the value in describing those new boundaries: they can currently be seen on
the screen, but in any event they did not survive the re-establishment of the Colony of Upper Volta,
55 brought about by the Law of 4 September 1947 r econstituting Upper Volta within its boundaries of
117
5 September 1932 — you will find the text of that Law at tab 1.15 of the judges’ folder.
[End of slide 7 — slide 8: The reconstitution of Upper Volta]
114
See MBF, pp. 31-32, para. 1.31; pp. 70-71, paras. 2.43-2.44; pp. 103-104, paras. 4.12-4.15; p. 134, par. 4.85;
pp. 142-143, paras. 4.109-4.112; and CMBF, p. 114, para. 4.27.
115See the Report of the delimita tion operations between the cercles of Dori and Tillabéry carried out by the
Administrators of the cercles of Dori (Delmond) and Tillabéry (Texier and Garat), 8 December 1943, MN, Ann. C 69.
116Decree of the President of the French Republic of 5 September 1932 dissolving the Colony of Upper Volta and
distributing its territory among the Colonies of Niger, French Sudan and Côte d’Ivoire (MBF, Ann. 36).
117Law No.47-1707 of 4September1947 re constituting Upper Volta within its boundaries of 5September1932
(MBF, Ann. 39). - 46 -
26. Under the terms of Article 2 of that Law, the boundaries of the re-established territory of
Upper Volta “shall be those of the former Colony of Upper Volta on 5 September 1932”. In other
words, any changes made to the inter- cercle boundaries between 1932 and 1947 are reversed—
that entire period is set aside — and the boundaries are returned to their 1932 limits, which are the
same as those of 1927, since the Erratum of 5 October constitutes the only legally relevant
definition of the course of the boundary between th e Colonies of Upper Volta and Niger. And that
situation was to remain until independence: neither Party claims that the line in the 1927 Erratum
has been modified since.
27. The frontier determined by that fundamenta l instrument is also that which is established
by the Agreement and Protocol of Agreement of 28 March 1987 on the demarcation of the frontier,
which are referred to in the Preamble and in Article 6 of the Special Agreement by which the Court
was seised. There is no point in my going back over the circumstances in which those treaties were
concluded: they were very clearly described by Professor Jean-Marc Thouvenin.
28. In the end, Members of the Court, if the years 1932-1947 are put to one side, the
history — the relevant history — of the frontier between Burkina Faso and the Republic of Niger is
short and simple:
⎯ it is short because it only really begins in 19 26, when the Decree of 28December lists the
constituent elements of Upper Volta and stipulat es that the course of the boundary between the
two Colonies is to be determined by an Arrêté of the Governor-General of FWA; and it
concludes with the publication of the Erratum of 5October1927, which fixed that course
definitively; and
⎯ it is very simple because a single text, the 1927 Erratum to be precise, whose probative value
and validity are accepted — in principle — by both Parties, constitutes the title establishing the
entire length of the frontier.
56 II. The points of agreement and disagreement between the Parties
29. In practice, the Parties do not dispute this simple history, but they do have very different
interpretations of it. Niger responds to the st raightforward facts and legal background documented
by Burkina with convoluted — and occasionally bewildering — nit-picking. The Parties’ points of - 47 -
view do not conflict completely, however, and before addressing the points of disagreement
between the Parties, I think it would be useful briefly to reiterate the points on which they agree, or
appear to agree.
A. The points of agreement
30. In the introductions to their respectiv e Counter-Memorials, Burkina Faso and the
Republic of Niger both listed the points on which they agree 118.
31. Some of those points appear in both lists. The first is the purpose of the forthcoming
judgment, which, Niger writes, is “to put an end, with the authority of res judicata, to the frontier
119
dispute between the Parties” . Clearly we agree, although in our view the Parties’ (joint) request
to have placed on record their agreement on the de marcated sections of their frontier is entirely
“necessary” 120, as has already been stated by the Agent of Burkina Faso. I shall also have occasion
to return to this again briefly tomorrow.
32. In the two Counter-Memorials, the Parties fu rther state that they “also agree on the fact
that the basic texts to be taken into consideration in resolving the present dispute are those of 1927,
which have never been modified since that time” 121. Nevertheless, Niger’s new text is clearly a
step backwards, and that is clear from the final sentence on this point in its Counter-Memorial:
“the fact that the text of the Erratum has never been modified since does not mean that it alone
suffices to determine the course of th e frontier in the disputed sector” 122. In its Memorial,
however, Niger accepted that the 1927 Erratum “remained, at the time when the two States became
57 independent, the only reference text for the determination of their common frontier” 123. The
1927texts must most certainly be “taken into consideration” by the Court, but the expression
“taken into consideration” is not nearly str ong enough. Under the Agreement of 28March1987,
the course to be accepted is that “described by Arrêté2336 of 31August1927, as clarified by
Erratum 2602/APA of 5 October 1927”, and it is only “[s]hould the Arrêté and Erratum not suffice
11See CMBF, pp. 1-6, paras. 0.4-0.6, and CMN, pp. 4-6, paras. 0.7-0.11.
11CMN, p. 4, para. 0.7, referring to MBF, p. 5, para. 0.14.
120
See CMN, ibid.
121
CMN, p. 5, para. 0.9, referring to MBF, p. 27, para. 1.23.
12Ibid., p. 5, para. 0.9.
12MN, p. 104, para. 7.12; emphasis added. - 48 -
[that] the course shall be that shown on the 1:200,000-scale map of the Institut géographique
national de France, 1960 edition”.
33. And that is it, Mr.President, since Niger, like Burkina, acknowledges “that no other
124 125
document was adopted ‘by joint agreement of the Parties’” . On that we agree . Contrary to
Niger’s assertions, however, that clearly precludes the taking into consideration “of the informal
agreements reached by the colonial authorities regarding the location of frontier points, in
particular those on inter-colonial roads” 126. Naturally, these informal agreements may be “taken
into consideration” in order to interpret the Erratum, but they cannot be used to modify it, in spite
of what Niger repeatedly claims 127.
34. Furthermore, Mr.President, I would repeat that, by reducing the Parties’ agreement on
the subject of the applicable law to the “taking in to consideration” of the 1927 texts, and giving
these the same weight as an assortment of purported informal agreements, Niger is playing down
considerably both the importance of the Agreement of 28March1987 and the common
interpretation which the Parties appeared to ha ve of it during the first round of the written
proceedings. In fact, it was on the strength of sev eral passages in Niger’s Memorial — which we
considered to be very clear — that we also included in our Counter-Memorial, among the points of
agreement between the Parties, the principle according to which “[t]he 1987 Agreement cited in the
Special Agreement indicates exhaustively the documents that are to be taken into consideration for
the purposes of demarcating the frontier” 128. It is regrettable that Ni ger appears to have gone back
58
on its original position in that respect.
35. And on the same subject, Mr.President, I would add that Niger is mistaken when it
claims that we continue to refer to the Arrêté as the primary text, whereas “[i]t is in fact the
Erratum of 5October1927 that is the reference text in this case, inasmuch as it quite simply
124
CMN, p. 5, para. 0.10.
12MBF, p. 72, para. 2.46.
12CMN, p. 6, para. 0.10.
12MN, p. 74, para. 5.12 (Ouiboriels marke r); MN, p. 77, para. 5.16; p. 94, para. 6.22; CMN, pp. 65-66, second
para. (Petelkolé); or MN, pp. 92-93, para. 6.20, and CMN, p. 64, para. 2.1.4. (Vibourié).
128
CMBF, p.4, table, point3, referring to MN, p.24, para.1.32; pp.60-61, para.5.2; p.75, para.5.13; p.91,
para. 6.16 ; pp. 104-105, para. 7.12, and MBF, p.9, para.0.19; pp.61-62, para.2.20; p.66, para.2.35; p.71,
para. 2.47. - 49 -
129
replaced the operative part of the text of the Arrêté” . We wholeheartedly agree and have never
written anything to the contrary — despite what our friends from Niger claim 130— except to point
out that the 1987 Agreement ties the two instruments together and that we have no reason to
dispute the Agreement on that point any more than we do on any other. It is true that, for its part,
Niger generally exhibits, let us say, a certain det achment from the commitments that it made in the
1987 Agreement 131.
36. The final point of agreement according to Niger is “[t]he importance of the Decree of
132
28 December 1926” . We do not dispute its importance, Mr.President, but we fiercely contest
that the effect of this important decree— wh ich described the territorial composition of Upper
Volta— for the delimitation of the frontier betw een Upper Volta and Niger was a return to the
earlier boundaries of the territorial divisions. I mu st repeat myself once more: the 1926Decree
expressly states that the course of that boundary shall be determined by an “ Arrêté of the
Governor-General”. This was the Arrêté, and later the Erratum, of 1927. Moreover, the
1987 Agreement concluded between Ni ger and Burkina leaves no doubt as to the fact that it is the
Arrêté as clarified by the Erratum of 1927 which describes the course of the frontier between the
two countries, not the boundaries of the territorial divisions as they were supposed to exist before
the adoption of those texts.
59 B. The points of disagreement between the Parties
37. It is true, Mr. President, that the Parties do not disagree on everything; nonetheless, it is
clear, if we look a little more closely at the points on which there would appear to be agreement in
the Memorials, the “buts” with which these points of agreement need to be qualified end up by
eclipsing the appearance of agreement. Niger lists no fewer than six points in its
Counter-Memorial on which the Parties disagree 133. More moderately, Burkina notes two:
⎯ the issue of the pre-eminence of the 1927 Arrêté and its Erratum; and
129CMN, p. 5, para. 0.9.
130
See MBF, p.28, para.1.26; p.64, para.2.27; pp. 69-71, paras.2.41-2.44; p.73, para.2.50; p.134,
para. 4.86; or CMBF, p. 19, para. 1.11; p. 41, para. 1.49; p. 42, para. 1.51; or p. 106, para. 4.1.
131
See CMBF, p. 13, para. 0.17.
132CMN, p. 4, para. 0.8, citing MBF, p. 24, para. 1.16.
133See CMN, pp. 6-13, paras. 0.11-0.21. - 50 -
⎯ the question of the specific restriction on the doc uments to which recourse may be had if the
Erratum does not suffice 134.
38. A few words all the same on the lesser disagreements cited by Niger regarding Burkina
Faso’s allegedly one-sided presentation of, on the on e hand, the border incidents and, on the other,
the question of the consensual line ⎯ or rather consensual lines ⎯ on which Niger has changed its
position.
135
39. As regards the first point , I need only note that the incidents in question are indeed
136
attributable to Niger (and the footnotes in its Memorial which it cites by way of reply do nothing
to establish the contrary). However, it serves no purpose to exchange accusations regarding the
responsibility for such incidents: what they s how above all is the essential contribution that your
judgment will make by clothing with the solemn authority of res judicata a territorial settlement
which in reality took place 75 years ago.
40. The other “peripheral disagreement” to wh ich Niger refers is totally artificial. Our
opponents affect to express indignation at the f act that we speak of a “consensual line” in
describing the agreement reached in 1988 between the expert members of the Joint Technical
Commission established by the Agreement of 1987 137. This is a spurious dispute: contrary to what
the supposedly indignant language of paragraph 0. 21 of Niger’s Counter-Memorial suggests, we
60 have never claimed that this line was “officially recognized... in the relations between the two
countries”, when it was in fact agreed between the experts of the two countries, having been
initialled by the representatives of both Parties. Regrettably, it was indeed never “officially
138
recognized” because of Niger’s about-turn . Sadly, however, going a little further, we see the
same scenario being repeated ⎯ but with a significant difference ⎯ after the competent ministers
of the two States had in 1991 adopted what was now a political compromise solution, in order to
unblock the situation by making certain concessions to Niger, so as to re-start the demarcation
134See CMBF, pp. 6-10, paras.0.7-0.15.
135
See CMN, p. 11, para. 0.19.
136MN, p. 38, footnotes 119 ff.
137CMN, pp. 12-13, para. 0.21; and pp. 54-59, paras. 1.2.20-1.2.30.
138MBF, pp.48-49, paras.174-177, and CMBF, p.52, pa ra.2.11; see also Report No.42/FP/MAT/SGIDCAF
from the Minister for Territorial Administration to the Burkina Faso Head of State, 5 March 1991, Ann. MBF 88; CMN,
pp. 50-52, paras. 1.2.10-1.2.14. - 51 -
139 140
process, which was deadlocked . Again, Niger refused to implement the compromise solution .
We do not go so far as to say that this ministerial decision was legally binding on the Parties (and it
was certainly not totally in conformity with th e 1927 Erratum); however, the fact remains that,
when the dispute might have been thought to be resolved, Niger once again changed its mind.
41. I now come, Mr.President, to more serious disagreements, on whose solution the
settlement of the dispute before the Court in fact depends.
42. First, as regards the role of the 1927 Erratum (I will no longer refer to “the Arrêté and its
Erratum”, since our opponents object to this, but it comes to the same thing). Thus, as regards the
role of the Erratum, the differences go very deep.
43. In its Counter-Memorial, Niger discusses at some length the question of whether the
dispute that the Court is called upon to settle rela tes to the delimitation or the demarcation of the
141
frontier . As so often, our opponents have recourse to a caricature of our position in order to
attack it. Contrary to what they claim, we have never stated that this was a “demarcation”
dispute ⎯ which would make little sense in a dispute before this Court. In the two paragraphs of
Burkina’s Memorial cited by Ni ger in order to claim the contrary, we write that, since the
61 delimitation stricto sensu had been effected by the 1927 Arrêté and its Erratum ⎯ as is accepted by
the 1987 Agreement and the Special Agreement ⎯ “it merely remains for the distinguished Court
to clarify the interpretation of those instruments with a view to the demarcation of the frontier
142
between the two countries” . “ With a view to the demarcation ”, that is not the same as
“demarcating”, an operation which, of course, falls outside the remit of this Court (even if it may
be called upon to assist the Parties in a demarcat ion operation, as Article7(4) of the Special
Agreement invites it to do in the present case). N onetheless, the dispute which is now before you
did indeed arise as a result of difficulties encountered during demarcation operations on the ground,
which were conducted by the Parties in the belief that there was already an existing delimitation.
139
See the Joint Communiqué of 16 May 1991, published fo llowing the Ministerial Consultative and Working
Meeting between Niger and Burkina Faso, Ann. MBF 89.
14See MBF, p. 51, para. 1.81; p. 65, para. 2.32; CMBF, p52, paras. 2.12-2.13. See also MN, p. 42, para. 3.6,
and CMN, pp. 52-53, paras. 1.2.16-1.2.17.
14CMN, pp. 6-9, paras. 0.11-0.16.
14MBF, p. 2, para. 0.3 (emphasis added); see also p. 9, para. 0.19, passages to which Niger’s Counter-Memorial
refers on p. 6, footnote 13. - 52 -
44. And it is a fact, Mr.President, that the Arrêté and Erratum of 1927 are indeed
delimitation texts: they describe ⎯ the latter replacing the former ⎯ the entirety of the disputed
frontier, and the Erratum constitutes a (sole and clear) frontier title, recognized as such by the
143
Parties, that is to say both the legal basis for the frontier and the evidence for its course ⎯ as
144
Niger ultimately reluctantly recognizes in its Counter-Memorial . And, notwithstanding Niger’s
vehement language (it does not hesitate to sp eak of the “absurdity” of Burkina’s thesis 145), it is
quite apparent that there is a very great differen ce in approach between the official texts of 1927
146
and those which preceded them : until then, the French colonial power ⎯ treating everywhere it
went as its own back-yard, as was its frequent practice in its African possessions 147⎯ had
confined itself to defining its new inland African co lonies by reference to the colonial subdivisions
which composed them, whose frontiers were rarely defined in official texts, but followed from
62 empirical practice 148, occasionally formalized in agreements between administrators, who in any
event had no authority to establish inter-colonial bo undaries. As Niger emphasizes in regard to the
creation of the Colony of UpperVolta in 1919: “the creation of this new Colony was not
accompanied by a description of the boundaries of the entities composing it” 149. And as regards
the frontier which interests us, the Decree of the President of the French Republic of 28 December
1926 again proceeded in this way. However, and it is here that we see the change, the second
paragraph of Article2 of that text clearly reflect s a new approach. I shall re-read that important
provision: “An Arrêté of the Governor-General in Standing Committee of the Government Council
shall determine the course of the boundary of the two Colonies in the area ” (the object of the first
paragraph was to transfer certain subdivi sions from UpperVolta to Niger). The Arrêté, and then
14See Frontier Dispute (Burkina Faso/Republic of Mali), Judgment , I.C.J. Reports 1986, p.564, para.18; see
MBF, pp. 66-67, paras. 2.36-2.37; and CMBF, pp. 18-19, paras. 1.10-1.11.
14CMN, p. 16, para. 1.1.2.
14Ibid., p. 160, para. 0.18; see also pp. 24-26, paras. 1.1.13-1.1.15.
146
See CMBF, pp. 16-21, paras. 1.4-1.17.
147
As well as Article1 of the Decree of 1Marc h1919 creating the colony of UpperVolta, see Frontier Dispute
(Burkina Faso/Republic of Mali), Judgment , I.C.J. Reports 1986, p.580, para.51; Frontier Dispute (Benin/Niger),
Judgment, I.C.J. Reports 2005, pp. 112-113, paras. 34-35. See also Territorial Dispute (Libyan Arab Jamahiriya/Chad),
Judgment, I.C.J. Reports 1994, sep. op. of Judge Ajibola, p. 53, para. 9.
148
See, inter alia, Note No.521CM2 from the FWA Geographical Department to the Director of Political and
Administrative Affairs of the Government-G eneral regarding the sketch-maps of the cantons of cercles , notably Fada
N’Gourma, Say and Tillabéry, 25 June 1938, Ann. CMBF 6; See CMBF, pp. 17-18, para. 1.9.
149
MN, p. 14, para. 1.17. - 53 -
the Erratum, of 1927 effected that determination of the course of the boundary ⎯ and it was indeed
a delimitation 150.
45. According to Niger, the text of the Erratum is “defective and imprecise”; it sees
evidence of this in the protests of the local admini strators, in particular those of Dori, and then
Téra, cercles 15. It is true that these heads of cercle did sometimes protest (in certain cases
vehemently) at the Erratum, but, as Burkina Faso has demonstrated in its Counter-Memorial — to
which, if I may, Members of the Court, I will re direct your attention with particular emphasis 152—
these criticisms, far from supporting Niger’s thesis, on the contrary confirm the legal force of the
disputed delimitation: in protesting at the fr ontier as described in the Erratum, the colonial
administrators involved thereby confirmed that it w as legally valid and that they were aware that
they were obliged ⎯ willy-nilly ⎯ to apply it in practice. And if I may add, Mr. President, with all
due respect to our friends and opponents, it is so mewhat absurd to seek to base an argument on the
fact that “the 1927 text does not state that” the lines connecting the various points which it
63 mentioned are straight lines 153; it does not state this quite simply because, where a delimitation
text says nothing to the contrary, the lines joining the features which it mentions are always straight
154
ones .
Mr. President, it is almost 1.00p.m., but if you would be kind enough to allow me a minor
compensation, I think I need just four minutes more.
The PRESIDENT: Exceptionally, you may have ten extra minutes.
Mr. PELLET: In a sense, Mr. President, compensation for this morning’s start.
The PRESIDENT: Yes, that was the time I took this morning to open the sitting, introduce
the two ad hoc judges and recall the background to the case. You have the floor, Sir.
150
See CMBF, pp. 19-23, paras. 1.12-1.21.
15See in particular, MN, pp.25-27, paras.2.2-2.3 and pp.30-31, para.2.5; p.66, para.5.6; CMN, p.35,
para. 1.1.24.
15See CMBF, pp. 29-37, paras. 1.26-1.39; see also MN, pp. 25-35, paras. 2.2-2.8.
15CMN, p. 34, para. 1.1.22.
154
See for example, Frontier Dispute (Burkina Faso /Republic of Mali), Judgment , I.C.J. Reports 1986, p.624,
para.130, and MBF, pp. 124-125, para. 4.60; Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 385, paras. 151-152. - 54 -
Mr. PELLET: In all honesty, I think I will need just four minutes.
46. According to Niger, the imprecision of the Erratum is due principally to the “particularly
succinct description of several portions of the disputed frontier” 155. This is to confuse imprecision
156
and concision : it is true that the Governor-General basically determined the course of the
disputed frontier by describing it in relatively long sections ⎯ although less so than those adopted
by the French colonial power in ma ny other parts of its colonial empire 157. And Niger itself
provides an explanation for this approach: the boundary which it now disputes ran “largely in little
158
known and uninhabited regions” .
47. Moreover, the fact is that, in their 1987 Agreement, Burkina Faso and Niger provided for
159
a hypothesis where the Erratum would not suffice , while at the same time indicating the means
of remedying this (which Niger omits to point out) through recourse to the 1960 IGN map. We do
64
not claim that the Erratum is not subject to interpretation ⎯ every legal text has to be
interpreted! ⎯ but while bearing in mind certain basic principles which have been completely
overlooked by Niger. In accordance with the maxim interpretatio cessat in claris , “[t]he Court’s
task is clearly defined. Having before it a clause which leaves little to be desired in the nature of
160
clearness, it is bound to apply this clause as it stands...” , for “[i]t is the duty of the Court to
interpret the Treaties, not to revise them” 161 ⎯ and that is true of the other texts which it is required
to apply, as is the case here with the 1927 Erratum. However, Niger, far from confining itself to
interpreting this basic text, Members of the Cour t, asks you to supplement it where it finds it too
155
CMN, p. 11, para. 0.20; see also, p. 6, para. 0.12.
156See CMBF, pp. 42-45, paras. 1.52-1.57.
157See for example: I. Brownlie, African Boundaries, Hurst/University of California Press, London/Los Angeles,
1979, pp.46-47: Niamey Agreement of 20June 1909 (frontiers be tween the current Algeria, Mali and Niger); see also
the Agreement of 5January 1983 between Algeria and Niger, UN Treaty Series , No.23104, 1984, Agreement on the
demarcation of the State frontier, signed in Algier s on 5January 1983, entry into force the same day,
http://treaties.un.org/doc/Publication/UNTS/Volume%201373/volume-1373-I…), or p.409; Decree of
23 April 1913 (OJFR of 26 April 1913, pp. 3682-3683): frontier between Mauritania and the current Mali.
158
CMN, p. 12, para. 0.20.
159See CMN, p. 9, para. 0.17.
160Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 20; Territorial Dispute
(Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994 , p. 25, para. 51; LaGrand (Germany v. United States of
America), Judgment, I.C.J. Reports 2001, p. 494, para. 77.
161Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 229; see also Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 20;
Rights of Nationals of the United St ates of America in Morocco (France v. United States of America), Judgment, I.C.J.
Reports 1952, p. 196; South West Africa (Ethiopia v. South Africa), Second Phase, Judgment, I.C.J. Reports 1966, p. 48,
para. 91. - 55 -
162
succinct , or quite simply to disregard it in favour of other documents of arguable evidentiary
value, which have not in any case been accepted by joint agreement of the Parties 163. The notion of
insufficiency, as provided for in the 1987 Agreement, cannot be used capriciously: in order to have
recourse to the 1960 map, it is necessary th at consideration of the Erratum does not suffice to
determine the course of the disputed frontier, and not that one Party finds it excessively succinct or
164
considers that the course it describes is unsatisfactory . Unsatisfactory and insufficient are not
synonyms. Moreover, unless the Parties have expressly so agreed, “the Court cannot deviate from
165
[the] course” deriving from a valid title , and “has no power to modify a delimited boundary
line” 166.
48. This brings me to a second major disagreem ent between the Parties, namely that relating
to the documents to which the Court may— and must— have recourse in order to settle this
65 dispute. In this regard, it is not so much the Erratum as such that we have to interpret as the
Agreement of 28 March 1987 (its text is reproduced at tab 1.8 of the judges’ folder). As I have just
pointed out, Niger, while it does not openly re pudiate its obligations under the 1987 Agreement,
nonetheless does all it can to limit their scope.
49. In accordance with the text of Article2, which is crystal clear, and which I will again
read out, the course of the frontier is that “described by Arrêté 2336 of 31 August 1927, as clarified
by Erratum2602/APA of 5 October 1927. Should the Arrêté and Erratum not suffice, the course
shall be that shown on the 1:200,000-scale map of the Institut géographique national de France ,
1960 edition, and/or any other re levant document accepted by joint agreement of the Parties”.
Since no such documents have been accepted by the Parties, only the 1960 IGN map may be used
in the event that the Erratum does not suffice — and I stress: does not suffice 16. This is assuredly
not the position of Niger, which simply uses the Erratum as an instrument ⎯ among many others
16See MN, p. 86, para. 6.11; p. 93, para. 6.21; CMN p. 61, para. 2.2.1.
163
MN, p. 105, para. 7.12; p. 112, para. 7.26; p.115, para. 7.32; p. 116, p.7.35; CMN, p. 63, para.2.1.4;
pp. 92-93, para. 2.2.21.
164
MBF, pp. 72-73, paras. 2.47-2.49; see also CMBF, p. 8, para. 0.12; p. 45, para. 1.58; p. 108, para. 4.6.
16Land and Maritime Boundary betwee n Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 372, para. 118.
16Ibid., p. 374, para. 123. See CMBF, pp. 41-42, para. 149.
16See MBF, pp. 71-72, paras. 2.47-2.49; CMBF, pp. 45-46, paras. 1.59-1.64. - 56 -
168
which it shamelessly boasts of utilizing — to be taken into consideration, not when the Erratum
does not suffice in order to determine the course of the frontier, but when the resulting course does
not strike it as satisfactory . As to the 1960 map, despite the fact that Niger regards as
“mandatory” 169 the requirement for recourse to be had to it where the Arrêté and Erratum do not
suffice, it uses it whenever it suits, alleging, w ithout providing proof, that the Erratum does not
suffice. It ignores the 1960 map ⎯ sometimes in favour of other sketch-maps ⎯ when the former
170
fails to serve its interests . In 1988, certain proposals by the experts to remedy uncertainties as to
the precise location of certain points on the frontier had deviated in the same way, for reasons of
convenience, from the requirements of the 1987 Agreement. Those proposals were rejected by the
Joint Technical Commission for having failed to comply with the provisions of the
1987 Agreement ⎯ and hence of the Erratum ⎯ and the experts were obliged to return to the
171
drawing-board and follow those provisions to the letter . Niger’s position, which is compatible
neither with the letter nor with the spirit, e ither of the 1987 Agreement or of the 2009 Special
66
Agreement, must be rejected for the same fundamental reason.
Mr. President, with your permission, I will continue this presentation this afternoon.
Meanwhile, Members of the Court, I wish you an excellent appétit, and apologize for my minor
encroachment on the lunch break.
The PRESIDENT: Thank you, Mr. Pellet. The sitting is closed. The Court will meet again
at 3.00 p.m.
The Court rose at 1.05 p.m.
___________
168
See in particular, CMBF, p. 2, para. 0.2; p. 3, para. 0.4.
16MN, p. 75, para. 5.14.
17See for example, MN, pp. 93-97, paras. 6.22-6.23; pp . 98-99, para. 6.25; p.110, para. 7.21; p. 114,
para.7.30; CMN, p. 61, para. 2.1.1; p. 63, para. 2.1.4; pp. 65-68, pa ras. 2.1.7-2.1.8; p. 83, para. 2.2.13; p. 86, para.
2.2.15.
17See MBF, pp. 45-46, paras. 1.67-1.69; p. 65, para. 2.31.
Translation