Non corrigé Traduction
Uncorrected Translation
CR 2012/22 (traduction)
CR 2012/22 (translation)
Jeudi 11 octobre 2012 à 15 heures
Thursday 11 October 2012 at 3 p.m. - 2 -
10 The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
first round of oral argument of the Republic of Niger, which it will conclude at the sitting to be held
on Friday 12October at 3p.m. I now give the floor to His Excellency Mr.MohamedBazoum,
Minister and Agent of the Republic of Niger. Sir, you have the floor.
BMAr.OUM:
1. Mr. President, Members of the Court, it is a great honour and real pleasure for me to take
the floor before you today as Agent of the Republic of Niger in the frontier dispute between my
country and Burkina Faso. I should like to begin by conveying to you, Mr. President, Members of
the Court, warm greetings from His Excellenc y Mr.IssoufouMahamadou, President of the
Republic of Niger, who has great faith in your Court. At the same time I should also like to convey
to you the greetings of the Government and people of Niger.
And to you, my dear brothers from Burkina Faso, I convey my fraternal and friendly
salutations.
2. Mr.President, I would just take this opportunity to remind you that Niger and Burkina
Faso are two brother countries, united by history, economics, culture and geography.
3. They share sizeable ethnic communiti es along their common frontier, united by a
multiplicity of ties, as is shown, for example, by the institution of “joking relationships” between
certain of those communities. These ties have re mained intact, despite the territorial changes
which, over time, have affected the region.
4. I am convinced that, in settling this frontie r dispute, the Court will provide both countries
with the opportunity to strengthen still further the strong and numerous ties which have always
united them: the definitive delimitation of their common frontier will provide each State with
precise knowledge of the boundaries of its territory , and hence of the physical extent of its
sovereignty. The frontier will no longer be a cause of dissension between our two States, but more
than ever a bridge between our two peoples.
11 5. I would recall that no less than 17 bilateral co-operation agreements link our two
countries. The Monitoring and Evaluation Co mmittee of the Greater Joint Niger-Burkina - 3 -
Co-operation Commission, which met in March of th is year, reported on this co-operation, judging
it to be close and profitable to both countries.
6. Many of Niger’s exports and imports travel for long distances through Burkina’s territory.
This trade, which is of decisive importance fo r my country, takes place under conditions which we
regard as very favourable, and I take this opportunity to pay well-deserved tribute in this respect to
the authorities and people of Burkina Faso. Moreover, PresidentsIssoufouMahamadou and
Blaise Compaoré have always enjoyed personal rela tions of sincere friendship and high reciprocal
esteem.
7. Mr.President, Members of the Court, notw ithstanding the favourable context that I have
just described, which has enabled Niger and Burkina Faso to maintain relations of brotherhood,
friendship and good neighbourliness, the two coun tries are experiencing certain difficulties in
managing their frontier zone, precisely because of the uncertainty over the line of their common
boundary. These difficulties date back to the colo nial period and have not disappeared with the
acquisition by the two countries of international sovereignty. Their consequences are constant
arguments over access to natural resources (land, water, pasturage) and their utilization,
accentuated by the fact that certain of the peoples in question lead a semi-nomadic existence.
8. During the colonial period, there were many complaints within the two colonies over the
uncertainties in connection with the territorial boundary. More particularly, the colonial
administrators, both of Upper Volta and of Niger, criticized the lack of precision and inaccuracy of
1
the inter-colonial boundary as fixed by the Arreté of 31 August 1927 and its Erratum of 5 October
of the same year 2, whose terms have been described, on numerous occasions, as insufficient and
3
defective .
9. These criticisms continued after th e two countries attained independence 4, all the more so
in that the transformation of the inter-colonial bou ndary into an international frontier resulted in
12 new types of conflict. These were territorial disputes between two sovereign States relating in
1MN, Ann. B 26.
2
MN, Ann. B 27.
3
MN, paras. 2.3-2.8.
4See in particular MN, paras. 2.9-2.11. - 4 -
many cases to the question of which of the two countr ies had sovereignty over a particular village.
At the same time, questions arose as to the nationality of certain peoples, particularly those residing
between Dori and Téra. In addition, the uncertainty as to the precise course of the frontier gave rise
to problems for State officials, in particular members of the security forces of the two countries, in
the performance of their duties, when it was unclear which areas each State regarded as its territory.
10. Faced with these recurrent problems, the Governments of the two States made numerous
efforts to identify the precise line of the frontier.
Thus, ever since their acquisition of intern ational sovereignty, Burkina Faso and the
Republic of Niger have endeavoured to achieve a peaceful settlement of their frontier dispute by
jointly determining the precise course of their front ier and demarcating it. They have done so with
remarkable concern to maintain their relations of friendship and good neighbourliness, and to keep
the peace on the ground between the inhabitants of the frontier areas involved.
11. To this end, a number of meetings took place between the local frontier authorities
concerned. These meetings were given official stat us with the signature in Niamey, as far back as
5
1964, of a Protocol of Agreement aimed at settling the practical problems arising in the
management of the common frontier. This Agreem ent addressed in particular the question of the
delimitation of the frontier between the two countri es. It set up a Joint Commission of not more
than ten members, necessarily including the heads of the relevant administrative divisions, which
was tasked with undertaking the work of demarcation of the frontier.
In January1968, the two States agreed on the idea of entrusting the task of demarcation of
6
their entire common frontier to the French Institut géographique national (IGN) . However, this
project could not be implemented.
12. Some years later, after a period marked by a slow-down in the activities of the Joint
Commission, the two Governments renewed initiatives at diplomatic level. Thus in 1985, Niger’s
13 Minister-Delegate for the Interior and the Minister for Territorial Administration and Security of
Burkina Faso met in Niamey 7. Two years later, the Agreemen t and Protocol of 28March1987
5MN, Ann. A 1.
6
CMN, paras. 1.2.5-1.2.6.
7MN, Ann. A 2. - 5 -
were signed between the Government of Burkina Faso and the Government of the Republic of
Niger on the demarcation of the frontier between the two countries 8. The Agreement established a
Joint Technical Commission on the Demarcation of the frontier, whose work enabled the two
States to sign an agreement in 2009 settling the course of certain sections of the frontier.
13. As you know, these efforts resulted in the delimitation and demarcation of only half of
the frontier. Unable to agree on the remainder, in February 2009 the two States signed the Special
Agreement whereby they entrusted the Court with se ttlement of that part of the frontier which was
still in dispute.
Article2 of the Special Agreement asked the Court, first, to determine the course of the
frontier between Burkina Faso and Niger in the sector from the astronomic marker of Tong-Tong to
the beginning of the Botou bend, on which no agreement could be reached, and, secondly, to place
on record the Parties’ agreement on the results of the work of the Joint Technical Commission on
Demarcation of the common frontier.
14. Niger considers, as it has always maintain ed in its written pleadings, that the second part
of Article 2 of the Special Agreement was unnece ssary. The agreement between the two States on
the demarcated sectors was final and has never been disputed since. Although it cannot see the
point of this request by Burkina Faso, Niger did not wish to oppose it. In any event, as regards the
agreement between the Parties, that is to say the exchange of Notes between Niger and Burkina
Faso of 29October and 2November2009 10, which manifestly constitutes an agreement under
international law, my country has ratified it in accordance with Article7 of the Agreement of
28 March 1987, which provides: “The result of the demarcation works shall be embodied in a legal
instrument, which shall be submitted for signatu re and ratification by the two Contracting
Parties.”11
14 As a result, Niger considers that it has complied with all of its obligations under international
law on this issue. If there are any doubts as to the legal scope of this agreement, they will certainly
8MN, Ann. A 4.
9
MN, Ann. A 13.
10
MN, Anns. A 16 and 17.
1MN, Ann. A 4. - 6 -
not be found on Niger’s side. However, since the request was addressed to the Court, it is for the
latter to determine its pertinence.
15. For Niger, just as for Burkina Faso, this is the second time that our two States have
placed their confidence in the Court in order to ach ieve a peaceful and final settlement of a frontier
dispute with one of their neighbours. I take this opportunity to reaffirm the confidence that the
Government of the Republic of Niger has placed in the Court by deciding to have recourse to it and
to accept its decision.
I am convinced that, whatever the outcome of the present case, this wise choice will help to
strengthen the neighbourly relations between our countries, to the greater benefit of our respective
peoples.
16. Mr. President, Members of the Court, I cannot, however, refrain from observing that the
Government of the Republic of Niger was surpri sed by the tone employed in BurkinaFaso’s
written pleadings. That tone contrasts unhelpfully with the cordial and friendly relations between
our two countries, and has certainly contributed nothing to maintaining the calm atmosphere of the
debate. Niger is in fact a country which is par ticularly concerned to respect its obligations and
which maintains a relationship of trust with all of those with whom it deals. I thus fail to recognize
my country in this image of unreliability and capriciousness that our opponents have sought to
attach to it throughout their oral argument — and one which I therefore vigorously contest.
17. In regard to the allegation that Niger has frequently changed position in its line of
argument, I would simply note that the work of the Joint Commission was admittedly marked by
certain changes of position on the part of Niger’s experts, although the position of Burkina Faso
was not altogether consistent either. However, it was only after lengthy archival research and the
most detailed analysis of the relevant documents that Niger was gradually able to form a view, both
on the complex facts of the dispute and on the legal rules which should be applied to them. Every
frontier problem leads States to examine their past and to discover more about it. Niger has been
15 no exception to this rule. As long as a negotiation has not been finally closed, it is wrong to accuse
a party of vacillation. On the contrary, this reflects an open-mindedness, a dialogue between a
sincere wish to put an end to a dispute and the legitimate defence of one’s rights, which become
clearer as the facts underlying them become known. If things were straightforward and clear, there - 7 -
would simply not have been any dispute. That is why, on certain issues, Niger has to some extent
changed its position as between its Memorial anits Counter-Memorial. We admit this, and we
believe that the Court will understand it.
18. It is not my duty to explain to you the result of our researches and discussions. Niger’s
distinguished counsel will endeavour to do so over the coming hours. Mr. President, Members of
the Court, I should like to introduce them to you, even though you know some of them already.
They are:
⎯ Professor Jean Salmon, Professor emeritus of the Université libre de Bruxelles, Member of the
Institut de droit international;
⎯ Professor Maurice Kamto, Professor at the University of Yaoundé II, member of the Permanent
Court of Arbitration, Member and former Chai rman of the UnitedNations International Law
Commission, associate member of the Institut de droit international;
⎯ Professor Pierre Klein, Professor at the Université libre de Bruxelles; and
⎯ Professor Amadou Tankoano, Professor at Abdou Moumouni University in Niamey.
19. I thank you, Mr.President, Members of th e Court, for your kind attention, and I would
ask you to give the floor to ProfessorAmadouTankaona, who is going to explain the historical
background to the case in the context of French West Africa.
Thank you, Mr. President.
The PRESIDENT: Thank you, MrB .azoum. I now give the floor to
Professor Amadou Tankaona. You have the floor, Sir.
16 Mr. TANKOANO:
T HE HISTORICAL CONTEXT OF THE COLONIAL PERIOD :
F RENCH W EST AFRICA
1. Mr.President, Members of the Court, it is a great honour for me to speak in these
proceedings and to serve the cause of my country once again. The Republic of Niger has chosen to
begin its counsel’s pleadings with a presentation of the historical context of the colonial period in
French West Africa (FWA). Certain aspects of the historical context have already been presented
to you by Burkina Faso’s counsel. However, a llow me to dwell on a number of aspects of these - 8 -
historical developments in order to illustrate the territorial changes and transfers which occurred in
the frontier region. To that end, I shall present to you the following points in turn: firstly, the
administrative and territorial organization of French West Africa from its creation to
independence (A); secondly, the division of powe rs between the French metropolitan and colonial
authorities in respect of the creation of colonies and of administrative divisions within the
territories(B); thirdly, Niger’s territorial cha nges and the various incarnations of the Colony of
Upper Volta (C); and, finally, the territorial changes and transfers in the frontier region (D).
A. The administrative and territorial organization of FWA
from its creation to independence
2. In accordance with French methods of gr adual conquest, the conquest of West Africa was
based on the principle of slowly spreading outwards. This consisted in starting from bases gained
in opposing territories (“tatas” or fortified villages) and gradually tightening the net to gain control
of all the territories of the defeated indigenous ch iefs. As the French penetrated, occupied and
settled in French West Africa, a group of col onies was formed, separated along the coast by
enclaves belonging to other powers, but adjoining in the hinterland.
3. [Slide] The Government of Senegal, the fi rst French settlement in the region, formed in
1840, gradually spread into the hinterland of Senegal, into a region that gave birth to a new colony
17 named French Sudan. Besides these two colonies, other French settlements became established on
the Atlantic coast, in particular Côte d’Ivoire, Dahomey and French Guinea. Each settlement was
administered separately. It was nevertheless apparent to the colonial authorities that these different
entities should form a whole. The French authorities decided to unite all the colonies of West
Africa into one group to ensure political and military coherence, while maintaining the distinct
individual character of each colony. [End of slide] The union was established by a decree of
16 June 1895 ⎯ under the name of French West Africa ⎯ and would endure to the end of the
colonial period.
4. In establishing a Government-General for FWA, the intention was to create an organ
responsible for co-ordinating activities and resolving conflicts among the various component
territories, whose interests sometimes differed. - 9 -
5. In 1904, a “Charter for FWA” endowed this body with legal personality, and with separate
organs for its constituent colonies. This text would continue to apply throughout the colonial
period, except for a few minor changes.
6. [Slide of map showing all of FWA] At th e dawn of independence, French West Africa
was composed of the following territories: Côte d’Ivoire, Dahomey (present-day Benin), Guinea,
Upper Volta (present-day Burkina Faso), Mauritani a, Niger, Senegal and French Sudan (present-
12
day Mali) . From1946, the term overseas territory (“territoire d’outre-mer”) replaced that of
colony. [End of slide]
7. As we shall now see, the creation of coloni es at first, and then of the overseas territories
comprising FWA, fell within the competence of th e French metropolitan authorities. As for the
determination of administrative divisions within the territories, this was the responsibility of the
regional colonial authorities.
18
B. The division of powers between the French metropolitan and colonial authorities
in respect of the creation of colonies and of administrative
divisions within the territories
8. In order to describe the administrative structure of FWA, I trust that the Court will not
object to us using the words that the Cham ber itself used in the case concerning the Frontier
Dispute (Benin/Niger) [Note: the Judgment uses the French abbreviation AOF instead of FWA]:
“the territorial administration of the French possessions in West Africa was
centralized by a decree of the President of the French Republic of 16June1895 and
placed under the authority of a Governor-General. The entity of the AOF thus created
was divided into colonies, headed by Li eutenant-Governors and themselves made up
of basic units called ‘cercles’ which were administered by commandants de cercle;
each cercle was in turn composed of subdivisions, each administered by a chef de
subdivision. The subdivisions consisted of cantons, which grouped together a number
of villages.” ( Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 110,
para. 29.)
As for the question of competence for the creation of colonies, the Chamber of the Court stated as
follows:
“the creation and abolition of colonies fell with in the jurisdiction of the authorities of
metropolitan France: the President of the French Republic, acting by decree, under
the Constitution of the Third Republic, and subsequently the French Parliament,
following the adoption of the Constitution of 27 October 1946” ( ibid., p.110,
para. 30).
12
MN, pp. 5-6, para. 1.3. - 10 -
Lastly, regarding the creation of cercles within the colonies, the Chamber added that:
“[t]he power to create territorial subdivisions within a single colony, on the other
hand, was vested in the AOF until being transferred to the local representative
institutions in 1957.
Article5 of the decree of the President of the French Republic, dated
18October1904, providing for the reorganization of the AOF, vested the
Governor-General with authority to ‘determine in government council (conseil de
gouvernement), and on the proposal of the Lieutenant-Governors concerned, the
administrative districts in each of the colonies’.” (Ibid.)
Regarding the procedure to be followed, the Chamber referred to circular No.114 (c) of
3November1912 concerning the form of instru ments for the organization of administrative
districts and subdivisions, and stated that:
“‘any measure concerning the administrative di strict, the territorial unit proper, i.e.
affecting the cercle, in terms of its existence (creation or abolition), its extent, its
name, or the location of its administrati ve centre’, was to be confirmed by an arrêté
général adopted in government council [of FWA]; it lay with the
Lieutenant-Governors ‘to define, by means of arrêtés, the approval of which [was]
reserved to [the Governor-General], the exact and detailed topographical boundaries
of each of these districts’, as well as ‘within the cercles, [to] fix... the number and
19 extent of the territorial subdivisions... and the location of their centre’ by means of
local decisions” (ibid., p. 111, para. 30).
9. Against this backdrop, we shall now see in concrete terms how the territories of Niger and
Upper Volta evolved during the colonial period.
C. Niger’s territorial changes and the various incarnations
of the Colony of Upper Volta
10. The presentation which follows is relatively complex, as it recounts the name-changes
and successive reorganizations of French colonial territory in the region, made by the
administrative authorities following conquest, milit ary occupation and the pacification process.
After that last stage, what initially constituted a military territory placed under the authority of the
colonial army would subsequently be converted into civil territory and then into a colony.
[Slide showing map]
11. In the course of the development of colonial organization in the region, the details of
which we shall spare the Court, a Decree of 20 December 1900 established the territorial basis of a - 11 -
13
Third Military Territory situated on the left bank of the River Niger, a geographical area which
would later become the Colony and then the State of Niger.
[End of slide]
12. [Slide] In 1904, there was a reorganization, through which the Colony of Haut-Sénégal
14
et Niger was created . This colony comprised the cercles under civil administration and the
Military Territory of Niger. In 1919, a Decree detached certain southern and eastern cercles,
including Dori and Say, from the Colony of Haut-Sénégal et Niger, in order to make up the new
Colony of Upper Volta. The boundary between U pper Volta and the Military Territory of Niger
was fixed at that time at the River Niger 15.
[End of slide]
13. On 4 December 1920, the Military Territory of Niger was to take the name “Territory of
Niger” 16 before becoming, on 13 October 1922, the Colony of Niger . 17
18
20 14. [Slide] In 1932, a Decree dissolved Upper Volta and distributed its component cercles
between the neighbouring colonies of Niger, French Sudan and Côte d’Ivoire. [End of slide]
When the 1946 Constitution came into force, the French colonial empire became known as the
French Union, as part of which [Slide], on 4September1947, the French National Assembly
reconstituted the Colony of Uppe r Volta within its 1932 boundaries 1. [End of slide] That
situation would not change until 1960.
15. Mr.President, Members of the Court, the last point in my presentation will be an
examination of the territorial changes and transfers in the frontier region.
D. The territorial changes and transfers in the frontier region
16. [Slide] When the French first settled in the region, in 1897, the currently disputed area
was part of the Colony of French Sudan. In 1899, following the dismemberment of French Sudan,
1MN, pp. 7-8, para. 1.9.
14
MN, p. 9, para. 1.12.
15
MN, p. 14, para. 1.17.
1MN, p. 15, para. 1.19.
1MN, p. 16, para. 1.21.
1MN, Ann. B 29.
19
MN, Ann. B 30. - 12 -
which led to the creation of the First and Second Military Territories, the post of Dounzou, which
had been converted to a cercle in October 1899, and Dori résidence were incorporated into the First
Military Territory. The Territory of Say, for it s part, was incorporated into the Colony of
20 21
Dahomey . It is important to note that Dounzou cercle, which was to become Tillabéry cercle in
December 1907, straddled both banks of the River Niger. The part of that cercle situated on the
right bank was commonly known as the Téra sector. That area would subsequently maintain the
same configuration. [End of slide. Next slide] As for Say cercle, it was removed from the Colony
of Dahomey, also in 1907, and incorporated into th e Military Territory of Niger, which was part of
22
the Colony of Haut-Sénégal et Niger . It was incorporated into Djerma cercle as a subdivision.
Like the Téra sector, Say cercle would subsequently maintain th e same configuration. [End of
slide. Next slide] On 21 June 1909, Dori résidence, which had previously become Dori cercle,
21 was detached from the Military Territory of Niger and incorporated into the Civil Territory of
Haut-Sénégal et Niger 23. [End of slide]
17. [Slide] In 1910, following an Arrêté of the Governor-General of FWA, the cantons of
Say cercle, on the one hand, and those of Tillabéry cercle situated on the right bank of the River
Niger, on the other, were incorporated into the Civil Territory of Haut-Sénégal et Niger 24. Those
cantons of Tillabéry cercle situated on the right bank of the River Niger were incorporated into
Dori cercle 25, within which they were to form a new administrative division, Téra Subdivision.
[End of slide]
18. [Slide] The Decree of 1 March 1919 detached seven southern and eastern cercles,
including those of Dori and Say, from the Colony of Haut-Sénégal et Niger, in order to make up the
26
new Colony of Upper Volta . Following the creation of that Colony, Téra Subdivision was
27
directly administered from Dori cercle . [End of slide]
20MN, p. 8, para. 1.10 (Ann. B 2).
21MN, p. 11, para. 1.15.
22MN, p. 10, para. 1.14.
23
MN, p. 12, para. 1.15 (Ann. B 13).
24
MN, p. 12-13, para. 1.15.
25MN, p. 12, para. 1.15 (Ann. B 14).
26MBF, Ann. 16.
27MN, p. 14, para. 1.18 (Ann. B 19). - 13 -
19. The Decree of the President of the Fren ch Republic of 28 December 1926 made further
transfers of territory in the region. [Slide] Say cercle , with the exception of Gourmantché Botou
canton, which remained part of Upper Volta, were to be returned to the Colony of Niger. The
cantons of Dori cercle which had previously been part of the Military Territory of Niger, namely
the Téra and Yatacala regions, which had been detached from it in 1910 28, were also to be returned
to Niger. The latter were incorporated into Tilla béry Subdivision in order to reconstitute Tillabéry
cercle as it had existed in 1907, straddling both ba nks of the River Niger. Following this
incorporation, the Arrêté of 31 August 1927 and its Erratum of 5 October 1927 were adopted to fix
the boundary between the two colonies. An Arrêté local of 3November1928 recreated Téra
29
subdivision within Tillabéry cercle and established its administrative centre at Téra . [End of
slide]
22 20. Allow me, Mr. President and Members of the Court, to make a clarification at this stage.
Our opponents have, on various occasions, been exercised by the fact that in its written
submissions, Niger divided the disputed area into two sectors: Say sector and Téra sector 30. The
other Party has apparently perceived, in the use of this term, a propensity on the part of Niger to
consider those sectors from a purely national perspective. Let me put Burkina Faso’s mind at rest.
Niger uses this terminology without any imperialis t or solipsistic connotations; it does so simply
because the two entities, which were transferred fro m the Colony of Upper Volta and incorporated
into the Colony of Niger, have always been referred to in that way.
21. The dissolution of the Colony of Upper Volta in 1932 and its reconstitution in 1947 did
not entail any changes to the boundaries of the cercles situated in the disputed area. From 1948
until the colony gained its independence, there were to be no further changes to those boundaries.
22. Mr.President, Members of the Court, I am only too aware of the fact that this
presentation may have seemed a trifle tedious to you at times. However, it does allow us to set out
the precise historical backdrop against which relations between the two colonies have developed.
Furthermore, it allows an essential conclusion to be drawn, regarding the stability of the
2See above, para. 17.
29
MN, p. 22, para. 1.27 (Ann. B 28).
3CR 2012/20, p. 11, para. 53 (Pellet) and p. 15, para. 11 (Forteau) - 14 -
configuration of the territorial entities which were moved about by the colonial authorities in the
course of the territorial reorganizations in the region concerned by the present dispute.
23. In the French colonial system, the cercle stands out as the core administrative unit. Its
importance is shown most strikingly by the fact that the Decree of 1March1919 created the
Colony of Upper Volta by detaching certain southern and eastern cercles from the Colony of
Haut-Sénégal et Niger 31. The same approach can be seen again when Upper Volta was
dismembered in 1932 and reconstitute d in 1947. Each time, the colonial authorities proceeded by
transferring cercles, without addressing the issue of their boundaries. If you will allow me to use
this metaphor, it was as if the colonial authorities were working on a jigsaw puzzle, always with the
same pieces. The pieces of the puzzle did not chan ge; all that varied was the way they were put
together. The same principle applied to Say cercle. Throughout its successive transfers to and
from the various territories and colonies created in the region, that cercle kept the same
23 configuration. The latter would change only when Gourmantché Botou canton was excised from it
in December1926. It is thus patently clear that throughout this period, the cercle boundaries
showed greater continuity than those of the col onies. Those boundaries were in reality de facto
boundaries, only rarely laid down in texts, as would be the case for Say from 1927 onwards.
24. Such continuity was also to be found in the subordinate administrative units, when a
cercle was dismembered or its territorial basis ame nded. In such cases, the colonial authorities
restricted themselves to moving arou nd already existing subdivisions or cantons and incorporating
them into another cercle or territory. In this way, the Decree of 28December1926 went about
redistributing territory between the Col onies of Niger and Upper Volta by moving cantons from
one colony to another. [Slide] And as was the case for Say cercle, it may be observed that the
so-called Téra sector, under various different names, would always keep its original boundaries and
shape. Indeed, when the Dori cantons situated in the region of Téra and Yacatala, formerly
belonging to the Military Territory of Niger, we re detached from Upper Volta and incorporated
into the Colony of Niger, this revived the pre-existing boundary of 1910 32, which separated Dori
31
See above, para. 18.
32
See above, para. 17. - 15 -
and Tillabéry cercles. [End of slide] Tomorrow, ProfessorJeanSalmon will come back to that
pre-existing 1910 line in his presentation on the boundary in the Téra sector.
25. Mr.President, Members of the Court, I should like to thank you very much for your
attention. Mr.President, I should be grateful if you would kindly give the floor to
Professor Jean Salmon to continue Niger’s oral argument.
The PRESIDENT: Thank you, Professor. I now give the floor to Professor Jean Salmon to
continue Niger’s presentations. You have the floor, Sir.
24 SALr.MON:
T HE P ARTIES ’LINES OF ARGUMENT :GENERAL POINTS
1. Mr.President, Members of the Court, the passing years have not in any way diminished
the honour that I feel in standing once again at this podium. Once again, it is to the Government of
Niger that I owe this honour.
In the present dispute, according to the Special Agreement (which can be found at tab1 of
the judges’ folder), the two Parties seem to agree, at least in principle, on two points: the subject of
the dispute, which is set out in Article 2 of the Sp ecial Agreement, and the applicable law, which is
dealt with in Article 6.
A. The subject of the dispute: Article 2 of the Special
Agreement seising the Court
[Slide: Sketch-map/diagram showing an overview of the frontier, MN, p. 79]
2. As regards the subject of the dispute, the text of Article 2 is equivocal. The only section
of the frontier about which a legal dispute exists is the one which runs from the Tong-Tong
astronomic marker to Tchenguiliba, at the beginning of the Botou bend. It is mentioned in
paragraph 1. As for the other two sections, to the north (from N’Gouma to Tong-Tong) and to the
south (from the beginning of the Botou bend to the Mekrou), which are mentioned in paragraph 2,
the Parties only request the Court to place their agreement on record.
[End of slide] - 16 -
3. During the course of the oral argument, this paragraph 2 has taken a dramatic turn, which
calls for a clarification. This paragraph was inserted in the Special Agreement at the express
request of Burkina Faso. Niger had reservations about this, for two reasons. The first is that it
regarded the agreement that had been reached as de finitive. The best proof of this, as the Agent of
Niger has just recalled, is that the process of ratif ying that agreement has been concluded in Niger.
The second is that the Court’s function is to settle legal disputes that exist between Parties, and not
to intervene where one no longer exists. Dare I say: what would it hope to achieve here? Not
wishing to prevent the signature of the Special Agreement on account of a clause which it deemed
to be redundant, and considering that the Court woul d best decide how this request should be dealt
with, Niger signed and ratified the Special Agreement as thus drafted. It thought the matter closed.
Alas, imagine our astonishment to see our legal scruples suddenly being presented as a manoeuvre,
25 since “accustomed to the about-turns of our opponents, we wanted this agreement to be confirmed
33
by the Court, so that the entire course of the frontier should carry the authority of res judicata” .
Those were the words of the distinguished Agent of the other Party.
Next we have Professor Pellet, invoking “Niger’s about-turns”, stating that “Niger is quick to
hold such agreements null and void”, that “this is not a dispute that has been settled”, and that the
placing on record by the Court “confers greater stab ility on the solution thus to be established than
would a mere agreement . . . res judicata can only be called into question in the event of the
discovery of a new fact within the meaning of Artic le 61, paragraph 1, of the Statute of the Court,
34
and this under the latter’s strict control” . Mr. President, Members of the Court, these remarks are
audacious in law. But, over and above that, this conduct is particularly offensive towards Niger,
since it is being accused of eating its words, of bein g a State that is not to be trusted. Calumny
always leaves its mark!
What is the situation exactly? The Special Agreement declares:
“Whereas, thanks to the work of the Joint Technical Commission on
Demarcation... the Parties have been able to reach agreement in respect of the
[following] sectors of the boundary [there follow the two sectors]... Whereas the
two Parties accept the results of the work carried out in those sectors as definitive.”
33
CR 2012/19, p. 15, para. 9 (Bougouma).
34
CR 2012/21, pp. 29-30, para. 9 (Pellet). - 17 -
Although Niger is formally bound by this agreement, it is insinuated that it may fail to comply with
its international obligations. The intention is to replace that international agreement with res
judicata which may, for its part, be called into question “in the event of the discovery of a new
fact”. The Court will decide which Party is leaving itself an escape route.
B. The applicable law: Article 6 of the Special
Agreement seising the Court
4. As regards the applicable law, Article 6 of the Special Agreement expressly refers to three
elements: the principle of the intangibi lity of boundaries inherited from colonization ⎯ in other
words, the principle of the uti possidetis juris of 1960 ⎯ the Agreement concluded between the
Parties on 28March1987 and, finally, general inte rnational law. As Professor Tankoano has just
26 demonstrated, the present dispute opposes two fo rmer colonies which were dependent on one and
the same colonial power. This scenario is distinct from one in which the parties are States which
were subject, prior to independence, to different colonial powers. In this latter hypothesis, the
boundaries are fixed by international conventions, which are governed by the law of treaties, or
they result from other forms of agreements between those colonial powers, based on acquiescence,
for example. In this particular case, as our colleague Professor Amadou Tankoano has explained,
Upper Volta and Niger formed part of French West Africa, a regional grouping of French colonies,
which was governed by the law which France termed at the time the droit d’outre-mer. The Court
has already been confronted w ith this situation in the cases Frontier Dispute (Burkina
35 36
Faso/Republic of Mali) (1986) and Frontier Dispute (Benin/Niger) (2005) .
5. In such cases, the traditional method used to establish what the boundary between the two
colonies was at the date of independence is, in th e first instance, to look back in time and identify
which decisions of the common colonial authorit y fixed the boundaries. There is no discussion in
this regard, since the relevant colonial texts ar e those which are specifically referred to by the
Agreement of 28March1987. They are the Arrêté général of 31August1927, as clarified by its
Erratum of 5 October 1927 (the Members of the Court are already well acquainted with these texts,
but they will find them at tabs 2 and 3 of the judges’ folder).
35
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 554.
36
Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 90. - 18 -
6. The question is therefore how to apply these two texts and, where necessary, how to
interpret them.
From this moment on, the reasoning of the two Parties is completely different.
7. Burkina Faso adopts a resolutely theoreti cal and abstract line of argument in its written
pleadings and oral argument. It regards the Erratum of October 1927 as sacred. It is “the title”. In
its view, that title is composed, for the most part, of artificial and arbitrary straight lines, in the best
colonialist tradition. Burkina Faso considers it to be perfectly clear, to resolve all the questions and
not to require any interpretation. It does not believe that there is any need to ascertain whether it is
27 based on effectivités; in its view, the Erratum effects a final delimitation and it is sufficient to
apply, on the ground, what it prescribes.
Having shown, once and for all, the way of truth, the opposing Party, with the assurance of
those to whom the faith has been revealed, arrogantly crushes those who do not share its certainty.
Anything that does not fit its adopted Procrustean bed is subject to the torture of inadmissibility.
37
Consequently, the method adopted by Niger is “muddled and selective” and displays
38 39 40
“shortcomings” ; its arguments are “inconsistent” , “misrepresent” the texts , “invent frontier
points” 41and display a “casual” attitude 4, to take a sample of the glowing assessments of the
opposing Party, which have been selected from ar ound a hundred of the same ilk in its written
pleadings. And the flood has not abated in the oral argument.
8. This wonderful assurance would be convincin g if we had not been asking questions about
the meaning of the 1927 Arrêté général and its Erratum for the last 85years. [Slide: Sketch-
map/diagram showing an overview of the frontier, MN, p. 79] Although, during the course of the
negotiations subsequent to independence, the se ction which runs from the beginning of the Botou
bend to the Mekrou did not raise any problems, all the rest of the boundary was fiercely debated,
and it was only after lengthy discussions that the Parties were able to agree on the meaning to be
3CMBF, para. 1.1.
38
CMBF, para. 1.2.
39
CMBF, paras. 1.21, 3.8, 3.11.
4CMBF, para. 3.7.
4CMBF, paras. 1.25, 1.45, 3.20, 3.43.
4CMBF, para. 3.6. - 19 -
attributed to the texts, or on the location of points in the sector running from the heights of
N’Gouma to the astronomic marker of Tong-Tong, sometimes substituting new solutions for both
the text and the IGNmap, as my old friend ProfessorPellet has acknowledged 43. However, no
agreement could be found between Tong-Tong and Tc henguiliba, the section on which the Parties’
views continue to diverge.
[End of slide]
9. Faced with this situation, Burkina Faso lo cks itself into a system which is reminiscent of
28
the schools of exegesis. The text of the Erratum, and nothing but the text; disembodied, emaciated
words. Words? I should say precious few words, covering long distances.
10. Niger’s approach is completely different. Noting that the officials on the ground
continually asked questions, from the outset, about the course of the contested boundary, Niger
endeavoured to understand what had happened; how the Erratum of October 1927 had come about
and how it had been applied thereafter. Every frontier boundary has a history, which means that in
order to understand it, a variety of documentary sources need to be consulted.
11. According to Burkina Faso, the effect of Niger’s line of argument is that it will not allow
itself to use the term “title” in connection with the Erratum 44and that it “empt[ies] [that text] of
45
all . . . meaning” . It is clear that Niger is not terrorized by the word “title”, and it is quite
incorrect that it empties the Erratum of all meaning. Niger does not call into question the fact that
the 1927 texts constitute a title, the purpose of which is to effect a delimitation, but it maintains that
this title is imperfect, imprecise, incomplete on certa in points and erroneous on others. In short, it
contends that the terms of these texts do not suffice and that they should be interpreted in the light
of other sources; they are just one piece of evidence amongst others, in assessing what? The
colonial legacy in 1960. There is therefore, as it were, agreement on the instrumentum, not on the
negotium.
12. How to proceed? Upstream of the 1927 texts, Niger recalls that those texts were adopted
pursuant to the Decree of the President of the Republic of 28December1926 ⎯ which our
4CR 2012/21, p. 35, para. 20 (Pellet).
44
CMBF, p. 7, para. 0.10.
4CMBF, p. 37, para. 1.40. - 20 -
colleague ProfessorTankoano mentioned a few moments ago ⎯ and, therefore, that their only
possible purpose can be to give effect to the reorganizations of cercles and cantons for which that
Decree provides. It believes that it is therefore reasonable to examine the preparatory acts carried
out by the two colonies concerned in order to prepare the implementing arrêtés.
Downstream, it is necessary to consider how the 1927texts were applied on the ground by
the colonial authorities in order to remedy their insufficiency.
13. To this end, Niger has painstakingly r esearched the history of this boundary in the
archives. Niger’s quest has enabled it to provide the Court with an extensive collection of
29 documents from the period, such as tour reports from cercle commanders, numerous sketch-maps
drawn up by the latter showing the boundaries of cantons or cercles, records of agreement of the
resolution of disputes, lists of villages forwar ded to the higher authorities, Army Geographical
Section maps, etc.
14. The point is not, on the basis of these documents, to study history for its own sake, or
sociology for its own sake, but rather to understa nd what was intended by the legislator, prepared
by the local authorities on the ground, drafted by the Government-General of FWA in Dakar, and
then interpreted by the officials who, in everyday life, strove to give obscure texts a meaning which
was consistent both with the traditional boundaries and with the needs of the local people.
15. As a result of this, the two Parties adopt different methodologies, and have two different
visions of what we might term the facts of the case. For Burkina Faso, the facts are a few rare
place names which were fixed once and for all in 1927, and which, in its view, are connected
mainly by straight lines. For Niger, the arrêtés are situated in a context; they should be read as
part of history, with its drama, its mysteries, its varied plot lines and its players (the inhabitants, the
officials, the political authorities, the cartographers, and so on).
Two completely different visions, moreover, of the nature of French colonization in FWA.
For Burkina Faso, this was a cold colonizer, drawing geometric, artificial and arbitrary lines across
the conquered territory once and for all in 1927. For Niger, on the other hand, it was a colonizer
close to its subject peoples, which, while carrying out reorganizations connected with
“pacification”, took account of the specific characteristics of the local people and ensured that, as - 21 -
and when cantons were grouped together, this was done with due respect for those people,
throughout the colonial period.
16. The method used by Niger leading it to interpret the boundary as a continuation of the
colonial process, without stopping the clock in 1927, is justified by the fact that between 1927 and
1960, the two colonies were led to clarify certain aspects of their common boundary: for example,
by determining frontier points on inter-colonial roads or by incorporating villages into one colony
or the other. And during the final days of coloni zation, when the populations had to take part in
national elections, the colonial authorities officially identified at that point to which territory they
30 were attached, drawing up electoral lists determining to which colony the villages belonged.
17. Moreover, this method is supported by the explicit wishes of the Parties. Aware from the
time of independence that there were problems with interpreting the 1927 texts, the parties to the
46 47
Protocol of Agreement of 23June1964 , and then to the Agreement of 28March1987 ,
explicitly stated, to use the words of the latter, that “[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 National de
France, 1960 edition, and/or any other relevant document accepted by joint agreement of the
Parties”. This is of great significance. It means that in situations where the Arrêté and its Erratum
prove not to suffice, the IGN map prepared at the dawn of decolonization will be relied upon. Now
that map was compiled, as far as possible, not onl y on the basis of detailed topographical surveys,
but also on the basis of information provided by the local authorities on the boundaries of their
cantons. The practice of those authorities, garnered on the eve of independence, is therefore highly
relevant.
18. Lastly, once independence was gained, it is beyond dispute that any act of effectivité
carried out by a Party beyond the boundary cannot have the effect of modifying the pre-existing
situation. It is nevertheless quite possible, s ubsequent to independence, for the two sovereign
States to have taken steps to make partial adjustments to their frontier. We shall see an example of
this in the arrangements that led to the establishment of a common frontier post at Petelkolé.
46
MN, Ann. A 1.
4MN, Ann. A 2. - 22 -
19. The Members of the Court are no more historians than we are as counsel. For them,
history is merely a set of bare facts; they must seek out the relevant ones in order to find and
construct the outlines of the legal fact which alone w ill focus the attention of the jurist; they must
be sure of their evidence, be sure that it is admissible in the light of the particular circumstances of
the case, and they must make the necessary qualifi cations. This involves bringing into play
complex rules on the relationship between titles and effectivités , on the hierarchy of norms and the
rules of interpretation of droit d’outre-mer, on the application of inter-temporal law, and the impact
of the interlude of UpperVolta’s disappearance on the admissibility of the evidence. All this
31 amounts to a complex exercise which Niger invites th e Court to undertake. Admittedly, it is not as
simple as the one proposed by Burkina Faso, but Nige r is inclined to believe that the Court will
find it more appealing than solving an equation in which there are supposedly no unknowns.
20. Mr. President, Members of the Court, these few thoughts are offered to explain that the
line proposed by Niger is thus neither “arbitr ary”, nor “fanciful”, nor “devoid of legal
48
justification”, as the other Party claims . Allow me to clarify a few points regarding the
accusations that Niger has been particularly fickle in this case. Throughout its written and oral
pleadings, the other Party has continually accuse d Niger of being a past master at making
about-turns and changing its mind. To determin e whether this charge is well-founded, we should
distinguish between two periods.
The first is the period of negotiation in the Joint Commission. The officials of Niger were
faced with the difficult task ⎯ as were those of Burkina, moreover ⎯ of finding the meaning of a
particularly obscure and incomplete text, 60 years after it was written. There were problems with
identifying nearly all of the few place names, with villages having disappeared, moved or been
renamed; there were long distances between two points without intervening toponyms in areas that
were nevertheless populated; and there were no reliable maps from the period. The search for
boundaries was impeded by a lack of documentation on the travaux préparatoires of the 1927
texts, and marked by the fact that no document or map was recognized as relevant without the joint
agreement of the Parties, which meant that none was accepted. Certainly the most striking example
48
CMBF, para. 1.1. - 23 -
of these limitations is Burkina’s steadfast refusal to take account of the “new frontier” map of 1927
put forward by Niger. Therefore, while attempts were made to reach an agreement, which even
went quite far, they failed on account of the diversity of views held within the delegations, and
because of the normal pressure from populations who thought, rightly or wrongly, that their
traditional rights were being trampled on. Th us, the negotiations were unable to fulfil the
necessary conditions for their final conclusion, except for two sections. It is therefore to no avail
that the other Party’s counsel has subjected the Court again and again to their Freudian obsession
32 with various so-called consensual (1988) or mi nisterial compromise (1991) lines. Professor Pellet
was clear-sighted enough to acknowledge that these moments of respite in the negotiations were
49
not “officially recognized” or “legally binding” , since Niger did not give its final consent in the
form required for it to be bound. Niger was thus perfectly entitled to agree only to be bound by a
completed negotiation.
The second period is the one which starts from the time when, leaving the arena of the Joint
Commission and its procedural straitjacket, Niger found itself in the process of judicial settlement
and undertook a systematic and in-depth search for the facts that I alluded to earlier. In the course
of its search, Niger added significantly to its documentary material and was led to reconsider
matters. Any international jurist who has proceed ed in similar fashion knows full well that he is
never safe from surprises, both good and bad.
Between the Memorial and the Counter-Memorial, Niger realized that some of its claims
relied on insufficient evidence. It regarded it as its intellectual duty, both in respect of the other
Party and of the Court, to withdraw them. If that is being fickle, then Niger feels it was justified to
be so, and accepts that.
21. Mr. President, Members of the Court, the subsequent pleadings will explore in detail the
points covered in this introduction. They will be presented to the Court as follows:
⎯ The applicable law and the application of uti possidetis in these proceedings, by
Professor Maurice Kamto.
The three postulates of Burkina Faso’s argument will then be contested in the following order:
49
CR 2012/19, p. 60, para. 40. - 24 -
⎯ the hypothesis of the artificial and arbitrary nature of the frontier, by yours truly;
⎯ the assumption that it runs in a straight line, by the same;
⎯ the assumption that the title is clear, by Professor Klein;
⎯ the relationship between titles and effectivités and the role of effectivités in the present case will
be set forth by Professor Kamto.
33 Finally, the boundary claimed by Niger in the Téra sector will be presented by myself, and
the one in the Say sector by Professor Pierre Klein.
Mr. President, that marks the end of my presen tation on the methodology used by the Parties
in their arguments; I should be grateful if you would give the floor to Professor Kamto, after the
break, to continue with Niger’s oral argument.
The PRESIDENT: Thank you, Professor. I sh all give the floor to Mr.Kamto after the
break.
The Court adjourned for 20 minutes.
The PRESIDENT: Please be seated. I now give the floor to Professor Maurice Kamto. You
have the floor, Sir.
KMAr. TO:
T HE LAW :THE APPLICATION OF UTI POSSIDETIS TO THE CASE
I. Introduction
1. Mr.President, Members of the Court, it is always a great honour to appear before this
venerable Court, and particularly when that honour is based on the trust of a State, in this case the
Republic of Niger, which I have the privilege and immense pleasure to represent.
2. Mr.President, although in the present case the question of the applicable law was in
principle settled by Article6 of the Special Agreem ent of 24February 2009, Niger is of the view
that we cannot dispense with a discussion of this question, since the Parties do not always have the
same understanding of the scope of certain legal principles which they are requesting the Court to
apply here. This is true in particular of the principle of uti possidetis juris, which, in Africa, is the
basis of the principle of the intangibility of the fr ontiers inherited from colonization. Burkina Faso - 25 -
has paid very close attention to this principle in its Memorial. But it makes only general assertions
and draws just a few specific conclusions, which Niger will rebut in the arguments that follow.
3. The term uti possidetis juris is, as we know, an expression borrowed from Roman law. It
became a principle of South American regional law, referred to as the “ uti possidetis of 1810”, for
34 the purpose of sanctioning the transformation of the boundaries of the Spanish provinces into the
frontiers of the newly constituted republics which replaced those provinces. This principle was
50
introduced into African regional law by the Cairo resolution of 21July1964 and established in
particular by Article 4 (b) of the Constitutive Act of the African Union of 11 July 2000, in the form
of a commitment by the States parties to ensure the “respect of borders existing on achievement of
independence” 51. The Court has reinforced the principle through its decisions , and, in the case of
the Frontier Dispute (Burkina Faso/Republic of Mali) , the Chamber of the Court considered that it
was “a principle of a general kind which is logical ly connected with this form of decolonization
wherever it occurs” (Frontier Dispute (Burkina Faso/Republic of Mali) , Judgment, I.C.J. Reports
1986, p.566, para.23) and which “has kept its place among the most important legal principles”
(ibid., p. 567, para. 26).
4. In the present case, uti possidetis applies to two States, Niger and BurkinaFaso, which
were formerly territories of the same colonial power , namely France. In this type of case, the two
States take the place of what were merely administ rative divisions within the same colonial group,
and therefore under the same sovereignty. In th eory, the question of the course of the frontier
should not pose an acute problem in such situations. In practice, however, we see that the two new
States often inherit a frontier whose course is not clear. However, it is not the role of uti possidetis
to resolve detailed issues relating to the course of the frontier.
5. The other Party admits — and Niger also agrees — that the principle of the “intangibility”
of the colonial frontiers enshrined in the relevant African legal instruments is not absolute, in the
sense that States born out of decolonization may agr ee to modify their common frontiers. It would
50
Resolution AHG/RES.16 (I).
51Constitutive Act of the African Union, 11 July 2000, CAB/LEG/23.15.
52Frontier Dispute (Burkina Faso/Republic of Mali) , Judgment, I.C.J. Reports 1986, p.565, para.Land,
Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992,
p. 388, para. 43. - 26 -
35 appear then, prima facie, that there is a convergence of views between the Parties on the application
of the principle of uti possidetis. But this is only apparently so , since BurkinaFaso dispels this
illusion in a few sentences in its Memorial.
6. According to our opponents, “the Parties have always considered their common frontier to
53
be that which existed at the time of their accession to independence” . However, no text
determining the frontier between the two countries was adopted at that time. In BurkinaFaso’s
view, however, this is not a proble m in the present case, since “[the] Arrêté of 1927 is not
54 55
imprecise” ; “the boundary between the Parties was fully defined” in the Arrêté as amended by
its Erratum, and “it has never been modified since” 56. According to the other Party, “[s]ince a clear
and uncontested title exists . . . the quest ion of the relationship between title and ‘ effectivité’ . . . is
of minor importance” 57.
7. These assertions by the other Party give rise to ambiguities relating to three aspects of the
application of uti possidetis in the present case:
⎯ First of all, there is ambiguity about the “critical” date, because, according to Burkina Faso, we
do not know whether it is 1927, the date on which the 1927 Arrêté and its Erratum were issued,
or 1960, the date on which the two Parties achieved independence. Our opponents swing
between the two dates, although just one, and only one, is possible.
⎯ The next ambiguity concerns the scope of uti possidetis. If, as Niger contends, 1960 is to be
considered the critical date, it follows that the colonial heritage is the one which existed on that
date, containing the elements which make up the title, but also all the latter’s imperfections.
This does not seem to be the opinion of the other Party, although on occasion it does agree with
that view, as we shall see later during these pleadings.
⎯ Lastly, there is ambiguity about BurkinaFaso’s position concerning any agreements
subsequent to the adoption of the title. While Ni ger contends that such agreements have been
concluded regarding certain places on the common frontier, BurkinaFaso, in contrast, argues
5MBF, p. 58, para. 2.9.
5CMBF, p. 86, para. 3.55
55
MBF, p. 57, para. 2.8.
5Ibid.
5Ibid., p. 59, para. 2.13. - 27 -
36 that there is a single title from 1927, which is sufficient in itself and which has remained
immutable over time. But paradoxically, at the same time, the other Party maintains the no less
questionable position that a “consensual line” ex ists, resulting from an agreement which the
two Parties are said to have concluded in 1988 and 1991.
8. I would now like to move on to consider these ambiguities, which give rise to differences
between the Parties regarding the understanding and application of the principle of uti possidetis.
II. The “critical date” of the uti possidetis
9. Mr. President, Members of the Court, as my colleague Professor Jean Salmon has shown,
Burkina Faso has a reverent, if not feti shistic, view of the Erratum to the 1927 Arrêté. It regards
58 59 60 61
it— I would recall— as a legal title that is “precise” , “solid” , “clear” , “perfectly clear” ,
62 63
“clear and indisputable” and which “is sufficient in itself” . This view was repeated many times
by its Counsel during their oral argument. Dismissing— very often in unnecessarily abrupt
terms— anything that post-dates those official te xts and which would challenge the idea of the
perfection of the 1927 title, Burkina Faso asserts th at “[t]he ‘critical date’ mentioned by Niger
64. According to Burkina, “it may be more precise to
(1960) is... not the correct critical date”
speak of the ‘first critical date’” 65 when referring to 1927. Listeni ng to the Agent of Burkina Faso
say, at the opening of the hearing on Monday morning, that “the uti possidetis . . . freezes territorial
66
titles as at the date of decolonization” , for a moment I had the impression that our opponent had
finally put an end to its toing and froing over the cr itical date. It was, I must admit, only a fleeting
impression, because shortly thereafter our distinguished colleague and friend,
ProfessorAlainPellet, gave a strange summary of wh at he calls “the relevant history... of the
58MBF, p. 69, para. 2.41.
59
CMBF, p. 41, para. 1.49.
60
Ibid., p. 72, para. 3.22.
61
Ibid., p. 73, para. 3.23; p. 80, para. 3.40; p. 135, para. 4.75.
62Ibid., p. 47, para. 1.65.
63Ibid., p. 73, para. 3.23.
64CMBF, p. 82, note 355.
65
MBF, p. 57, para. 2.7.
66
CR 2012/19, p. 14, para. 6 (Bougouma). - 28 -
37 frontier between Burkina Faso and the Republic of Niger”. According to ProfessorPellet, that
history is “short and simple”; “it only really begins in 1926”, with the Decree of 28 December, and
67
concludes with the “Erratum of 5October1927” . That relevant history is therefore less than
ten months; and nothing further is to disrupt th e harmony in respect of that frontier between 1927
and 1960, when the two countries gain their independence. The clock is stuck at 1927.
10. Consequently, Burkina Faso does not have its own position straight as regards the critical
date in this case, Mr.President. It is unclear whether, for Burkina, that date is 1927 or 1960.
However, Burkina Faso must know what it wants, a nd it must state what is to be taken as its final
position on the subject. It has to choose, and it ca nnot continue on this path, because the Court is
clear on the subject of determining the critical date in the settlement of frontier disputes, in
particular in the context of decolonization, as is the case in these proceedings. In the Frontier
Dispute (Burkina Faso/Republic of Mali), the Chamber of the Court noted in this respect:
“Since the territories of the two States ha d been part of French West Africa, the
former boundary between them became an in ternational frontier only at the moment
when they became independent. The line which the Chamber is required to determine
as being that which existed in 1959-1960, w as at that time merely the administrative
boundary dividing two former French colonies, called territoires d’outre-mer from
1946” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports
1986, p. 568, para. 29).
11. In the case of Niger and Burkina Faso, that date, referred to as the “critical” date because
it is legally decisive, is 1960. More speci fically, since Niger gained independence on
3 August 1960 and Burkina Faso on 5 August 1960, the critical date to be taken into account in the
present case is, in Niger’s view, those dates of independence, and not the year 1927.
12. The 1927 texts established the inter-colonial administrative boundaries. The
uti possidetis, however, freezes those boundaries as they were in 1960. It fixes the “photograph of
the territory” — to use an expression of the Court — at the time of independence. The photograph
taken at that precise moment constitutes the “colonial heritage”. This approach to the critical date
is confirmed by the Chamber of the Court in another passage of its Judgment of
22 December 1986, where it states:
“International law — and consequently the principle of uti possidetis — applies
to the new State (as a State) not with retroactive effect, but immediately and from that
38 67
CR 2012/19, p. 55, para. 28 (Pellet). - 29 -
moment onwards. It applies to the State as it is , i.e., to the “photograph” of the
territorial situation then existing. The principle of uti possidetis freezes the territorial
title; it stops the clock, but does not put back the hands” ( ibid., para. 30 (emphasis in
original)).
This was understood by the Parties in the case concerning the Frontier Dispute (Benin/Niger). As
the Chamber of the Court notes in the Judgment which it rendered in 2005 in that case:
“The Chamber observes that, in any even t, the Parties agree that the course of
their common boundary should be determined, in accordance with the
uti possidetis juris principle, by reference to the physical situation to which French
colonial law was applied, as that situati on existed at the dates of independence.”
(Frontier Dispute (Benin/Niger), Judgment, I.C.JR . eports005, pp. 108-109,
para. 25.)
13. Burkina Faso is thus mistaken in sanctifying what it calls the “1927 title”, as that stood in
1927, without any consideration of th e subsequent practice. It sets that text in stone; it casts it in
the bright steel of time stood still, 33 years before the independence of the two countries. This is a
new take on the uti possidetis principle which, in terms of the application of that principle in
Africa, corresponds neither to the texts of the Organization of African Unity— later the African
Union, nor to the practice of African States, nor to the established jurisprudence of the Court.
14. Since the critical dates are those of indepe ndence, the title to be identified is that which
can be fixed by the application of the uti possidetis principle on those dates; it is the title as
interpreted by the colonial authorities, often follo wing field missions; it is the title as it stands in
1960, including its inadequacies revealed since 1927, and as it may have been adjusted or corrected
by practice on the ground. It is that critical date and that utipossidetis which correspond to the
Court’s view. There is absolutely no reason for the Court to modify its jurisprudence in the matter.
15. Mr. President, Members of the Court, Burkin a Faso considers that “[i]n contrast to other
cases where the application of the principle of the intangibility of colonial frontiers was called into
68
question, here, the uti possidetis principle can speak with a certain voice” .
16. Faced with such assurance, one is inclin ed to think that Burkina Faso is employing
auto-suggestion. Here, as in all other frontier disputes brought before the Court, the uti possidetis
39 speaks with a stammer. Where is the assurance when, just four years after their independence,
Burkina Faso and Niger attempted together, on th e basis of the Agreement of 23June1964, to
reach an understanding on the exact substance of the “colonial heritage” they had inherited in
68
MBF, p. 58, para. 2.10; see also p. 57, para. 2.8. - 30 -
1960? Where, then, is the assurance, if the Parties were so dissatisfied with that colonial heritage
that, after considerable diplomatic effort, they concluded a new Agreement, that of 28 March 1987,
in which they referred not only to the 1927 Arrêté and to the 1960 IGN map, but also to any other
documents accepted by joint agreement of the Parties? No, Members of the Court, in this case too,
the uti possidetis speaks with an uncertain voice. Unlike Burkina Faso, Niger hears the stuttering
of a principle which, in the present case, is based on a text from 1927 that was contested by various
colonial administrators as soon as it was publis hed, on account of its laconic and imprecise
character.
17. We shall demonstrate this tomorrow when we address the role of “ effectivités” in the
present case. For the moment, I should like to explain why, in Niger’s opinion, it is the
uti possidetis, above everything else, which settles the question of the date on which the colonial
heritage should be considered, but not necessarily the issue of the precise content of that colonial
heritage.
III. Uti possidetis settles the question of the date of the colonial heritage, but not
necessarily the issue of the precise content of that colonial heritage
18. Mr. President, Members of the Court, once the principle of uti possidetis has been
invoked, the issue of respect for the territorial st atus quo has been dealt with; but the same cannot
be said of the content of the “colonial heritage”. Uti possidetis is the assertion that each State has
inherited a territory and frontiers on achieving independence. Furthermore, the full Latin phrase is:
uti possidetis ita possideatis, or “as you possess, so may you possess”. Clearly, frontiers are
inherited, but what frontiers exactly? As the Chamber of the Court stated in the Frontier Dispute
(Burkina Faso/Republic of Mali): “For both Parties, the problem is to ascertain what is the frontier
which was inherited from the French administrati on, that is, the frontier which existed at the
moment of independence.” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J.
Reports 1986, p. 570, para. 33.)
19. Members of the Court, this is the issue that is at the heart of the dispute before the Court.
Indeed, as the Chamber of the Court stated in the above-mentioned case: “The essence of the
40 principle [of uti possidetis] lies in its primary aim of securing r espect for the territorial boundaries
at the moment when independence is achieved.” (Ibid., p. 566, para. 23.) - 31 -
The Court refers to “territorial boundaries”, thus adhering to the terminology of the colonial
administration. However, the main purpose of the colonial administrative boundaries was to
facilitate the administration of the colonies by dete rmining, in light of the sociocultural realities on
the ground, the extent of the areas of jurisdiction of the authorities ⎯ who, I would remind you,
were subject to the same territorial sovereignty ⎯ and not to establish international frontiers, to
which the colonial authorities of the time had given no thought at all.
20. As the Chamber of the Court said in the Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras):
“it has to be remembered that no question of international boundaries could ever have
occurred to the minds of those servants of the Spanish Crown who established
administrative boundaries; uti possidetis juris is essentially a retrospective principle,
investing as international boundaries administrative limits intended originally for quite
other purposes” (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 388, para. 43).
In the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) , the Chamber
observed:
“Such territorial boundaries might be no more than delimitations between
different administrative divisions or colonies al1 subject to the same sovereign. In that
case, the application of the principle of uti possidetis resulted in administrative
boundaries being transformed into international frontiers in the full sense of the term.”
(Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 ,
p. 566, para. 23.)
However, as Professor Georges Abi-Saab has written, in becoming a frontier, an
inter-colonial administrative boundary “undergoes no change in its content as a result of this
transformation, since it retains any possible faults , lacunae and ambiguities that it might have had
before independence” [translation by the Registry] 6. It is such defects that give rise to
post-independence frontier or territorial disput es between the States th at succeed the former
administering powers. The present case is before the Court precisely because the title relating to
41
the disputed frontier between Niger and Benin contains such ambiguities and inaccuracies.
21. Members of the Court, the following conclu sion emerges from this analysis, which is
based on the Court’s jurisprudence: by freezing the territorial title on the “critical date”, uti
69
«Le principe de l ’uti possidetis, son rôle et ses limites dans le contentieux territorial inteLaational», in
promotion de la justice, des droits de l’homme et du règlement des conflits par le Droit International, Liber Amicorum
Lucius Caflisch, Martimus Nijhoff Publishers, 2007, p. 659. - 32 -
possidetis provides a degree of legal certainty because of the predictability of the legal solution
which it offers at the moment of decolonization. Bu t in any event, the application of this principle
70
does not resolve the uncertainties that affected the frontier in colonial times . In many instances,
the precise location of the administrative boundaries was far from clear. Inconsistencies are not
uncommon between the colonial documents on which the successor States born out of
decolonization could rely in order to try to est ablish the exact course of the boundaries, which had
become international frontiers, as Niger will show later during its pleadings.
22. Although BurkinaFaso may, very excepti onally, resort to a document other than the
1927 Arrêté as amended by its Erratum in order to determine the course of the frontier in a
particular sector, Burkina categorically maintains the contrary position to the end. In its view,
Niger’s argument that a disagreement of some ki nd exists between the tw o Parties regarding the
1927 Arrêté is all the more unfounded, given that both States agreed on a “consensual line” of their
common frontier in 1988, on the basis of the 1987 Agreement which enshrines the Arrêté in
question, and then concluded a political agreement on the same issue in 1991.
23. What exactly is the status of this much-discussed “consensual line”?
IV. The illusory argument that there was a “consensual line” of th
e frontier
between the Parties in 1988
24. Mr. President, Members of the Court, it so happens that given the weight of evidence
against it, Burkina Faso has temporarily ste pped aside from the untenable argument that the
1927 Erratum constitutes a clear 71 and complete title, “fully” defi ning the boundaries between the
72
42 Parties . Yet it does this in order to create another illusion straight away: the notion that Niger
and Burkina Faso reached agreement, in 1988 and then in 1991, on a course to be followed by their
73 74
common frontier . Niger has amply responded to that notion in its Counter-Memorial . Yet
7See, for example, A.O. Cukwurah, The settlement of boundary disput es in international law ,
Manchester/Dobb-Ferry (NY), Manchest er University Press/Oceana, 1967, pp.114-115; R.Yakemtchouk, «Les
frontières africaines», Revue générale de droit international public (RGDIP), 1970, p. 40; S. Ratner, “Drawing a Better
Line: Uti Possidetis and the Borders of New States”, American Journal of International Law (AJIL), 1996, pp. 590-624;
M. N. Shaw, “The Heritage of States: the Principle of Uti Possidetis Juris Today”, British Year Book of International Law
(BYBIL),1996, pp. 75-154; M. Kohen, Possession contestée et souveraineté territoriale, Paris, P.U.F, 1997, p. 428.
71
MBF, para. 4.8.
72
Ibid, paras. 2.8, 2.13, 4.8.
7MBF, p. 48, para. 1.69; p. 48, para. 1.75.
7CMN, pp. 47-59, paras 1.2.1-1.2.30. - 33 -
clearly, the other Party will not give up, and it returned to the attack with renewed vigour in its oral
75
pleadings on Monday morning . And it had reason to do so: this is one of the pillars of its
argument in support of the idea that Niger itself has always accepted that the 1927 Arrêté, as
amended, is the only applicable title, and that it allows the course of the common frontier to be
determined precisely.
25. Burkina Faso thus opts for a legal imp asse by contending that the agreement underlying
the “consensual line” 76is binding on the two Parties to the present dispute, especially since it is
purportedly in accordance with the 1987 Agreement, which makes the 1927 Arrêté, as amended by
the Erratum, the reference document for the delimitation of the frontier between the two countries.
26. That is an attractive construction, but it is really just a mirage, since, as Niger has shown
77
in some detail in its Counter-Memorial , the “consensual line” in question does not exist, either in
fact or in law.
27. It has no factual existence, because the work done by the two countries from 1964
onwards, with a view to achieving the delimitati on and subsequently the demarcation of their
common frontier, made very uneven progress. The wo rk in question, initiated on the basis of the
Protocol of Agreement of 22June1964 and continued under the Agreement of 28March1987,
produced results which were approved by the expe rts from Niger and Burkina Faso but called into
question on various occasions by both States; and that not only occurred fo llowing the work done
in 1986 and 1988, but also after the work done in 1991. As for a “consensual line”, Members of
the Court, there was no such thing. Niger would ha ve liked to agree with Burkina Faso that there
43
was a “consensual line” ⎯ that would probably have reduced the scope of the present dispute. But
there was not. Those are the facts, which are moreover, as it happens, confirmed in law.
28. Indeed, the “consensual line” has no legal existence either, Members of the Court.
Admittedly, according to Burkina Faso, the line adopt ed by the technical experts in 1988, like that
adopted by the ministers of both countries in 19 91, constitutes “an interpretation that is fully
7See CR 2012/19, pp. 25-29, paras. 26-29 (Thouvenin).
76
MBF, p. 48, para. 1.69.
7CMN, pp. 47-59, paras. 1.2.1-1.2.30. - 34 -
78
binding on the State of Niger” . Professor Forteau has even had th e temerity to speak here of an
“authoritative interpretation adopted in . . . 1991 by the competent ministers” 7. Yes, you did hear
correctly, Members of the Court: an authoritative interpretation, made in 1991 by members of the
governments of two independent States, of a un ilateral act adopted by a colonial authority
sixty-four years earlier, upon whose content the two governments do not agree. The succession of
States does not allow everything, Mr.President. Fo r the other Party, that interpretation therefore
80
continues as “having the force of law between the Parties” . Contrary to what ProfessorPellet
might have had us believe during his presentation on Tuesday morning, we are not mistaken in
recalling the other Party’s own written pleadings on this point.
29. The assertion that in 1988, or indeed in 1991, there was a binding agreement is in any
event a highly audacious claim. It is true that a udacity is not prohibited. Yet it needs to be kept
81
within reasonable bounds. Article 7 of the Agreement of 28 March 1987 ⎯ which is at tab 4 of
the judges’ folder and to which Burkina Faso atta ches almost as much importance as it does to the
1927 Erratum ⎯ provides that: “The result of the demarc ation works shall be embodied in a legal
instrument, which shall be submitted for signature a nd ratification by the two Contracting Parties.”
Burkina Faso cannot be unaware of that provision, even if it neglects to cite it in its arguments. In
fact, the proposals for provisional lines made in 1987 and 1991 were never formalized in
instruments that were legally binding on Ni ger, in so far as such an instrument ⎯ assuming it ever
existed ⎯ never underwent the necessary formalities.
44 30. Referring to what he calls a “per ipheral disagreement”, our learned friend
ProfessorAlainPellet has been sufficiently clear-sighted to acknowledge, as recalled by
ProfessorSalmon in his introduction, that Burkina Faso “never claimed that th[e] line” which the
two countries’ experts came up with in 1988 “was officially ‘recognized’” and nor does it contend
82
that the “political... solution” of 1991 “was legally binding on the Parties” . Quite right too!
Yet the other Party, having finally conceded the point, cannot continue to make use of the
78MBF, pp. 122-123, paras. 4.56 and 4.57.
79CR 2012/20, p. 59, para. 47 (Forteau).
80
See CR 2012/19, p. 26, para. 28 (Thouvenin).
81MN, Ann. A4.
82See CR 2012/19, p.60, para. 40 (Pellet). - 35 -
provisional results obtained in the course of the work done by the experts in 1988 and the ministers
in 1991. This is, however, what Burkina Faso is doing. In his pleading on Monday morning,
Professor Thouvenin was still expounding at length on this point, reiterating that “[o]n the basis of
the 1987 Agreement and Protocol of Agreement, the Commission’s work . . . led to agreement the
very next year on a consensual line which complie d with the provisions of the 1987 Agreement to
the letter”83. He moreover produced a reproduction of the supposed “consensual line” for the
judges’ folder.
31. In this way, although the aforementioned statement by ProfessorAlainPellet closes the
legal debate on the matter, Burkina has never ceased trying to convey the idea, with regard to this
work from the late 1980s to the early 1990s, that Niger has specialized in undoing agreements
84
reached by the Parties. Inconsistent, and constantly reversing its position ⎯ that is the
impression of Niger with which the other Party would like to leave the Court, whilst at the same
time stating that the results of the work are not bi nding on that country. This is pernicious. It is
unacceptable. It is contrary to the principles governing international negotiations, which give each
party the right to reassess its positions at any time before making a definitive commitment.
As long as negotiations continue, nothing is agreed; and as long as nothing is agreed,
nothing is binding. That is the principle governing legal relations betwee n nations. What, then,
does the other Party make binding upon Niger, with this so-called “consensual line”? Absolutely
nothing, Mr. President.
32. In conclusion, Niger trusts:
45 ⎯ firstly, that in the present case, the Court will remain faithful to its settled case law regarding
the application of uti possidetis in the context of a border dispute between two States emerging
from decolonization: in point of fact, the C ourt has always taken the date when colonies
gained independence as the critical date;
⎯ secondly, that the Court will find that in the present case the colonial heritage on that critical
date is ill-defined, and that uti possidetis, here as in many other cases, speaks in “an uncertain
voice”;
83
CR 2012/19, p. 25, para. 26 (Thouvenin).
84
Ibid, p. 27-28, paras. 30 and 32. - 36 -
⎯ thirdly, and finally, that apart from the sections of the frontier on which there has been an
agreement, as noted in Article 2 of the 2009 Sp ecial Agreement, the Parties have been unable
to remedy the shortcomings of the colonial heritage following independence by means of a
so-called “consensual line”, which is a purely theoretical construction.
That explains the historical and documentary a pproach followed by Niger, in addition to the
1927 title, in order to determine the line which it de fends, and at the same time it explains why the
three assumptions on which Burkina Faso has constructed its arguments are untenable.
33. Mr. President, I should now like to ask you to give the floor to Professor Jean Salmon so
that he can examine the first of those assumptions. Thank you very much indeed for your kind
attention.
The PRESIDENT: Thank you very much, Professor. It is now your turn to take the floor
again, Mr. Salmon. I give you the floor.
Mr. SALMON: Thank you, Mr. President.
T HE HYPOTHESIS OF THE ARTIFICIAL AND ARBITRARY NATURE
OF THE COLONIAL FRONTIER
1. Thank you, Mr.President. Mr.President, Members of the Court, Burkina Faso’s
argument rests on three pillars, of which Niger, through its counsel, will now demonstrate the
extreme fragility.
Our opponents maintain: first, that the 1927bo undary is of an “artificial and arbitrary”
nature; secondly, that the frontier between T ong-Tong and Bossébangou is composed of straight
lines; and finally, that the 1927 text constitutes a clear title.
I shall deal with the first two points and Professor Pierre Klein will address the third.
46 The claim that the frontier is artificial and arbitrary
2. Let us take as our starting point the hypoth esis that the colonial frontier was an artificial
and arbitrary one. In their written pleadings, our opponents put forward the thesis that the frontier
between Niger and Burkina Faso was essentially determined by a succession of straight lines, - 37 -
arguing that this was a colonial frontier of an artif icial and arbitrary nature. Here is an example
from its pleadings:
“In many respects, the frontier defined by the amended Arrête is artificial in
nature. The colonial authorities, wanting to establish a complete and precise
boundary, were aware of the implications of choosing such a boundary, and that
choice was made by the Governor-General of FWA, in full knowledge of the facts , in
accordance with what was standard practice at the time.” 85
And in paragraph2.39, the Memorial makes the point still more strongly: “the 1927 Arrête is no
exception to the rule and establishes an arbitr ary and artificial boundary”. We find further
examples of this approach in various paragraphs of our opponents’ Memorial 86. This is thus a firm
belief on Burkina Faso’s part. For its part, Ni ger formally disputes this contention that the
boundary was artificial and arbitrary and, moreover, that “that choice was made” by the
Governor-General of French West Africa. And I am now going to explain our reasons in detail.
The strategic nature of the claim
3. From the outset, one thing should be clearly understood. If Burkina Faso has ventured to
put forward such an unexpected explanation, it is for strategic reasons, and in order to give
credibility to its thesis that, in the Téra sector, the boundary is composed of two straight lines
covering a distance of 150 km. The rest is simply embroidery.
An assertion relying solely on doctrine
4. It is undeniable that this was a regular colonial practice. From that, to assert that this was
the case between Tong-Tong and the point wher e the boundary reaches Bossébangou is a leap
unsupported by the documents in the case.
It is symptomatic that, in support of its assertion that the boundary was an arbitrary one,
Burkina can rely only on doctrinal sources of a quite general and theoretical nature on the practice
87
47 of the colonial powers in the nineteenth century , sources which bear no relation to the boundary
under examination here. We note with some surp rise a reference to pages6 and7 of the work
African Boundaries by the late IanBrownlie. We can just understand why our opponents might
8MBF, para. 2.38.
86
MBF, paras. 4.26, 4.27, 4.28 and 4.33.
8CMBF, para. 1.33. - 38 -
have thought fit to invoke the shades of our late colleague and friend by a reference to the pages
devoted by him to the boundary between Niger and Upper Volta. Alas, the author says nothing of
the kind! [Slide showing page 470], and for the Tong-Tong-Say cercle boundary, his map adopts
88
the 1960 IGN line. As my grandchildren might put it: “they don’t come more twisty than that!”
The same can be said of Burkin a Faso’s appeal in its Memorial 89to the separate opinion of
Judge Ajibola in the Court’s J udgment of 3 February 1994 in the Territorial Dispute (Libya/Chad)
case. That judge expressed himself in the following terms (how relevant to our case, I shall shortly
show you):
“Bear in mind that most African frontiers are purely artificial... they are
patently even more artificial than elsewhere , since most of them are merely straight
lines traced on the drawing board with little relevance to physical circumstances on
the ground. As far back as 1890, Lord Salisbury said:
‘we have been engaged... in drawing lines upon maps where no
white man’s feet have ever trod; we have been giving away mountains
and rivers and lakes’.” ( Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 53, para. 9.)
Yes, to be sure . . .
Members of the Court, it’s time to get serious. To support its case, notwithstanding the
substantial file of documents provided by Niger, our opponents can provide not a single piece of
evidence from the colonial period. None at all? Sorry, yes, there is one: a quotation in which our
90
opponents claim to find support . This is a letter from the Governor of Niger dated
27September1929 to the Governor of UpperVolta, in which the former acknowledges that, for
nomadic peoples, a boundary is a “theoretical a nd artificial” frontier. However, this phrase does
48 not have the meaning which our opponents seek to give to it. It must not be taken out of its
context, where the reference to a “theoretical and ar tificial” frontier is self-evident. That context is
the division of Dori cercle . [Illustration showing Téra Subdivision within Dori cercle, CMN,
fig.1, p.22 [p.15 in the English version].] We know that from 1910, Téra had become a
subdivision of Dori cercle. The latter thus at that time constituted a single entity running as far as
88
Ian Brownlie, African Boundaries, A legal and Diplomatic Encyclopaedia , C.Hurst & Company, London,
1979, p. 470.
89
MBF, p. 67, para. 2.38.
9CMBF, para. 3.60. - 39 -
the River Niger, over which the nomadic population roamed freely, without changing cercle or
colony. For them, the inter-colonial boundary re-cr eated in 1927 (as a result of the return to the
1910line) could certainly be described as theoretical and artificial, although the nomads soon
acquired the art of using it in order to evade ta xation. [End of slide] It should be noted,
incidentally, that the Governor of Niger did not, however, write that the boundary in this sector was
a straight line. In conclusion, it can indeed be said, on reflection, that our opponents can produce
not a single piece of evidence from the colonial period for the region. A fortiori, we seek in vain
any historical evidence that the authorities in Da kar adopted this policy “in full knowledge of the
facts”.
5. Contrary to Burkina’s thesis, the histor y of the boundary in this sector renounces any idea
of artificiality and demonstrates no evidence of any such intention on the part of the authorities of
French West Africa.
The ethnic basis of the cantons
Without going right back to the report of the Minister for the Colonies of 1907, explaining
the ethnic considerations justifying the incorporation of Say cercle into the Colony of Haut Sénégal
et Niger and the transfers of cantons in 1910 91, we would highlight the following documents,
which ⎯ ironically ⎯ have the peculiar feature of all emanating from the authorities of the
Colony of Upper Volta:
[Slide showing the traditional composition of Say cercle]
⎯ the letter from the Governor of Upper Volta of 22 July 1920, which states: “We should avoid
dividing ethnic groups through arb itrary boundaries, which have the effect . . . of upsetting the
local population, provoking mass departures” 92;
⎯ the letter from the Commander of Dori cercle ⎯ again in UpperVolta ⎯ of 7April1923 on
the mentality of the local population: “what is important for them is not the creation of a new
93
49 colony: it is stability in their habits, being accustomed to the heads of their cantons” ;
91CMN, paras. 1.1.8 and 1.1.9.
92
MBF, Ann. 17.
93MBF, Ann. 21. - 40 -
⎯ when the transfer of Say cercle to Niger was proposed, the Lieutenant-Governor of
UpperVolta accepted it, with the exception of Gourmantché Botou canton, whose ethnic and
cultural ties with the Gourma justified keeping it in Upper Volta. In his letter of 7 June 1923 to
the Governor-General of French West Africa, he explains that he has made
“a full study of the question... in order to determine whether such action is
appropriate from all points of view: ethnogr aphic, political, financial, administrative
and economic... Only the Gourmantché groupements . . ., which represent almost
the entire population of Botou canton , have no affinity with the peoples of the left
bank of the Niger.” 94
[Slide showing the same sketch-map, together w ith the sketch-map of the Gourmantché Botou
canton] [End of slide]
⎯ when, on 26January1926, the Governor of Niger asked for a part of Dori cercle (in
UpperVolta) to be transferred to Tillabéry cercle in Niger, he emphasized that the cantons
concerned were those of the latter cercle which had been detached from it in 1910. He
attached to his request “a map of Tillabéry cercle prepared by Captain Coquibus in 1908 which
clearly shows the part of Dori cercle that would have to be incorporated into Tillabéry in order
to reconstitute that division within its original boundaries” 9.
This new episode shows that the boundary in question was already an old one, formed by cantons
whose borders were a function of the realities of the population on the ground, and whose extent
was already well known to the administrators⎯ as future events would confirm.
The argument that the importance of the cantons is a “postulate”
6. Is the importance of the cantons a “postulate”, as our opponents maintain 96? What is the
true position in this regard?
It was on 28 December 1926 97that the Decree of the President of the French Republic which
50
we shall now examine was promulgated. This text can be found in the judges’ folder at tab 5. Its
Article 2 reads as follows:
9CMN, 1.1.11 and MBF, Ann. 22.
95
CMN, 1.1.12 and MBF, Ann. 24
96
CMBF, par. 1.4.
9MN, Ann. B 23. - 41 -
“The following territories, which are currently part of the Colony of Upper
Volta, shall be incorporated in the Colony of Niger with effect from 1 January 1927:
1. Say cercle, with the exception of Gourmantché Botou canton;
2. the cantons of Dori cercle which were formerly part of . . . Niger in the Téra and
Yatacala regions, and were detached from it by the Arrêté of the
Governor-General of 22 June 1910.”
The fact that the Presidential Decree expresses itself in terms of cantons, that is to say identifiable
local administrative units which already existe d in 1910, and that, furthermore, for Say cercle, the
Decree leaves Gourmantché Botou canton in Upper Volta, for reasons of ethnic unity, certainly
does not imply any wish to establish a line of an arbitrary and artificial nature.
7. As our colleague ProfessorTankoano has just explained, the incorporation of a territory
into a particular colony lay within the sole power of the central authorities, namely the President of
the French Republic, whose text was counter-signed by the Minister for the Colonies. In this
instance, those central authorities exercised th at power. While the local authorities were
empowered to implement the Decree at local level, they could not contradict it or act in breach of
its terms. Thus it is particularly audacious of our opponents to argue that the Arrêté of the
Governor-General of 1927, applying the Presiden tial Decree in whatever way he thought fit,
deliberately sought to adopt an artificial boundary, one, moreover, formed of a series of straight
lines. Certainly, Niger has not lost sight of the fact that the 1926 Decree provided that “[a]n Arrêté
of the Governor-General in Standing Committee of the Government Council shall determine the
course of the boundary of the two Colonies in the area”. However, contrary to what our opponents
repeatedly tell us, without providing any supporti ng evidence, the Governor-General’s action in
describing the boundary resulting from the transfers effected by the Decree could only have a
declaratory effect, and not a constitutive one.
51 8. Moreover, as we shall see, the steps taken by the colonial authority to implement the
Decree demonstrate a clear wish to seek out on the ground the boundaries of the cantons concerned
as they were in 1910. Thus the Presidential Decr ee is consistent in its approach: it effects a
transfer of cantons , that is to say traditional or customary administrative units, which were
subordinate to the cercles and had their own boundaries. In order to prepare the
Governor-General’s implementing Arrêté, three records of agreement were concluded by the two
cercles concerned ⎯ Tillabéry and Say ⎯ between the representatives of the two Colonies. - 42 -
9. First, a Record of Agreement of 2February 1927, the text of which can be found in the
judges’ folder at tab6. It contained the list of cantons having belonged on 22June1910 to the
former Tillabéry cercle, which were to be re-incorporated into Niger. Which means that, from
1910 up to the present day, this has remained unchanged.
“The cantons are:
1. Dargol ⎯ Sonrhais
2. Kokoro ⎯ ditto
3. Diagourou ⎯ Peulhs
4. Téra ⎯ Sonrhais
5. Gorouol ⎯ ditto
6. Logomaten ⎯ nomads and Bellahs . . .” 98
It is important to note that each canton is distinguished by a specific ethnic group: the Sonrhais,
the Peulhs... and the Logomaten. In other words, by a territorial structure establishing
appurtenance on an ethnic basis (members of the group being attached to their chief, irrespective of
their own place of residence). To return to th e Record of Agreement of 2February1927, it
indicated in succinct terms the boundary between these cantons and that part of Dori cercle
remaining in Upper Volta 99.
52 10. Secondly, a Record of Agreement of 10 February 1927 ⎯ which Members of the Court
will find in the judges’ folder at tab 7 ⎯ listing the cantons of Say cercle incorporated into Niger
Colony, with the exception of the villages forming Gourmantché Botou canton. Here again, the
name of each canton was accompanied by its ethnic composition.
100
11. Thirdly and finally, a Record of Agreement of 9May1927 giving a list of the
22 villages forming Botou canton. It was accompanied by a detailed sketch-map of this canton on
101
a scale of 1:500,000 . This canton remained, for reasons which we have seen earlier, in
UpperVolta. It is clear from these various reco rds of agreement that the colonial authorities
9See MN, Ann. C 7.
99
Ibid.
100
See MN, Ann. C 9.
10See MN, Ann. C 10. - 43 -
concerned, like the President of the Republic, reasoned in terms of canton boundaries and respect
for ethnic groupings, and not in terms of an artificia l and arbitrary line intended to divide them.
The boundary between Niger and Upper Volta derives from the return to the former southern
boundary of the Tillabéry cantons as it was in 1910, and to the southern boundaries of Say cercle,
with the exception of Gourmantché Botou canton. As can be seen from the letter of 2 April 1927
102
from the Governor-General of French West Africa to the Governor of Niger , [Slide showing
Botou sketch-map], the only new boundary in this sector is that resulting from the removal of
Botou canton from Say cercle . This new boundary is not an artificial one ⎯ any more than the
others were ⎯, since it was identified following a su rvey on the ground covering the villages
103
concerned . This example is particularly significant, for it shows clearly that , when the focus of
attention is a canton, the delimitation of its borders can perfectly well be carried out by
successively connecting the villages. In this case, there are 15 villages! [End of slide of Botou
sketch-map. Slide of Diagourou] A comparable outcome would have been achieved if there had
been a delimitation of Diagourou canton, which consisted of a very large number of villages ⎯ had
the authorities wished to delimit it.
12. A further indication of the focus on determination of the boundaries on the ground, and
of the concern to respect traditional population divisions, can be seen from the initiative taken by
53 Hesling, Governor of Upper Volta. Attentive to this aspect of matters, he had sent the following
request to the Commanders of Dori and Fada cercles, who would be affected by these boundary
changes:
“Request send me as soon as possible”— this was the text of his telegram—
“precise information to enable preparation Arrête général fixing new boundaries
between Colonies Niger and Upper Volta. So lely to avoid error and need subsequent
correction, essential that course be dete rmined on ground with full agreement
Administrators Divisions concerned. Results work recognized and accepted by Heads
104
both adjacent Colonies to be forwarded Dakar for action definitive text.”
There followed an exchange of telegram s, from which it is apparent that the cercle Commanders
were preparing to visit the boundary, taking with them the map of CaptainCoquibus, and to
10CMBF, Ann. 1.
103
MN, Ann. D 12.
10MN, Ann. C 11. - 44 -
105
address the issue of populations which overlapped the boundary . Our opponents will certainly
be unable to explain to us why it was so important for those involved to concern themselves with
the local population, if they were planning to draw an artificial and arbitrary boundary through their
cantons, consisting of a straight line.
13. The work of the administrators of the two cercles concerned consisted in ascertaining on
the ground the boundaries of the cantons falling within their respective cercles. They took as their
starting point the old sketch-map of the former boundary of Tillabéry cercle of 1910, prepared by
106
CaptainCoquibus. Two reports followed, one from Prudon, Commander of Tillabéry cercle ,
and the other from Delbos, Commander of Dori cercle107. These reports were accompanied by
similar sketch-maps. Even tho ugh the latter are not totally consis tent, they do, however, have the
merit of both showing that the administrators followed a traditional boundary, in which both
orographic factors and the agreement of the peoples concerned played a part.
Administrator Prudon states inter alia the following:
“According to the information given by the local inhabitants and by the Chiefs
of the Dorgol (Tillabéry) and Yaga (Dori) cantons, the range of hills that we were
following is indeed the boundary between the two cantons and hence of the two
54 colonies. This boundary has existed for many years and no dispute has ever arisen
108
between the two cantons over possession of the land.”
Mr. President, Members of the Court, you will have noted: Prudon emphasizes that he and
Delbos followed the boundary between the two cantons and hence of the two colonies . What a
curious difference between the views of the administ rators of UpperVolta at the time, who were
familiar with their country, and the view of it take n today by counsel for Burkina Faso! It is only
the latter who treat the cantons as a “postulate”! According to th is same report by Prudon, “the
delimitation of the cercle made by LieutenantCoquibus is indeed the line we followed [with the
exception of a small stretch] and the line recognized by the various chiefs of the frontier cantons in
109
the two colonies concerned” .
105MN, Ann. C. 12.
106Of 4 Aug. 1927, MN, Ann. C. 15.
107
Of 27 Aug. 1927, MN, Ann. C. 15.
108MN, Ann. C 15; emphasis added.
109Ibid. - 45 -
A sparsely populated region
A further claim on the part of Burkina Faso is that the recourse to arbitrary and artificial
110
boundaries was justified by the fact that the region was “sparsely populated” . This statement is,
once again, difficult to reconcile with the facts in the file. It is not supported by the political
considerations accompanying the Prudon report, to which I would again refer you, Members of the
Court 111. You will see how, in the course of their di scussions with the administrators during their
survey mission, in some cases the villagers and heads of canton gave their approval, or in others
explained their problems.
To similar effect was the report by Delbos, of 27 August 1927, which proposed the terms of
a draft arrêté, ended with the following words: “No oppositi on on the part of the local inhabitants
having been encountered, this report was closed and signed by the Parties.” 112
As the Court can see, it does not exactly look as if we are dealing here with a piece of
desert . . .
55 The assertion that the administrators’ reports were
deliberately ignored
14. Burkina Faso vainly relies on a claim that the two administrators ’ reports not only were
not taken into account when the Erratum was being prepared by the Dakar authorities, but even that
they were deliberately ignored 113.
Niger has never claimed that the reports reach ed Dakar in time. Everything suggests that
this was not the case, even supposing that they arrived there at all. But there is no evidence, on the
other hand, that they were deliberately ignored, in pa rticular if they never arrived! In any event,
that is not crucial. What these reports demonstrate, like the records of agreement of February 1927,
is the concern on the part of the coloni al authorities to respect the traditional canton boundaries.
15. In their oral presentation on this point, our opponents vainly sought to show that the
French colonial power was more interested in sound administration than in the ethnic unity of its
110CMBF, para. 3.30.
111
Ibid.
112MN, Ann. C 16.
113CMBF, para. 1.22, p. 24. - 46 -
colonized territories114. That is to miss the point ⎯ and indeed several points! Thus what our
opponents emphasize is the fact that the French frequently remodelled their colonial territories,
grouping cercles together in order to create new colonies, or distributing them among various
colonies without great concern for the ethnic unity of the new groupings. That is clear. It is
undeniable. But the point is irrelevant.
First, because this policy was not in itself artificial and arbitrary, since its aim was to
improve the administration of the pacified territories.
And above all, these remodellings did not affect the cercles and subdivisions, which
remained identical in terms of their ethnic unity . At the start of the afternoon, Professor Tankoano
showed this, by taking us through the chequered history of Say and Téra.
Thirdly, our opponents have changed the subjec t: what they have to prove is that the
colonial power broke up the ethnic unity of the cercles and cantons. They do not provide a single
example of how a cercle or a canton was allegedly sliced like a melon with a single blow of a
machete; the colonial power sought to preserve the unity of the cercle or region. And that indeed
is what our arguments have shown in great de tail. The entire historical background to the Arrêté
and the Erratum goes to show that the colonial pow er sought to maintain the line of the southern
56
boundary of Téra Subdivision and the ethnic composition of each canton. Our opponents’
propensity for theorizing constantly leads them to seek arguments which have nothing to do with
the actual inhabitants of Dori, in whom they show little interest.
16. It follows from all of this that there is no evidence whatever that the colonial power
wished to apply to this sector of the frontier an artificial and arbitrary line. It based itself on a
pre-existing line, formed of canton boundaries with specific ethnic configurations ⎯ a line which
had been followed in practice by the administra tors and identified on the Coquibus sketch-map,
which was used at different times during the preparatory procedure for the adoption of the Arrêté
général of 31August1927. Delbos, the administrator of Dori, who had visited the entire area of
his cercle as far as the River Niger before 1927, was well aware of the boundaries of Téra
114
CR 2012/19, p. 49, para. 16 (Pellet). - 47 -
Subdivision. The inhabitants and traditional chiefs were associated with the preparatory work and
were invited to give their views.
Mr. President, Members of the Court, what, in all the circumstances, appears to be artificial
and arbitrary is not the course of the boundary, but Burkina’s thesis!
Mr. President, this ends my contribution for today to the oral argument of Niger. I should be
grateful if you would kindly give me the floor again tomorrow for the remainder of my
presentation, which will concern Burkina Faso’s second “postulate”, namely that the boundary
followed straight lines in the Téra sector.
The PRESIDENT: Thank you. I will give you the floor tomorrow morning at 10 a.m., when
the Court will meet again for the continuation of the oral argument of the Republic of Niger.
The Court rose at 5.50 p.m.
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Translation