Non corrigé Traduction
Uncorrected Translation
CR 2012/24 (traduction)
CR 2012/24 (translation)
Vendredi 12 octobre 2012 à 15 heures
Friday 12 October 2012 at 3 p.m. - 2 -
10 The PRESIDENT: Please be seated. The sitting is open and I w ould invite Professor
Salmon to return to the podium. You have the floor, Sir.
SALr.MON:
THE BOUNDARY IN THE TÉRA SECTOR
(continued)
7. Mr.President, before the lunch break, I announced that this afternoon we would be
explaining to you the three instances in which Niger, while basically accepting the IGN line in the
sector in question, believed that it was necessary to make modifications to it and that those
modifications were justified. These were Vibourié, Petelkolé and Oussaltan, and I should now like
to look at these different instances with you by fo llowing the line from the beginning, which is to
say from Tong-Tong, and dividing the sector into three sections.
(a) From Tong-Tong to the Tao astronomic marker
8. From Tong-Tong to the Tao astronomic marker, the sketch-maps prepared in 1927 by
1 2
Delbos , as well as the map “New frontier between Upper Volta and Niger” , connect these two
points with a line which is very slightly curved. For its part, the sketch-map prepared in 1927 by
3
Prudon contains a straight line. However, the line on the 1960IGNmap [Slide of the extract],
which is marked in yellow on the sketch-map now being shown, adopts a shape very broadly
curved towards the west. That curve is new, it should be said, and it is appropriate to examine
whether it is justified.
The Tong-Tong astronomic marker
9. The starting point of the boundary is not in dispute between the Parties: it is the
Tong-Tong astronomic marker. Its co-ordinates are given as the starting point of the disputed
4
sector of the frontier in Article 2 of the Special Agreement of 24 February 2009 .
1MN, Anns. D 2 and C 20.
2
MN, Ann. D 13.
3
MN, Ann. D 3.
4Its co-ordinates are the following: latitude 14° 25' 04" N, longitude 0° 12' 47" E. - 3 -
11 Since the starting point indicated on the IGN ma p is situated further east, it should therefore
be disregarded, at the express wish of the Parties.
The Vibourié marker
10. The next point on the boundary, which we have been able to identify by conducting
5
research in the archives, is the Vibourié marker . The origin of this information is a Record of
6
Agreement of 13 April 1935 , which Members of the Court will find at tab 15 in the judges’ folder.
This is an agreement which was concluded between AdministratorGarnier (Dori cercle) and
Deputy Lichtenberger (Téra Subdivision), following the settlement of a dispute over the occupation
of cropland.
Here is an extract from that Record of Agreement:
“Referring to the delimitation determined by the Arrêté of 31 August 1927
(Erratum) between Dori and Téra, we decided to visit the site in order to observe the
placement of said land in relation to the above-mentioned boundary.
On the basis of the maps and descriptions in our possession, it had previously
been established that said boundary passed di agonally in an east-south-east direction,
approximately 10 km to the east of Falagountou.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Furthermore, in order to prevent any similar further territorial disputes in this
area, we have established a marker designed to fix the boundary between Dori and
Téra, the boundary in principle following a notional straight line starting from the
Tong-Tong astronomic marker and running to the Tao astronomic marker.
Thuiborielrker [on the IGNmap, it is marked as Vibourié] being
located on this notional line, on a ridgeline some 10 km to the east of Falagountou and
2 km to the east of Ouiboriels.
This delimitation, having been effected on an adversarial basis, has not been
disputed by the parties involved.”
7
This arrangement was approve d by the Governor of Niger , of which the two cercles had
formed part since the dissolution of Upper Volta . In fact, this was the only agreement between
cercles, subsequent to 1927, which was expressly approved by a higher authority.
Geographical co-ordinates: 14° 21' 44" N, 0° 16' 25" E.
6
Record of Agreement of 13 April 1935; MN, Ann. C 56.
Official Telegram-Letter 693AP of 17May 1935, as stated in Description of Tillabéry cercle, prepared in
1941 by Mr. Leca, MN, Ann. C 65. - 4 -
11. On the other hand, there is nothing to justify the boundary moved further to the east as
shown on the IGN map. It follows that, from the Vibourié marker, the frontier runs in a straight
line to join the IGN line at the Tao astronomic marker. The boundary in this sector therefore
12 consists of two straight-line segments [End of slide]. The Court will have noted that, in terms of
Burkina Faso’s request, the triangle ⎯ shaded yellow ⎯ which is formed between these two
straight-line segments and the straight line clai med by Burkina should, in Niger’s view, be
attributed to Burkina Faso [Slide of the sketch-map]. In other word s, therefore, we consider that
this Vibourié marker is on the line which is claimed by Burkina. That triangle should be attributed
to Burkina.
12. Nevertheless, Burkina Faso contests this frontier point on the basis of a variety of
arguments. It does so firstly on the grounds that the point in question is, it says, not mentioned in
the Erratum 8. This recurring argument is hardly convincing, since either it is being asserted that
any point not mentioned in the Erratum, wherever it is located, is unfounded, which is a nonsense,
or that point is being contested because it is not on the straight line claimed by Burkina Faso, which
is begging the question.
A second argument consists of maintaining that Niger asserts that the establishment of this
marker had the effect of moving the line laid down by the 1927 Erratum 9. It is clear that Niger has
never claimed that the establishment of the marker had the effect of moving the line laid down by
the 1927 Erratum but, while it is necessary to follow wh at that text says, this was a case of it being
10
interpreted . The text of the agreement shows that the two administrators placed the marker on the
boundary, which passed “approximately 10 km to th e east of Falagountou”, a boundary whose line
they knew “on the basis of the maps and descriptions in [their] possession”.
Burkina Faso therefore draws the reader in to a surrealist line of reasoning: since the
boundary is supposed to pass through the straight lin e which Burkina Faso has decreed, then if the
marker was established at Ouiboriels, it is because the administrators made a mistake 11. However,
8CMBF, paras. 3.7 and 3.51. CR 2012/20, p. 23, para. 44 (Forteau).
9
CMBF, para. 3.45.
10
MN, para. 6.20.
11CMBF, para. 3.47. - 5 -
it is clearly the other way round: it is the straight line invented by Burkina Faso which does not
pass through the boundary point, which was recognized and marked at the time by Dori cercle.
Finally, Burkina Faso puts forward an alterna tive argument based on the fact that the date of
the agreement lies between the disappearance of Upper Volta (1932) and its reconstitution (1947),
thus claiming that the Record of Agreement in question has “no effect on the delimitation” 12. This
13 morning, Professor Kamto set out the reasons why that argument is not valid. In any case, Niger
sees this agreement as a simple interpretation of the 1927 Erratum by the two administrators from
the cercles concerned, and to the advantage of Dori cercle. The adjoining cercles were not
modified from 1927 to 1960.
13. The status of the Vibourié marker as a frontier point is thus confirmed, and from that
marker the frontier runs in a straight line to the Tao astronomic marker.
Let us therefore now proceed to the second sector, from the Tao astronomic marker to
Bangaré.
(b) From the Tao astronomic marker to Bangaré
The Tao astronomic marker
14. The starting point of the following secti on (from the Tao astronomic marker to Bangaré)
13
is located at the Tao astronomic marker . In its Counter-Memorial, Burkina Faso brusquely
asserts that “its co-ordinates ar e incorrect in Niger’s version” 14. In reality, the error comes rather
from Burkina Faso, which confuses the “Tao marker” (located in the actual village of Tao) with the
“Tao astronomic marker”, installed 5.750km from the village of Tao. I apologize for boring the
Court with details of this kind, but we are obliged to reply to the other Party’s arguments. From
that frontier marker, the line claimed by Nige r in this section follows the IGN line as far as
Bangaré, except in two localities: Petelkolé and Oussaltane. And here things become more
important, and indeed more interesting.
12
CMBF, para. 3.46. CR 2012/20, p. 23, para. 48 (Forteau).
13
At the following co-ordinates: latitude 14° 03' 13" N; long itude 0° 22' 53" E. The co-ordinates of this marker
recorded by Niger by GPS are: 14° 03' 02.2" N; 00° 22' 52.1" E.
1CMBF, para. 0.14. - 6 -
Petelkolé
15. Let us first look at Petelkolé. The da ta on the 1960IGN map regarding the village of
15 16
Petelkolé are contradictory . Petelkolé is in fact shown on two 1960 sheets. On the Sebba sheet,
Petelkolé lies on the line of the frontier, whereas on the Téra sheet it lies slightly to the west of that
14 line. This village appears neither on Delbos’s sketch-map, nor on that of Prudon. Nonetheless, the
locality of Petelkolé belonged to Niger in the co lonial period, as is shown by the administrative
information from that period. Thus in the Roser/Boyer Agreement of April 1932 (which you will
find at tab13) ⎯ a document which might seem somewhat lengthy, but which is nonetheless
particularly interesting, for it shows what complex matters cercle commanders might become
involved in when addressing problematic situations ⎯ the village of Petelkolé is located to the east
of the boundary, and the Fétokarkalé Pool, which belongs to Upper Volta, to the west 17. It thus
places Petelkolé in Niger. The administrators take the view, moreover, that a contrary report
drafted in Dori on 31March1931, which stated th at “the village of Petlkalkallé or Fétokarkalé
belonged to Niger and was located 1 km from the fron tier,” meant that, by extrapolation, it placed
18
Petelkolé itself in Niger .
In its Counter-Memorial, Burkina considers th at we may disregard the Roser report, given
that it contains a passage in which its author c onsiders that “common sense and reality require that
19
this boundary be modified” by means of a “further erratum” ⎯ which was never adopted . It is
true that this sentence is to be found in the text, but it has to be read in its context.
Roser’s reasoning at that time was the following: it appears from the text that the two cercle
commanders were interpreting the course of the line in the Erratum not in lexicographical terms but
in cartographic terms, in accordance with the new frontier map of 6 October 1927, which had been
1The co-ordinates of the village are 14° 00' 35.7" N; 00° 24' 52.6".
16
Map of West Africa at 1:200,000: Republic of Mali, Republic of Nige r, Republic of Upper Volta, Téra,
sheetND31XIII, drawn and published by the Institut géographique national , Paris (West Africa branch, Dakar), First
Ed. July1960, reprinted September1969, MN, Ann.D23 (Téra sheet); map of West Africa at 1:200,000: Republic of
Niger, Republic of Upper Volta, Sebba , sheetND31VII, drawn and published by the Geographical De partment, Dakar,
1960, MN, Ann. D 24 (Sebba sheet).
1Letter No. 112 of 10 April 1932 and Tour Report from Civil Service Deputy Roser, Acting Commander of Dori
cercle, to the Governor of Upper Volta; MN, Ann.C45. The Tour Report from the Administrator of Dori cercle of
31March1931 had already stated that “the village of Petelkalkalé (or Fétokarkalé) is located on the border of the two
cercles and is not defined by the delimitation, but will nonethele ss remain in Dori, as the boundary passes approximately
1 km east of this village”, MN, Ann. C 41.
1MN, Ann. C 41.
1CMBF, para. 3.35. - 7 -
forwarded to the Upper Volta administrative capita l at the same time as the Erratum. The Roser
20
report regards it as “the official map” . Since that map was on a scale of 1:1,000,000, Roser had
made an enlargement on a scale of 1:500,000. Whic h, incidentally, again confirms the authority
accorded to that map by the local administrators and that, in any event, they did not therefore
consider that the frontier line of October 1927 was a straight line.
15 The second point is that, basing themselves on the criticisms made by Delbos in 1927, they
considered that the boundary— that is to say, as represented on the new frontier map on an
inappropriate scale— did not represent an absolute reality, either from the orographic point of
view or from an administrative point of view.
And a third point is that they envisaged two solutions to the problem facing them. The first
was “to disregard the areas where the true boundary deviates to either side of the frontier as legally
established by the Arrêté of 1927”, since “[a] millionth-scale map cannot possibly show clearly all
the twists and turns of a boundary line” ⎯ which thus clearly means that in their view the line of
the frontier was that which they could see on the “new frontier” map. The two cercle commanders
accordingly proposed to interpret the defective text on the basis of the boundary which they
regarded as traditional.
And the second point made by Commander Roser in his report to the Governor of Upper
Volta proposed the following as an alternative solution:
“If this does not meet your approval [tha t is to say, to disregard the deviation],
the only alternative is to consider a furt her erratum. The frontier in the area in
question should then be defined as follows.”
Thus, if it was unacceptable to apply a certain fl exibility in interpreting th e map, there was then
only one other solution: to issue an erratum, which, in his view, should be drafted as follows in
order to correspond to the reality of the true boundary between the cantons ⎯ which was as
follows:
“from there [Higa Pool], the line shown on the Delbos map, passing through Bangaré
(three districts: one to the east of the Bangaré marigot and two to the west, one of
which is composed of Gourmantchés origin ally from the village of Doumba (Téra)
and the other known as Mamassirou, to Houssaltane, which it leaves to the east, to
Petelkarkalé, which it leaves to the west, to Petelkolé which it leaves to the east...
20
MN, p. 6. - 8 -
The Head of Téra Subdivision and I are in complete agreement as to its line, which we
determined before we separated.”
It should be clearly understood that, on the 1:100, 000 map, the line does indeed pass between the
various localities, and everything lying to the east belongs to Niger, while, on the contrary,
everything to the west belongs to Burkina. And he thus emphasized that “the Head of Téra
Subdivision and I are in complete agreement as to its line, which we determined before we
separated”.
16 What thus follows from all of this is that the two administrators had no intention of creating
a new boundary but were indeed seeking to clarify a defective text. They knew perfectly well that
these localities were not mentioned in the 1927 Erratum and what they wanted ⎯ if a new erratum
was considered essential ⎯ was that, in order to reflect the reality of the cantons, it should be
clarified by the indication of intermediate points. Let us take a common-sense view here. Roser
was the Commander of Dori cercle, and no administrator seeks to despoil his own territory. Both
men knew exactly where the boundary lay in practice, to the nearest kilometre.
They even decided to mark that boundary, and Roser announced his intention to have the
necessary timber cut in Yagha, which was part of Dori cercle.
This demonstrates both the belief of the tw o commanders and the tacit agreement of the
Governor of Upper Volta, to whom this repor t was sent, and who made no objection to the
administrators’ interpretation.
Twenty years later, the same boundary was confirmed by a report from Administrator
Lacroix, of Tillabéry cercle. Reporting on a tour which he had carried out in order to survey the
boundary between the two colonies in this sector , he wrote: “Rimaïbés having established the
permanent hamlets of Petelkarlalé and Petelkolé, between which the boundary passes” 21. Thus in
other words, this boundary on the ground between the cantons remained and was treated as such by
the cercle commanders, notwithstanding the text, which for them meant little, since it was
incomprehensible.
21
Report of a tour conducted from 16 to 23 November 1953 by Deputy-Administrator Lacroix (Tillebéri cercle),
dated 24 December 1953 (MN, Ann. C 79). - 9 -
The position of these administrators would be c onfirmed subsequently: Petelkolé is part of
22
Diagourou canton in the sketch-map of that canton prepared in 1954 (which can be found in the
judges’ folder at tab 14) [Slide of sketch-map]. No question anymore here of repeating the old saw
about the disappearance of Upper Volta. Never mind, Burkina Faso comes up with a different
objection, observing that, on this sketch-map, the name of the village is not underlined, which,
according to the map’s legend, means that this is a village “not belonging to the canton”. However,
the conclusions it draws from this are mistaken. While not a village administratively forming part
17 of the canton, Petelkolé was indeed located on the territory of Téra Subdivision . Where localities
not underlined belong to another cercle, that is indicated (thus Kamanti is indicated as a “Dori
hamlet”). The other localities that were not underlined, although located territorially within
Diagourou canton, belonged administratively to the other cantons of Téra Subdivision. That is
explained by the fact that attachments were based on ethnic considerations. Thus Diagourou
canton was essentially composed of what at that time were known as independent Peuls; Petelkolé
consisted of Peuls known as Gaobés, attached to Bankilaré in Téra Subdivision. Our opponents,
locked in their abstract and artificial logic, b lithely disregard these fine ethnic distinctions which
the administrators of Upper Volta, for their part , wished to preserve. How times change...
Finally, we note that, until the present proceedings, Burkina Faso had never challenged the fact that
Petelkolé belonged to Niger. Moreover, we find confirmation of this in a recent development
which definitively puts an end to all argument.
16. Thus, near Petelkolé, the frontier line de viates slightly from the IGN line towards the
west in order to take in the juxtaposed frontier post between Niger and Burkina Faso [Slide]. That
post is situated entirely within Niger territo ry. The site was chosen by the Bilateral
(Burkina-Niger) Committee on the identification of sites for the installation of juxtaposed control
posts on the Ouagadougou-Dori-Téra-Niamey road, whose conclusion, dated 9June2006, was as
follows (you will find this document at tab 16):
“After analysing the information on the basis of the above-mentioned criteria,
two sites met the conditions for the installa tion of juxtaposed control posts. These
22
Diagourou canton: scale 1:250,000, 1954 (MN, Ann. D 21) (appended to the census report for Diagourou
canton of 10 August 1954, prepared by the head of Téra Subdivision). - 10 -
were Petelkolé in the territory of Nige r and Seynotyondi in Burkina, both of which
were situated approximately two kilometres from the frontier.
By mutual agreement, and on account of the size of the village of Petelkolé in
relation to its socio-economic infrastructure, the experts of the two States, assisted by
the commission of the WAEMU and LGA, adopted the village of Petelkolé (Niger) as
the site for the installation of juxtaposed control posts on the
Ouagadougou-Dori-Téra-Niamey road. Accordingly, they recommended that the
23
competent authorities of the two States should endorse this decision.”
18 This choice was not challenged. Everything has been built. The frontier point is situated
slightly further to the west of the juxtaposed c ontrol posts, at the end of the stretch of the new
Téra-Dori road constructed by Niger 24, two kilometres from Petelkolé — as we have just shown.
In the course of their oral argument, our opponents claimed that this decision was invalid,
since only the Joint Commission had authority in matters concerning the frontier. That is clearly
disputable. ProfessorKamto dealt with this cu rious notion this morning: both States were
perfectly entitled to decide to establish a juxta posed control post and, at the same time, to
determine where their frontier passed. This settl es the issue as regards Petelkolé, whatever doubts
may have existed at the outset.
17. From this point, the boundary rejoins the IGN line 25, leaving Feto Karkalé Pool to
Burkina Faso — as has always been recognized from the start. The boundary then follows the IGN
26
line as far as the line of broken crosses at the level of Oussaltane .
Oussaltane or Ousaltan
[Slide]
18. The Ousaltan area straddles the boundary [Slid e: Delbos sketch-map], as can be seen on
the Delbos sketch-map of June 1927 27. Commander Mangant, administrator of Dori cercle, notes
in his report of 7July1930 that the members of certain tribes “stated that Oussaltane, where they
2Report of the Bilateral (Burkina-Niger) Committee on the identification of sites for the installation of
juxtaposed control posts on the Ouagadougou-Dori-Téra-Niam ey road, 9 June 2006 (CMN, Ann.A 24, p.5). The
acronyms used in that document are as follows: WAEMU (West-African Economic and Monetary Union) and LGA
(Liptako-Gourma Authority). These are two sub-regional integration organizations of which both countries are
members).
24
Co-ordinates: 14° 00' 04.2" N; 00° 24' 16.3" E.
2Co-ordinates: 13° 58' 38.9" N; 00° 26' 03.5" E.
2At the point with co-ordinates 13° 55' 54" N; 00° 28' 21" E.
2Sketch-map prepared by Administrator Delbos of the route followed by the administrators of Dori and Tillabéry
on a mission in June 1927 with a view to delimitation between Dori and Tillabéry cercles (MN, Ann. C 14). - 11 -
were living, was part of Téra Subdivision” 28. The Roser/Boyer agreement, which I was discussing
just now, likewise regards Oussaltan as belonging to Niger. According to that document, the
boundary runs “to Houssaltane, which it leaves to the east, to Petelkarkalé, which it leaves to the
19 west, to Petelkolé which it leaves to the east” 29. In 1935, the administrator in charge of Téra
30
Subdivision confirmed that Oussaltan enca mpment “is in the territory of Téra” . Oussaltan is
described in 1941 as a “lougan of the Kel Timijirt Logomaten) 31 in the Directory of the villages of
Téra Subdivision 32. The Head of Téra Subdivision, in a telegram/letter to Tillabéry cercle of
33
11 July 1951 reproduces in identical terms the language of the Roser/Boyer agreement of
April1932. Notwithstanding these numerous texts, Burkina here repeats the same arguments as
those used for Petelkolé: name not underlined in the map of the canton, criticism of the
Roser/Boyer agreement, alleged inadmissibility of evidence dating from the period when Upper
Volta no longer existed. The only new argument is the claim that the Logomaten were not part of
Niger 34. I am sorry, but that is not true. The Logomaten were expressly cited as the sixth canton
35
of Tillabéry in the Record of Agreement of 2 February 1927 . Ousaltan belonged to Logomaten.
The area is moreover still administered by Niger today. All of these items show that it is beyond
dispute that Oussaltan is part of Niger. The boundary thus runs around the hamlet of Oussaltane
and rejoins the IGN line, passing through the point s whose co-ordinates are indicated in Niger’s
Counter-Memorial. I will not bore the Court by reading them out.
28
Report No. 416 from the commander of Dori cercle on the difficulties created by the delimitation established in
1927 between the Colonies of Niger and Upper Volta (Arrêté of 31 August 1927) regarding the boundaries between Dori
cercle and Tillabéry cercle, 7 July 1930 (MN, Ann. C 38, p. 11).
29
Letter No. 112 of 10 April 1932 and Tour Report from Civil Service Deputy Roser, Acting-Commander of Dori
cercle, to the Governor of Upper Volta (Political Office). Certified copy of 15 September 1943 (MN, Ann. C 45, p. 6).
30
Letter No.161 from the Head of Téra Subdivision to Tillabéry cercle dated 24May1935 (MN, Ann.C60).
The copy of this document appended to Niger’s Memorial was barely legible; it has been reproduced again with the same
number and appended to Niger’s Counter-Memorial.
31
See Record of Agreement ⎯ which refers to Logomaten as a Tillabéry canton ⎯ between Mr.Brévié,
Governor of the colony of Niger, and Mr. Lefilliatre, Inspec tor of Administrative Affairs, representative of the Governor
of Upper Volta, Téra, 2 February 1927 (MN, Ann. C 7).
3Directory of villages of Téra Subdivision, villages of Kel Tamared, Kel Timijirt, Logomaten Assadek,
Logomaten Allaban, undated, 1941 (MN, Ann. C 64, p. 26).
3Official telegram/letter No.70 from the Head of Téra Subdivision to Tillabéri cercle, dated 11 July 1951, inc.
reproduction on a scale of 1:500,000 of a sketch-map by Mr. Delbos (MN, Ann. C 73).
3CMBF, para. 3.73.
35
MN, Ann. C 7. - 12 -
Bangaré
19. This brings us to the large village of Bangaré. This has always been regarded as
belonging to Niger since the colonial period. The sketch-map drawn by Delbos at the time of his
36
20 1927tour, contrary to what Burkina Faso maintains [Slide of Delbos sketch-map], placed
Bangaré right on the boundary line. It is true, on the other hand, that Prudon made the boundary
pass just to the south of this locality. There is nothing, however, to support Burkina’s claim in its
37
Counter-Memorial that the Delbos/Prudon agreement placed this locality in Upper Volta, and
sketch-map No. 2 in the Counter-Memorial is, I am sad to say, mistaken on this point — as it is on
others. As Roser, Commander of Dori cercle, wrote in 1932 ⎯ and I would remind you that Roser
was the Commander of Dori cercle ⎯ “the large village of Bangaré has always belonged to Téra
38
canton” . Burkina Faso believes that it can demonstrate the lack of support to be gained from this
statement by the Commander of Dori cercle by quoting the relevant passage from his report in full.
At first sight, this does indeed give cause for concern. The full passage is as follows:
“However, if this boundary is accepted as correct and definitive [namely, the
boundary that he can see on the 1:500,000 enlargement of the 1927 Erratum map],
then Upper Volta must immediately annex the large village of Bangaré, which has
always belonged to Téra canton, but which is located to the west, on the Volta side of
the famous ‘line’ [which he sees on the map. Not the line which he envisages
according to the text of the Erratum, but which he sees on a sketch-map which,
although it is still one of the best that we have, is nonetheless on a scale such that it
cannot show all the details]. This exam ple clearly shows that common sense and
reality require that this boundary be modified.”
And as I have explained, he would then go on to propose to the Governor of Upper Volta that the
map of the boundary should be interpreted in a fl exible manner, and that an erratum should be
issued only if the latter insisted on it— which neve r happened. If we place this statement in its
context as shown above, we see that Roser and his colleague Boyer are puzzled as to how to
interpret the new frontier in its 1:500,000 enlargement, on which they rely in order to determine the
legal boundary. This schematic line doubtless placed Bangaré to the west of the boundary, but that
did not correspond to the boundary on the ground. We have seen that it was for the purpose of
3CMBF, paras. 3.30 and 3.36.
37
CMBF, paras. 1.64 and 3.36.
3Letter No. 112 of 10 April 1932 and Tour Report from Civil Service Deputy Roser, Acting Commander of Dori
cercle, to the Governor of Upper Volta (political office). Certified copy of 15 September 1943 (MN, Ann. C 45, p. 6). - 13 -
addressing specific issues on the ground that it was this latter boundary which they were planning
to demarcate.
21 In any event, in 1954 Bangaré would be given the official status of a “village” of Niger
Colony. It appears on the sketch-map of Diagourou [Slide: Diagourou sketch-map]. It is cited in
the lists of villages of Diagourou canton in 1954 39 and in 1959 . It is shown on the sketch-map of
41
the canton prepared in 1954 . It is highlighted in the report on the census of Diagourou canton
42
prepared by the Head of Téra Subdivision, again dated 10August1954 . It is dealt with in an
annex to that report 43. Bangaré again appears on the list of villages voting in Niger for the National
44
Assembly in 1956 . The full report in question is a long one of over 50 pages. In case the Court so
wishes, we have brought it in its entirety and can f ile it with the Registry. This conduct on the part
of the authorities shows that the common sense called for by Roser and Boyer won out. There can
be no doubt that Bangaré belongs to Niger, and that the line claimed by Niger in this second section
is fully substantiated.
I am now bound to have to say to you that, when we heard and then read
ProfessorThouvenin’s remarks on pages43 and 44 of CR2012/20, we were puzzled, for in each
case it would appear that he has unfortunately confused Bangaré with Bankaré or Bankara, and
then accuses Niger of confusing them, which is not so, since we are perfectly well aware of the
precise distinctions that need to be made between these different villages, and that is apparent in
five or six of these cases. We believe it is unnecessary to subject the Court to the 15 minutes which
it would take to go into detail and show that all of the points made by ProfessorThouvenin are
3List of villages of Téra Subdivision at 1January1954 ⎯ Diagourou canton (CMN, Ann.C117); and List of
villages of Téra Subdivision at 10 August 1954 (extract No. 1) (CMN, Ann. C 118).
4List of villages of Diagourou canton, 17 April 1959 (CMN, Ann. C 125).
4Diagourou canton; scale 1:250,000, 1954 (MN, Ann.D21) (appended to the Report of the Head of Téra
Subdivision on the census of Diagourou canton of 10 August 1954).
42
Report from the Head of Téra Subdivision on the census of Diagourou canton , dated 10August1954 (MN,
Ann.C84). Referred to as follows in the list of four recently formed villages: “the fourth, Bangaré, was created by
Mr. Garrat in 1945”.
4“Bangaré”: appended to the Report from the Head of Téra Subdivision on the census of Diagourou canton,
dated 10 August 1954 (CMN, Ann. C 120).
44
Arrêté No.2794 establishing polling stations and districts for the elec tions to the National Assembly, Official
Journal of Niger, No. 304, 1 January 1956 (CMN, Ann. B 35). - 14 -
22 wrong. However if that should appear necessary, we would be quite prepared to give the Court a
summary of those points, which, frankly, are all totally misconceived.
(c) The stretch from Bangaré to the boundary of Say cercle
20. Finally, as regards the stretch from Bangaré to the boundary of Say cercle, the frontier
follows the IGN line throughout, until it reaches the point which, during the colonial period,
constituted the boundary of Say cercle (tripoint between the cercles of Tillabéry, Dori and Say) 45.
In a few moments, Professor Pierre Klein will explain to the Court the deficiencies in the Erratum
regarding this point.
21. Mr.President, Members of the Court, my presentation on this sector would be
incomplete if I confined myself to justifying the line of the boundary. But I must, however,
emphasize that several villages which have always been part of Niger territory would pass to
Burkina if we were to accept the theory of the artificial straight line, that is to say, a line lying
between that which we propose and the line proposed by Burkina itself.
In this sector overall, which is a huge one, ther e is a whole series of villages in respect of
which there is indeed no dispute that they belong to Niger [Slide: Sketch-map showing the location
of these villages between Niger’s line and Burkina’ s line]. Niger’s Counter-Memorial set out the
evidence showing that the villages of Beyna, Mamasirou, Ouro Gaobe and Yolo belong to Niger; it
bears no relation to that relied on by our opponents. We will confine ourselves to pointing out here
that three of them were included on the list of polling stations for the elections to the 1956 National
Assembly.
As is clear from the foregoing, the frontier line claimed by Niger essentially follows the IGN
line in the portion running from Tao to the tripoint between Dori, Tillabéry and Say cercles. It only
deviates from that line where we have documents constituting evidence of the colonial heritage and
which, for some reason or another, were not taken into account by the IGN.
22. Mr.President, Members of the Court, that brings me to the end of my presentation for
this round of oral argument. It remains for me to thank you for your kind attention and to ask you
23 to call Professor Klein to the Bar for his presentation regarding the boundary in the Say sector.
45
That is to say, the point with co-ordinates 13°29'08N; 01°01'00"E. See CMN, fig.5: tripoint
Dori/Tillabéry/Say (extract from MN, Ann. D 13), p. 32 [p. 23 of the English version]. - 15 -
The PRESIDENT: Thank you, Professor. I give the floor to Professor Klein. You have the
floor, Sir.
Mr. KLEIN: Thank you, Mr. President.
T HE BOUNDARY IN THE SAY SECTOR
1. Mr. President, Members of the Court, it now fa lls to me to continue the line of reasoning
begun by ProfessorSalmon, and to present to you Nige r’s claims in respect of the frontier line in
the Say sector. It is evident, at this stage in th e proceedings, that the Parties disagree strongly as to
the course of that line. It is therefore my inten tion to show you in what respect Niger’s approach
rests on more solid ground, and should accordingly be adopted.
[Slide of the sketch-map of the Say sector with the lines claimed by Niger]
I shall proceed by dividing this sector into three parts, firstly showing that the continuation
of the inter-colonial boundary as far as the River Sirba at Bossébangou is unfounded (A), then that
the frontier line in the area of th e four villages referred to in the 1927 texts can be identified with
precision (B), and finally that the course consisting of two straight- line segments in the part of the
frontier area that runs to the beginning of the Botou bend is entirely justified (C).
[End of slide]
A. The continuation of the inter-colonial boundary to the
village of Bossébangou is unfounded
2. According to the terms of the Erratum correcting the Arrêté general of 31 August 1927,
after the Tao marker, the inter-colonial boundary should “[reach] the River Sirba at Bossebangou”
46
before then “immediately turn[ing] back up towards the north-west” . Niger contests the idea that
the description given in the Erratum of this part of the inter-colonial boundary ⎯ whereby it passes
through the village of Bossébangou ⎯ has any authority and should be adopted as a basis for the
24 frontier line between the two States in this sector. As Niger has amply demonstrated in its written
pleadings, this is quite simply because the Erratum of 1927 contains a factual error in respect of
47
this point . This part of the text cannot, therefore, be regarded as part of the “colonial heritage”
46
MN, Ann. B 27.
47MN, p. 105 et seq.; CMN, p. 75 et seq. - 16 -
inherited by the two States by application of the principle of uti possidetis . Allow me to recall
briefly what this analysis is based on.
3. The purpose of the Arrêté général of 31 August 1927 was to determine the precise course
of the boundary between the Colonies of Upper Volta and Niger, following the presidential Decree
of 28December1926 incorporating into the Colony of Niger various cantons of Dori cercle and
48
Say cercle, with the exception of Botou canton [Slide of the sketch-map of the boundaries of
Say]. However, rather than confining itsel f to describing the new boundary between the two
colonies, as it resulted from the incorporation of those cantons, the Arrêté of August1927
described all the boundaries of Say cercle ⎯ that is, both the boundaries between Say cercle and
the Colony of Upper Volta and those between Say cercle and the cercles belonging to the Colony
of Niger, in other words what we might call the “i nternal” rather than inter-colonial boundaries.
Thus, it was evident that the Arrêté went beyond its purpose, which was only to define the new
inter-colonial boundary. It was very clearly for th is reason that the colonial authorities deemed it
necessary to correct it through the Erratum of 5 October 1927, from which the description of the
boundaries of Say cercle that did not concern Upper Volta was to be omitted [ the “internal”
boundaries of Say are removed, except for the Bossébangou sector ]. This was done for all points
but one: the one where the text of the Erratum has the inter-colonial boundary run as far as the
River Sirba at Bossébangou. The error regarding this point is quite obvious. [End of slide]
4. According to Burkina, this theory of an error ⎯ in support of which, to use the words of
Professor Forteau, Niger “puts up a valiant defence” 49 ⎯ is unfounded. You will note in passing,
Mr.President, Members of the Court, that when it is not being “fickle”, or making “about-turns”,
Niger “puts up a valiant defence” of its positions. Whichever stand we take, it is clearly very
difficult to find favour with our opponents. In substance, the other Party puts forward three reasons
25 for rejecting the error theory: firstly, it clai ms that in any event it would have no effective
50
consequence; error or not, the Erratum “would nevertheless apply in this case” . Here I cite the
argument of Professor Forteau. Secondly, this theory allegedly rests on the erroneous assumption
4MN, Ann. B 23.
49
CR 2012/20, p. 47, para. 7.
5CR 2012/20, p. 48, para. 8. - 17 -
that the 1927 texts were confined to reproducin g pre-existing boundaries. And lastly, the error
theory is purported to assume that the reference by the author of the Erratum to Bossébangou was
made in ignorance of the true facts, which is said not to be the case 51. Let us now consider these
three objections in turn.
5. First of all, according to the other Party, Niger is asking the Court “to judge the legality of
the Erratum, to find it incompatible with the Decree of December 1926, and for that reason to
exclude it on the basis of French law” 52. Mr. President, Members of the Court, let us be absolutely
clear on this point. In no way is Niger is asking the Court to make an administrative judgment, and
to decide that all or some of the 1927 texts should be regarded as void because of a possible excess
of authority or some error of law. All that is at issue here is an error of fact, in that the
inter-colonial boundary is made to pass through a point which, in everyone’s view ⎯ and on this
53
point I would refer the Court to Niger’s written pleadings ⎯ did not belong there. No more and
no less. What exactly, then, did the Chambe r of the Court decide in respect of the Arrêté général
of 31 August 1927 and its Erratum in the Burkina Faso/Republic of Mali case? The Chamber made
the general observation that ⎯ as Professor Kamto recalled in detail this morning ⎯ “[i]n the
present proceedings, it is solely the evidentiary value of the Order and erratum which counts”
(Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 , p.592,
para. 72). And in particular, it goes on to state that “[i]f the Order was flawed by a factual error,
this could have had some implications for the legal validity of part of the boundary between Upper
Volta and Niger” (ibid.).
There is no doubt that in this case there was such a factual error, as we saw earlier. The legal
26 implications are clear: as I said, the Erratum, being affected by this factual error, cannot, in respect
of this particular point, be regarded as part of the colonial heritage. That the Parties to the present
proceedings have referred to the Erratum in othe r respects in treaty instruments does not change
that fact. Nor is it the case that disregarding the text of the Erratum on this particular point would
have no practical effect, since the line which would then apply would be the one appearing on the
51Ibid.
52
Ibid., p. 49, para. 11.
53MN, para. 7.19 et seq.; CMN, para. 2.2.25. - 18 -
54
1960 IGN map, as our opponents maintain . What we have here is not a “simple” case of the
Erratum “not suffic[ing]”, but a problem regarding “the legal validity of part of the boundary”, to
use the words of the Chamber in its Judgment of 1986. It is not therefore the line on the IGN map
which prevails in this sector, but the line that appears on the map produced in 1927 to illustrate “the
55
new frontier between Upper Volta and Niger” , for reasons to which I shall return in a few
moments.
6. The other Party’s second objection to the error theory is based on the fact that Niger
purportedly misreads the 1927 Erratum, by restricting its role to the reproduction of boundaries that
already existed 56. In this context, Burkina also reproa ches Niger with not producing “any colonial
57
text defining what it repeatedly refers to as the ‘traditional boundaries’ of Say cercle” . Here
again, some clarifications are called for. Niger h as never claimed that any official text set out the
boundaries of Say cercle before 1927. But it continues to argue forcefully and with conviction that,
right from the start of colonization, this cercle did indeed have boundaries, which gradually became
what may legitimately be called “traditional bound aries”, and which the author of the Erratum
obviously had no intention of ignoring. [Slide of the Boutiq sketch-map of 1909] These
boundaries can be seen clearly on several sket ch-maps and maps prepared between 1909 and
58
1926 . They were presented to you by Professor Sa lmon this morning, and I do not think there is
any point in showing them again. To deny th e existence of such traditional boundaries and their
influence on the description of the inter-colonial bou ndary in the 1927 texts is simply to deny the
facts.
27 7. In fact, the document that most strikingl y shows that the author of the Erratum of
October1927 was mistaken in retaining the description of an inter-colonial boundary passing
through the village of Bossébangou is precisely the map referred to as the “new frontier” map. Its
relevance and importance to the present dispute were amply underlined by Professor Jean Salmon
this morning. So I shall not go over that again. At this stage, I would only draw your attention,
54CR 2012/20, p. 50, par. 15 (Forteau).
55MN, annexe D 13.
56
CR 2012/20, pp. 50-51, paras. 16 et seq. (Forteau).
57Ibid., p. 52, para. 23.
58MN, Ann. D 1. - 19 -
Mr.President and Members of the Court, to the way in which this document represents the
boundaries in the area which concerns us. The map can be found at tab12 of the judges’ folder.
We can readily see that only a boundary between cercles within the same colony (Niger)— a
boundary marked by a line of alternate dots and dashes— passes through the village of
Bossébangou. For its part, the inter-colonial boundary — represented by a line of alternate crosses
(+) and dashes — is more than 20 km away from this locality.
8. In the face of such evidence, the other Pa rty clearly considers it preferable to disregard
completely the lessons to be drawn from this map. In its Memorial, Burkina Faso describes it as a
mere “sketch-map”, which can have no weight when compared with the title constituted by the
59
1927 texts themselves . And in its Counter-Memorial, proba bly considering that the matter is
60
settled, it quite simply makes no further reference to it in relation to this sector of the frontier .
Moreover, this total silence continued during Burkina’s first round of oral argument, as
ProfessorSalmon did not fail to point out. Our opponents thus deliberately disregard the weight
accorded to this “new frontier” map by the Chamber in the 1986 Burkina Faso/Republic of Mali
Judgment. In this connection, it may be useful to recall that, in the Chamber’s view, this map could
not be overlooked “as a piece of evidence”, given th at its compiler, “having perused the governing
texts, and possibly the accessible maps, had acquire d a very clear understanding of the intention
behind the texts, which enabled him afterwards to lend that intention cartographic expression”
(Frontier Dispute (Burkina Faso/Republic of Mali) , Judgment, I.C.J. Reports 1986 , p.646,
para.171). As we now know, this analysis is all th e more relevant since this map was an official
28 document issued by the Government-General of FWA and had been sent to the authorities of the
two Colonies concerned 61. And, in fact, what the map reflects in the sector that concerns us here is
indeed “the intention behind” the 1927 Erratum. In this instance, the intention was to describe the
new boundary henceforth separating the colonies of Upper Volta and Niger, and not the full extent
of Say cercle and its boundaries with the other cercles within the Colony of Niger. The
5MBF, pp. 137-138.
60
CMBF, pp. 109 et seq.
6CMN, p. 31, para. 1.1.20 - 20 -
perpetuation of the error in the Erratum is t hus established beyond all doubt by an authoritative
instrument which dates from exactly the same time.
9. The other Party’s final objection to the error theory will not detain us long. According to
this objection, it cannot be shown that the author of the Erratum was acting in ignorance of the true
facts when he indicated Bossébangou as a frontier point 62. In this regard, ProfessorForteau said
that the argument would “only begin to make sen se if the texts of the two instruments were
identical”, which, in hi s opinion, is not the case 6. He might seem to have a persuasive argument
here, since he underscored the fact that the a rrival point of the boundary coming from Tao was
located to the south of Boulkalo according to the Arrêté, and at Bossébangou according to the text
64
of the Erratum . But what Mr. Forteau avoided pointing out is that the Arrêté, in referring to the
“boundaries between the Say cercle and Upper Volta”, already mentioned a line passing “by the
River Sirba from its mouth as far as the village of Bossébangou. From this point a salient,
including on the left bank of the Sirba” four villages, etc. In other words, all that the author of the
Erratum did was to move the arrival point of the boundary coming from the north-west from one
place on the Sirba to another place on the Sirba and, as it were, to then “join up” this amended line
with the one initially described by the Arrêté. The problem is that this operation was carried out a
little too soon, at the start of the salient and not at its apex, which is where in fact the inter-colonial
boundary ran. What is important here is that although the wording of the two documents was not
entirely identical, it was in any case very similar w ith regard to this section of the boundary. So
29 our opponent’s final objection to the error theory does not stand up to scrutiny either. That theory
is thus fully vindicated, thereby depriving the line claimed by Burkina in this sector of any legal
basis.
10. Moreover, the same applies to the continuation of the line claimed by Burkina Faso, after
it passes through this locality. To recall, the text of the Erratum— you must know it almost by
heart by now— states in this regard that th e boundary “[then] almost i mmediately turns back up
towards the north-west”. In a display of uncharacteristic realism, our opponents seem to agree that
62CR 2012/20, p. 56, para. 35 (Forteau).
63
Ibid., p. 56, para. 36.
64Ibid. - 21 -
this statement does not suffice to determine the cour se of the frontier in this particular section.
They therefore fall back on the line shown on the 1960 IGN map which, for once too, finds favour
in their eyes 6. However, if there is one sector in which the course of the IGN map should be
disregarded, it is this sector. Why? For the simple reason that it seems to have been created
ex nihilo by the map’s drafters and that no trace of it is to be found on any other document dating
from the colonial period. As Members of the Court will have noted earlier, the boundaries of Say
cercle in this sector are represented on every map in the shape of a salient consisting of straight
lines; of course, we are still talking here about the boundaries of Say cercle and not the
inter-colonial boundary from 1927 onwards.
On none of those maps— and on no other map from the colonial period either— is there
any reference to a boundary following the course of the Sirba. The 1960 IGN map is — I repeat —
the only one to follow this course, without any basis in the 1927 texts or in any subsequent practice.
If the drafters of the 1927 texts had intended the boundary to follow the course of the Sirba in this
area, they would obviously have said as much. That is what they did in every other part of the
Arrêté and the Erratum dealing with hydrographic boundaries, by referring to the course of the
Rivers Niger, Tapoa, Mekrou and Sirba, depending on the text in question.
11. The course claimed by the other Party in this area therefore has no basis, either in regard
to a boundary passing through the village of Bosséba ngou or to the line that subsequently follows
the course of the River Sirba. In fact, it is some 20 km from this locality that the frontier between
30 the two States passes through the place wher e the “tripoint” was located between the cercles of
Dori, Tillabéry and Say in 1927. Earlier this w eek, our opponents criticized Niger for not having a
very clear position on the determination of that po int. Firstly, ProfessorForteau noted that Niger
did not base that point “on the legal instrument s of delimitation which pu rportedly existed in
66
1926” . Let me simply say in that regard that this is hardly surprising, since Niger has never
claimed that such instruments of delimitation existed. But the other Party’s main argument consists
in focusing its criticisms on the sketch-maps and ma ps used by Niger to identify that point. These
are supposedly either irrelevant because they date from periods when there were only two cercles
65
MN, p. 141, para. 4.105.
66
CR 2012/20, p. 53, para. 28 (Forteau). - 22 -
in the area 67, or they are unreliable because they are inconsistent, in particular concerning the
68
location of the villages in the area . Let me briefly revisit these two arguments. It is well
established— we have pointed this out already— that the shape of Say cercle has remained
unchanged over the years and during its successive transfers from one colony to another. In
particular, as regards the question we are concerned with here, the representation of the apex of its
salient has not changed. Since it is the location of this point which concerns us in terms of
ascertaining the position of the tripoint between the former cercles of Say, Dori and Tillabéry, it is
hard to see what difference it makes whether there are two or three cercles in this sector. The fact
that the point in question was at times only a “bipoint” changes nothin g. It does not mean that its
location changes. And all the material showi ng this point can unquestionably be used for the
purposes of identifying its position. The issue of the reliability of the sketch-maps in question
brings us back once again to the differences in th e methodology used by the Parties, which appear
to be irreconcilable. Our opponents reject a substantial part of the cartographic and documentary
material from the colonial period because of its l ack of precision, and they claim to reflect the
situation prevailing at that time by using only in struments that could be described as “modern”.
Niger cannot help seeing this approach as anachroni stic and, for its part, endeavours to focus on
31 material that is contemporary with the situations in question. There is no doubt that this material
can be criticized in terms of its reliability. Ho wever, Niger does not consider that a sufficient
reason for it to be summarily dismissed. This is especially true when the documents in question
show geographical characteristics or features which have a certain permanence, such as
watercourses or mountains. In addition, any approximations that may occur from using such
material can often be corrected by recourse to more reliable material. [Slide showing the “new
frontier” map] This is precisely the case with the question that concerns us here, where the answers
which emerge from the sketch-maps that have just been mentioned can be confirmed by recourse to
a document that is exactly contemporary with the 1927 texts and whose reliability appears not to be
subject to criticism. Once again the document in question is the 1927 “new frontier” map, which
you can see now. Despite its small scale, this ma p makes it possible to identify the location of the
67
Ibid., p. 54, para. 29.
68
Ibid., p. 55, paras. 31-34. - 23 -
point in question with sufficient accuracy. Moreover, this point can also be confirmed by
information gathered during various field missions , including, for example, the mission carried out
in 1943 by the Administrators of the Dori and Tillabéry cercles. According to the mission report,
the point in question could be situated unambiguously at a precise location, at the locality known as
the “Fisso platform”, which the report describes as “situated 6.5km... to the north-east of the
hamlet of Nabambori, at the source of one of the streams which form the Tiekol Nabambori,
69
tributary of the Sirba” . Whereas some of the sketch-maps criticized by the other Party were
indeed lacking in precision, that is clearly not the case here. The Court can thus see that Niger
clearly has sufficient sources to identify th e position of this tripoint between the cercles of
Tillabéry, Dori and Say, which constitutes the meeting point between the two main sectors
concerned by the present dispute. [End of slide] We can now move on to the next section of the
frontier, which is the portion referred to as the “four villages”.
32 B. The frontier line in the sector of the four villages can be
identified with precision
12. Under the terms of the Erratum of 5 October 1927, the boundary then leaves “to Niger,
on the left bank of that river [the Sirba], a salie nt which includes the villages of Alfassi, Kouro,
Tokalan and Tankouro”. [Slide of the extract from the IGN map, with the addition of the Burkina
line, as it appears on sketch-map No. 13, MBF, p. 1 52] According to Burkina Faso, here too it is
the line shown on the 1960IGNmap which most ap tly reflects the terms of the Erratum that
70
describe this section of the boundary . [End of slide]
This reading is not shared by Niger, and I should now briefly like to explain why. According
to the Erratum ⎯ which continues initially, let us remember, to describe the “internal” boundaries
of Say cercle ⎯ the boundary, after passing through the village of Bossébangou, forms a salient
which leaves four villages to Niger on the left bank of the River Sirba: Alfassi, Kouro, Tokalan
and Tankouro.
[Slide of the “new frontier” map of 1927]
69
MN, Ann. C 69.
70
MBF, p. 152, para. 4.136. - 24 -
It is clear, for the reasons which I set out in detail a moment ago, that the term salient is
meaningful as part of a description of all the boundaries of Say cercle, but not if the intention is
merely to describe the inter-colonial boundary. On ce again, this difference appears very clearly on
the “new frontier” map of 1927, on which the inter-colonial boundary in this sector follows a
general north-easterly and then south-easterly dir ection, without creating a salient of any kind.
[End of slide]
13. However, where it would appear to be essential to return to the terms of the
1927Erratum is when it indicates that the cour se of the boundary must leave to Niger the four
villages mentioned in the text. The major problem with which the Parties were confronted here ⎯
as our opponents have already explained 71 ⎯ lay in the difficulty of identifying the precise location
of these four villages. This exercise proved to be all the more difficult because no map from the
colonial period shows all four localities. We find at best three, more often two, and not necessarily
the same ones. In the light of these difficulties, the method adopted by Niger is a simple one. As
ProfessorThouvenin informed you at the begi nning of the week, our opponents nonetheless
33 consider it to be particularly obscure and inconsistent 72. It is most likely the somewhat incomplete
explanations provided on this subject in Niger’s written pleadings which lie at the root of this
failure to understand it. I should now therefore li ke to give this issue the importance that it
deserves.
14. The method followed by Niger in this instance consisted, firstly, of plotting on the
BlondellaRougery map of 1926 the location of th e village of Tankouro, as it emerged from a
limited number of earlier sketch-maps, [Slide of the Truchard sketch-map of 1915] in particular the
73
one of Say cercle prepared by Administrator Truchard in 1915 [End of slide. Slide of
sketch-map, MN, Ann. C 2] and an un dated 1:500,000 sketch-map entitled “Say Cercle” 74. [End
of slide. Slide of a relevant extract from the Blondel map, CMN, p. 89, and on the same slide, the
box from the top of p.90 of the CMN] The Bl ondellaRougery map appeared to be an ideal
7See, in particular, CR 2012/21, p. 18, para. 32 (Thouvenin).
72
CR 2012/21, p. 18, para. 33 (Thouvenin).
73
MN, Ann. D 4.
7MN, Ann. C 2. - 25 -
background map for such an exercise, both because, being from 1926, it is perfectly
contemporaneous with the Erratum, and because th e other three villages mentioned in the Erratum
(Tokalan, Tankouro and Alfassi) were already clearly marked. This exercise of plotting
Tankouro’s position on the 1926 map gave different results, as is shown, firstly, by the extract from
that map which is reproduced on page89 of Niger’s Counter-Memorial and, secondly, by the
extract from the same map which is reproduced on the following page of that document. It is clear
that the references to Tankouro and the other additions which appear on these two maps, and on the
extracts from the 1960IGNmap reproduced on page90 of the Counter-Memorial, were made by
Niger. And it is precisely because that fact appeared obvious to Niger that it did not deem it
worthwhile to make specific reference to it in its written pleadings. This shows that it is important
to be wary of the obvious, and should this a pproach have misled the opposing Party or the
Members of the Court, Niger can only ask them to accept its apologies.
[End of slide]
15. To return to my presentation, faced with the divergent results of the exercise which I
have just explained, Niger adopted the only positi on of Tankouro which proved to be compatible
34 with the text of the Erratum, which ⎯ let us remember ⎯ placed that locality on the left bank of
the Sirba. It was therefore the position shown in figure15 of Niger’s Counter-Memorial, which
you saw a moment ago, that was ultimately adopted in order to determine the course of the frontier
in this area in accordance with the terms of the Erratum. This is the only line which makes it
possible to include the four villages and, in accordance with the text of the Erratum, to leave them
on the Niger side, which is not permitted by the bounda ry that is adopted in this area by the IGN.
Here, therefore, the final result necessarily de parts markedly from the line shown on the
1960 IGN map, the justification for which, as in the Bossébangou sector, would appear difficult to
identify. In any case, Burkina Faso provides barely any evidence to explain and justify it, except
for supposedly scientific extrapolations from the text of the Erratum. [End of slide]
16. The Parties also differ, as far as this section of the boundary is concerned, on one further
question, which is the identification of the point where the frontier changes direction in order to run
towards the beginning of the Botou bend. Under the terms of the 1927 Arrêté, as amended by the
Erratum, this change of direction is supposed to happen at the point where “turning back to the - 26 -
south, [the line] again cuts the Sirba at the leve l of the Say parallel”. Once again, it is with
reference to documents contemporary with the adoption of the 1927 texts that Niger has established
the meaning of this expression. [Slide of the Labitte sketch-map of 1930, CMN, p. 91]
The first of these is a tour report of 1930, including a sketch-map, which shows that the
inter-colonial boundary in this sector runs 4km south of Boborgou Saba ⎯ and this obviously
demands a different boundary line from the one shown on the IGNmap and adopted by Burkina
Faso. The relevance of this document has, howev er, been called into question by our opponents
during the oral argument. Thus, Professor Thouveni n raised uncertainties as to the precise date of
75
the sketch-map, and even as to the identity of its author . That argument would, however, appear
to be highly specious. Unless the authenticity of the document was being called into question ⎯
which our opponents were careful to avoid doing ⎯ there would not appear to be any doubt as to
its author ⎯ it definitely bears the name of Sergeant Labitte ⎯ or as to the period when it was
prepared ⎯ the beginning of the 1930s. Niger does not therefore see any evidence which is
35
capable of challenging the relevance of this docum ent to the debates. And clearly our opponents
do not either, since they have not indicated what conclusions of a legal nature they were inspired to
76
draw from the alleged uncertainties that I mentioned a moment ago . As for the substantive
objection, according to which Sergeant Labitte’s report placed the locality of Boborgou Saba in
77
Upper Volta , it can be disposed of more rapidly still. It is indeed correct that, under the village of
Boborgou Saba, the report refers to “24 taxpayers, with 72 bovids, resid[ing] in Upper Volta” 78. It
is clear, however, that it was the taxpayers in question who were residing in Upper Volta at the
time, in accordance with the nomadic practices whic h have already been described at great length,
and not the village to which they belonged. The u sage of the terms has not changed in this respect
between the colonial period and the present day: in 1930, as in 2012, a village is situated, or
located, in a place; it does not “reside” there. Ther e is therefore nothing in this text to challenge
the fact that Boborgou Saba belongs to the colony of Niger, and that the inter-colonial boundary
75CR 2012/21, p. 20, paras. 42-43.
76
CR 2012/21, p. 21, para. 44.
77
Ibid., p. 21, para. 45.
78Report of 5 April 1930 (MN, Ann. C 35). - 27 -
runs 4km to the south-west of that place. [End of slide. Slide of the relevant extract from the
Blondel la Rougery map]
17. We can now, therefore, turn to the sec ond element on which Niger relies in order to
determine the meaning of the expression “at the level of the Say parallel”. It is the
Blondel la Rougery map of 1926, which clearly depicts the Say parallel, as it appeared on the maps
of the time. The boundary shown there meets the requirements of the text of the Erratum, since it
both allows the four villages in the salient to be left to Niger and cuts the Sirba “at the level of the
Say parallel”. Let me emphasize here the terms used in the Erratum, which, by incorporating the
expression “at the level of” the Say parallel, undeni ably leave some degree of flexibility. Our
opponents deny this. Arguing that the Erratum no longer referred to a boundary starting
“approximately from the Sirba at the level of the Say parallel and running as far as the Mekrou”, as
the original Arrêté did, but to a line cutting the Sirba “at the level of the Say parallel”, they
conclude on this point that it “describe[s]” ⎯ I am citing Professor Thouvenin ⎯ “a precise rather
36 than an approximate frontier point” 79. A point which is so precise, moreover, that our opponents
do not hesitate to assert that the point to which the Erratum refers “must be at the intersection of the
right bank of the Sirba with the Say parallel” 80. The Court will appreciate the extent to which this
very peremptory statement is compatible with the opposing Party’s otherwise unswerving faith in
scrupulously respecting the terms of the 1927Erratum, which, let us remember, speaks neither of
“intersection” nor “right bank of the Sirba”. It will also appreciate the extent to which this
approach accords with the method favoured by the Chamber in the Burkina Faso/Republic of Mali
81
case, which is to interpret a text, above all, in the context and circumstances of the time . For its
part, Niger has endeavoured to conform as far as possible to this type of approach and feels, on the
basis of the reasoning mentioned earlier, that it h as a reliable basis for id entifying the point where
the frontier changes direction in this sector in order to run towards the beginning of the Botou bend.
[End of slide] It is to that last section of the boundary that I suggest we should now turn.
79
CR 2012/21, p. 17, para. 29.
80
Ibid., p. 16, para. 24 (Thouvenin).
81See, in particular, Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J.Reports 1986, p. 619,
para. 122. - 28 -
C. The course consisting of two straight-line segments in the part of the frontier area
that runs to the beginning of the Botou bend is entirely justified
18. According to the Erratum of 5 October 1927, “[f]rom that point [the one to which I was
just referring, where the frontier cuts the River Sirb a at the level of the Say parallel] the frontier,
following an east-south-east direction, continues in a straight line up to a point located 1,200 m to
the west of the village of Tchenguiliba”— in ot her words, up to the beginning of what it was
agreed would be called the “Botou bend”. Even thou gh this part of the 1927 text is very clear, that
text can no longer be considered the authoritative source for the frontier line in this sector. The
justification for such a decisive statement is quite simply the fact that the authorities of the two
colonies, and later of the two States, agreed to de part from what was laid down in the Erratum. As
demonstrated by Niger in its written pleadings, a number of documents from the colonial period
37 offer unmistakeable evidence of that derogation. Th is is true, in particular, of several documents
which identify the exact location of the inter-colonial boundary on the Niamey-Ouagadougou
highway.
[Slide of sketch-map illustrating the highway, the villages mentioned below and distances]
Thus, a telegram/letter sent in 1954 from the H ead of Say Subdivision to the Commander of
Niamey cercle, the purpose of which was to provide a description of the roads and tracks within the
82
subdivision, provides valuable information regarding that location . Indeed, this communication
specifies that the boundary of Upper Volta on the federal highway is located 127 km from Niamey,
14 km from Mossipaga and 17 km from Kantchari. This corresponds to the point where the line of
two straight segments changes direction in order to connect with the start of the Botou bend, as
83
shown in the preparatory work carried out by the IGN in 1958-1959 , for example. The
supplementary map drawn up at that time very cl early shows a frontier marker at this point, as
Members of the Court will be able to see by consulting that map in the annexes to the written
pleadings filed by Niger. And there can be no doubt that the location of that frontier marker was
consistent throughout the colonial period, as is c onfirmed, among other things, by the fact that the
map projected on the screen before you dates back to the year 1933 84. [End of slide]
8MN, Ann. C 82.
83
MN, Ann. D 30.
8[CMN], Ann. C 111. - 29 -
19. These documents undoubtedly place our opponent in a difficult position, since they call
into question the supremacy of the 1927 texts — an act bordering on sacrilege. The difficulty of
that position is clearly visible from our opponent’s total silence on the subject of the colonial
documents relating to the Niamey-Ouagadougou fede ral highway, including in its first round of
oral argument, when it chose inst ead to focus its attack on the asser tion that the frontier point in
question was established, after independence, by me ans of an agreement between the two States.
On Tuesday, Burkina argued— through the pe rson of Professor Thouvenin— that it “has never
agreed with its neighbour on this point”, something which it claimed is confirmed by the fact that
Niger has never produced “an instrument revealing the agreement of the two States to derogate not
only from the Erratum, but also from the 1987 Agreement and the Special Agreement referring the
85
38 case to the Court” . It further contended that the positions defended by Burkina Faso’s
representatives in the context of the Joint Commission clearly show that no agreement exists, since
the frontier line defended by them in that area is a straight line, with no consideration for a possible
frontier marker 86which would require the course of the fron tier to consist of two straight lines.
First of all, Niger must admit to being baffled by the statement that an agreement between the two
States regarding that frontier point, reached several decades ago, could have the effect of
“derogat[ing]” from the 1987 Agreement and, moreover, from the Special Agreement concluded in
2009 referring the case to the Court. Of course, counsel for Burkina will have time to clarify this
matter during its second round of oral argument. As for the substance of the objection raised by
our opponent, the following can be offered in respon se. Firstly, it is clear that the agreement to
which Niger is referring here is not a formal one. Because of what might be described as Burkina
Faso’s passion for protocol, it appears to have somewhat lost sight of the fact that, under
international law, agreements may also be informal. There is no instrument, therefore; what is
more, Niger has never claimed otherwise. But th ere is a definite agreement. The one reached
between the authorities of the two colonies concerned is well established and has never been called
into question by our opponent. Nor has that de facto agreement ever been disputed by the two
States following their independence. If it has, where are the objections raised by the authorities of
85
CR 2012/21, p. 10, paras. 11 and 10, respectively.
86
Ibid., para. 11. - 30 -
Upper Volta, and later of Burkina F aso, regarding that de facto situa tion, of which they were well
aware? At what moment and by what means did Burkina contest that frontier point on the grounds
that it was contrary to what was laid down in the 1927 Erratum? Mr.President, Members of the
Court, the situation with which you are confronted has a name in international law, and that name
is well known. What is at issue here is Burkin a’s acquiescence in a de facto situation which it has
never contested. And the positions adopted by its experts in the context of the Joint Commission’s
work in 1988 do not change anything. Is it n ecessary to recall, yet again, that the Commission was
merely a forum for negotiation, and that the partic ipants in those negotiations were not authorized
to commit in any way the State which had appointed them as delegates? That there is an agreement
between the Parties is therefore clear and, in accordance with the best established principles in
territorial disputes, there is no doubt that it this subsequent agreement which must prevail over
39 the text of the 1927 Erratum. Hence, in this fina l sector, the course of the frontier consists of two
straight-line segments.
[Slide of map with the line claimed by Niger in the Say sector]
20. The frontier line claimed by Niger in the Say sector is, therefore, that shown in red on the
map which you can now see on the screen. This line deviates from that shown on the IGN map in
the sector of Bossébangou and in that of the “four villages”, for the various reasons which I have
just set out. On the other hand, it is much closer to, if not the same as, the 1960 line in respect of
the southern part of Say cercle.
Mr.President, Members of the Court, I should like to thank you for your attention. My
presentation concludes the first round of oral argument of the Republic of Niger in the present case.
The PRESIDENT: Thank you, Professor Klein; however, today’s sitting does not conclude
with your presentation. Two Members of the Court have questions to put to the Parties. To that
end, I shall now give the floor to Judge Bennouna. Judge Bennouna, you have the floor.
Judge BENNOUNA: Thank you, Mr.President. Mr.President, my question, which is
addressed to both Parties, is as follows: “To what extent and for which section(s) do each of the
Parties agree to refer to the1960 IGN map to estab lish the course of the frontier between them?”
Thank you, Mr. President. - 31 -
The PRESIDENT: Thank you, JudgeBennouna. I shall now give the floor to
Judge Donoghue. Vous avez la parole, Madame.
Juge DONOGHUE: Ma question qui s’adresse au x deux Parties est la suivante: «Les
Parties sont-elles liées, au regard du droit internatio nal, par les résultats de la démarcation de la
frontière auxquels il est fait référence au paragraphe 2 de l’article 2 du compromis ?» Merci.
40 The PRESIDENT: Merci, Madame la juge. The texts of the questions will be sent to the
Parties in writing as soon as possible. The Parties are invited to reply orally to the questions during
the second round of oral argument. With respect to the question put by Judge Bennouna, the
Parties may, if necessary, supplement in writing an y oral answer which they have provided. Any
such supplementary reply must be submitted no later than 24October2012 at 6p.m. Written
comments on the replies of the other Party may be presented no later than 31October2012 at
6 p.m.
The Court will meet again on Monday 15Octobe r at 10a.m. to hear BurkinaFaso in the
second round of oral argument. BurkinaFaso will present its final submissions at the end of the
sitting.
The Republic of Niger will take the floor on Wednesday 17 October at 3 p.m. for its second
round of oral argument. At the end of that sitting, Niger will present its final submissions.
I would point out that, in accordance with Article 60, paragraph 1, of the Rules of Court, the
oral statements are to be as succinct as possible. I would add that the purpose of the second round
of oral argument is to enable each of the Parties to reply to the arguments put forward orally by the
opposing Party or to the questions put by Members of the Court. The second round must therefore
not be a repetition of the arguments already set forth by the Parties, which are not obliged to use all
the time allotted to them. Thank you.
The sitting is closed.
The Court rose at 4.55 p.m.
___________
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