Translation

Non-Corrigé Traduction

Uncorrected Translation

CR 2012/20 (traduction)

CR 2012/20 (translation)

Lundi 8 octobre 2012 à 15 heures

Monday 8 October 2012 at 3 p.m. - 2 -

The PRESIDENT: Please be seated. The sitti ng is open and we are goi ng to continue with
10

the first round of oral argument of Burkina Faso. Mr. Pellet has the floor. You have the floor, Sir.

Mr. PELLET: Thank you, Mr. President.

G ENERAL INTRODUCTION

THE HISTORICAL BACKGROUND : THE POINTS OF AGREEMENT AND DISAGREEMENT
BETWEEN THE P ARTIES ; BURKINA ’S POSITION
(continued and concluded)

III. Burkina’s position (general introduction)

50. Mr. President, Members of the Court, in explaining the points on which the Parties agree,

I set out ⎯ albeit somewhat “negatively” ⎯ the broad outline of Burkina’s position, which my

colleagues and friends Mathias Forteau, and then Jean-MarcThouvenin, are going to explain in

greater detail. I should like, however, in concludi ng this long presentation, happily interrupted by

the lunch break, to summarize our position — this time “positively”. It will not take very long: the

case before you is a straightforward one, as is our position.

51. In terms of principles, we maintain:

(1) that the Court is asked to rule on the entirety of the frontier dispute which has been submitted to

it, first by attaching the authority of res judicata to the course of that part of the frontier which

the Parties have already demarcated, and secondly in confirming the delimitation deriving from

the Erratum of 1927 as regards the remainder of the frontier line;

(2) that the above instrument constitutes a gal title, which cannot be overridden by purported

effectivités or alleged inconveniences; and

(3) that, if on any point the Erratum does not suffice (t hat is to say, is insufficient) to determine the

course of that line ⎯ but only on that hypothesis ⎯ the line to be followed is that indicated on

the 1960 map of IGN France.

52. In concrete terms, Burkina can see no in sufficiency in the Erratum, either in the

demarcated sections of the frontier or in the “Tésector”. On the other hand, it admits that the - 3 -

11 Erratum does not suffice to determine the entire cour se of the frontier in the “Say sector”, and that

it is necessary ⎯ marginally ⎯ to have recourse on an exceptional basis to the 1960IGN France

map, as regards certain segments of that sector.

53. Before briefly returning to the resultant frontier line, a minor clarification (which is

indeed a repetition ) regarding the debatable phrases: “Téra sector” and “Say sector”. They are

debatable in that they appear to imply that the problem arises only in relation to Niger, where the

towns of Téra and Say are located; moreover, they do not correspond to any division in the

Erratum. Burkina has, however, “endorsed” this terminology for the sake of convenience, while

remaining aware that it represents a slightly tendentious approximation.

[Slide 9: The course of the frontier in the Téra sector]

54. Thus in the “Téra sector”, the text of the Erratum of 5October1927 suffices perfectly

well to determine the line of the frontier between the two countries:

“[from] the Tong-Tong astronomic marker [,] this line then turns towards the
south-east, cutting the Téra-Dori motor road at the Tao astronomic marker located to
the west of the Ossolo Pool, and reaching the River Sirba at Bossebangou” 2.

55. The text is clear and precise and there is absolutely no need, in order to determine the

course of the frontier, to refer to anything else ⎯ including the 1960map. It follows that the

frontier here consists of two sections:

⎯ from the Tong-Tong astronomic marker to the Tao marker; and then

⎯ from the Tao astronomic marker to the River Sirba at Bossébangou.

For the reasons which I have just recalled, in th e absence of any indication to the contrary, these

three points should be connected by straight lines ⎯ as indeed was already the case with the

consensual line of 1988 and that in the 1991 Speci al Agreement. Niger’s claim that we should

3
“essentially” follow the line shown on the 1960 map ⎯ but then later deviate from it and draw a

particularly sinuous line corresponding neither to th e text of the Erratum nor to the line shown on

1
CMBF, p. 9, footnotes 28 and 32; and pp. 69-70, paras. 3.14-3.17.
2Art. 1, first para.

3See MN, p.93 (b). From the Tao astronomic marker to Bangaré, the course of the front ier essentially follows
the IGN line; p.93, para.6.20; pp.94-97, paras.622-623; CMN, p.-61, para.2.1.1; p. 63, para.2.1.4; pp.65-68,
paras. 2.1.7-2.1.8. - 4 -

12 the map ⎯ is not supported by any evidence whatever . The fanciful nature of Niger’s argument is

accentuated by the fact that, in its Counter-Memoria l, Niger, as it modestly puts it, makes “small

changes” to the “course” followed in its Memorial 5.

[End of slide 9. Slide 10: The course of the frontier in the Say sector]

56. Things are (slightly) more complicated in the “Say sector”. The relevant text describes a

more complex course ⎯ which poses no particular problem ⎯ but which is also defective on one

specific point: the Erratum does not enable the co urse of the frontier to be determined from the

point where it cuts the River Sirba at Bossébangou in order to turn back up “almost immediately”

towards the north-west, leaving to Niger the four villages mentioned therein. Because of this

insufficiency (and it is the only part of the frontier which the Erratum fails to describe sufficiently),

we have to refer here to the line shown on the 1960 map. For the rest, the line described in the

Erratum is valid. Niger’s main criticism of this reasoning is – and I quote its Counter-Memorial ⎯

that it “completely ignores the traditional course that was always given to the boundaries of Say

6
cercle” . Always? Until the appearance of the E rratum, which determined the inter-colonial

boundary pursuant to Article2, second paragraph, of the Decree of 28December1926, perhaps

(although the evidence provided by Niger certainly does not prove that); but subsequently, most

certainly not! Niger’s argument, which contradicts the clear terms of the Erratum in the name of an

imaginary “tradition”, is quite simply unacceptable.

[End of slide 10]

57. Mr. President, in its Judgment of 3February1994 in the case of the Aouzou Strip, the

Court held that the Franco-Libyan Treaty of Friendship and Good Neighbourliness of

10August1955 constituted a sufficient title, enabling the dispute before it to be conclusively

determined. It considered that there was accordingly “no need . . to explore matters which [had]

been discussed at length before it” (Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment,

I.C.J. Reports 1994, p. 38, para. 75), such as “the effectiveness of occupation of the relevant areas

in the past, and the question whether it was constant, peaceful and acknowledged” (ibid., para. 76).

4CMBF, pp. 59-72, paras. 3.6-3.21.
5
CMN, p. 61, para. 2.1.1.
6CMN, p. 83, para. 2.2.13; see also MN , p. 110, para. 7.21; p. 114, para. 7. 30; p. 120, para. 7.40; CMN, p. 73,
para. 2.2.1; p. 92, para. 2.2.21. - 5 -

“The 1955 Treaty”, it concluded, “completely dete rmined the boundary between Libya and Chad”
13

(ibid., p. 40, para. 76).

58. Mutatis mutandis, the same must apply in the present case: the Erratum of

5October1927 constitutes a cl ear and sufficient title enabli ng the course of the frontier

between Burkina Faso and the Re public of Niger to be conclu sively determined. There is

thus no need to explore any fu rther matters which Niger has presented at length to the

Court in its written pleadings as purported colonial or post-colonial effectivités, the

so-called “living” boundaries of the cercles and other territorial subdivisions, or the

cartography of the region– w ith the exception of the 1960 I GN France map, in the sole

case where the Erratum proves not to suffice.

59. It is thus, Mr. President, simply ex abundanti that, by their detailed descriptions

of the frontier in the Téra sector on the one hand, and in that of Say on the other,

ProfessorsForteau and Thouvenin will show th at in any event the arguments dug out by

Niger from a variety of sources other than the Erratum lack any legal foundation.

60. Mr. President, I should be grateful if you would kindly give the floor to

Professor Mathias Forteau. Many thanks, Members of the Court, for your kind attention.

The PRESIDENT: Thank you. I give the floor to Mr. Forteau. You have the floor, Sir.

Mr. FORTEAU: Thank you, Mr. President.

THE COURSE OF THE FRONTIER FROM THE TONG -T ONG ASTRONOMIC MARKER TO
THE POINT WHERE IT REACHES THE R IVER SIRBA AT B OSSEBANGOU

I. The line as described in the Erratum

Mr. President, Members of the Court, it isprivilege and an honour, but also a pleasure to

be standing once again at this podium today.

1. Mr. President, Professor Pellet indicated the legal bases on which the course of the frontier

between Burkina and Niger should be determined. As he recalled, in this case there exists an

indisputable legal title that has been accepted by both Parties instrument defines the course

7See CMN, p. 16, para. 1.1.2. - 6 -

of the boundary which is the subject of the present di spute. And that title is the Erratum of 1927.

14 This instrument is beyond dispute, all the mo re so because the Agreement of 1987 and the Special

Agreement seising the Court both refer to it. Si nce a legal instrument of delimitation exists, the

Court is accordingly requested not to effect a delimitation, but simply to interpret the text

governing the delimitation and to confirm the line that it adopts.

2. As we endeavour to determine the course of the frontier, which from now on will be the

focus of the oral arguments of Burkina’s counsel, it is appropriate to recall how the Erratum defines

this frontier.

3. In the area covered by Article 2, paragra ph 1, of the Special Agreement seising the Court,

namely in respect of the unmarked section of the frontier that runs between the Tong-Tong

astronomic marker and the beginning of the Boto u bend, the Erratum defines the course of the

frontier in three successive sentences.

[Slide 1: The text of the Erratum]

4. At the end of the first sentence, the Erratum states that from the Tong-Tong astronomic

marker the line “then turns towards the south- east, cutting the Téra-Dori motor road at the Tao

astronomic marker located to the west of the Ossolo Pool, and reaching the River Sirba at

Bossebangou”.

5. The second sentence states that from the latter point ⎯ where the line “reach[es] the River

Sirba at Bossebangou” ⎯ the line

“almost immediately turns back up towards the north-west, leaving to Niger, on the
left bank of that river, a salient which includes the villages of Alfassi, Kouro, Tokalan,

and Tankouro; then, turning back to the south, it again cuts the Sirba at the level of
the Say parallel”.

6. Finally, the Erratum provides that “[f]rom that point the frontier, following an

east-south-east direction, continues in a straight line up to a point located 1,200 m to the west of the

village of Tchenguiliba”.

[End of slide 1]

7. In their written pleadings, in order to pr esent their line in a methodical manner, the two

Parties divided the boundary as defined in the Erra tum into several sections. However, contrary to

what Niger asserts in its Counter-Memorial ⎯ that “[b]oth Parties, in their respective memorials, - 7 -

15 divided this part of the frontier in the same way, namely into two sectors” 8 ⎯ the two Parties in

fact divided it on different bases and therefore in different manners. And a first point of

disagreement can be seen here ⎯ one that goes to the very heart of the case.

[Slide 2: The two sections to be delimited]

8. Relying on the title established by th e Erratum, Burkina has divided the boundary

according to the letter of that text. Accordingly, it ends each section of the frontier at a frontier

point mentioned in the Erratum, and begins the following section at the same frontier point 9. I am

sorry to have to restate the obvious, but I am obliged to do so given that Niger, unlike Burkina, has

departed from the text of the Erratum ⎯ I shall return to that in a moment ⎯ in the very

presentation of its claim.

9. Thus, in accordance with what is stated in the Erratum, Burkina, in its written pleadings,

first endeavours to define the line between th e Tong-Tong astronomic marker and the point where

the frontier reaches the River Sirba at Bossébangou; it then endeavours to define the line from that

latter point up to the beginning of the Botou bend. And this is the same approach that will be used

during the oral argument.

[End of slide 2]

10. For its part, Niger has structured its written pleadings around two sectors, but has used a

basis other than that of the Erratum. That Ni ger has not taken the Erratum into account in its

written pleadings is evident in two respects in particular.

11. First of all, Niger relies solely on the cercles of Niger adjoining the boundary, and makes

10
a distinction, in its own terminology, be tween the “Téra sector” and the “Say sector” . As

AlainPellet has just recalled, here Niger overlooks the fact that in 1927 there were also cercles

belonging to Upper Volta on the other side of the boundary. It equally overlooks the fact that the

object of the Erratum was inter-colonial and not intra-colonial: the aim of the Erratum was to

delimit the respective territories of the two colonies.

8CMN, p. 17, para. 1.1.2.
9
See MBF, Chap. IV; CMBF, Chaps. III and IV.
1See MN, Chaps. VI and VII; CMN, Chap. II. - 8 -

16 12. Secondly, and even more bizarrely, Niger makes the switch from one section to the other

at a point that is not mentioned in the ErratumAccording to Niger, the two sections meet at the

“point which in colonial times formed the boundary of Say cercle (tripoint between the cercles of

11
Tillabéry, Dori and Say)” .

13. Yet this “tripoint” is not to be found anywhere in the Erratum, which makes no mention

of a “tripoint” between the three cercles.

14. Niger’s approach departs still further fro m the provisions of the Erratum, since in

addition the line claimed by Niger does not p ass through the frontier point at Bossébangou,

whereas that point is nevertheless explicitly referred to in the text of the Erratum ⎯ we shall return

to that later.

T HE COURSE OF THE FRONTIER FROM THE TONG -TONG ASTRONOMIC MARKER TO

THE POINT WHERE IT REACHES THE R IVER S IRBA AT B OSSEBANGOU

15. Mr. President, now that these introductory re marks have been made, I shall turn to the

main subject of this speech and start with the first of the sections described in the Erratum: the one

which, according to the text of the Erratum, runs between the Tong-Tong marker and the

River Sirba at Bossébangou. Let me recall that the Erratum states that from the Tong-Tong marker

the frontier line “then turns towards the south- east, cutting the Téra-Dori motor road at the Tao

astronomic marker located to the west of the Ossolo Pool, and reach[es] the River Sirba at

Bossebangou”.

16. I shall define the course of the frontier in this sector in three stages: I shall first of all set

out the points on which the Parties agree, and tho se on which they disagree, in respect of the line

between the two endpoints of the frontier in thissector (I); I shall then identify the successive

points through which the frontier has to pass (II); and lastly, I shall describe the course of the line

connecting these frontier points as it emerges from the text of the Erratum (III).

I. The points on which the Parties agree and those on which they disagree

17. Regarding the points on which they agree, I should say first of all that both Parties

acknowledge that the frontier in this sector islatively short in length. In its Memorial, Niger

11
CMN, para. 2.1.10. - 9 -

takes the view that “the sector of the frontie r involved in the present dispute is relatively

17 restricted” ; this is particularly true of just one part of this stretch, namely the one we are dealing

with here, which runs over a distance of approximately 150 km.

18. Nor do the two Parties disagree as to the identification of two of the frontier points in this

sector, even though they differ very slightly in r espect of the co-ordinates of the second of them ⎯

to which I shall not return today, as there is not hing more to be added to what is written on this

13
subject in Burkina’s Counter-Memoria l, to which I respectfully refer you . Keeping to the

Erratum, Burkina and Niger at least adopt as common frontier points the two astronomic markers

of Tong-Tong and Tao, both of which are referred to therein.

19. The two Parties also agree ⎯ though Niger is less consistent in this regard ⎯ that when

the Erratum states that the line passes through two points, it should be assumed, unless stated

otherwise, that those two points are necessarily connect ed by a straight line. This is in fact the

solution adopted by joint agreement of the Parties in the demarcated sectors of the frontier, a point

to which Professor Pellet will return tomorrow morning.

20. Niger also applies this solution to the first three frontier points in the line it claims in this

sector. Niger in fact considers that they should be connected, in its own words, by “two straight

14
lines” . However, Niger applies this solution only partially, using it between the Tong-Tong and

Tao markers, only to rule it out between the Ta o marker and the following frontier point, without

15
giving any justification for this difference in treatment . Yet there is nothing in the text of the

Erratum to justify this double standard.

21. The points on which the two Parties disag ree, which can be seen in the difference

between the lines claimed by each of them, are already evident from this last remark. Niger is right

to state in this connection, in its Counter-Memorial, that the reasoning and logic used by each Party

16
in this sector are “diametrically opposed” . Let me briefly recall the actual differences between

the Parties in this sector.

1MN, para. 4.1.

1CMBF, para. 3.4.
14
MN, pp. 91-93, (a).
1See below, para. 34.

1CMN, para. 2.1.1. - 10 -

18 [Slide 3: The line as described in the Erratum]

22. First, Burkina considers it beyond dispute th at the most natural interpretation of the text

of the Erratum, and indeed the obvious interpretati on, is based on three elements in this sector:

firstly, the Erratum does not adopt a natural boundary here, contrary to what it does in respect of

other segments of the frontier; secondly, it designates three frontier points ⎯ no more and no less,

all three of which can be identified and located; and finally, the Erratum states that the frontier line

passes through those three points in turn, and through those three points alone.

23. It is natural, and common sense dictates, that the two following conclusions should be

drawn:

(i) since no other frontier point is mentioned, it necessarily follows that the line must connect

each of these three points directly: if this had not been the intention of the author of the

Erratum, he would inevitably have had to designate the other frontier points through

which the boundary had to pass; but he did not do so;

(ii) in the absence of any other indication, the only way to connect two points directly with an

artificial line is to draw a straight line: a nd it suffices to mention two points in order to

draw such a line. On the other hand, drawing a line other than a straight line between two

points ⎯ a curved line, for example ⎯ implies that other additional information should be

given, such as, for example, the radius of the circle to be used to draw the curve 17; but no

such information appears in the Erratum. It follows that the three frontier points

mentioned in the Erratum are connected by two straight lines ⎯ which is, moreover, fully

in keeping with the method applied by the Parties in the demarcated sectors of the frontier.

24. In short, the equation that applies in this case is thus very simple.

[End of slide 3]

25. The line claimed by Niger is different from the line I have just presented on a number of

counts: in addition to the fact that, as my coll eague AlainPellet recalled, Niger departs from the

applicable methodology and law, there are three notable differences:

17
See MBF, paras. 4.39-4.40. - 11 -

19 (i)firstly, Burkina’s line is described with clarity; Niger’s is extremely complex and

muddled;

(ii)secondly,Burkina’ s line has never varied ⎯ quite simply because the text of the Erratum

has remained unchanged since 1927; as for Ni ger’s line, it has changed constantly, even

between the Memorial and the Counter-Memor ial, and perhaps we can expect some

further changes over the next few days;

(iii) thirdly, Burkina’s line results from the inte rpretation of the Erratum; Niger’s line, for its

part, does not correspond to what the Erratum says and has no foundation in that text.

26. Mr. President, I shall briefly take up, in that order, each of these three points.

27. There is no escaping the fact that Niger’s line is complex and muddled. One need only

put side by side the text of the Erratum, on the one hand, and Niger’s written submissions, on the

other, to see that this is so:

(i) the Erratum describes the line in this sector in a clear and concise manner; Niger, for its

part, needs two pages in its Memorial and eleven indents to describe its line 1;

(ii)furthermore, Niger’s line includes no less than twenty or so frontier points ⎯ with
19
sometimes rather exotic names, such as the “frontier point called Baobab” . Among

those twenty or so frontier points, only two (the Tong-Tong and Tao markers) are

designated in the Erratum;

(iii) moreover, Niger’s line follows a number of watercourses or tributaries of which there is

also no mention in the Erratum, which, let me recall, does not refer to any natural frontier

in this sector.

28. The upshot of all this is that the read er’s first impression on becoming acquainted with

Niger’s line is to wonder how it relates to the text of the Erratum.

20 29. That impression becomes all the stronger wh en Niger’s line, or, to be more precise,

Niger’s lines, are put in their historical perspec tive. As Burkina has al ready shown in its written

pleadings, and as ProfessorThouvenin recalled, Ni ger constantly changed its position throughout

the work of demarcating the frontier: after taki ng the view that the latter followed two straight

18
MN, pp. 122-123.
19
Ibid. - 12 -

lines, Niger then argued for a curved line. It subsequently once more accepted a course consisting

of two straight lines, before changing its mind again. It eventually claimed yet another line in its

Memorial, based on a combination of the line on the 1960 map, some alleged effectivités and a

number of natural features . 20

30. Furthermore, the line claimed by Niger changed yet again between the Memorial and the

Counter-Memorial 21. As Niger in fact admits, though it u ses understatement, the better to hide its

inconsistency,

“[w]hile following the same course [as the Memorial], this Counter-Memorial makes
certain small changes and limits the number of situations where the Republic of Niger
22
considers it necessary to deviate from the IGN line to three . . .” .

Mr. President, this is a highly opportunistic interpretation of the Erratum, but it is hardly one based

on law.

31. Moreover, the word interpretation is misuse d in this context, since Niger quite evidently

does not interpret the Erratum. Interpretation actually presupposes adhering to the text to be

interpreted and therefore complying with what it says. However,

(i) Niger refuses to run its line through the third of the frontier points designated in the

Erratum: the point where the boundary reaches the River Sirba at Bossébangou;

(ii)on the contrary, Niger inserts a new frontier point between the Tong-Tong and Tao

markers ⎯ the Vibourié marker ⎯ of which the Erratum, notwithstanding, makes no

mention;

(iii) and between the Tao marker and the Rive r Sirba at Bossébangou, Niger then invents nigh

on twenty frontier points which are not referred to in the Erratum either.

21 32. From this point of view, it is not so much the positions of the Parties that diverge in this

case; what is at variance here, quite simply, is Niger’s line with the legal title, namely the Erratum.

33. In its most recent version, the line claimed by Niger is as follows 23:

20See CMBF, p. 53, para. 2.15.
21
MN, paras. 6.21-6.25; CMN, paras. 2.1.1-2.1.15.
22CMN, p. 61, para. 2.1.1.

23See CMN, p. 95. - 13 -

(i)from the Tong-Tong astronomic marker, the boundary runs in a straight line to the

Vibourié marker;

(ii) from that marker, the boundary runs in a straight line to the Tao marker;

(iii) from the Tao marker, the boundary does not run towards the River Sirba at Bossébangou,

but towards a point situated tens of kilometres upstream, a point that Niger refers to as the

“tripoint of the former boundaries of the cercles” of Dori, Tillabéry and Say;

(iv) between the Tao marker and that point, Niger’s line does not simply follow a straight line;

nor does it take the form of a purely artificia l line; and nor does it exclusively follow the

line drawn on the 1960 map: Niger’s line is a combination of straight lines, lines

following watercourses that are not mentioned in the Erratum, stretches that follow the

line on the 1960 map (even though the E rratum clearly suffices) and enclaves that

conveniently place in Niger’s territory villages that it claims on the basis of alleged

effectivités which nevertheless cannot take preced ence over the title constituted by the

Erratum.

II. The frontier points

34. As far as the frontier points in this sector are concerned, there should not actually be any

debate between the Parties. These points are e xpressly designated in the Erratum. The boundary

has to pass through the Tong-Tong marker and then through the Tao marker before finally reaching

the River Sirba at Bossébangou.

35. The fact that these three points are mentioned in the Erratum has two implications, one of

them positive, the other negative: firstly, the fro ntier must pass through these three points; and

secondly, the frontier is not supposed to deviate from its normal course (in this case, a straight line,

in the absence of any indication to the contrary) in order to meet up with other frontier points: for

22 indeed, if that had been required, it would have been essential to indicate in the Erratum what those

other frontier points were. It can be inferred from the Erratum’s silence on the latter point that it is

not possible to introduce any frontier points other than those which it expressly designates.

36. The situation would be diffe rent, were it legitimate to assume that the delimitation made

by the Erratum had been deliberately left incomplete by the author of the text. However, an - 14 -

interpretative presumption of this kind has to be ruled out in the case of a legal act whose very

purpose is to effect a delimitation: as your Cour t stated in 1959 and then in 1994, in a dictum

which applies mutatis mutandis to this case,

“Any interpretation under which the Boundary Convention is regarded as

leaving in suspense and abandoning for a subsequent appreciation of the status quo the
determination of the right of one State or the other to the disputed plots would be
incompatible with [the] common intenti on [to effect this delimitation]” (Case
concerning Sovereignty over Certain Frontier Land (Belgium/Netherlands),

Judgment, I.C.J. Reports 1959, pp. 221-222; Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 24, para. 47).

37. That being the case, as the Permanent Cour t of International Justice emphasized in 1925

“[i]t is . . . natural that any article designed to fix a frontier should, if possible, be so interpreted that

the result of the application of its provisions in their entirety should be the establishment of a

precise, complete and definitive frontier” (Interpretation of Article 3, Paragraph 2, of the Treaty of

Lausanne, Advisory Opinion, 1925, P.C.I.J., Series B, No. 12, p. 20).

38. In the case in point, it is quite possible to rely upon the Erratum in order to determine the

entire and definitive course of this section of the frontier: it runs through three frontier points,

which it reaches by means of two straight lines. This interpretation is sufficient in itself.

39. Nevertheless, Niger attempts to incorporate several new frontier points into this sector.

40. In order to justify the frontier points wh ich it invents between the Tao marker and the

River Sirba at Bossébangou, Niger claims effectivités. In a few minutes’ time,

Professor Thouvenin will respond to that particular asp ect of Niger’s claim, which is bound to fail

in the present case. Firs tly, there are no such effectivités. Secondly, even assuming that they had

once existed, the title would have taken precedence over them in any event.

23 41. Between the Tong-Tong and Tao astronomic markers, Niger claims another new frontier

point, which is also nowhere to be found in the text of the Erratum.

42. According to Niger, the frontier does not join those two astronomic markers by means of

one straight line; instead, the frontier juts out towards the east to reach an intermediate point,

claimed to be the Vibourié marker. The frontier thus does not follow one straight line between the

Tong-Tong and Tao astrononomic markers, according to Niger, but two successive straight lines - 15 -

pointing in different directions, since they have to connect to the Vibourié marker further to the

east .

43. That claim made by Niger is also without merit, for at least three reasons.

44. Firstly, and this is enough to settle the matter once and for all, the Vibourié marker,

unlike the Tong-Tong and Tao markers, is not mentioned in the Erratum.

45. Secondly, and in the alternative, this ma rker is not shown as a frontier point on the 1960

25
IGN map, as Niger acknowledges in its Counter-Memorial .

46. Finally, for the sake of completeness, th e argument upon which Niger bases its claim is

intrinsically flawed. Niger contends that the ne w frontier point, which the Vibourié marker is said

to constitute, can be traced back to the Record of Agreement of 13 April 1935 concluded between

26
Administrator Garnier (Dori cercle) and Assistant Deputy Lichtenberger (Téra cercle) . In fact,

contrary to Niger’s assertion, this Record of Ag reement could not and, mo reover, did not adopt a

new frontier point.

47. The legal title to which the 1987 Agreement and the Special Agreement seising the Court

refer is indeed the 1927 Erratum, and the Erra tum alone. Consequently, as the Erratum precedes

the 1935 Record of Agreement, that Record of Agreement has no eff ect whatsoever on the

Erratum.

48. It should also be noted that the Record of Agreement was concluded in 1935, at a time

when Upper Volta had ceased to exist. The la tter was reconstituted in 1947, within its 1932

boundaries ⎯ therefore anything which may have happened in 1935 is, once again, devoid of any

legal effect on the course of the boundaries of Upper Volta and of Niger.

24 49. Niger is mistaken in law, and it has also got its facts wrong. The 1935 Record of

Agreement does not actually indicate in any way th at the colonial administrators granted the

Vibourié marker “the status of a frontier point”, as Niger asserts, i.e., the status of a point through

which the frontier should have passed 27. The Record of Agreement states that it was decided to

24MN, para. 6.20; CMN, para. 2.1.4.
25
CMN, p. 63, para. 2.1.4.
26
CMN, para. 2.1.4.
27MN, para. 6.20. - 16 -

“establish... a marker” on the “notional line” of the boundary defined by the Erratum 28.

Consequently, the establishment of that marker did not, could not and was not intended to have the

effect of amending the 1927 boundary. The sole aim of the demarcation was to follow the

delimitation, and not vice versa, as argued by Nige r, which contends that the course of the frontier

today should pass through Vibourié, simply because a marker was established there.

50. The best evidence that the establishment of that marker cannot have the effect of

amending the course of the frontier, consisting of a single straight line between the Tong-Tong and

Tao markers, is that the Record of Agreement itself states ⎯ thereby providing a particularly

convincing interpretation of the 1927 Erratum ⎯ that the “boundary... follow[s] a notional

straight line starting from the Tong-Tong astronomic marker and running to the Tao astronomic

marker”. The same Record of Agreement indicates clearly that it is on this “notional straight line”

that the authors of the Record of Agreement agreed and intended to establish the Vibourié marker.

51.Admittedly, it would appear, according to Niger, that the Vibourié marker was not

actually established at the place where it was thought to have been established. Yet this factor has

no effect on the delimitation. The marker was suppo sed to be established on the “notional straight

line” running between the Tong-Tong and Tao markers. The place where it was actually

established cannot, therefore, have the effect of amending that delimitation in the form of a straight

line between the Tong-Tong and Tao markers.

[End of slide 5]

III. The course of the line connecting the frontier points
referred to in the Erratum

[Slide 6: The line between Tong-Tong and Bossébangou]

52. Mr.President, it clearly follows from what I have just said that in this sector, from the

Tong-Tong marker to the River Sirba at Bosséba ngou, the Erratum follows a course consisting of

25 two successive straight lines. In 1935, as I have just pointed out, the Erratum was interpreted as

following a “notional straight line” between th e Tong-Tong and Tao markers. A similar

interpretation must necessarily be applied to the course of the line between the Tao marker and the

28
MN, Anns. Series C, No. 56. - 17 -

River Sirba at Bossébangou. Indeed there is no di fference in the language of the Erratum in its

descriptions of the course of the line be tween Tong-Tong and Tao and between Tao and

Bossébangou: in each case, the E rratum indicates two points, without specifying the form of the

line connecting them, a silence which can only be interpreted as implying a straight line.

[End of slide 6]

53. However, in its Counter-Memorial Nige r puts forward certain objections to this

interpretation, which I will briefly refute, as they are quite artificial (A). I will then set out all the

evidence which confirms the correctness of the inte rpretation of the Erratum in favour of the view

that the frontier consists of two straight lines in this sector (B).

A. Niger’s objections

54. In its Memorial, Burkina devoted more than 20pages to an analysis of the text of the

Erratum: the ordinary meanings of the words in light of their context, the Erratum’s travaux

préparatoires, the official interpretation given to it by Burkina and Niger, and the practice followed

29
in boundary delimitations, in particular the jurisprudence of the International Court of Justice .

55. In reply, Niger put forward just two objections, as succinct as they are one-sided, to this

solidly founded interpretation of the Erratum as prescribing a frontier consisting of two straight

lines.

56. In its first objection, Niger states concisely th at “[f]or its part”, it rejects what it calls the

“straight-line theory”, preferring “its position of following the boundaries of the cantons ⎯ a

position largely reflected by the IGN map” 30. Again according to Niger, it would be wrong to

overlook “the importance attached by the French authorities to the canton boundaries in the

delimitation process in 1926” 31.

29
MBF, pp. 109-132, paras. 4.26-4.82.
30
CMN, p. 64, para. 2.1.5.
31CMN, p. 62, para. 2.1.2. - 18 -

26 57. This is an argument based on faith. It has nothing to do with the operation of interpreting

the Erratum. That was already explained this morn ing, and I will therefore not return to it: the

Erratum does not attribute cantons, but establishes an inter-colonial boundary, and it is that

boundary, as defined by the Erratum, that must be applied . 32

58. The second objection is that Burkina has fail ed to “adhere strictly to the terms of the

1927 texts” ⎯ a criticism not without piquancy when we see the degree of freedom and fantasy

with which Niger “interprets” the 1927Erratum. Niger’s objection is as follows: “[w]hile the

1927 text states that the frontier line turns at Tong-T ong, the other Party argues that the line in this

33
sector is perfectly straight” .

[Slide7: Sketch-map on page40 of Niger’s C ounter-Memorial [page 28 of the English version],

extracted from cartographic Annex MBF 36]

59. This objection is illustrated in Nige r’s Counter-Memorial by the sketch-map on the

screen, which at point 6 shows Mount Doumafendé , and at point 7 the Tong-Tong marker. Niger

justifies its objection by pointing out that Burk ina’s position in the Joint Technical Commission on

Demarcation was that the phrase used in the Erra tum to describe the course of the line from the

Tong-Tong marker, “this line then turns towards the south-east”,

“referred to a change in direction between a series of straight lines. In the present

proceedings [I continue to quote Niger], Burkina Faso devotes more than 20 pages of
its Memorial to the interpretation of this word and maintains that it refers to a change
in direction. Rather surprisingly, howe ver, [continues Niger], the line claimed by

Burkina Faso, as it is drawn on the map attach ed to its Memorial, is perfectly straight
in this area and does not include the least change in direction. The other Party in fact
places Mount Doumafendé (point 6), the Tong-Tong astronomic marker (point 7) and

the Tao astronomic marker (Tao) on the same straight line. Clearly [continues Niger],
Burkina now offers another ⎯ and rather unusual ⎯ interpretation of the word
34
‘s’infléchir’” .

60. I will make the following three comments on this argument.

61. In the first place, if this interpretation was really as “unusual” as Niger claims, it would

be hard to understand why Ni ger’s experts nonetheless accepted it in 1988, and the competent

authorities of Niger approved it in their turn in 1991 . I shall come back to this point.

32See the preceding presentation of Professor Alain Pellet.
33
CMN, p. 62, para. 2.1.2.
34
CMN, p. 39 [end para. 1.1.27; p. 27 in the English text].
35See MBF, pp. 118-123. - 19 -

27 [Slide 8: The change of direction at Tong-Tong]

62. Secondly, it is undoubtedly true that the portion of the line which begins at the

Tong-Tong marker and continues as far as Bosséb angou runs in a south-easterly direction in

relation to the preceding section from the Mali tripoi nt. The general direction of the line between

the Mali tripoint and the Tong-Tong marker is overall north to south, and even slightly south-west,

whilst from the Tong-Tong marker, the line runs in a general south-easterly direction. It is thus

clear that the line changes direction.

63. That was, moreover, the interpretation of the Erratum made by this Court in its 1986

36
Judgment in the Frontier Dispute (Burkina Faso/Republic of Mali) .

[End of slide 8]

64. Thirdly and finally, and I would even say in any event, the only relevance that Niger’s

objection could have would be to show that the words “s’infléchir” are not compatible with the

so-called “straight-line theory” th at Burkina has always defended. However, it is apparent that

Niger itself now argues in this sector in favour of a frontier consisting of two straight lines.

65. The two States have thus agreed that the line which arrives at the Tong-Tong marker is a

straight one; and the line which, according to Niger, departs from that marker to run to the

Vibourié marker is likewise a straight line. On the other hand, Burkina takes the view — as I

would remind you — that the straight line from the Tong-Tong marker runs to the Tao marker,

without any change of direction towards Vibourié. However, the fact remains that both Parties are

“at least now in agreement on one point”: the correct interpretation of the 1927 Erratum is that the

section of the frontier line which arrives at the Tong-Tong marker, as well as that which departs

from it, are both straight lines.

66. In these circumstances, Niger’s contortions are totally artificial: Niger itself no longer

37
questions the fact ⎯ after having supported the thesis of a curved line ⎯ that the words

“s’infléchir” refer to a delimitation consis ting of straight lines to either side of the turning point,

thus once again supporting Burkina’s position.

36
See MBF, paras. 4.77-4.81
37
See CMBF, paras. 2.15-2.16. - 20 -

28 B. The correctness of Burkina’s interpretation

67. Mr. President, Members of the Court, with Niger’s two objections disposed of, it remains

for us to explain the other reasons why our view that the Erratum provided for a line in two straight

sections is correct. These reasons are both multiple and convergent.

68. In the first place, the colonial authorities themselves never had the slightest doubt that the

delimitation adopted in 1927 was of an artificial natu re, and consisted of two straight lines. It is

true that certain of them disputed that delimitation. However, they never denied that this was what

the Erratum said. Those colonial interpretations clearly contradict the thesis of sinuous, effective

canton boundaries as defended by Niger:

(i) thus, in a letter of 17December1927, the Commander of Dori cercle pointed out to the

Governor of Upper Volta that the boundari es resulting from the 1927 Erratum “had been

established on the basis of the map prepared by CaptainCoquibus, which only showed

38
theoretical lines and points . . .” ;

(ii) in a letter of 27September1929, addressed to the Lieutenant-Governor of Upper Volta,

the Lieutenant-Governor of Niger referred to th e delimitation applicable in that sector as

constituting “a theoretical and artificial frontie r”— which is precisely what a line in two

39
straight sections represents ;

(iii)on 10April1932, Civil Service Deputy Roser, Acting Commander of Dori cercle,

informed the Governor of Upper Volta that the line of the 1927 Erratum “takes no account

of the reality” and has the result of placing the village of Bangaré in Upper Volta territory.

That village is indeed located to the west, on the Upper Volta side of the frontier, when a

40
straight line is drawn between the Tao marker and the River Sirba at Bossébangou ;

29 (iv) on 13April1935, AdministratorGarnier (of Dori cercle) and DeputyLichtenberger (of

Téra Subdivision) jointly recognized that, be tween the Tong-Tong and Tao markers, the

boundary described in the Erratum followed “a notional straight line” 4;

38MN, Ann. C 20; emphasis added.
39
MN, Ann. C 30.
40
MN, Ann. C 45, pp. 5-6; CMBF, para. 3.36.
41MN, Ann. C 56. - 21 -

(v)on 30May1947, Inspector of ColoniesBa rgues wrote in regard to the boundaries

separating Niger and Upper Volta that they “were purely theoretical and did not

correspond to any geographical reality” ; 42

(vi) on 11July1951, the Head of Téra Subdivision, writing to Tillabéry cercle, pointed out

that the Erratum “connect[s] the Tao boundary marker directly with Bossébangou” 43.

69. If there were still any doubt, Burkina h as furthermore shown in its Memorial— and

without any contradiction on the part of Niger ⎯ that in jurisprudence a delimitation text

indicating, without any indication to the contrary, that a line passes through two points is

44
interpreted as specifying a boundary in the form of a straight line connecting those two points :

(i) thus in 1986 this Court pointed out that in French colonial practice straight lines were

generally used, and the Court adopted a presumption that, in the absence of any indication

45
to the contrary, the least complex line should be chosen ;

(ii)inthe Cameroon/Nigeria case, your Court, faced with uncertainty in one sector in regard

to the precise course of the boundary, likewise gave preference to the line claimed by

Nigeria, on the ground that it was the one which connected “most directly” the boundary

points in question, and on that basis the Court opted for a straight line 46;

47
(iii) the Court did the same in the El Salvador/Honduras case in 1992 ;

(iv) just as significant is the fact that intern ational courts and tribunals, and this Court in

particular, generally consider that it suffices to state in their judgments on maritime

30 delimitation that the line turns or passes through a point in order to indicate that those two

points are connected by a straight line 4.

70. I would further note that both Parties have several times agreed that the Erratum should

be interpreted as producing a boundary in two straight-line sections in this sector.

42MBF, Ann. 38, p. 11.

43MN, Ann. C 73. See also MN, Ann. C 79, p. 2.
44
MBF, pp. 123-132.
45
See MBF, para. 4.60.
46See MBF, para. 4.65.

47See MBF, paras. 4.66-4.69.

48See MBF, paras. 4.70-4.75. - 22 -

[Slide 9: The 1998 consensual line]

71. First, this represented the unanimous interp retation of the Parties’ experts at the end of

their work in 1988, conducted under the aegis of the Joint Commission on Demarcation in

accordance with the terms of the 1987Agreement. Following that consensual interpretation, the

installation of boundary markers on the ground was mo reover planned. In the present sector, only

two so-called “turning point” markers were envisaged by the Parties: the Tong-Tong marker and

the Tao marker 4. We are again a very long way from the twenty frontier points since invented by

Niger.

[End of slide 9]

72. In 1991 an authentic interpretation of th e Erratum was issued, this time by the Nigerian

Interior Minister and the Minister for Territo rial Administration of Burkina Faso; the two

Ministers concluded, on behalf of their respective Governments, that, “[f]rom the Tong-Tong

astronomic marker to the River Sirba at Bosseb angou, passing through the Tao astronomic marker,

50
the frontier shall consist of a series of straight lines” .

73. I stress the use of the declarative formula u sed in the original French text: the Ministers

are not adopting a new line here, as they did, by contrast, for the sector continuing beyond

Bossébangou: they are simply noting that the front ier in this sector, as described by the Erratum,

“consists” of [“est constituée” par] two straight lines.

74. Taken together, these various pieces of ev idence, some attributable to the colonial

authorities, others to the Niger State, leave no doubt as to the interpretation to be given to the

text ⎯ which is moreover clear ⎯ of the 1927 Erratum. That text defines a frontier consisting of

31 two straight lines, connecting first the Tong-Tong marker with the Tao marker, and then the latter

with the point where the frontier reaches the River Sirba at Bossébangou.

75. That accordingly is the course of the fron tier which Burkina Faso asks you, Members of

the Court, to adopt.

49
See MBF, paras. 4.47-4.51.
5MN, Ann. A 6; MBF, para. 4.53-4.56. - 23 -

76. Mr.President, that concludes my presentation. I would be most grateful if you could

now call Professor Thouvenin to the Bar, and he w ill demonstrate to you the erroneous basis of the

line claimed by Niger.

Tyaou.

The PRESIDENT: Thank you, Professor, and I now invite Mr.Thouvenin to continue

Burkina Faso’s oral presentation. You have the floor, Sir.

Mr. THOUVENIN: Thank you, Mr. President.

THE TÉRA SECTOR — THE FLAWED BASES OF NIGER ’S LINE

[Slide 1]

1. Mr.President, Members of the Court, the second speech which I have to deliver to you

concerns the course of the frontier proposed by Niger in the sector known, for convenience, as the

“Téra sector”. From first glance, it is clear this line takes an irregular course from north to

south, generally following the already meandering route of the line shown on the 1960 map, but not

always, with additional twists and turns; as can be seen, this line never reaches Bossébangou.

[End of slide 1]

2. Before addressing the arguments put forw ard by Niger to justify those twists and

turns (II), and then dealing with the case of Bangaré (III), I must first clarify the legal basis of that

line (I).

1. The legal basis of the line claimed by Niger

3. Niger is, in fact, very evasive on this subject.

32 4. Does our opponent contend that the descrip tion of the frontier contained in the Erratum

does not suffice and that, consequently, the course of the frontier is determined by the line shown

on the 1960 map, in accordance with the 1987 Agreement?

5. No, it does not. What is more, Niger cannot rely on the line shown on the 1960 map in the

Téra sector, because it contests the fact — establishe d by the Erratum and correctly represented by

the 1960 cartographic line— that the River Sirba at Bossébangou is a frontier point.

Professor Forteau will return to this subject later. - 24 -

6. Does Niger argue that 1910 is the “critical da te” because, in the Téra sector, the frontier

follows the boundaries— as they were in 1910— of the cantons which were detached from the

Tillabéry cercle in that year and returned to Niger 16 years later by the 1926 Decree?

7. That is suggested by one passage in the Counter-Memorial, where we read that, by means

of the 1926 Decree, “the 1910 boundary would once again serve as the inter-colonial boundary

between Niger and Upper Volta” 51.

8. In the end, however, Niger does not advance that argument in respect of the Téra sector

and makes no attempt to justify the line it claims in that sector by making reference to the boundary

situation in 1910.

9. Does our opponent maintain, then, that the critical date is 1927— or 1926, since,

according to Niger, the Erratum was entirely withou t effect— and that we must go back to that

date in order to determine the frontier line on the basis of the canton boundaries?

52
10. Once again, despite some passages which could give that impression , this is clearly not

what emerges from its written pleadings. There are three reasons to account for this.

11. First, Niger is unable to indicate, in any precise terms, what the boundaries of those

cantons were in 1927. What is more, the colonial documents show that no one at that time knew

33 what they were, for the simple reason that they had never been fixed 5. The only documents on

which Niger could seek to rely are those produ ced by Delbos and Prudon. And although Niger

refers to their work — indeed extensively — it does so only in an attempt to discredit the Erratum.

Furthermore, in its Memorial, it recognizes that the views of the colonial boundaries held by those

two Administrators do not coincide 5.

[Slide 2]

12. Second, if Niger were to pursue this line of reasoning, it would be forced to argue that in

the southern part of the Téra sector the frontier cu ts deep into its territory, thereby attributing to

Burkina an area over which the latter has no claim. On the screen is a map showing both the

51CMN, p. 29, para. 1.1.19.
52
MN, pp. 90-91, para. 6.15; CMN, p. 62, para. 2.1.2.
53
MN, Ann. C45.
54[CMN], p. 27, para. 1.1.16. - 25 -

frontier described by the Erratum and the Delbos lin e. As can be seen, if Niger were to argue in

favour of that line, it would have to surrender th e coloured areas on the map. Understandably,

therefore, it is somewhat reluctant to rely on the work of Delbos and Prudon.

[End of slide 2]

13. All the more so since — and this is the th ird reason — if Niger were to adhere to the line

of the canton boundaries, as they emerge from the work of the Administrators at that time, it would

have to relinquish its claim to certain villages, su ch as Bangaré and Petelkolé, which are shown on

55
the sketch-map drawn by Prudon in 1927 as being in Upper Volta territory .

14. Finally, does Niger contend that the critical date is 1960 and that the best “snapshot” of

the boundaries of the two colonies at the time of independence is provided by the line shown on the

1960 map?

15. Close inspection reveals this to be Nige r’s argument: in its view, the line shown on the

1960 map “should in principle serve as a guide to determine the course of the inter-colonial

56
boundary in 1960” — I stress “in 1960”, and not in 1927 or on any other date.

16. Moreover, Niger’s use of the lists of villages in various cantons, in order to justify the

line it claims, demonstrates its belief that it is the canton boundaries as they were in 1960 which

determine the frontier. Thus, it writes that “the lists of villages of those cantons up to

34 independence give an indication of the composition of the cercles concerned, and hence of their

57
boundaries” .

17. This is further confirmed by Niger’s references to the situation of certain villages such as

58
Ouro Gaobe . Niger does not claim that this village belonged to one of the cantons transferred to

Niger in 1926, nor that it illustrates the boundaries of the cantons as they existed in 1910. To do so

would be untenable, moreover, since that village is listed in fascicleIV of the General List of

59
Localities of FWA of 1927 as being located in Upper Volta, in the Yagha canton , a canton which

definitely remained a part of Dori cercle after 1927. It is cited by Niger, therefore, not because it

55MN, p. 97, para. 6.24; MN, Ann. D3.

56MN, p. 91, para. 6.16.
57
MN, pp. 90-91, para. 6.15.
58CMN, p. 71, para. [2.1.14].

59MBF, Ann. 27, p. 44. - 26 -

has “always” belonged to Niger, but simply because the Chief of Téra village believed, in 1954,

60
that it was part of the Diagourou canton .

18. The evidence tallies, therefore, and demonstrates that the canton boundaries which Niger

claims serve as its frontier with Burkina are, acco rding to Niger, those which existed in 1960, not

those which existed in 1910 or in 1926-1927. In other words, in its view, it is the colonial

effectivités at the time of independence which determine the course of the frontier.

19. The problem, Members of the Court, is th at in adopting this line of argument, Niger

clearly ignores the well-established principle that title prevails over any effectivités to the

contrary— and in this case, assuming that the line put forward by Niger corresponds to the

effectivités, as it claims it does, that line would direc tly contradict the line established by the title,

as Professor Forteau has just explained.

20. And that is not all, because the argument put forward by Niger contradicts just as blithely

the sovereign commitments which it made in the 1987 Agreement. Under that Agreement, the

course of the frontier is that describe d by the Erratum and, “[s]hould the Arrêté and Erratum not

suffice, the course shall be that shown on the 1:200,000-scale map of the Institut Géographique

35 National de France , 1960 edition”. By joint agreement of the Parties, the effectivités cannot,

therefore, have any role to play in the determination of the frontier.

21. However, our opponent appears to suggest — albeit very allusively— that in making

reference to the line shown on the map, should the Erratum not suffice, the 1987 Agreement only

intended it to be referred to in so far as that line reflects the colonial effectivités61.

22. Firstly, this is attributing to the 1987 Agreement something which it does not say.

Moreover, Niger knows all too well that referring to the cartographic line, as called for by the

Agreement, is not conditional but mandatory, at least in the event that the Erratum does not suffice.

Niger itself has drawn attention to that requirement in its written pleadings 62.

23. And secondly, it is attributing to the 1987 Agreement something which no one has ever

thought it said, since the experts of the Joint Technical Commission on Demarcation have never

60MN, Ann. C84.
61
MN, Ann. 84.
62MN, p. 75, para. 5.14. - 27 -

interpreted their mandate, fixed by the 1987 Protoc ol of Agreement, as requiring them to identify

the colonial effectivités.

24. Members of the Court, the very basis of Niger’s frontier claim in the Téra sector is,

therefore, legally flawed. But that is not all. Assuming, solely for the purposes of discussion, that

the colonial effectivités could be entertained in the present case, it is clear, as I shall now

demonstrate, that Niger has failed to establish th at the line it claims follows the borders of those

effectivités.

The PRESIDENT: Mr.Thouvenin, I believe you are going to demonstrate that after the

coffee break. The hearing is suspended for 20 minutes.

The Court adjourned from 4.15 p.m. to 4.35 p.m.

The PRESIDENT: Please be seated. The hearing is resumed. Mr.Thouvenin, you may

continue.

Mr. THOUVENIN: Thank you very much Mr.President. Mr.President, Members of the

36 Court, my plan after the break is first to show you that the line claimed by Niger does not follow

the borders of the colonial effectivités, after which I will return to the case of Bangaré.

II. The line claimed by Niger does not follow the borders
of the colonial effectivités

25. In general terms, Niger argues that, in the Téra sector, a part of the frontier line follows

that shown on the 1960map(A). However, in its written pleadings it deviates from the latter in

two places, at Petelkolé (B) and Oussaltane (C). Fu rther, in its Memorial it sought to do the same

in the area of the Komanti encampments, but eventually abandone d that claim in its

Counter-Memorial (D).

A. The line shown on the 1960 map does not correspond to the colonial effectivités

26. I will return in a moment to the case of these three enclaves, but first let us examine

Niger’s assertion that, essentially, the de facto division of the colonial territories in 1960 is “largely - 28 -

reflected by the IGN map” . It is this fact which, according to Niger, in principle justifies treating

the line shown on the 1960 IGN map as the frontier lin e. In truth, there are three insurmountable

objections to this.

27. First, Niger’s claim that the 1960 line faithfully reflects the effectivités is an unsupported

allegation. Niger provides no evidence of what it asserts. Moreover, nothing in the documents

produced by the Parties to the Court throws any light on the way in which the 1960map was

prepared.

28. Furthermore, even supposing that Niger’ s assertion were correct, we are not told which

parts of the line shown on the map are to be cons idered sufficiently reliable to enable us to

ascertain from them the line of the frontier. Indeed, according to our opponents this line merely “in

large part” reflects the line of the effectivités. Which, then, are the “large parts”? How can we

determine this, since we do not know how the ma p was prepared? And how, then, are we to

separate those parts of the IGN line which genuinely reflect the effectivités from those which do

not? Niger is silent on the point. Moreover, according to Niger this map shows only the “probable

64
boundaries” of the effectivités . However, to state that there is a probability that a line reflects

37 certain boundaries equally means th at there is a probability that it does not do so. There thus

remains an insuperable doubt as to how far this line faithfully reflected the de facto boundaries as

they were in 1960.

29. Finally, Niger itself admits the hollowness of its claim when it writes that: “the

information on which they [the boundaries] were based could not always be fully relied on”, or

that, “in the absence of reliable information from the local authorities, the drafters of the map

followed the rivers, marigots and ridgelines, which together repr esent more than 50 per cent of the

65
boundaries of Téra sector” . In other words, according to Nige r, in the Téra sector the 1960 IGN

line is based, as to at least 50percent, not on the boundaries of cantons, but on natural features

which appeared relevant to the drafters of the map.

63CMN, p. 64, para. 2.1.5.
64
MN, p. 76, para. 5.14, and p. 91, para. 6.16.
65CMN, p. 44, para. 1.1.32. - 29 -

30. In these circumstances, it is difficult to understand how we can be asked by Niger to

believe that the line in question faithfully follows the borders of the effectivités wherever this suits

our opponent, while deviating therefrom where it fails to come up to expectation. That, however, is

the sole methodology employed by Niger ⎯ if it can be said to pursue one at all ⎯ in order to

justify the creation of the three enclaves which it claims.

[Start of slide 3]

B. The Petelkolé enclave

31. The case of the Petelkolé enclave, which lies to the north of the sector represented on the

sketch-map currently projected, is moreover emblem atic of this method. In its Memorial, Niger

claimed this village on the ground that it lay to the eastern side ⎯ hence on Niger’s side ⎯ of the

frontier. It claimed that the IGN line corresponded to the colonial effectivités, asserting that “the

IGN line passes to the west of Petelkolé... which it leaves to Niger”, or again “[t]he village is

shown as belonging to Niger on the 1960IGN ma p”, which, in its view, “corresponded to the

administrative information from the colonial period” 66. All of this is incorrect, as Niger now

67
admits. Burkina had also noted this in its Counter-Memorial .

38 32. Nonetheless, our opponents are resolved not to “lose” Petelkolé. Now claiming that the

68
cartographic data which are unfavourable to it are “contradictory” , it relies solely on the

effectivités to justify a line deviating from that shown on the 1960map in order to create the

Petelkolé enclave.

[End of slide 3]

33. Niger’s agility in saying one thing and then its opposite is impressive, but, in any event,

the matters relied on by it in the latest version of its claim in no way prove that Petelkolé was

administered by Niger at the time of independen ce, and still less do they support the line proposed

by Niger in order to enclave the village.

66MN, p. 94, para. 6.22.
67
CMBF, p. 96, para. 3.69.
68CMN, p. 65, para. 2.1.7. - 30 -

34. This is the case for the alleged “Roser /Boyer Agreement of April1932”, which,

according to our opponents, “locates the village of Petelkolé to the east of the boundary and the

Féto Karkalé pool to the west” . 69

35. In reality, it is the opposite which emerge s from the Tour Report sent to the Governor of

Upper Volta by the Commander of Dori cercle, Mr. Roser, recording his discussions with the Head

of Yagha canton 7. The author of the report criticizes the line in the Erratum, but expressly

71
recognizes it as the “legally established boundary” in 1927 . Furthermore, Mr. Roser emphasizes

the frustrations which this boundary has aroused am ongst certain administrators: but above all, he

notes that “no new erratum was provided to correct the errors in question” 72. This leads Mr. Roser

73
to propose modifying the boundary by the adoption of a “new erratum” , in particular so as to

place Petelkolé on the Niger side. He concludes by expressing the wish that his proposals will

receive the “approval” of the Governor-General of Upper Volta, while at the same time stating that

74
he hopes that the Governor of Niger will also give his approval . However, as we know, these

proposals were never approved 75. It follows, Mr. President, that what Administrator Roser’s report

39 proves is exactly the opposite of what Niger clai ms: it confirms that Petelkolé was on the Burkina

side of the boundary in 1932, and that it has remained there ever since.

36. The same applies to the Tour Re port from the Administrator of Dori cercle of

76
31 March 1931 , also cited by Niger— again with the contrary sense— in footnote190 to its

Counter-Memorial, as confirmation that Petelkolé w as at that time, in 1931, on the Niger side of

the frontier. In reality, in stating, in regard to “Petlkalkallé or Fétokarkalé”, that the frontier passes

approximately 1km to the east of this village, all that this report suggests is that the village to

which it refers lies to the west of the frontier, that is to say on the Burkina side.

6CMN, p. 65, para. 2.1.7; see also MN, p. 94, para. 6.22.

7MN, Ann. C 45.
71
Ibid., p. 6 of the report.
72
Ibid., p. 5 of the report.
73
Ibid., p. 6 of the report.
7Ibid., last page of the report.

7MN, Ann. C 45; see on this point CMBF, p. 96, para. 3.69.
76
MN, Ann. C 41. - 31 -

37. As to the Tour Report of AdministratorLacroix in 1953, from which Niger quotes the

lines “Rimaïbé having established the permanent haml ets of Petelkarkalé and Petelkolé, between

which the boundary passes” 77, it proves nothing, not only because its author starts from the

mistaken premise that the description of the boundary proposed by Administrator Delbos is legally

valid, whereas it is the 1927Erratum alone that determines the boundary, but also because it is

78
impossible to locate Petelkarkalé on the 1960 map .

38. Niger relies above all, in order to justify th e enclaving of Petelkolé, on the existence of a

Niger border post installed in that enclave af ter 2006, in accordance with a proposal by the

Bilateral (Burkina-Niger) Committee on the identification of sites for the installation of juxtaposed

79
control posts on the Ouagadougou-Dori-Téra road . However, Niger provides no explanation as to

the legal basis of the argument that this work had consequences for the course of the frontier. It is

certainly not obvious, and on reflection nothing can be found to justify it.

39. In the first place, the Report of the B ilateral (Burkina-Niger) Committee of June2006

cannot be evidence of a consensus between the Parties that their common frontier, as delimited by

the Erratum, passes to the west of Petelkolé. Only the Joint Technical Commission on

Demarcation, created by the 1987 Protocol of Agreem ent, was competent at that time in relation to

the frontier. For their part, the experts composing the Bilateral Committee had strictly no power as

40 regards the course of the frontier. Their sole duty was to make recommendations to “the competent

authorities of the two States” on the best s ites for the border control posts on the

Ouagadougou-Dori-Téra road.

40. Moreover, if Niger is claiming that the experts’ recommendation represents a

delimitation agreement, that position would be diff icult to reconcile with its rejection of the

consensual line in 1988, which it regarded as w ithout any legal force, because it had never been

officially incorporated in a final legal document ratified by Niger’s Head of State.

41. Secondly, neither is the 2006 work ev idence of the existence of an agreement between

the experts ⎯ still less between the Parties ⎯ to modify the line of the frontier inherited from the

7MN, Ann. C 79, quoted in CMN, p. 66, para. 2.1.7 and MN, p. 94, para. 6.22.
78
CMBF, p. 96, para. 3.69.
7CMN, Ann. A 24, p. 5. - 32 -

colonial period. Reading the Report of the Bilate ral Committee of June 2006, it can be seen very

clearly that the committee members believed that the frontier left Petelkolé to Niger, whereas they

in fact had no way of knowing this, since the frontier had still not been demarcated in that area, and

its course was the subject of a dispute between the two States. They thus expressed themselves in

ignorance of the true situation. They made a mi stake, and obviously had no idea that they were

recommending that the course of the frontier should be shifted westwards so as to enclose Petelkolé

in an enclave of Niger territory.

42. Finally, we are bound to note that the 2006 Report of the Bilateral Committee of Experts

is not a “document accepted by joint agreemen t of the Parties” within the meaning of the

1987Agreement, and nor is it mentioned in the Special Agreement, which thus precludes it from

being used in order to determine the course of the frontier.

[Slide 3 again]

43. I would add, Mr.President, that, if Nige r has failed to establish that Petelkolé was

administered by itself at the time of independence, it has also failed to propose a line to enclave

Petekolé that is in any way credible. The “fron tier points”, of which we have heard so much, and

which Niger appears to make up as it goes along, are so lacking in any true basis that they come

and go as they please, from one written pleading to another.

44. This applies to the “endpoint of the new stretch of the Téra-Dor i road constructed by

Niger”, in relation to which it is difficult to see why it should be given the status of a frontier point;

41 the same can be said of the point with co-ordinates 13° 59' 03" N and 00° 25' 12" E” 80. While these

co-ordinates appear quite precise, they have clear ly been chosen out of pure wishful thinking on

Niger’s part, since it does not hesitate to change them from one pleading to another — as we can

see when we look at the sketch-map currently on the screen. The red line represents the course

chosen by Niger in its Memorial; the ma uve line represents the course shown in the

Counter-Memorial. There is a considerable divergence between these two lines.

45. It would therefore be no exaggeration to say that this is all totally lacking in rigour and

has nothing to do with the course of the frontier between Niger and Burkina Faso.

80
CMN, p. 66-67, para. 2.17. - 33 -

C. The Oussaltane enclave

46. As to the Oussaltane enclave, which is s hown in the middle of th e sketch-map currently

on the screen, here Niger simply repeats in its Counter-Memorial the arguments already presented

81 82
in its Memorial , which Burkina has already refuted .

47. The Counter-Memorial does, however , contain new material regarding the course of the

Oussaltane enclave. It is apparent that none of the points whose co-ordinates are given in the

Memorial as frontier points reappear in the Counter-Memorial, with the exception of that where the

proposed line rejoins the IGN line. Here again, the sketch-map on the screen shows this clearly.

One is bound therefore to conclude that, once more, Niger is improvising the course of a line which

has nothing to do with the frontier as the two States agreed to define it in 1987.

D. The invention, then disappearance, of the Komanti encampment enclave

48. Furthermore, Niger’s exercise in improvisation, Members of the Court, is such that its

claim to an enclave around the Koma nti encampments, in respect of which its Memorial insisted

that this corresponded to the colonial effectivités, has quite simply been abandoned in the

Counter-Memorial. The claim was nevertheless a fi rm one: thus Niger argued that the course of

the line on the 1960 IGN map was very uncertain here, and that it should therefore not be followed,

42 with the result that the encampments fell on its own side of the border, since, as it claimed, they

had been “administered by Niger since the colonial period” 83. Without giving the slightest

explanation, the Counter-Memorial makes a comp lete about-turn and abandons this enclave—

despite the fact that it accords w ith its general approach — and ulti mately returns to the allegedly

“very uncertain” line on the 1960 IGN map.

49. Over and above the bias which they bring to the judicial debate, these changes of

position are somewhat unsettling, for what is expected of a frontier, just as with all frontier claims,

is that it should have a certain permanence. In any event, these constant changes confirm the

fanciful nature of the line which Niger proposes that the Court should enshrine as the frontier

around Petelkolé and Oussaltane.

8MN, pp. 95-97, para. 6.23, and CMN, pp. 67-68, para. 2.1.8.
82
CMBF, pp. 97-99, paras. 3.71-3.76.
8MN, p. 96, para. 6.23. - 34 -

[End of slide]

III. Bangaré

50. I now come to the village of Bangaré, to which I shall devote my final set of

observations. Mr. President, Bangaré is the village after which Niger gives up arguing for enclaves

and instead relies on the line on the 1960 IGN map, until the so-called “tripoint” with which Niger

replaces the point situated on the River Sirba at Bossébangou. Fundamentally, what Niger seeks to

argue here is that because Bangaré has, in its view, always been part of its territory, the line shown

on the map, which allocates that village to Niger, is correct.

51. That method is open to question right from the outset, due to the extremely weak nature

of arguments based on the exact geographical positio n of villages in the region through the ages.

Senobellabé is a typical case in point: although th is village appears on Niger’s side of the 1960

line, and is cited as a village of Diagourou canton in 1933 and 1948, Niger acknowledges in its

Memorial that no conclusions can be drawn as a result, since “[t]he sites change according to the

84
seasons and retain the same toponyms” .

52. Leaving aside that note of warning, Niger’s argument is based on effectivités which are

no such thing. Apart from those already refuted in Burkina’s Counter-Memorial, to which there is

43 no need to return 85, there are seven documents annexed to Niger’s Counter-Memorial which are

worth discussing at this stage.

53. The first is an extract from the “Directory of localities” 1927: villages of the canton of

independent Peulhs ⎯ Diagourou (Dori cercle) 86; here we find a reference to a village called

“Bankaré”. The second is a list of the villages of Téra Subdivision, in Diagourou canton, in which

mention is also made of a village called “Bankaré” 87.

54. Those two documents must be disregarded from the outset, for there are no grounds for

assimilating Bangaré and Bankaré, as Niger does. There is nothing to prove that both names refer

to the same village, but everything to show that this cannot be the case, since it was quite usual,

8MN, p. 99, para. 6.25.
85
CMBF, pp. 101-102, paras. 3.80-3.84.
86
CMN, Ann. C109.
8CMN, Ann. C110. - 35 -

during the colonial period, for many villages in th is region to have similar names, despite being

separate places. As evidence fo r this, the 1927 General List of Localities of Upper Volta lists

different villages with very similar names, such as Bangaba, Bangama, Bangassa, Bangassé,

Bangassi, Bangasso, Bangassom, Bangassoum, Bangassoko, Bankaré, Bankandé, Bankora,

Bankouma, etc. 88 Furthermore, the 1954 sketch-map of Diagourou canton shows a “Bankara”,

89
which could equally well be Banka ré, but is clearly not Bangaré . Moreover, two of the new

documents annexed to Niger’s Counter-Memorial include the names of “Bangaré” and “Bankara”

90
as two different entities in the list of villages of Téra Subdivision, Diagourou canton .

55. The third, fourth and fifth documents, numbered as Annexes C 117, C 118 and C 125 to

Niger’s Counter-Memorial, pose a problem as rega rds their nature and purpose. They are of

indeterminate origin: their author is not mentioned, and neither is their object; as for their date, it

is written by hand, whereas the remainder of the doc uments is typed. Furthermore, they are taken

out of context, since these are obviously extract s from much weightier tomes of which virtually

nothing is known.

44 56. The final two documents are a report dated 10August1954, specifically relating to

91
“Bangaré” , and the Arrêté of 1January1956 establishing pollin g stations and districts for the

elections to the National Assembly in the administrative division of Niger 92.

57. Upon careful analysis, the 1954 report reveals that what it refers to as “Bangaré” is not

the village of “Bangaré” which appears to the west of the line on the 1960 IGN map and is claimed

by Niger. The village of Bangaré shown on that map is in fact 25 km from Diagourou as the crow

93
flies, which is totally incompatible with the observation made in the 1954report , according to

which Bangaré is, historically, a “district of Di agourou in existence since the beginning of the

century”. No African village, at the beginning of the twentieth century, ever had a district lying

more than 20 km from its centre.

88MBF, Ann. 27.

89MN, Ann. D21.
90
CMN, Anns. C117 and 118, in particular.
91
CMN, Ann. C120.
92CMN, Ann. B35.

93CMN, Ann. C120. - 36 -

58. The last of the documents we should discuss, which is both the most official one, since it

is the Arrêté of 1January1956 establishing polling stations and districts for the elections to the

National Assembly in the administrative division of Niger, and the one closest to the date when the

colonies gained independence, since it is from 1956, provides confirmation that the village of

Bangaré is not part of Niger. It is reproduced at tab 2.19 of the judges’ folder. Admittedly,

Bangaré is listed here as being allocated to the first polling station in Diagourou. Yet what emerges

most clearly from this document, and Niger obviously neglects to note this point, is that Bangaré is

not mentioned as a village ⎯ something which is neither an oversight, nor a mistake.

59. What the Arrêté actually does is to draw a distinction between those voters attached to

villages or oases, who belong to specific tribes or “factions”, and those unspecified persons who

vote in Niger for reasons which are not connected with their place of residence, but with their

personal attachment to Niger.

60. That is the justification for having two polling stations in Diagourou. The second one is

reserved for voters from specific villages. The Arrêté expressly refers ⎯ I quote the text of the

Arrêté, Mr. President ⎯ to the “ Villages of : Ouagadougoubé, Yolo Hamidou...”. The first

polling station, for its part, is allocated voters without any reference to the fact that they belong to a

particular village. The Arrêté refers ⎯ and here again I quote its text ⎯ to “Sanrarébé,

45 Wengardé . . . Bangaré”. The word “village” is not mentioned. Bangaré is not, therefore, listed as

a village with a particular geographical location, allocated to a polling station in Niger on the basis

of that location.

61. The fact that Bangaré appears in this Arrêté, but is not referred to as a village, even
94
though it is established that it became one in 1945 , indicates an effectivité which is quite the

opposite of that which Niger claims to discern. It means that the colonial authorities knew full well

that the village of Bangaré was not situated in Niger, but in Upper Volta, due to the delimitation

made by the Erratum. For the purposes of the el ection in Niger, they merely noted that the

residents of Bangaré were included in the vo ting lists of Niger, and told them in the Arrêté where

they could go to vote.

94
CMBF, p. 100, para. 3.80. - 37 -

62. That being the case, Mr.President, Members of the Court, both the line described by

Niger’s Counter-Memorial in the Téra sector nd the line claimed in Niger’s Memorial, which

happens to be different, are without any merit, both in fact and in law.

63. From the Tong-Tong astronomic marker, as Burkina has always maintained, the frontier

follows a straight line until the Tao astronomic mark er; then, from that point onwards, it follows a

straight line until the point where the frontier reaches the River Sirba at Bossébangou.

64. Mr. President, that concludes my pleading. I should like to thank you for your patient

attention and ask you to give the floor to Prof essorForteau, who will present a part of the line in

the second sector of the contested frontier.

The PRESIDENT: Thank you, Professor. I give the floor once again to Mr. Forteau.

FORr.TEAU:

THE COURSE OF THE FRONTIER FROM THE POINT WHERE IT REACHES THE RIVER S IRBA
AT BOSSÉBANGOU TO THE BOTOU BEND

I. The starting-point of the line (the point where the frontier reaches
the River Sirba at Bossébangou)

I am very grateful to you, Mr. President, for giving me the floor again.

[Slide 1: The second section to be delimited (from Bossébangou to the Botou bend)]

46 1. Mr. President, Members of the Court, the second section of the frontier whose delimitation

is contested by Niger is defined in the following manner by the Erratum of 1927: the delimitation

line, having arrived at the point where it reaches the River Sirba at Bossébangou,

“almost immediately turns back up towards the north-west, leaving to Niger, on the
left bank of that river, a salient which includes the villages of Alfassi, Kouro, Tokalan,
and Tankouro; then, turning back to the south, it again cuts the Sirba at the level of the
Say parallel. From that point the frontier, following an east-south-east direction,

continues in a straight line up to a point locat ed 1,200 m to the west of the village of
Tchenguiliba.”

2. The first point of divergence between the Parties, which is also common to the preceding

stretch, concerns the starting-point of the frontier in this section. It is in fact necessary to determine

from which point the line “almost immediately turn s back up towards the north-west”. The object

of this, my second speech, will be to identify that point. - 38 -

[End of slide 1]

3. In all honesty, it should take no more than a few seconds to deal with this question. The

line necessarily “turns back up” from the point it h as just reached: the fron tier, according to the

Erratum “reach[es] the River Sirba at Bossébangou. It almost immediately turns back up towards

the north-west”; therefore the River Sirba at Bossébangou is the relevant frontier point.

4. Niger creates a completely artificial problem in respect of this point, by refusing to apply

the Erratum. In its Counter-Memorial, Niger in fact asserts that the stretch in question starts not at

the point designated by the Erratum, but at the “point which was formerly the ‘tripoint’ between the

cercles of Dori, Tillabéry and Say”. Niger further considers that “to the start of the Botou bend,

that line follows what were the traditional boundaries of Say cercle, as handed down to the Colony

of Niger in 1926” 95.

[Slide 2: The lines claimed by the Parties in the area of the salient]

5. The line claimed here by Niger, which is shown on the screen, departs from the Erratum in

two respects:

(i) Niger asserts that it is basing itself on wh at the situation was alleged to have been in

1926 ⎯ and I use the word “alleged” advisedly ⎯, namely the year before the Arrêté and

47 Erratum were adopted; yet those two legal instruments are the only ones having force of

law to determine the delimitation. At best, Niger’s claim is anachronistic, particularly

since the 1926 decree itself refers to a future delimitation — which occurred in 1927;

(ii) moreover, Niger pays absolutely no heed to the letter of the Erratum, which indisputably

adopts the River Sirba at Bossébangou as a frontier point, with no mention at all of any

“tripoint”.

[End of slide 2]

6. Given the clarity of the text of the Erratum, Niger is reduced to claiming in its written

pleadings that the author of the Erratum had made an error in adopting Bossébangou as a frontier

point, instead of what Niger ca lls the “tripoint” between the cercles of Dori, Tillabéry and Say.

This “error theory” is, however, completely baseless, as I shall first of all show(I). I shall then

95
CMN, para. 2.2.1. - 39 -

develop the various elements which confirm that the point where the frontier reaches the River

Sirba at Bossébangou is indisputably the relevant frontier point, from which the frontier starts in

this section (II).

I. The error theory is irrelevant

7. Mr. President, it should at least be acknow ledged that Niger puts up a valiant defence of

its position in respect of the frontier point at Bo ssébangou. The claim is cl ear, even though it is

unfounded. According to Niger,

“this reference in the Erratum to a boundary passing through the locality of

Bossébangou [is] marked by error. On this point the Erratum did not correct the text
of the Arrêté it replaced, as it retained in its description of the inter-colonial boundary
some of the internal boundaries of Say cercle ⎯ which had no place to be there” . 96

Again according to Niger,

“[i]n this way [the Erratum] partially pe rpetuated the error which it was supposed to
correct, by making the line which it described end at a point which constituted a
purely internal boundary between the cercles of Tillabéry and Say, which belonged to
one and the same Colony” . 97

48 8. The irony of the argument is that it rests precisely on the confusion that Niger complains

of:

(i) nowhere is it stated in the Erratum that it delimits the cercles ⎯ its purpose is clearly

restricted to the inter-colonial delimitation;

(ii) Niger, for its part, makes strenuous efforts to claim as a frontier point what it calls a

“tripoint” between three cercles, in contradiction with the inter-colonial purpose of 1927

Erratum. Therefore, if anyone is confusing cercle boundaries with colony boundaries in

this case, it is not the draftsman of the Erratum, but indeed Niger.

9. In any event, Niger’s argument quite simp ly does not stand up, for three broad sets of

reasons:

96
CMN, para. 2.2.2.
9MN, para. 7.14. - 40 -

⎯ in the first place, the error theory can have no effective consequence: even if there had been an

error (quod non), it would still not alter the fact that the Erratum would nevertheless apply in

this case (A);

⎯ in the second place, the error theory rests on tw o erroneous assumptions: firstly, that in 1927

there existed boundaries that had already been defined, and, secondly, that the Erratum ought to

have confined itself to reproducing those alleged boundaries as they stood (B);

⎯ and in the third place, the error theory assumes that the draftsman’s reference to Bossébangou

in the Erratum was made in ignor ance of the true facts — which is contradicted by analysis of

the Erratum’s actual text (C).

Mr. President, allow me to return to each of these three points in greater detail.

A. Even if there had been an error (quod non), the Erratum would nevertheless apply in this
case

10. In respect of the first point (even if there had been an error, the Erratum would

nevertheless apply in this case), I shall begin by recalling what Niger’s argument consists of.

According to Niger,

“In describing the inter-colonial boundary as running as far as the village of
Bossébangou, and thus effectively lopping off a portion of the area of Say cercle in the

south ⎯ removing it from Niger and giving it to Upper Volta, the Erratum of
5October1927 blatantly contradicts the Decree of 28December1926, which both
Parties recognize as being of fundamental importance in this dispute. Consequently,

49 in respect of this specific point, the E rratum is deprived of any legal basis ⎯ and thus
also legal effect ⎯ since in the hierarchy of French administrative acts a decree comes
above an arête.” 98

11. More specifically, Niger bases its assertion on the Burkina/Mali precedent, whereby the

Court considered that the frontier line “had to be defined not according to international law, but

99
according to the French legislati on which was applicable to such territoires” . Niger uses this as

an argument to claim that it is for the Court to judge the legality of the Erratum, to find it

incompatible with the Decree of December 1926, an d for that reason to exclude it on the basis of

French law.

98
See CMN, para. 2.2.10.
9CMN, para. 2.2.10. - 41 -

12. However, irrespective of any intrinsic me rit in this argument, there is a significant

difference between the Burkina/Mali case of 1986 and the one that is before us today: the 1927

Erratum is the legal title in the present case on two gr ounds: it is the legal tit le by application of

the principle of uti possidetis juris, thus by reference to French colonial law; but it is also the legal

title by virtue of the fact that it is referred to in the Agreement of 1987 and the Special Agreement

seising the Court, both of which are treaties. By reason of this treaty-based reference, even if the

Erratum were erroneous (quod non), it would nevertheless still constitu te the only applicable legal

title, recognized as such in a treaty by the two Par ties, for purposes of defining the course of their

common frontier. In light of this, the status of th e Erratum in French colonial law is quite simply

irrelevant.

13. In these circumstances, the fi ndings reached by this Court in the Libya/Chad case are

fully applicable to the present case. In that Judgment, you stated:

“That being so, the Court’s task is clear:

‘Having before it a clause which leaves little to be desired in the
nature of clearness [here the Court is speaking of the 1955 treaty which
defined the frontier by referring to other instruments, and that is also the

case here with the 1987 Agreement which refers to the Erratum], [the
Court] is bound to apply this clause as it stands, without considering
whether other provisions might with advantage have been added to or
substituted for it.’ (Acquisition of Polish Nationality, Advisory Opinion,

1923, P.C.I.J., Series B, No. 7, p. 20.)”

50 (Territorial Dispute (Libyan Arab Jamahiri ya/Chad), Judgment, I.C.J. Reports 1994 ,
p. 25, para. 51; emphasis added.)

14. In other words, and to quote again from your Judgment of 1994, in concluding the 1987

Agreement which refers to the Erratum, Burk ina and Niger undertook to accept the frontier as

defined in the Erratum and are obliged ⎯ and I cite from your 1994 Judgment ⎯ to “draw legal

consequences from its existence, to respect it and to renounce the right to contest it in future” (ibid.,

p.22, para.42). Whether or not the Erratum is erroneous is therefore not at issue. Niger cannot

dismiss the Erratum without breaching its own consent given in 1987 and reiterated in 2001.

[Slide 3: Sketch-map on page 117 of CMBF [page 89 of the Enlgish version]]

15. Niger’s argument is, moreover, without any pr actical consequence. If Niger were in fact

right (quod non) in claiming that the Erratum was tainte d by error, and that you should therefore - 42 -

disregard it, and accepting that the Erratum could accordingly be said “not to suffice” within the

meaning of the 1987 Agreement ⎯ which is questionable to say the least ⎯, in that case you

would be required to have recourse to the line on the 1960 map. Yet, as can be seen on the screen,

that line does not stop at Niger’s “tripoint”: the line on the map continues on to Bossébangou,

which is shown as a frontier point ⎯ as Niger indeed acknowledges 10. In its attempts to exclude

the Bossébangou frontier point, Niger makes no head way at all when it invokes the alleged “error”

in the Erratum.

[End of slide 3]

B. The error theory is based on a doubly mist aken premise: that defined boundaries already
existed in 1927, and that the Erratum of 1927 should have reproduced those boundaries as

they stood

16. I come now Mr. President, very much in the alternative, to th e second series of reasons

why the error theory is wrong. It is based on a doubly mistaken premise: on the one hand, that in

1927 defined boundaries already existed and, on the other, that the 1927 Erratum should have

reproduced them as they stood. Thus Niger argues in its Counter-Memorial that the Erratum
51
101
“contains an erroneous description of this section of the inter-colonial boundary” .

17. However, the purpose of the Erratum was in no sense to “describe”, as Niger writes, an

allegedly pre-existing boundary ⎯ and which was thus wrongly reproduced. The Erratum is an act

of delimitation which, as such, has a constitutive and not a declaratory aspect. Moreover, the terms

which it uses confirm this, since Article1, in pa rticular, provides not that the boundaries “are the

following”, but that they “are determined as follows” ⎯ and the use of the verb “determine” indeed

implies that a decision has been taken 102.

18. This constitutive aspect was, moreover, inevitable, since at the date of adoption of the

Erratum no previous arrêté or decree had delimited the territories of the two colonies, or even,

indeed, the territories of the cercles adjoining the boundary line. That is precisely why the

10MN, para. 7.21.
101
CMN, para. 2.2.8.
10See above, speech of Alain Pellet, para. 19. - 43 -

1926 Decree had expressly provided that an Arrêté “shall determine the course of the boundary of

103
the two Colonies in this area” .

19. Niger, however, maintains that the draftsman of the 1927 Arrêté and its Erratum made a

mistake in neglecting to take account of the fact that certain cantons had been transferred in 1926

from the Colony of Upper Volta to the Colony of Ni ger. According to Niger, while the locality of

Bossébangou “was indeed located on the boundary between Say cercle and the cantons of Dori

cercle incorporated into Niger in 1926, it w as, however, no longer on the boundary with

104
Upper Volta after that incorporation had been carried out” .

20. Niger bases its argument on the Record of Agreement of 10February1927 between

Messrs.Lefilliatre, representative of the Gover nor of UpperVolta, and Choteau, representing the

Governor of the Colony of Niger, on the basis of which the 1927 Arrêté was prepared. Niger

considers that this agreement describes all the boundaries of Say cercle, not merely those adjoining

the Colony of UpperVolta— which would confirm that there had been a mistake, in that the

52
territorial changes effected by the 1926 Decree had not been taken into account in the preparation

of the Arrêté.

105
21. However, as Burkina Faso points out in its Counter-Memorial , Niger fails to take

account of the fact that the 1927 Arrêté was also prepared on the basis of the Record of Agreement

of 2February1927 between Messrs.Brévié, Gover nor of the Colony of Niger, and Lefilliatre,

representative of the Governor of Upper Volta. This agreement is quite clear: it takes account of

the territorial changes effected by the 1926Decree in the inter-colonial delimitation which it

proposes.

22. In order to be able to state that the dr aftsman of the Erratum committed an error in not

reproducing exactly the boundaries of Say cercle as they are alleged to have existed in 1926, it

would have to be demonstrated, in any case, th at those boundaries were indeed those which Niger

claims. However, to Burkina’s knowledge, Ni ger has never produced any legal text from the

colonial period purporting to define those boundaries as they were in 1926.

10MBF, Ann. 26.
104
MN, para. 7.16.
10See CMBF, paras. 4.21-4.27. - 44 -

23. Nor has Niger produced any colonial text defining what it repeatedly refers to as the

“traditional boundaries” of Say cercle. The 1926decree refers to territories, not boundaries, and

nowhere in the instruments cited in the Preamble, or in those cited in the 1927 Arrêté and its

Erratum, is there any reference to legal delimitation texts of whic h account was to be taken in the

adoption of the Erratum.

24. The only document which Niger has produced in connection with the boundaries of Say

cercle moreover confirms that these had not yet b een defined in 1927. Niger appended to its

Memorial Arrêté No.149 of 20March1901 incorporating the Territory of Say into the cercle of

106
Moyen-Niger . In Article1, that Arrêté provides that “[t]he Territory of Say, whose precise

boundaries will be fixed subsequently , is hereby incorporated into the cercle of Moyen-Niger”.

That amounts to an admission that the boundaries of Say Territory had not been defined. Niger has

provided no other document which subsequently made good that deficiency.

25. Niger nonetheless continues to claim that the 1926Erratum ought to have emdorseda

pre-existing delimitation. It contends that, as a resu lt of the “territorial changes” to the colonies of

UpperVolta and Niger effected by th e Decree of 28December1926 and the Arrêté of

53 22January1927, which reallocated certain territories, including Say cercle, by transferring them

from one Colony to the other, the colonial Powe r had already delimited those territories in those

two texts of December1926 and January1927, with binding effect on the draftsman of the

August 1927 Arrêté and the Erratum of October.

26. That, however, was not the interpretation which Niger itself defended a few years ago in

its Counter-Memorial filed on 28May2004 in the ca se between itself and Benin. At that time

Niger wrote that “the Arrêté of 22January1927 does not set any boundaries, and it is therefore

difficult to see how the Arrêté of 31August1927 could clarify it”. Niger further stated that the

107
boundaries “result, rather, from the Erratum” . That is quite true: neither the Decree of

December1926, nor the Arrêté of January1927, are acts of delimitation. Only the Erratum has

such a status.

106
MN, Ann. B.6
107
CMN in the Benin/Niger case, Ann. 1, p. 203, para. 14 (www.icj-cij.org). - 45 -

27. It is moreover symptomatic that Niger does not concern itself with the way it has set

about determining the precise location of the “tripoi nt” that it seeks at all costs to establish as the

relevant frontier point. If, as Niger claims, at the time of adoption of the 1926 Decree the cercles

concerned had already been the subject of a delimitation binding on the Governor-General of

French West Africa for purposes of establishing th e inter-colonial boundary, it would have been

possible to deduce the location of the tripoint from those previous instruments delimiting the

cercles. However, once again Niger has produced no such text. That explains why it has had to

fall back on a different technique, one which stra ys still further from the methodology defined and

accepted by Burkina Faso and Niger in the 1987 Agreement.

[Slide 4: Sketch-map facing page 107 of Niger’s Memorial [page 105 of the English version]]

28. In order to locate its tripoint, Niger conf ines itself to a reference to various maps which
108
allegedly “identified... the meeting-point of the cercles of Tillabery, Say and Dori” . In other

words, Niger does not base its “tripoint” on the legal instruments of delimitation which purportedly

existed in 1926. It seeks retrospectively to de duce the co-ordinates of this point from various

54 selectively chosen maps, with, of course, all the un certainties of such a method in view of the very

great imprecision of the sketch-maps prior to 1926.

109
29. This method is particularly surprisi ng, moreover, in that as far back as 1910 — and

hence in 1919 at the time of th e creation of UpperVolta— ther e was no longer any “tripoint”

between the three cercles in the region. From 1910, Say cercle was bounded to the north-west by

just one cercle: Dori cercle, which had absorbed the former cercle of Tillabéry on that side of the

110
River Niger .

[Slide 5: Sketch-map facing page 14 of Niger’s Memorial [page 22 of the English version]]

In its Memorial, Niger has provided an illustration, which we now see on the screen,

showing the cercles of the Colony of UpperVolta at the time of its creation in 1919. In these

circumstances, to claim to lo cate a tripoint between three cercles at a time when there were only

two is a veritable tour de force!

10MN, para. 7.24.
109
See MN, para. 1.15 in fine.
11See Arrêté of 22 June 1910, MN, Ann. B 14. - 46 -

[End of slide 5]

30. In order to locate its “tripoint”, Niger bases itself on maps and sketch-maps alleged to

represent the situation as it existed in 1927: th e 1:1,000,000 sketch-map of 19June1909 of

CaptainBoutiq, commander of Djerma cercle 11, the 1:500,000 sketch-map of 1August1915 of

112
Commander Truchard , map No.60 of the Atlas des cercles , showing Say cercle on a scale of

1:500,000 11; and the Blondel la Rougery map of Volta-Niger-Dahomey on a scale of 1:500,000 of

114
June 1926 .

[Slide 6: Sketch-map MN, D. 1]

⎯ Only the first sketch-map ⎯ that of 1909 ⎯ shows a true tripoint, but, in the first place, this

map is only a sketch-map, and does not enable the tripoint to be located precisely; secondly, at

that time it was Djerma cercle, and not Say cercle, strictly so-called (which was only a

subdivision of Djerma cercle) that adjoined Dori cercle; furthermore, Niger does not claim in

55 its written pleadings any tripoint corresponding to that shown, very imprecisely, on the

1909 sketch-map.

[End of slide 6]

⎯ As for the three other sketch-maps, they do not s how any tripoint, since at the date when they

were prepared— after 1910, as I have just pointed out— Say cercle was bounded to the

north-west by just one other cercle, Dori cercle 11. It is thus hard to understand how Niger can

rely on these three sketch-maps in order to locate the tripoint claimed by it.

31. We would also point out that the maps or sketch-maps on which Niger relies are not

mutually consistent. I will take two series of examples.

32. The first of these concerns the location of the villages in the neighbourhood of Niger’s

“tripoint”:

[Slide 7: Relevant extract from the 1:500,000 map of 1926]

11MN, Ann. D. 1.

11MN, Ann. D. 4.
113
MN, Ann. D. 6.
11MN, Ann. D. 9.

11See CMBF, para. 4.33. - 47 -

⎯ The 1:500,000 map of 1926 does indeed locate the village of Alfassi within the salient, but it

116
places it to the north-west of the village of Bossébangou ; on the other hand, on the 1960

IGN map the village of Alfassi is located to the south-west of Bossébangou;

[Slide 8: Relevant extract from the 1:1,000,000 sketch-map of 1926]

⎯ However, the 1:1,000,000 sketch-map of 1926 places the village of Alfassi not squarely within

the salient but on the direct prolongation of the straight line running from the Tao marker 117.

33. These examples show how unreliable the maps prior to the Erratum were in the area

where Niger seeks today to locate its “tripoint”.

[End of slide 8]

34. The second example concerns the very relevance of the idea of a tripoint in relation to

the 1927 delimitation.

56 [Slide 9: Zoom in on the relevant part of sketch-map D. 20 from Niger’s Memorial]

On page75 of its Counter-Memorial [p. 53 in the English version], Niger reproduces the

1946 1:1,000,000 sketch-map shown in Annex D. 20 of its Memorial, giving it the following title:

“The traditional boundaries of Say cercle in 1927”. That sketch-map shows a tripoint where three

cercles meet. However, this map, which Niger clai ms to represent the “traditional boundaries of

Say cercle”, is very clearly contrary not only to the Erratum, but also to Niger’s interpretation

thereof and to the line which Niger itself claims. Thus, as you can see on the screen, the

sketch-map places the village of Alfassi to the north-east of the tripoint, thus outside Say cercle and

outside the salient.

[End of slide 9]

C. The error theory assumes that the draftsma n’s reference in the Erratum to Bossébangou

was made in ignorance of the true facts— wh ich is contradicted by an analysis of the
Erratum’s text

35. Finally, in order for th e error theory to be correct ⎯ and in so doing I address the third

series of reasons which contradict that theory ⎯ it will be necessary to show that the draftsman of

the Erratum was acting in ignorance of the true facts when he indicated Bossébangou as a frontier

116
MN, Ann. D. 9.
117
MN, Ann. D. 10. - 48 -

point. Niger states in this regard that the “r eference in the Erratum to a boundary passing through

the locality of Bossébangou was marked by error”, and that “the Erratum did not correct the text of
118
the Arrêté it replaced” .

36. However, from a formal perspective, such an argument would only begin to make sense

if the texts of the two instruments were identical. But that is not the case: the August Arrêté stated

that the boundary “reaches the RiverSirba (boundary of Say cercle) near to and to the south of

Boulkalo”. On the other hand, the Erratu m no longer refers to the boundary of Say cercle nor to

Boulkalo: it now states, quite precisely, that the boundary “reach[es] the River Sirba at

Bossébangou”. This precision, which was clearly deliberate, is significant.

[Slide 10: Sketch-map of page 117 of Burkina Faso’s Counter-Memorial [page 89 of the English

version]]

37. Moreover, the Erratum adds a further clarification. It states that, from Bossébangou, the

line “almost immediately turns back up towards the north-west”. This clarification, brief as it is,

57
confirms that the draftsman of the Erratum deliberately decided to specify Bossébangou as a

frontier point, drawing the necessary consequences when defining the continuation of the line of

the boundary: that line runs down in a north-w est/south-east direction as far as Bossébangou, then

leaves in an almost opposite direction. Thus the Erratum is quite correct in using the phrase

“almost immediately”, since otherwise the line could have been thought to double back on itself,

which a frontier cannot do. The insertion of the words “almost immediatel y” confirms that the

draftsman of the Erratum knew exactly what he was doing in defining the boundary of the sector as

he did.

[End of slide 10]

38. It follows that the intention of the drafts man of the Erratum was thus perfectly clear and

that, moreover, the language used in that text is equally clear, and that the interpretation of the

Erratum poses no problem at all. In no sense does it “not suffice”.

118
CMN, para. 2.2.2. - 49 -

II. The point where the line “reach[es] the River Sirba at Bossebangou” is the frontier point

39. The error theory, as we have just seen, is quite clearly baseless. Therefore it cannot

support Niger’s claim, which is manifestly contrary to the text of the 1927 Erratum.

40. Nonetheless, Niger alleges that there are a number of documents from the colonial period

which prove that the locality of Bossébangou was not regarded as bordering on the Colony of

119
Upper Volta . It draws particular attention to a letter of 17 December 1927 from

AdministratorDelbos, Commander of Dori cercle, to the Governor of Upper Volta, in which

Delbos stated that the frontier ran “as far as Nababori, reaching the Say cercle to the west of

120
Alfassi and not at Bossébangou, which is further up” .

41. However, Niger fails to cite in full the incidentally rather limited number of documents

on which it seeks to base its claim, and to pl ace these in their proper context. In its

Counter-Memorial, Burkina analysed those documen ts in detail. Its findings, which I shall run

121
through briefly, were as follows .

58 42. First, since the documents referred to by Niger have not been “accepted by joint

agreement of the Parties”, pursuant to the 1987 Ag reement, they cannot prevail over the clear text

of the Erratum, regardless of their content.

43. Second, what the documents invoked by Nige r show in reality is that certain colonial

Administrators wished to modify the delimitation of the Erratum because it took Bossébangou as a

frontier point: it follows, therefore, that Bossébangou was a frontier point after the adoption of the

1927Erratum and that the colonial authorities did not consider the Erratum to be without legal

effect on that particular point.

44. Third, those documents demonstrate that the frontier point proposed (again

unsuccessfully) at the time as a replacement for Bossébangou is not a point that was established

prior to 1927 by a “traditional course” which the auth or of the Erratum had no choice but to ratify.

Rather, there are several approximate points, located in various places, suggested in those

documents:

11CMN, para. 2.2.5.
120
MN, Ann. C 20, cited in CMN, para. 2.2.5.
12See CMBF, paras. 4.30-4.39. - 50 -

⎯ thus, it should be noted that the so-called “t raditional boundary”, said to be illustrated by

Captain Boutiq’s 1909 sketch-map, does not correspond to the frontier claimed by Niger

122
today ;

⎯ the course set out in the Tour Report of Civ il Service Deputy Roser of 15September 1943 is,

for its part, also different to that claimed by Ni ger today, because it starts at Alfassi and not at

Nababori 12;

⎯ similarly, the Report of the Delimitation Operations between the cercles of Dori and Tillabéry,

adopted on 8 December 1943 — thus prior to the 1947 reconstitution of Upper Volta within its

1932 boundaries — proposes that the “meeting point” of the three territories of Dori, Tillabéry

and Say is located at a point other than Alf assi and Nababori: that meeting point, which is

identified as being that proposed by Administrators Delbos and Prudon in 1927, “is a small

platform situated 6.5km (as the crow flies) to the north-east of the hamlet of Nabambori”,

124
59 known as the “Fisso” platform . No preparatory document for the amended Arrêté of

1927 — for either the Arrêté or the Erratum, in fact — has ever made mention of that point.

45. Whatever view may be taken of those pr oposals, everything in the case file leads to the

conclusion that Bossébangou is the relevant fron tier point, and not the tripoint put forward by

Niger.

46. That conclusion emerges first from the E rratum itself and from the 1960 map referred to

by the 1987Agreement and the Special Agreemen t seising the Court. Both take Bossébangou as

the frontier point, to the exclusion of any “tripoint”, and that is enough to dispose of the question.

47. That same interpretation of the Erratum was adopted in 1988 by the members of the Joint

125
Technical Commission on Demarcation, who took Bossébangou as the frontier point ; it was also

the authoritative interpretation adopted in May19 91 by the competent mi nisters of Burkina and

Niger, who agreed that “[f]rom the Tong-Tong astronomic marker to the River Sirba at

12See CMBF, para. 4.34, final bullet point.
123
MN, Ann. C 45.
124
MN, Ann. C 69.
12MBF, paras. 4.47-4.51. - 51 -

Bossebangou, passing through the Tao astronomic marker, the frontier shall consist of a series of

straight lines” 126.

48. Moreover, when considered in its cont ext, there is nothing ambiguous about Niger’s

position during the work of the Joint Commission. At the extraordinary meeting of 14 May 1990,

Niger contested the 1988 consensual line, contendi ng, for the first time, that the Erratum was

wrong not to establish the purported traditional boundar y which, according to Niger, did not reach

127
Bossébangou . Two months later, however, at the second ordinary session of the Joint

Committee, Niger was obliged to go back on th at position. After re-examining the line and

re-interpreting the Erratum, Niger declared that it “accept[ed] that the line of the frontier reaches

the River Sirba at Bossébangou”, a position which it did not again call into question until the filing

of its Memorial 12.

49. More precisely, Niger acknowledged the following:

60 “Although the Erratum specifies that the frontier line reaches the River Sirba at
Bossébangou following a south-easterly directi on, and then turns back in the opposite
direction (north-west), which would eliminate the frontier line over that short stretch,
129
Niger accepts that the line of the frontier reaches the River Sirba at Bossébangou.”

50. In other words, Niger’s only hesitation co ncerned the potential inconsistency of the line,

and not the fact that the Erratum should be considered invalid, as it is now claiming; even so, that

hesitation did not prevent Niger from acknowledgi ng that Bossébangou is the relevant frontier

point.

51. Moreover, as I recalled earlier, Niger’s hesitation was unfounded, because the Erratum

does not say that the frontier turns back up towards the north-west, but that it almost immediately

turns back up in that direction 13.

52. Two new documents annexed by Niger to its Counter-Memorial confirm this.

53. A Note from the Permanent Secretary to the Niger Minister of the Interior containing the

report of the meeting of the Joint Technical Co mmission on Demarcation of 31July 1990 records

12MN, Ann. A 6; emphasis added.

12MBF, Ann. 85.
128
See CMBF, para. 2.17.
12MBF, Ann. 87, p. 3.

13See above, para. 37. - 52 -

as follows the view of the authorities of Niger: “ according to the text [of the Erratum], the frontier

line joins the River Sirba at two places: at Bosséb angou and at the level of the Say parallel”. The

same Note also states that the frontier line must “connect the three points mentioned above”,

namely the Tong-Tong marker, the Tao marker and “the River Sirba ([at] Bossébangou)” 131.

54. The letter of 17 December 1990 sent by th e Permanent Secretary of the National Frontier

Commission to the Niger Minister of the Interior reaffirms that the course of the frontier should

pass in turn through the three points mentioned in the Erratum, namely Tong-Tong, Tao and “the

Sirba at Bossébangou”. In addition, that letter states— and I stress this point— that such

interpretation “is consistent with the spirit a nd letter of the Decree dated 28December1926”.

Furthermore, the letter lists the points of disagre ement between the Parties in the “[s]ection going

61 from the Sirba at Bossébangou to the Sirba at the level of the Say parallel”, without calling into

132
question the location of the starting-point of the frontier in that section .

55. A number of documents from the colonial period also confirm that the inter-colonial

boundary passed through Bossébangou, as stated in the Erratum.

56. Among the colonial documents dating from or after 1927, the following, in particular,

may be mentioned, stretching from 1927 to the dates of independence.

57. In his aforementioned letter of 17D ecember1927, AdministratorDelbos expressed

concern that the Erratum made the frontier run to the River Sirba at Bossébangou and not to

133
Nababori, as he had recommended . However, as Niger indicates in its Memorial, “this urgent

plea had no effect, and no change was made to the legislative text up to the time of

134
independence” .

58. Barely three years later, Report No.416 from the Commander of Dori cercle, dated

7July1930, states that “an Erratum to that Arrêté [the Arrêté of August 1927] does not alter the

boundaries fixed, except that the frontier line s hould reach the River Sirba at Bossébangou instead

of Boulkabo” 13.

13CMN, Ann. C 130.

13CMN, Ann. C 131.
133
MN, Ann. C 20.
13MN, para. 6.14.

13MN, Ann. C 38, p. 2. - 53 -

59. The Tour Report from the Commander of Tillabéry cercle, dated 30June1934, affirms

that the colonial Administrators had intended to carry out a “precise delimitation” — in the context

of that Report, the term delimitation refers to the demarcation of the frontier on the ground—

which, according to the text, was supposed to be carried out “from the Tong-Tong astronomic

marker to Bossébangou” 136.

60. On 11July1951, the Head of Téra Subdivision informs Tillabéry cercle that the

Commander of Dori cercle has “stated again that he believes it is important to demarcate the

boundary on the basis of the Erratum . . . of 1927, by connecting the Tao boundary marker directly

with Bossébangou”. For his part, the Head of Té ra Subdivision expresses concern in that telegram

62
about the possible consequences of that demarca tion and indicates his preference for “the solution

proposed by Mr. Roser, acting Commander of Dori cercle, in 1932”. It should be recalled that that

137
proposal was presented as a suggested amendment to the Erratum, which was not followed up .

61. Moreover, in a letter sent on 17 April1953 to the Commander of Tillabéry cercle, the

Governor of Niger describes the line defined in th e Erratum in the following terms: “the line from

the Tong-Tong astronomic marker, which crosses the Téra-Dori road at the Tao marker and

continues to Bossébangou”. He writes:

“The tendency of the Dori authorities has at certain times been to regard this as

a straight line, the result of which has been the annexation by Dori of certain territories
manifestly belonging to Téra, reopening old disputes. This delimitation should thus be
undertaken with great care, village by village, hamlet by hamlet.” 138

62. That last approach, I should point out, was completely removed from the text of the

Erratum. Where the latter sought to define the c ourse of the frontier according to the inclusion of

certain villages in a particular Colony, it did so ex pressly, as in the case of the four villages of the

salient. By contrast, the Erratum does not make reference to any village other than that of

Bossébangou in the section of the frontier running from the Tao marker to the village of

Bossébangou. What is more, the Governor of Niger does not dispute in that letter that the frontier

must reach the village of Bossébangou.

13MN, Ann. C 54; emphasis added.
137
MN, Ann. C 73.
13MN, Ann. C 75. - 54 -

63. Finally, in a Tour Report of 24December1953, Deputy-AdministratorLacroix of

Tillabéry cercle mentions what he refers to, in the singular, as “the ‘Tao-Sirba line’ in the Arrêté”.

In that same Report, he expresses regret that that lin e is not “eas[y] to identif y in the field”. That,

however, is a feature of any theoretical line. Be that as it may, the mention of the “Tao-Sirba” line

confirms that the Administrator has no doubt as to the fact that the Erratum adopted a straight–line

course between the Tao marker and the River Sirba at Bossébangou 139.

64. To conclude, Members of the Court, it is indisputable that the frontier defined by the

Erratum reaches the River Sirba at Bossébangou be fore continuing from that same point. As I

recalled in the introduction to this speech, one only has to read the Erratum in order to arrive at this

63
conclusion. It is therefore quite incomprehensible why Niger should refuse to accept it.

65. Mr.President, with your permission, my colleague and friend, Jean-MarcThouvenin,

will take my place tomorrow morning in order to continue the description of the course of the

frontier from the point where it reaches the River Sirba at Bossébangou. Members of the Court, I

thank you for listening patiently and attentively and wish you a pleasant afternoon.

The PRESIDENT: Thank you very much. The Court will meet again tomorrow morning at

10 a.m. The sitting is closed.

The Court rose at 5.55 p.m.

___________

139
MN, Ann. C 79.