Rejoinder of Gabon

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
19796
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING LAND AND MARITIME DELIMITATION
AND SOVEREIGNTY OVER ISLANDS
(GABON/EQUATORIAL GUINEA)
REJOINDER
VOLUME I
6 March 2023
[Translation by the Registry]
TABLE OF CONTENTS
Page
INTRODUCTION ................................................................................................................................... 1
CHAPTER I: THE SUBJECT OF THE DISPUTE: IDENTIFICATION OF THE RELEVANT LEGAL TITLES ....... 3
I. The subject of the dispute submitted to the Court by the Special Agreement ........................... 4
II. The definition of “legal titles” within the meaning of the Special Agreement......................... 7
A. The confusion created by Equatorial Guinea between the possibility of a title
(entitlement) and the title itself ........................................................................................... 7
B. The “legal titles, treaties and international conventions” that can be invoked by the
Parties ............................................................................................................................... 12
III. Effectivités are irrelevant for the purposes of the present dispute ......................................... 15
CHAPTER II: THE BATA CONVENTION HAS THE FORCE OF LAW BETWEEN THE PARTIES ................ 20
I. The Bata Convention exists ..................................................................................................... 22
II. The Bata Convention is a treaty that is binding between the Parties...................................... 28
A. The text of the Bata Convention ....................................................................................... 29
B. The circumstances in which the Bata Convention was concluded .................................... 32
C. The subsequent conduct of the Parties does not affect the binding force of the Bata
Convention ........................................................................................................................ 33
CHAPTER III: THE LEGAL TITLES IN RESPECT OF THE LAND BOUNDARY ......................................... 37
I. The Bata Convention is a legal title concerning the delimitation of the land boundary ......... 37
II. The alleged modifications of the Paris Convention invoked by Equatorial Guinea have
no basis in law or fact ............................................................................................................ 43
A. There was no modification of the boundary in the Utamboni River area ......................... 44
1. The Paris Convention was not modified in accordance with its Article 8 and Annex I ..... 45
2. The contra legem effectivités invoked cannot establish or provide de facto
confirmation of a modification of the Paris Convention .................................................. 51
B. There was no modification of the boundary in the vicinity of the Kie River .................... 58
CHAPTER IV: THE TITLE RELATING TO SOVEREIGNTY OVER THE ISLANDS ..................................... 63
I. Equatorial Guinea has provided no evidence of its title to the islands in dispute .................... 63
A. The elements invoked by Equatorial Guinea are not capable of constituting a legal
title .................................................................................................................................... 64
B. The effectivités invoked by Equatorial Guinea cannot constitute a legal title ................... 68
C. The non-existent recognition of an alleged Spanish legal title over the islands in
dispute ............................................................................................................................... 70
1. The Paris Convention does not constitute, by creation or confirmation, a legal title
over the islands in dispute ................................................................................................ 70
2. The absence of subsequent recognition by either France or Gabon of any Spanish
legal title over the islands in dispute ................................................................................ 74
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II. The Bata Convention is the only legal title that has the force of law as regards the islands
in dispute ................................................................................................................................ 79
A. The context and significance of the 1972 tensions ........................................................... 79
B. The Bata Convention grants Gabon an unequivocal conventional title over the
islands in dispute ............................................................................................................... 83
C. Gabon has not renounced its conventional title ................................................................. 85
CHAPTER V: THE LEGAL TITLE IN RESPECT OF THE MARITIME BOUNDARY ..................................... 87
I. The Bata Convention is the only legal title that has the force of law between the Parties
in respect of maritime delimitation ........................................................................................ 87
A. The Bata Convention delimits the maritime boundary between Gabon and Equatorial
Guinea ............................................................................................................................... 87
B. The arguments of Equatorial Guinea in response are unconvincing ................................. 89
C. The Bata Convention prevails over the alleged titles invoked by Equatorial Guinea ....... 91
II. No title other than the Bata Convention exists that has the force of law between the
Parties in respect of maritime delimitation ............................................................................ 92
SUBMISSIONS .................................................................................................................................... 95
LIST OF ANNEXES ................................................................................................................................ I
INTRODUCTION
1. In accordance with the Court’s Order of 6 May 2022, the Republic of Equatorial Guinea
(hereinafter “Equatorial Guinea”) filed its Reply on 5 October 2022. Pursuant to the same Order, the
Gabonese Republic (hereinafter “Gabon”) was required to file a rejoinder by 6 March 2023 at the
latest. This Rejoinder is submitted in accordance with that decision.
2. While reasserting the positions adopted in its Counter-Memorial, for which it will furnish
additional supporting documents, Gabon will endeavour in this Rejoinder to respond to the
inaccuracies and errors identified in the Reply, while also refuting the many baseless claims of
Equatorial Guinea.
3. As a preliminary matter, Gabon notes that the Parties have entrusted the Court with a task
that is clearly defined in the Special Agreement, namely to determine which “legal titles, treaties and
international conventions invoked by the Parties” have the force of law “in so far as they concern the
delimitation of their common maritime and land boundaries and sovereignty over the islands of
Mbanié/Mbañe, Cocotiers/Cocoteros and Conga”. Yet Equatorial Guinea struggles to identify clearly
the titles on which it relies. In its submissions, it lists an assortment of alleged bases in no particular
order, leaving it to Gabon and the Court to decipher for themselves whether they are invoked
separately or cumulatively. This approach attests to the weakness of Equatorial Guinea’s position. In
contrast, Gabon’s submissions are clear and in accordance with the Special Agreement. They identify
the legal titles, treaties and conventions that have the force of law between the Parties in so far as
they concern the land and maritime boundaries and sovereignty over the islands in dispute.
4. As regards the subject of the dispute and the identification of the relevant titles (Chapter I),
Gabon will demonstrate that Equatorial Guinea confuses the various meanings of “legal title” with
the one envisaged in the Special Agreement, and that it equates the possibility of a title (entitlement)
with the legal title itself. Gabon will recall that, pursuant to the Special Agreement of 15 November
2016, the Parties can only invoke legal titles. In particular, it will be shown that effectivités do not
fall into this category and are therefore irrelevant.
5. With respect to the Bata Convention, Equatorial Guinea does not deny that this instrument
exists. As this Rejoinder will argue, this is because it is untenable to contend otherwise in light of the
evidence before the Court (Chapter II), including that submitted by Equatorial Guinea. However,
Equatorial Guinea seeks in vain to cast doubt on the validity and binding force of the Bata Convention
by invoking the subsequent conduct of the Parties. Although it has dispensed with the estoppel-based
argument put forward in its Memorial, the new arguments it raises are no more convincing.
6. As regards the legal titles that have the force of law in respect of the land boundary
(Chapter III), Gabon reaffirms that the Bata Convention is such a title and fixes the land boundary
between the two States. Since the Bata Convention describes the boundary in terms almost identical
to those used to describe the boundary established by the colonial Powers in Article 4 of the Paris
Convention, the text of Article 4 continues to reflect that title in part. Furthermore, despite Equatorial
Guinea’s attempts to negate the provisions of the Paris Convention, the colonial Powers never
approved any changes to it. Equatorial Guinea’s claims of modifications “in practice” and its reliance
on so-called infra legem effectivités remain entirely unfounded in law and fact.
7. As regards title to sovereignty over the islands (Chapter IV), Gabon first notes that
Equatorial Guinea has failed to establish its title over the islands in dispute, since the evidence on
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which it relies can no more constitute a legal title than can the alleged effectivités presented. Since
neither France nor Spain regarded the Paris Convention as giving title to the islands in dispute, the
Bata Convention is the only legal title with the force of law between the Parties in this regard.
Moreover, Gabon has never renounced this title; on the contrary, it has firmly and consistently
asserted its rights over Mbanié, Cocotiers and Conga.
8. In fact, Equatorial Guinea has great difficulty identifying the prevailing title for its island
claims. Its submissions refer to “the succession by the Republic of Equatorial Guinea to the title held
by Spain on 12 October 1968”, and no fewer than six separate elements of very different natures are
listed to explain the Spanish title: a treaty, four pieces of Spanish domestic legislation and Spain’s
alleged effective occupation of the islands in dispute. Equatorial Guinea’s silence on the nature of its
alleged title is no doubt due to the fact that none of these elements can constitute a title with the force
of law between the Parties as regards sovereignty over Mbanié, Cocotiers and Conga. In contrast,
Gabon’s position is clear: the Bata Convention definitively resolves the sovereignty dispute that
existed in respect of those islands between France and Spain during the colonial period and between
Gabon and Equatorial Guinea after their respective independence. Since then, Gabon has
continuously exercised sovereignty over that group of islands and there is thus nothing to suggest
that it has renounced its conventional title.
9. As regards the legal title relating to the maritime boundary (Chapter V), Equatorial
Guinea’s latest written pleading shows that the Parties agree in one fundamental respect: where an
agreement exists between the Parties on maritime delimitation, that title prevails over any other
instrument that might serve to delimit their common maritime boundary. That is now established. On
the other hand, the Parties disagree in two respects: first, whether such a delimitation agreement
exists, and, second, whether there are other legal titles with the force of law between them. In 1974,
Gabon and Equatorial Guinea concluded the Bata Convention, demarcating their common maritime
boundary along a line parallel to the 1° north parallel of latitude and creating enclaves around the
Equatorial Guinean islands of Corisco, Elobey Grande and Elobey Chico, which lie to the south of
that line and therefore in Gabon’s maritime area. The Bata Convention is thus the legal title with the
force of law between the Parties as regards their maritime delimitation.
10. The alleged titles invoked by Equatorial Guinea, namely the Paris Convention, the United
Nations Convention on the Law of the Sea (hereinafter “UNCLOS”) and customary international
law, are not legal titles with the force of law between the Parties. In its Reply, Equatorial Guinea’s
demonstrations are flawed and unconvincing. The alleged titles concerned are either silent on the
maritime delimitation (for example the Paris Convention, which simply establishes the land boundary
terminus), or merely evidence of the possibility of a title (entitlement) (for example UNCLOS and
customary international law), but in no way a title in themselves. The alleged titles invoked by
Equatorial Guinea are not titles with the force of law between the Parties as regards the maritime
delimitation and they are not capable of becoming so, whatever view the Court takes of the Bata
Convention. Indeed, in the unlikely event of the Court finding that the Bata Convention is not a legal
title with the force of law between the Parties in so far as it concerns maritime delimitation, the
elements invoked by Equatorial Guinea would still not be titles within the meaning of the Special
Agreement, and the Court would have no choice but to find that there is no legal title with the force
of law between the Parties as regards their maritime boundary.
11. Finally, this Rejoinder contains Gabon’s submissions and a list of annexes. It is
accompanied by 60 annexes, reproduced in Volume II.
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CHAPTER I
THE SUBJECT OF THE DISPUTE: IDENTIFICATION OF THE RELEVANT LEGAL TITLES
1.1 Article 1 of the Special Agreement of 15 November 2016 reads as follows:
“1. The Court is requested to determine whether the legal titles, treaties and
international conventions invoked by the Parties have the force of law in the
relations between the Gabonese Republic and the Republic of Equatorial Guinea in
so far as they concern the delimitation of their common maritime and land
boundaries and sovereignty over the islands of Mbanié/Mbañe, Cocotiers/Cocoteros
and Conga.
To this end:
2. The Gabonese Republic recognizes as applicable to the dispute the special
Convention on the delimitation of French and Spanish possessions in West Africa,
on the coasts of the Sahara and the Gulf of Guinea, signed in Paris on 27 June 1900,
and the Convention demarcating the land and maritime frontiers of Equatorial
Guinea and Gabon, signed in Bata on 12 September 1974.
3. The Republic of Equatorial Guinea recognizes as applicable to the dispute the
special Convention on the delimitation of French and Spanish possessions in West
Africa, on the coasts of the Sahara and the Gulf of Guinea, signed in Paris on 27 June
1900.
4. Each Party reserves the right to invoke other legal titles.”
1.2 These provisions — and in particular paragraph 1, which defines the dispute — must be
interpreted by applying the rules set out in Articles 31 and 32 of the Vienna Convention on the Law
of Treaties, whose customary status is recognized by both Parties1.
1.3 It is true that, as Equatorial Guinea asserts,
“Equatorial Guinea and Gabon are in agreement that the purpose of the Special
Agreement is for the Court to resolve completely the Parties’ dispute regarding the
applicable legal titles, treaties and international conventions ‘in so far as they concern
the delimitation of their common maritime and land boundaries and sovereignty over
the islands of Mbanié/Mbañe, Cocotiers/Cocoteros and Conga’.”2
1.4 Nevertheless, the Parties profoundly disagree about the extent of this “agreement”.
1.5 In its Memorial, Equatorial Guinea made only very general statements about the meaning
of the Special Agreement of 15 November 2016 and simply asserted that:
“The Special Agreement determines the Court’s jurisdiction, which extends to
deciding which of the legal titles, treaties and international conventions (‘Legal Titles’)
1 REG, Vol. I, para. 2.7.
2 Ibid., para. 2.15.
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invoked by either Party, in the Special Agreement or in the course of these proceedings,
have the force of law between the Parties.”3
1.6 Gabon, for its part, paid particular attention in its Counter-Memorial to the terms of
Article 1 of the Special Agreement and demonstrated:
(a) that this provision allows the Parties to invoke “legal titles”, in the sense of documentary
evidence;
(b) that any such evidence of sovereignty or sovereign rights, as expressly stated in the Special
Agreement, may only take the form of “treaties and international conventions”; and
(c) that more generally, neither effectivités nor an entitlement can be equated to “legal titles” within
the meaning of the Special Agreement4.
1.7 This prompted Equatorial Guinea to devote a little more time in its Reply to its
understanding of the terms of Article 1, paragraph 1, of the Special Agreement. First, it claims that
there is agreement between the Parties — which proves to be nothing more than a superficial
agreement — about the task entrusted to the Court by the Special Agreement5. It then misrepresents
Gabon’s position by claiming that the latter is asking the Court to limit its jurisdiction to deciding
only whether the Bata Convention is a legal title having the force of law between the Parties “in so
far as [it] concern[s] the delimitation of their common maritime and land boundaries and sovereignty
over the islands of Mbanié/Mbañe, Cocotiers/Cocoteros and Conga”6. Equatorial Guinea also argues
that “[i]t is therefore erroneous to suggest, as Gabon does on the basis of an artificial distinction
between title and entitlement, that certain juridical facts should not count as legal title”7. Later in its
Reply, Equatorial Guinea revisits at length the role of effectivités in the resolution of the present
dispute8.
1.8 In this chapter, in response to those allegations, Gabon will revisit the subject of the Special
Agreement and the task entrusted to the Court (I); it will then reiterate how “legal titles, treaties
and . . . conventions” should be understood within the meaning of the Special Agreement (II),
reasserting its position that effectivités have no role to play in resolving the dispute before the
Court (III).
I. The subject of the dispute submitted to the Court by the Special Agreement
1.9 In its Memorial, Equatorial Guinea had very little to say about the definition of the dispute
contained in Article 1 of the Special Agreement9. Content to reproduce the terms of the Special
Agreement almost word-for-word, it asserted:
3 MEG, Vol. I, para. 1.4.
4 See CMG, Vol. I, Chap. V, part II.
5 REG, Vol. I, paras. 2.1-2.3.
6 Ibid., paras. 2.4-2.6.
7 Ibid., para. 2.22 (fn. omitted).
8 Ibid., paras. 5.2-5.6.
9 See above, para. 1.1.
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“The Parties have seised the Court with jurisdiction to determine the Legal Titles
applicable to sovereignty over the three disputed islands (Mbañe, Cocoteros y Conga),
and identify the Legal Titles applicable to the delimitation of their land and maritime
boundaries.”10
1.10 Unfortunately, rather than standing by this — correct — assertion and drawing the
necessary conclusions, Equatorial Guinea refuted it throughout its Memorial. It followed this
statement with a factual account of the disputes (in the plural) between the two States concerning the
land and maritime delimitation, on the one hand, and sovereignty over the islands, on the other.
Despite intermittently claiming to be acting in strict compliance with the Special Agreement11,
Equatorial Guinea invited the Court to pronounce on facts and legal arguments far outside the limited
mandate conferred on it by the Parties.
1.11 This misleading presentation prompted Gabon, in its Counter-Memorial, to revisit the
scope of the task entrusted to the Court. The Special Agreement does not ask the Court to resolve
delimitation disputes or a dispute concerning sovereignty over the islands, but simply to settle a
preliminary dispute about the legal titles with the force of law between the Parties in so far as they
concern the delimitation of their common boundary and the attribution of sovereignty over certain
islands12.
1.12 In its Reply, Equatorial Guinea addresses the subject of the dispute before the Court in
greater detail. It asserts, first, that the Parties agree on the scope of the mandate conferred on the
Court, declaring that “[i]t has set out the facts in the Memorial exclusively for the purpose of
establishing the legal titles, treaties and conventions that Equatorial Guinea invokes under Article 1
of the Special Agreement”13.
1.13 However, Equatorial Guinea confuses the situation once again when it contends that “the
Parties agree that the Special Agreement asks the Court to decide on the legal effect of titles, treaties
and international conventions invoked by them”14, and when it postulates that the Court should verify
“the nature and effect” of the Bata Convention15. Gabon struggles to understand the meaning and
scope that Equatorial Guinea gives to the terms “legal effect” and “nature”, which are much used by
the latter in its Reply to describe the mandate conferred on the Court by the Special Agreement16
(even though, despite what it claims17, these expressions appear neither in its Memorial nor anywhere
in the text of the Special Agreement).
1.14 Next, distorting Gabon’s position, Equatorial Guinea posits that “[t]he Special Agreement
does not limit the Court’s Jurisdiction to deciding only whether the Document Gabon presented in
2003 is a Legal Title having the Force of Law between the Parties”18 and that “Gabon’s interpretation
10 MEG, Vol. I, para. 1.7.
11 Ibid., paras. 7.8 and 7.20.
12 See CMG, Vol. I, Chap. V, part I, paras. 5.5 et seq.
13 REG, Vol. I, para. 2.3.
14 Ibid., p. 6 (emphasis added).
15 Ibid., para. 2.6.
16 Ibid., paras. 2.1, 3.6, 3.81, 4.57.
17 Ibid., para. 2.1.
18 REG, Vol. I, p. 7.
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of the Special Agreement seek[s] to limit the Court’s task to merely answering one ‘yes’ or ‘no’
question, regarding the nature and effect, if any, of the document presented in 2003 (which it calls
the ‘Bata Convention’)”19.
1.15 This is not an accurate representation of the position of Gabon, which does not deny that
the Parties to the dispute before the Court may invoke several legal titles. Gabon simply notes that
one of the legal titles it invokes, the Bata Convention, supersedes the others in so far as it reaffirms
them in part, makes slight adjustments to them and fills any gaps they may contain.
1.16 Moreover, Article 1, paragraph 1, of the Special Agreement simply states that the Court
is called upon to determine which “legal titles, treaties and international conventions invoked by the
Parties” have the force of law between them. Although Equatorial Guinea is invited, just like Gabon,
to submit all “legal titles, treaties and international conventions” which it considers relevant within
the meaning of the Special Agreement, there is nothing to suggest that the Court is obliged to find
that several legal titles have the force of law between the Parties as regards the delimitation of their
common land and maritime boundaries, since one such title is sufficient to respond to the questions
of which it is seised. Logically, the Court cannot uphold several titles if those titles contradict one
another. In fact, it is not even obliged to uphold one, should it find that none of the legal titles invoked
by the Parties has the force of law for the purposes defined in the Special Agreement.
1.17 In its Counter-Memorial, Gabon listed a number of earlier cases showing, by analogy,
how the Special Agreement should be interpreted here20. Among those precedents, the North Sea
Continental Shelf cases are particularly helpful in clarifying the duties the Court is required to
perform. In those cases, in which Judgments were rendered in 1969, the parties asked the Court to
identify the rules applicable to the delimitation of their continental shelf. The Court responded by
stating in particular that:
“(A) the use of the equidistance method of delimitation [is] not . . . obligatory as between
the Parties; and
(B) there [is] no other single method of delimitation the use of which is in all
circumstances obligatory”21.
Despite finding no clear or established rule for the delimitation of continental shelves, the Court
nevertheless completely resolved the disputes submitted to it.
1.18 In the present case, the Court is not called on to determine the rules applicable to the
delimitation, but to identify which legal titles that may be invoked by the Parties in the context of
their broader dispute have the force of law. Just as in the Continental Shelf cases, the Court could,
for instance, “completely”22 resolve the dispute submitted to it by finding that none of the legal titles
invoked by the Parties has the force of law as regards, for example, sovereignty over the islands of
Mbanié, Cocotiers and Conga or the delimitation of the two States’ maritime boundary. In that event,
were the Court to uphold Equatorial Guinea’s position that the 1900 Paris Convention “did not create
19 Ibid., para. 2.6. See also ibid., paras. 2.12 and 2.20.
20 CMG, Vol. I, paras. 5.16 et seq.
21 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 53, para. 101.
22 REG, Vol. I, para. 2.15.
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new or separate legal title to [the] islands”23, while simultaneously refusing to recognize the Bata
Convention as having the force of law between the Parties in respect of the delimitation of their
common boundary, it would be for the Parties to negotiate with a view to concluding a new
agreement, just as they did for the Special Agreement whereby they were able to submit their dispute
concerning the legal titles applicable to the delimitation of their boundaries.
II. The definition of “legal titles” within the meaning of the Special Agreement
1.19 Unlike in its Memorial, Equatorial Guinea discusses in its Reply the meaning to be
attributed to the concept of “legal titles” mentioned in the Special Agreement. In so doing, it fails to
distinguish between the source (or possibility) of a title (entitlement) and the title itself (A), and
construes (too) broadly the concept of “legal titles”, which is nevertheless limited to conventional
titles by Article 1, paragraph 1, of the Special Agreement (B).
A. The confusion created by Equatorial Guinea between the possibility of a title (entitlement)
and the title itself
1.20 Equatorial Guinea contends in its Reply that “Gabon is wrong in dismissing, for example,
State succession as a source of legal title, when this is plainly a process under international law by
which titles belonging to the previous sovereign pass over to the successor State”24. According to
Equatorial Guinea, “[s]uccession is both the source of the rights of the successor State and a legal
title”25.
1.21 These statements are a good illustration of another confusion maintained by Equatorial
Guinea. As Gabon has already shown in its Counter-Memorial,
“Equatorial Guinea . . . confuses what forms the basis of a legal title and the
possibility of holding one (an entitlement), on the one hand, with possession of an actual
title, on the other. The Court is not called upon to pronounce on the possibility of the
Parties holding a legal title (their entitlement) but only on the possession of a legal
title”26.
1.22 In support of its position, Equatorial Guinea quotes Basdevant’s Dictionnaire de la
terminologie du droit international, which defines “title” as a “[t]erm which, taken in the sense of
legal title, means any fact, act or situation which is the cause and basis of a right”27. This definition
sits in Basdevant’s dictionary alongside another, which has not been reproduced by Equatorial
Guinea: “[d]ocument invoked with a view to establishing the existence of a right or status”28.
1.23 The Dictionnaire Salmon, for its part, reproduces the latter definition under letter C
(“proof of title”) and proposes two further alternative definitions for the term “title”: “A. Cause,
basis, substantive source of a right. In this case, one may speak of ‘cause of title’”; and “B. Legal
23 Ibid., para. 4.5.
24 Ibid., para. 2.22.
25 Ibid., para. 2.23.
26 CMG, Vol. I, para. 5.81.
27 REG, Vol. I, para. 2.24; J. Basdevant, Dictionnaire de la terminologie du droit international, Paris, Sirey (1960),
p. 604.
28 J. Basedevant, op. cit. (REG, Vol. V, Ann. 59), p. 605.
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operation constituting a mode by which a right is attributed. In this case, one may speak of ‘mode of
title’”29. These definitions vary, but Equatorial Guinea’s understanding of the term “title” does not
square with any of them. They suppose in turn:
(a) “cause of title” (negotium juris) — that the title invoked is the direct source of the sovereignty
or sovereign rights asserted by a State in respect of a given land or maritime area;
(b) “proof of title” (instrumentum) — that the title claimed is supported/demonstrated by a document
with an intrinsic value under international law;
(c) “mode of title” — that the title forming the source of the sovereign rights is conferred by the
operation in question.
1.24 The Court considered the concept of title in the Burkina Faso/Mali case:
“The term ‘title’ has in fact been used at times . . . in such a way as to leave
unclear which of several possible meanings is to be attached to it; some basic
distinctions may therefore perhaps be usefully stated. As the Chamber in the Frontier
Dispute case observed, the word ‘title’ is generally not limited to documentary evidence
alone, but comprehends ‘both any evidence which may establish the existence of a right,
and the actual source of that right’”30.
1.25 These two meanings correspond to the definitions of “cause of title” and “proof of title”.
1.26 As far as the attribution of territory and delimitation are concerned, the “cause of title” is
the source of a State’s sovereign rights in respect of a given area, i.e. the means of establishing
sovereignty or a boundary. As for “proof of title”, the Court stated in the same judgment that this
concerned any “document endowed by international law with intrinsic legal force for the purpose of
establishing territorial rights”31. However, not all the documents to which the Parties may refer have
this intrinsic legal force; this is particularly true of maps, at least when not annexed to a treaty
document32.
1.27 “Mode of title” must be considered separately. It refers solely to the mode of operation
by which sovereign rights may be acquired or claimed. Such “mode of title” may take various forms,
including State succession and uti possidetis juris.
1.28 Hence, Equatorial Guinea can only establish that it succeeded by one means or another
to the rights of Spain if it is able to demonstrate that one or more legal titles were held by the colonial
Power before Equatorial Guinea became independent. Anything else would render the “legal titles”
29 J. Salmon, Dictionnaire de droit international public, Bruylant, Bruxelles (2001), p. 1084.
30 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J.
Reports 1992, pp. 388-389, para. 45; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986,
p. 564, para. 18.
31 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 582, para. 54 (emphasis
added [sic]). See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002,
p. 667, para. 88; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (II), p. 723, para. 215; Kasikili/Sedudu Island (Botswana/Namibia), Judgment,
I.C.J. Reports 1999 (II), p. 1098, para. 84; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment,
I.C.J. Reports 2012 (II), p. 661, para. 100.
32 CMG, Vol. I, para. 5.88.
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mentioned in Article 1, paragraph 1, of the Special Agreement empty shells of indeterminate content,
and would in no way enable the dispute before the Court to be resolved.
1.29 It is in this sense alone that the Court likened succession to a title in the
Salvador/Honduras case, which is quoted by Equatorial Guinea, not without some confusion:
“[T]he ‘title’ of El Salvador or of Honduras to the areas in dispute, in the sense of the
source of their rights at the international level is, as both Parties recognize, that of
succession of the two States to the Spanish Crown in relation to its colonial territories;
the extent of territory to which each State succeeded being determined by the uti
possidetis juris of 1821.”33
1.30 This truncated passage does not have the general scope that Equatorial Guinea seeks to
attribute to it. In its entirety, it reads as follows:
“In one sense, the ‘title’ of El Salvador or of Honduras to the areas in dispute, in
the sense of the source of their rights at the international level is, as both Parties
recognize, that of succession of the two States to the Spanish Crown in relation to its
colonial territories; the extent of territory to which each State succeeded being
determined by the uti possidetis juris of 1821.”34
1.31 On the basis of this passage, it appears that succession could, “in one sense”, be seen as
a “title”. But the very general conclusion that Equatorial Guinea draws from this is far too hasty35.
1.32 In the Salvador/Honduras case, the Court was not asked to rule on only the applicable
titles, as it is in this case, but
“1. [t]o delimit the boundary line in the zones or sections not described in Article 16 of
the General Treaty of Peace of 30 October 1980[; and]
2. [t]o determine the legal situation of the islands and maritime spaces.”36
1.33 Although the Court likened “succession” to a “title” when it proceeded to delimit the land
boundary between El Salvador and Honduras, it nevertheless immediately sought to determine the
actual title or basis of the right upon which one or other of the parties could rely to justify its claims
over the disputed territory. It stated after the passage mentioned by Equatorial Guinea:
“Secondly, . . . a ‘title’ might be furnished by, for example, a Spanish Royal
Decree attributing certain areas to one of those [units]. As already noted, neither Party
has been able to base its claim to a specific boundary line on any ‘titles’ of this kind
applicable to the land frontier.”37
33 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J.
Reports 1992, p. 389, para. 45, quoted in English in REG, Vol. I, para. 2.23.
34 Emphasis added.
35 REG, Vol. I, para. 2.22.
36 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J.
Reports 1992, p. 357, para. 3.
37 Ibid., p. 389, para. 45.
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1.34 This distinction between the mode of attribution of a title and the legal title itself held by
a State over a land or maritime area can be seen in other judgments of the Court. In its Counter-
Memorial, Gabon referred to the case concerning the Territorial and Maritime Dispute between
Nicaragua and Colombia. In that case, the Court confirmed that “‘[t]he title of a State to the
continental shelf and to the exclusive economic zone is based on the principle that the land dominates
the sea through the projection of the coasts or the coastal fronts’”38. However, the Court went on to
state, still in accordance with that rule, that it was “concerned in [those] proceedings only with . . .
Colombian entitlements”, and thus refused to consider that the rule in itself constituted a title39.
1.35 Other examples can be given of instances in which the Court has identified the distinction
to be made between the “legal title” or right of a State and its source or the means by which it is
created or transmitted (entitlement). In the Nicaragua v. Honduras case, the Court declared that it
was:
“thus of the view that the Honduran authorities issued fishing permits with the belief
that they had a legal entitlement to the maritime areas around the islands, derived from
Honduran title over those islands.”40
1.36 In other words, the Court made a clear distinction between, on the one hand, the legal
title that Honduras believed it held over those islands and, on the other, the potential rights that
Honduras might have in respect of the surrounding maritime areas as a result.
1.37 In succeeding a predecessor State, a successor State may of course potentially accede to
sovereign rights in respect of a given territory. However, according to the widely accepted definition
of succession of States, this expression covers only “the replacement of one State by another in the
responsibility for the international relations of territory”41. Succession therefore concerns only the
means by which a right (in this instance, a territorial title) is transmitted, and it cannot as such
constitute either the title itself or proof of its existence. From time to time, Equatorial Guinea
helpfully distinguishes between “legal title” and “succession”, such as when it claims, for example,
that “[a]fter its independence in 1968, Equatorial Guinea continued to administer the Utamboni River
Area consistent with the legal title it inherited from Spain”42. The succession of States is not a title
in itself: it is the principle that allows a pre-existing title to pass over to a new holder, who “inherits”
it — the title remains the same; it is its holder that changes.
38 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 674,
para. 140, p. 680, para. 151. See also ibid., p. 674, para. 140.
39 CMG, Vol. I, para. 5.82, referring to Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment,
I.C.J. Reports 2012 (II), p. 674, para. 140 and p. 680, para. 151. See also ibid., p. 692, para. 181.
40 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (II), p. 718, para. 195.
41 Vienna Convention on Succession of States in respect of Treaties, 23 Aug. 1978, Vienna, United Nations, Treaty
Series (UNTS), Vol. 1946, p. 3, Art. 2, para. 1 (b); Vienna Convention on Succession of States in respect of State Property,
Archives and Debts, 8 Apr. 1983, Vienna, United Nations, Official Records of the United Nations Conference on
Succession of States in Respect of State Property, Archives and Debts, Vol. II, Art. 2, para. 1 (a). See also United Nations
General Assembly resolution 55/153, [30 Jan. 2001], Annex: Nationality of natural persons in relation to the succession of
States, Art. 2 (a); Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment,
I.C.J. Reports 1992, p. 598, para. 399.
42 REG, Vol. I, para. 5.48.
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1.38 The same is true, mutatis mutandis, of the similar kind of confusion that Equatorial
Guinea creates around the principle of uti possidetis juris, in equating “the principle of respect for
boundaries inherited from their colonial predecessors” with a legal title43.
1.39 Moreover, Equatorial Guinea contradicts itself when it claims, for example, that:
“Uti possidetis juris thus gave permanence to the boundary established in the
1919 Agreement and the report of the 1901 Commission, in the same way that it gave
permanence to the administrative limits of Spain in the Americas and France in
Africa”44.
Equatorial Guinea therefore considers the only valid legal titles to be the alleged Agreement of 1919
and the report of the 1901 Commission — which Gabon disputes45 — and not, rightly, the principle
of uti possidetis juris itself46.
1.40 The confusion fabricated by Equatorial Guinea is even more apparent when it relies on
“the application of international treaties regarding the law of the sea, notably UNCLOS”47. It states
in this regard that:
“under both UNCLOS and customary international law, the Parties’ titles and
entitlement to the territorial sea, exclusive economic zone, and continental shelf
emanate from their titles to insular and continental land territory.[48] These titles
unquestionably ‘concern’ the delimitation of their maritime boundary. As numerous
international courts and tribunals have recognized, ‘the land dominates the sea’”49.
1.41 Here too, Equatorial Guinea is seeking to establish the basis of a claim to a title
(entitlement) as the title itself. In other words, Equatorial Guinea recognizes that (once established)
the title of a State over a given territory allows that State to claim, in the adjacent maritime area, a
territorial sea, an exclusive economic zone and a continental shelf. But there is nothing automatic
about this process: these areas must still be delimited or, in the case of the continental shelf,
delineated; the titles to sovereignty or to the sovereign rights of the coastal State in respect of these
areas are to be constituted by the agreement that the States concerned must conclude to that end, or
by the legally binding decision of a judicial or arbitral body50. UNCLOS itself cannot therefore be
established as a legal title or as evidence thereof.
1.42 Gabon’s interpretation of Article 1 of the Special Agreement is largely confirmed by the
context in which the terms of this provision appear and by the context, object and purpose of the
Special Agreement as a whole. “An arbitration agreement . . . is an agreement between States which
43 Ibid., para. 3.66.
44 Ibid., para. 5.66. See also ibid., para. 3.67.
45 See below, paras. 3.51-3.61.
46 REG, Vol. I, para. 5.48.
47 Ibid., para. 3.67.
48 Ibid., fn. 456: “See Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of
America), Judgment, I.C.J Reports 1984, p. 245, para. 103”.
49 Ibid., para. 6.10. See also, more generally, paras. 6.7-6.11.
50 See in particular the United Nations Convention on the Law of the Sea, 10 Dec. 1982, Montego, UNTS,
Vol. 1834, No. 31363, Arts. 74, 83.
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must be interpreted in accordance with the general rules of international law governing the
interpretation of treaties” which form part of the rules of interpretation set out in Article 31 of the
Vienna Convention on the Law of Treaties51.
1.43 As Gabon has already pointed out52, the immediate context of Article 1, paragraph 1, of
the Special Agreement consists first and foremost of the three other paragraphs of that article, which
are relevant for the interpretation of paragraph 1. Paragraphs 2 and 3 mention only two “legal titles”,
both treaties, which are documentary evidence of the existence of a State’s sovereignty over a
territory or of its sovereign rights in respect of a maritime area. Listed as “legal titles” which might
be invoked as having “the force of law in the relations between the Gabonese Republic and the
Republic of Equatorial Guinea in so far as they concern the delimitation of their common maritime
and land boundaries and sovereignty over the islands of Mbanié/Mbañe, Cocotiers/Cocoteros and
Conga” are thus the Paris Convention of 27 June 1900 and the Bata Convention of 12 September
1974, easily encompassed by the phrase “treaties and . . . conventions” which appears after “legal
titles” in paragraph 1. Paragraphs 2, 3 and 4 of Article 1 of the Special Agreement were included
solely for the purpose of implementing paragraph 1, as illustrated by the phrase “to this end” which
appears between paragraphs 1 and 2. It is therefore in the light of this restrictive wording that
paragraphs 2 and 4 must be interpreted.
1.44 Furthermore, the very object and purpose of the Special Agreement is to enable the
dispute (in the singular) between the Parties to be resolved. This dispute, Gabon recalls, is concerned
exclusively with the disagreement about which “legal titles” have “the force of law in the relations
between the Gabonese Republic and the Republic of Equatorial Guinea in so far as they concern the
delimitation of their common maritime and land boundaries and sovereignty over the islands of
Mbanié/Mbañe, Cocotiers/Cocoteros and Conga”.
1.45 Equating succession to a legal title — in other words, to a document establishing the
legitimacy of the sovereignty claimed — cannot therefore relieve Equatorial Guinea of the need to
demonstrate the prior existence of the title which is said to have been transmitted. Equatorial Guinea
cannot claim that Spain transmitted legal titles to it, if Spain’s rights have not been established: nemo
potest plus iuris transferre quam ipse habeat53. Moreover, as Article 1, paragraph 1, of the Special
Agreement provides, the Parties are invited to submit to the Court only “legal titles, treaties and
international conventions” that have the force of law.
B. The “legal titles, treaties and international conventions” that can be invoked by the Parties
1.46 In its Counter-Memorial, Gabon paid particular attention to the meaning to be attributed
to the phrase “legal titles, treaties and international conventions”. As it showed, the phrase “treaties
and international conventions” offers an important clarification as to how the term “legal titles”,
immediately preceding it in the same provision, should be understood54. Equatorial Guinea has
disputed this interpretation in its Reply, but has failed to provide any convincing evidence.
51 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, p. 69, para. 48.
52 See above, para. 1.2.
53 Island of Palmas case, 4 Apr. 1988, Reports of International Arbitration Awards (RIAA), Vol. II, p. 842; French
translation in Revue Générale de droit international public, Vol. XLII, 1935, p. 164.
54 CMG, Vol. I, para. 5.70.
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1.47 According to Equatorial Guinea, Gabon’s interpretation of Article 1, paragraph 1, of the
Special Agreement is
“obviously contrary to the text of the Special Agreement, which lists distinct sources of
legal rights that the Court must assess: legal titles, in addition to treaties and
international conventions. There is nothing in the text that indicates or implies that
‘treaties and international conventions’ are intended to constitute the only sources of the
‘legal titles’ referred to in Article 1(1). There are many possible formulations the
drafters could have used to express this intention, had it been the case, but they chose
not to use them.”55
1.48 In support of its position, Equatorial Guinea contends that
“[t]he Court has repeatedly ruled that the interpretation of a special agreement must not
render any of its provisions ‘devoid of purport or effect’. If, as Gabon asserts, ‘legal
titles’ means only ‘treaties and international conventions’, the term ‘legal titles’ would
be deprived of any ‘purport or effect’. The drafters of the Special Agreement could have
referred to ‘treaties and international conventions’ without mentioning ‘legal titles’, but
that is not what they chose to do. Rather, they included the latter term, which in common
usage and international law has a different and broader meaning than ‘treaties and
conventions’.”56
1.49 Like Equatorial Guinea, Gabon considers that the interpretation of the Special
Agreement, as an international treaty, requires each of the terms used therein to have a distinct
meaning57. Gabon’s position respects this: the Parties may invoke various “legal titles”, within the
meaning of that term as clarified by the phrase “treaties and international conventions”. The Parties
could have chosen simply to refer to “treaties and international conventions”, but in so doing would
have extended the subject of the dispute, since not all “treaties and international conventions” are
“legal titles”58. The Parties could also have chosen to use only the term “legal titles” — they chose,
however, to add the phrase “treaties and international conventions”, thereby clarifying (and, at the
same time, restricting) the titles that may be invoked by the Parties in this case.
1.50 Conversely, the principle of effet utile for the purposes of interpretation undermines the
position advanced by Equatorial Guinea: if, by including the term “legal titles” in Article 1,
paragraph 1, of the Special Agreement, the Parties had intended to permit the invoking of any title,
they would not have added “treaties and international conventions” immediately thereafter, since
these are, quite obviously, legal titles which may be invoked. It is the alternative interpretation of
this provision put forward by Equatorial Guinea that deprives of any useful effect the inclusion of
this term in Article 1, paragraph 1, of the Special Agreement, which has exactly the same meaning
whether or not it is accompanied by the phrase “treaties and international conventions”.
1.51 Equatorial Guinea claims that “Gabon’s interpretation in effect rewrites the text of
Article 1 by eliminating the term ‘legal title’”59. The rewriting is actually being done by Equatorial
Guinea, which even admits as much when it states that “the Court must assess: legal titles, in addition
55 REG, Vol. I, para. 2.11.
56 Ibid., para. 2.12; fn. omitted.
57 Ibid., para. 2.10.
58 See above, para. 1.43.
59 REG, Vol. I, para. 2.11.
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to treaties and international conventions”60, even though the phrase “in addition to” does not appear
in Article 1, paragraph 1, of the Special Agreement.
1.52 Moreover, Equatorial Guinea disregards the context and general structure of the Special
Agreement which Gabon described in its Counter-Memorial61. Its interpretation of Article 1,
paragraph 1, of the Special Agreement is confirmed by paragraphs 2 and 3 of that article. Hence the
only things mentioned as “legal titles” having the force of law between the Parties as regards their
common land and maritime boundary and sovereignty over the islands of Mbanié, Cocotiers and
Conga are the 1900 Paris Convention and the 1974 Bata Convention, for Gabon, and the 1900 Paris
Convention, for Equatorial Guinea — both of which are instruments of a purely conventional
nature — which suggests that, when the Special Agreement was under discussion, Equatorial Guinea
was not thinking about the succession of States or the principle of uti possidetis or UNCLOS, the
many pseudo-titles “discovered” ex post when it realized that the Paris Convention did not allow for
the subsequent resolution of all the boundary and island disputes between the Parties.
1.53 The travaux préparatoires, as relevant evidence for confirming the interpretation of the
Special Agreement62, also support Gabon’s interpretation. Thus, in a Note addressed to the United
Nations mediator in March 2001, Gabon drew attention to the fact that “the Parties themselves have
resolved these matters by agreement. The dispute between them should be limited to their acceptance
of the titles’ relevance for the sole purposes of their normal application”. In the same Note, Gabon
went on to state that it “could not agree to any wording about the subject of the dispute to be submitted
to the Court which would usurp this understanding”63. Moreover, an earlier version of Article 1,
paragraph 1, of the Special Agreement provided that:
“The Court is requested to determine whether the legal titles invoked by the
Parties have the force of law in the relations between the Gabonese Republic and the
Republic of Equatorial Guinea in so far as they concern the exercise of sovereignty over
the islands of Mbanié/Mbañe, Cocotiers/Cocoteros and Conga, and the delimitation of
their common boundaries.”64
1.54 Article 1, paragraph 1, of the draft Special Agreement mentioned only “legal titles”,
without further clarification.
1.55 Following this draft agreement of 19 January 2016, Gabon put forward new wording for
Article 1 of the Special Agreement. This proposal sought, among other things, to include the phrase
“treaties and international conventions” after “legal titles”65. The very purpose of Gabon’s proposal,
60 Ibid. (emphasis added).
61 CMG, Vol. I, para. 5.70.
62 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, p. 69, para. 48;
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 21-22, para. 41.
63 Commission for the Gabon/Equatorial Guinea Dispute, Observations of the Gabonese delegation on the new
draft Article 1 regarding the subject of the dispute as put to the Parties at the end of the final mediation session, Geneva,
29-30 Mar. 2001 (RG, Vol. II, Ann. 52), p. 4, para. 7.1.2.
64 See Note of Luigi Condorelli, 21 July 2011 (RG, Vol. II, Ann. 54) reproducing the draft Special Agreement as
suggested in the letter of the Mediator dated 13 July 2011. See also Note of Luigi Condorelli, 30 Apr. 2012 (RG, Vol. II,
Ann. 55) reproducing the draft Special Agreement as annexed to the letter of the Mediator of 26 Apr. 2012. See also Draft
Special Agreement, 31 Oct. 2013 (RG, Vol. II, Ann. 56); Draft Special Agreement, 19 Jan. 2016 (RG, Vol. II, Ann. 57).
65 Draft Special Agreement, 19 Jan. 2016 (RG, Vol. II, Ann. 57).
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which was to become the wording used in the Special Agreement, was to clarify the category of legal
titles that could be invoked by the Parties, limiting them to treaties and conventions alone.
III. Effectivités are irrelevant for the purposes of the present dispute
1.56 Despite the limitations on the titles that may be invoked by the Parties under the Special
Agreement, Equatorial Guinea pays them no heed, invoking effectivités at every opportunity so that
they become the alpha and the omega of the “titles” on which it relies, and making them say
something they do not. Article 1, paragraph 1, of the Special Agreement refers only to legal titles,
however, and makes no mention of effectivités. And, as Equatorial Guinea acknowledges66,
“effectivités” are not comparable to “legal titles”. Equatorial Guinea clearly recognizes this, in
particular by systematically adding the phrase infra legem to its references to effectivités67; by
Equatorial Guinea’s own admission, therefore, effectivités can by definition be infra titulum only.
1.57 This distinction between the two concepts is reflected more generally in the Judgment of
the Chamber of the Court in Burkina Faso/Mali, on which Equatorial Guinea largely relies, and in
which the Court very clearly distinguishes between legal titles and effectivités:
“As the Court has repeatedly made clear, the legal relationship between
effectivités and legal title ‘must be drawn among several eventualities’:
(i) ‘where effective administration is additional to the uti possidetis juris, the only
role of effectivité is to confirm the exercise of the right derived from a legal
title’;
(ii) ‘where the territory which is the subject of the dispute is effectively
administered by a State other than the one possessing the legal title, preference
should be given to the holder of the title’;
(iii) where ‘the effectivité does not co-exist with any legal title, it must invariably
be taken into consideration’; and
(iv) where ‘the legal title is not capable of showing exactly the territorial expanse
to which it relates’, ‘effectivités can then play an essential role in showing how
the title is interpreted in practice’”68.
1.58 Each of these four hypotheses calls for a brief comment in view of the specific
circumstances of the present case, it being recalled that the Special Agreement only authorizes the
Court to rule on the relevance of the legal titles on which the Parties rely.
1.59 Claiming that it is demonstrating the first hypothesis (confirmatory effectivités),
Equatorial Guinea refers back to its Memorial:
“the Memorial documented numerous unchallenged administrative acts and
agreements — infra legem effectivités — during the colonial period and after
66 See below, para. 1.57.
67 See, in particular, REG, Vol. I, paras. 5.2-5.5, 5.33, 5.37; MEG, Vol. I, paras. 6.32, 6.33, 6.35, 6.37, 6.38, 6.40.
68 REG, Vol. I, para. 5.3, quoting the Court’s Judgment in the case concerning Frontier Dispute (Burkina
Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63. The quotations from the Frontier Dispute
case are included in French in the original text. They appear in English in Equatorial Guinea’s Reply.
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independence, which confirmed the agreed adjustments, or gave rise to a separate source
of legal title”69.
1.60 Equatorial Guinea presents those “agreed adjustments” as “based on Article 8 and
Annex 1 of the [1900 Paris] Convention prior to the independence of Equatorial Guinea and
Gabon”70. It goes without saying, however, that they could only be “confirmed by effectivités”,
whatever those effectivités may be, if the alleged “adjustments” were made in accordance with the
Paris Convention. As Gabon has already demonstrated71 — and to which subject it will return below,
in the chapter on the legal title that has the force of law between the Parties as regards the delimitation
of their common land boundary72 — no subsequent modification was made to the Paris Convention
confirming a change to the land boundary between the two States.
1.61 Moreover, to illustrate these confirmatory effectivités, Equatorial Guinea mentions at
length a range of evidence presented as “infra legem effectivités”. Thus, reference is made to a draft
treaty from 1966 whose object is not boundary delimitation and which was neither ratified nor
applied by Gabon or Spain73, the existence of a church74 and even forestry concessions75. Discussions
regarding the veracity of these elements and their presentation aside76, it is difficult to see how they
would constitute effectivités.
1.62 As for the claim that these alleged infra legem effectivités “gave rise to a separate source
of legal title”, this runs counter to the second “Burkina Faso/Mali” hypothesis, which does not allow
effectivités alone to contradict a title as defined above77. It is also in direct contradiction with the
Court’s position in the Burkina Faso/Niger case, in which the Court reaffirmed that “[w]hile an
effectivité may enable an obscure or ambiguous legal title to be interpreted, it cannot contradict the
applicable title”78. Indeed, if that were the case, it would no longer be infra legem but, quite clearly,
contra legem. Only the clear and mutual consent of the two Parties could transform these contra
legem effectivités into infra legem effectivités.
1.63 Aware of this requirement of consent and having to acknowledge the clear lack of a
relevant agreement outside the Paris and Bata Conventions, Equatorial Guinea thus seeks to argue
that infra legem effectivités may establish the existence of the acquiescence of first France and then
Gabon79. In so doing, Equatorial Guinea is not simply invoking effectivités as confirmation of the
existence of a title, but wrongly equating those purported effectivités with titles. It is thus disregarding
the principles that it has itself nevertheless recalled earlier in its Reply: effectivités cannot be treated
as titles, and when effectivités contradict a title, the title prevails. As previously established by the
69 Ibid., Vol. I, para. 5.2.
70 See, in particular, REG, Vol. I, paras. 2.19, 5.4.
71 CMG, Vol. I, paras. 1.41 et seq., 7.28 et seq.
72 See below, paras. 3.23-3.61.
73 REG, Vol. I, paras. 5.38 et seq., 5.69-5.70. See also CMG, Vol. I, para. 2.56; below, para. 3.48.
74 REG, Vol. I, para. 5.86.
75 Ibid., para. 5.45. See also below, para. 3.48.
76 See below, paras. 3.23-3.61.
77 See above, para. 1.57.
78 Frontier Dispute (Burkina Faso/Niger), Judgment, I.C.J. Reports 2013, p. 79, para. 78. See also ibid., para. 79.
See Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 120, para. 47, and pp. 148-149, para. 141.
79 REG, Vol. I, para. 5.51.
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1922 Arbitral Award in the boundary dispute between Colombia and Venezuela, “[e]ncroachments
and untimely attempts at colonization from the other side of the boundary, as well as de facto
occupations, [are] without importance and without consequence in law”80.
1.64 Equatorial Guinea’s position is in complete contradiction with the second hypothesis put
forward by the Court: “where the territory which is the subject of the dispute is effectively
administered by a State other than the one possessing the legal title, preference should be given to
the holder of the title”81. In founding the existence of France’s and Gabon’s acquiescence on alleged
infra legem effectivités, Equatorial Guinea is wrongly equating titles with effectivités and
disregarding the primacy of the former over the latter.
1.65 Moreover, the Court has previously rejected a similar argument as part of the
Cameroon v. Nigeria case. Having established the existence of a title concerning the delimitation of
the boundary between those two States, the Court found that the effectivités invoked by Nigeria in
support of its argument that there was acquiescence to a modification could be regarded only as
contra legem effectivités which could not displace the title82.
1.66 Likewise, in the Libya/Chad case, the Court considered that
“the effectiveness of occupation of the relevant areas in the past, and the question
whether it was constant, peaceful and acknowledged, are not matters for determination
in this case . . . The 1955 Treaty completely determined the boundary between Libya
and Chad.”83
1.67 The same is true in this case, in which the Parties agree on the existence of the 1900 Paris
Convention and on its characterization as a legal title with the force of law between them; the alleged
subsequent effectivités invoked by Equatorial Guinea to the south of the 1° north parallel of latitude
and to the east of the 9° east of Paris meridian, if established, would therefore be only contra legem
effectivités incapable of constituting a new title taking the place of the Paris Convention.
1.68 Regarding the third hypothesis envisaged by the 1986 Judgment, the Chamber of the
Court considered that where “the effectivité does not co-exist with any legal title, it must invariably
be taken into consideration”84. Despite the difficulty in determining how “taken into consideration”
should be understood, Gabon does not in any way question this position; nevertheless, it should be
noted that this hypothesis does not fall within the framework of the task entrusted to the Court in the
Special Agreement. As the preamble and Article 1 state, the dispute exclusively concerns the
identification of the legal titles having the force of law between the Parties. The Court is not required
to examine the existence, relevance and relative strength of effectivités which could remedy the lack
80 Arbitral Award of 24 Mar. 1922, Affaire des frontières Colombo-vénézuéliennes (Colombia v. Venezuela), RIAA,
Vol. I, p. 228.
81 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63.
82 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 351, para. 64.
83 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 38, para. 76. See also
Minquiers and Ecrehos (France/United Kingdom), Judgment, I.C.J. Reports 1953, p. 67; Sovereignty over Pulau Ligitan
and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 678, para. 127.
84 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63.
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of a legal title85. If it were to consider that, in this case, there is no legal title that has the force of law
between the Parties as regards the delimitation of their common land and maritime boundaries and
sovereignty over the islands, it would be confined to making such a finding and to referring the
Parties to peaceful means of settling their dispute.
1.69 Even though the alleged infra legem effectivités cannot confirm the existence or take the
place of a title, Equatorial Guinea contends that such evidence could be used for the interpretation in
practice of the titles having the force of law between the Parties in the fourth hypothesis envisaged
in the 1986 Judgment, according to which, where “the legal title is not capable of showing exactly
the territorial expanse to which it relates”, “effectivités can then play an essential role in showing
how the title is interpreted in practice”86. However, it is not a question of interpretation here;
Equatorial Guinea is relying on effectivités to justify, on the pretext of interpretation, a change to the
conventional title which established abstract lines, and which is now said to fix natural limits for the
delimitation of the boundary between the two States.
1.70 Equatorial Guinea claims that the Parties “disagree on the territorial areas covered by
their legal titles”87. To get around this purported uncertainty, it invokes all the infra legem effectivités
previously mentioned, and maps88. Unless the latter are annexed to the text of a treaty, thereby
becoming part of the treaty89 — which is not the case for the maps in question — neither constitutes
a title. Consequently, this fourth hypothesis calls for the same observations as the one before it:
neither the effectivités nor the maps constitute evidence that the Court can take into consideration in
settling the dispute submitted to it by the Parties.
1.71 Gabon does not deny that there is a land and boundary dispute between the Parties
concerning the areas covered by the legal titles on which the Parties rely90. Here too, however, as
regards the task entrusted to the Court in the Special Agreement, Gabon and Equatorial Guinea have
not empowered the Court to take a position on that dispute; they have simply asked it to determine
which “legal titles” have the force of law “in so far as they concern the delimitation of their common
maritime and land boundaries and sovereignty over the islands of Mbanié/Mbañe,
Cocotiers/Cocoteros and Conga”91.
1.72 The most compelling illustration of Equatorial Guinea’s attempts to equate the discussion
on effectivités to a delimitation dispute is to be found in Chapter 5 of its Reply. In the section entitled
“Continuous and Unchallenged Infra Legem Effectivités”, Equatorial Guinea presents what it
describes as effectivités, which it then illustrates on various sketch-maps purportedly showing what
the land boundary would look like, were the Court to accept the alleged effectivités presented to it by
Equatorial Guinea92. In so doing, Equatorial Guinea is transforming the dispute regarding the
determination of which legal titles have the force of law between the Parties in so far as they concern
85 See above, paras. 1.9-1.18.
86 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63.
87 REG, Vol. I, para. 5.4. See also ibid., para. 4.2.
88 See in particular MEG, Vol. II, figures 3.11, 3.12, 3.13. See also REG, Vol. II, figures R5.5 and R5.6.
89 Sovereignty over Certain Frontier Land (Belgium/Netherlands), Judgment, I.C.J. Reports 1959, p. 220. See also
CMG, Vol. I, para. 5.88.
90 CMG, Vol. I, paras. 5.6, 5.35 and 5.48.
91 See in this regard the statements put forward on this subject by Gabon in its Counter-Memorial not disputed by
Equatorial Guinea (CMG, Vol. I, paras. 5.5-5.55).
92 See in particular Equatorial Guinea’s figures R5.10 and R5.11.
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the delimitation of their land boundary into an outright delimitation dispute. For the reasons set out
in this chapter93, and those already put forward in its Counter-Memorial94, Gabon considers that the
Court does not have jurisdiction to settle such a dispute.
Conclusion
1.73 It follows from the above that:
(a) whatever the confusion created by Equatorial Guinea between the possibility of a title or the
means by which it is transmitted (entitlement) and the title itself, Equatorial Guinea is obliged to
demonstrate the existence of a title over all the land and island territories and over the maritime
boundary, as mentioned in the Special Agreement of 15 November 2016;
(b) as agreed by the Parties in Article 1, paragraph 1, of the Special Agreement, the Parties are
invited to present all “legal titles, treaties and international conventions” having the force of law
between them in so far as they concern the delimitation of their common boundary and
sovereignty over Mbanié, Cocotiers and Conga. They have complete freedom to this end, within
the confines of this wording — confines which do not allow for the inclusion of effectivités.
93 See above, paras. 1.9-1.18.
94 CMG, Vol. I, Chap. V.I.A.
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CHAPTER II
THE BATA CONVENTION HAS THE FORCE OF LAW BETWEEN THE PARTIES
2.1 In its Counter-Memorial, Gabon demonstrated: (a) the existence of the Bata Convention, a
certified copy of which was sent to the Ambassador of France to Gabon in October 1974; and (b) that
the Bata Convention is a treaty which is binding on the Parties95. These two questions are distinct: one
is factual and the other legal. Nevertheless, Equatorial Guinea confuses the two. Thus, while arguing in
its Reply that the Bata Convention is not a “final and binding treaty establishing legal titles”96, it
repeatedly calls into question the Convention’s very existence. The Court must therefore first determine
whether the Bata Convention exists, by examining the body of evidence corroborating its existence (I).
Should it answer this question in the affirmative, it must then decide the separate question whether the
Bata Convention is a treaty, by assessing the Parties’ intent as reflected in the text of the Convention
and the circumstances of its adoption (II).
2.2 By way of a preface to its argument, Equatorial Guinea lists “twelve propositions [that] appear
not to be disputed by Gabon” concerning the Bata Convention97. This list contains several false or
misleading representations of Gabon’s position. These need to be corrected.
(a) Contrary to what Equatorial Guinea claims, Gabon does not “bear[] the evidential burden of proving
the authenticity of the document”98. In accordance with the principle of onus probandi incumbit
actori, it is in fact the duty of the party that asserts certain facts to establish the existence of such
facts. Therefore, if Equatorial Guinea has doubts about the authenticity of the 1974 certified copy
of the Bata Convention submitted to the Court by Gabon, it is incumbent on Equatorial Guinea to
prove that the document is inauthentic99.
(b) Equatorial Guinea asserts that “no original of the document has ever been produced”100. Although
it is true that it has not been possible to locate an original copy of the Convention, the certified copy
on which Gabon bases its argument is the one sent by President Bongo to the French Ambassador
to Gabon on 28 October 1974101. It is thus not of “dubious origin” as Equatorial Guinea claims102.
In the covering letter, President Bongo confirms that he has enclosed “two certified copies, in
95 CMG, Vol. I, Chap. VI.
96 REG, Vol. I, p. 28.
97 Ibid., para. 3.7.
98 Ibid., para. 3.7(1).
99 CMG, Vol. I, para. 6.25 and citations: Sovereignty over Certain Frontier Land (Belgium/Netherlands), Judgment,
I.C.J. Reports 1959, p. 224. See also Iran-United States Claims Tribunal, Abrahim Rahman Golshani v. The Government of
the Islamic Republic of Iran, Final Award No. 546-812-3, 2 Mar. 1993, para. 49, in which the Tribunal held: “The Tribunal
believes that the analysis of the distribution of the burden of proof in this Case should be centred around Article 24, paragraph 1
of the Tribunal Rules which states that ‘[e]ach party shall have the burden of proving the facts relied on to support his claim
or defence.’ It was the Respondent who, at one point during the proceedings in this Case, raised the defence that the Deed is a
forgery. Specifically, the Respondent has contended that the Deed, dated 15 August 1978, was in fact fabricated in 1982.
Having made that factual allegation, the Respondent has the burden of proving it. However, the Tribunal need only concern
itself with the question whether the Respondent has met that burden if the Claimant has submitted a document inspiring a
minimally sufficient degree of confidence in its authenticity. It is therefore up to the Claimant first to demonstrate prima facie
that the Deed is authentic.”
100 REG, Vol. I, para. 3.7(3).
101 Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V, Ann. 155).
102 REG, Vol. I, para. 3.7(5).
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French and Spanish, of the boundary convention that President [Macías] Nguema Biyoghe and I
signed at Bata on 12 September of this year”103.
(c) Equatorial Guinea attempts to cast doubt on the reliability of the certified copy submitted to the
Court by Gabon, noting that “the Spanish version is cut off at the bottom of the signature page such
that the names of the signatories and anything written below the signatures is not shown”104. While
the names of the signatories are partially cut off in the certified copy of the Spanish version of the
Convention105, the signatures and initials of both Presidents are nevertheless clearly visible in both
versions (as shown below)106.
French version
Spanish version
(d) Equatorial Guinea continues to argue that “there are material differences between the alleged
photocopies of the document on which Gabon now seeks to rely”107. However, it is the certified
copy of the signed original of the Convention in French and Spanish, sent by the President of Gabon
to the Ambassador of France to Gabon in 1974108, on which Gabon relies, and not the retyped
version later submitted to the Secretariat of the United Nations109 (nor any other copy of the Bata
Convention).
(e) Equatorial Guinea also claims, without explanation, that there are “material differences . . . as
between the French and Spanish versions of the document”. These differences are not “material”,
but minor. They have no bearing on the existence of the Bata Convention or its validity110. Under
the Convention, the two versions, “in the French and Spanish languages, [are] equally authentic”.
103 Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V, Ann. 155).
104 REG, Vol. I, para. 3.7(3).
105 Ibid.
106 Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V, Ann. 155).
107 REG, Vol. I, para. 3.7(4).
108 Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V, Ann. 155).
109 CMG, Vol. I, fn. 507.
110 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, UNTS, Vol. 1155, No. 18232, p. 331, Art. 33.
(“When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the
treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.”)
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(f) Furthermore, Equatorial Guinea wrongly states that Gabon does not deny that “the document
presented by Gabon, rather than reflecting a final agreement on the Parties’ disputed sovereignty
and boundary issues, contains material provisions requiring the Parties to take specific steps to
resolve these issues”111. However, in its Counter-Memorial, Gabon showed that the provisions of
the Bata Convention are clear, final and of immediate effect112. As Gabon demonstrated in its
Counter-Memorial and will further demonstrate below113, the mere fact that the delimitation
recorded in the Convention was subject to a subsequent demarcation does not affect that
instrument’s binding force.
(g) Equatorial Guinea is wrong in contending that the lack of parliamentary ratification of the Bata
Convention confirms that “Gabon understood that no treaty has been concluded”114. On the
contrary: as stated in the Counter-Memorial, President Bongo declared that “[i]t was a
convention . . . and not a treaty, in order to avoid parliamentary ratification, which could have been
used as a pretext for a further challenge or even a calling into question of the agreement”115. The
absence of parliamentary ratification is thus merely the result of President Bongo’s interpretation
of Gabon’s constitutional provisions. It is without consequence at the international level.
(h) Equatorial Guinea’s allegation that “Gabon falsely represented to the UN Secretary-General that
the Parties had no reservations or objections to the document despite the fact that Equatorial Guinea
had protested its authenticity from the moment that Gabon first presented it on 23 May 2003”116 is
equally inadmissible. The letter sent by Gabon to the Secretary-General certified that no reservation,
declaration or objection was made during the signing of the Bata Convention, under Article 5,
paragraph 5, of the Regulations to give effect to Article 102 of the Charter of the United Nations117.
Equatorial Guinea does not claim to have made any such reservation or declaration during the
signing.
I. The Bata Convention exists
2.3 In its Reply, Equatorial Guinea does not deny that the Bata Convention exists, or at least not
explicitly, as it did in 2004118. It merely contends that Gabon has failed to prove the document’s
authenticity119. However, as Gabon stated in its Counter-Memorial, the Convention’s authenticity is
established by the signatures and initials of the two Presidents under the rules codified in the Vienna
111 REG, Vol. I, para. 3.7(7).
112 CMG, Vol. I, paras. 6.36-6.53.
113 Ibid. See also below, paras. 2.24-2.25, 3.2-3.18.
114 REG, Vol. I, para. 3.7(9).
115 See Dispatch No. 141/DAM from the Ambassador of France to Gabon to the French Minister for Foreign Affairs,
7 Nov. 1974 (CMG, Vol. V, Ann. 156), p. 3.
116 REG, Vol. I, para. 3.7(10).
117 Resolution 97(1) of the United Nations General Assembly, 14 Dec. 1946, modified by resolutions 364-B (IV), 482
(V), 33/141-A and 73/210, adopted by the General Assembly on 1 Dec. 1949, 12 Dec. 1950, 19 Dec. 1978, 20 Dec. 2018 and
9 Dec. 2021, respectively (“In the case of multilateral treaties or agreements, the certifying statement shall include, in addition
to the information described in paragraph 4 of this article: (a) A list of all the parties to the treaty or international agreement,
indicating the date of deposit of each party’s instrument of consent to be bound, the nature of such instrument (ratification,
approval, acceptance, accession, etcetera) and the date of entry into force of the treaty for each party; and (b) A certification
that it includes all reservations or declarations made by parties thereto.”).
118 Objection relating to the authenticity of the Convention: Equatorial Guinea, 7 Apr. 2004 (MEG, Vol. VII,
Ann. 219).
119 REG, Vol. I, para. 3.38.
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Convention on the Law of Treaties120. If Equatorial Guinea objects to the document’s admission because
it believes it to be inauthentic, it is incumbent on Equatorial Guinea to prove this inauthenticity121.
2.4 Equatorial Guinea seeks to reverse the burden of proof because it is untenable to argue that
the Bata Convention does not exist or is inauthentic, in view of the evidence before the Court.
2.5 First, the certified copy of the Bata Convention was sent by President Bongo to the
Ambassador of France to Gabon in the month following its conclusion and has been held ever since in
the archives of the French Ministry of Foreign Affairs122. Equatorial Guinea does not dispute the
authenticity of the letter. It clearly had access to the French archives while preparing its Reply and was
therefore able to consult the original document and its attachment. Despite this, it seeks to diminish the
letter’s probative value by describing it as “a letter from President Bongo to the French Ambassador in
Gabon of 28 October 1974 by which he transmits to the Ambassador a photocopy of a document he
calls a ‘convention’”123. Equatorial Guinea fails to state, however, that Gabon did not unilaterally decide
to call this document a “convention”: the word appears at the top of the document appended to the letter.
That document is the Bata Convention, on which Gabon relies.
2.6 Second, the signatures of the two Presidents which appear on the certified copy of the Bata
Convention match those affixed to other documents from the same era, the existence and authenticity
of which are not in dispute124. Equatorial Guinea does not contest this fact.
2.7 Third, contrary to Equatorial Guinea’s argument125, there is an array of indirect evidence
corroborating the existence of the Bata Convention126. In particular, Equatorial Guinea has included in
the case file a letter dated 25 February 1977 from the Spanish Embassy in Gabon, which undeniably
confirms the Convention’s existence. The Spanish Ambassador writes that he is enclosing a copy of the
instrument, explaining that the Convention had been “signed but not publicized”127. Despite Gabon’s
best efforts, it has not been able to locate that letter or its attachments in the Spanish archives128.
Contrary to Equatorial Guinea’s assertions, the letter in no way indicates that Gabon’s Minister for
120 CMG, Vol. I, para. 6.26.
121 Ibid., para. 6.25 and citations.
122 Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V, Ann. 155).
123 REG, Vol. I, para. 3.9(iii).
124 CMG, Vol. I, para. 6.12. See e.g. Letter from the President of Gabon to the President of Equatorial Guinea, 30 Aug.
1972 (CMG, Vol. V, Ann. 120); Letter from the President of Equatorial Guinea to the Secretary-General of the United Nations,
21 Jan. 1969 (CMG, Vol. V, Ann. 110); Letter from the President of Equatorial Guinea to the Secretary-General of the United
Nations, 30 Aug. 1969 (CMG, Vol. V, Ann. 111).
125 REG, Vol. I, paras. 3.14 et seq.
126 See CMG, Vol. I, paras. 6.10-6.23.
127 Letter No. 84 from the Director-General of the Spanish Ministry of Foreign Affairs to the Ambassador of Spain to
Equatorial Guinea, 25 Feb. 1977 (REG, Vol. IV, Ann. 44), transmitting Letter No. 85 from the Spanish Ambassador to
Libreville to the Spanish Minister for Foreign Affairs (Equatorial Guinea’s translation of the Spanish: “acuerdo firmado, que
no se dió a la publicidad”). It should be noted that, under Gabonese constitutional law, the publication of international treaties
and agreements merely grants those instruments precedence over internal laws (See Constitutional Law No. 1/61 promulgating
the Constitution of the Gabonese Republic, 21 Feb. 1961 (RG, Vol. II, Ann. 7, Art. 54).
128 Note Verbale No. 1514 from the Spanish Ministry of Foreign Affairs, 30 Nov. 2022 (RG, Vol. II, Ann. 58); Note
Verbale No. 0613/23/ARGRERPGOMT/CABCMD/og from the Embassy of Gabon in Spain, 25 Jan. 2023 (RG, Vol. II,
Ann. 59); Note Verbale No. 1/14 from the Spanish Ministry of Foreign Affairs, 14 Feb. 2023 (RG, Vol. II, Ann. 60).
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Foreign Affairs had declared that the Bata Convention “has fallen by the wayside for now”129. In fact,
this remark is merely the opinion of the Spanish Ambassador to Gabon, and not that of a Gabonese
representative. In any event, the comment confirms the existence of the Bata Convention.
2.8 Moreover, Gabon appended to its Counter-Memorial an audiovisual report from 1974
containing images of President Bongo’s visit to Equatorial Guinea. Equatorial Guinea disputes the
relevance of this footage on the ground that the Bata Convention is not mentioned in it130. It claims that
the report “merely refers to talks between President Macias and President Bongo, which reportedly did
no more than make it possible to ‘definitively resolve’ the sovereignty and boundary disputes”131.
Equatorial Guinea’s position is contradicted by the report, which confirms that the boundary dispute
between the two States was resolved during the presidential visit:
“The talks between the two Heads of State made it then possible to resolve
definitively the question of the delimitation of the boundaries between Equatorial Guinea
and Gabon. This is a significant step which disposes of what for both countries has at times
been a vexed issue.”132
2.9 Gabon also furnished an article from the newspaper L’Union from 20 September 1974 which
corroborates the existence of the Bata Convention. According to Equatorial Guinea, this article confirms
that “what was produced at the conclusion of that meeting, if anything, was nothing more than a ‘final
communiqué’”133. However, the L’Union article includes an excerpt from the final communiqué signed
by the two States; that final communiqué makes reference to the “sign[ing of] a convention on the
delimitation of the land and maritime boundaries between the Gabonese Republic and the Republic of
Equatorial Guinea”134. The same final communiqué was also reproduced in a letter of 25 September
1974 by the Spanish Ambassador to Gabon135. It can thus be concluded that both a final communiqué
and the Bata Convention were signed on 12 September 1974. Despite Equatorial Guinea’s denials136, it
is therefore evident that President Bongo was indeed referring to the Bata Convention and not to a final
communiqué in his letter of 28 October 1974 to the French Ambassador to Gabon137.
2.10 Contrary to what Equatorial Guinea claims, the Bata Convention’s existence is also
corroborated by numerous pieces of diplomatic correspondence from the time. These either explicitly
refer to or describe the substance of the treaty concluded between the Parties on 12 September 1974. In
particular, in addition to the correspondence described in Gabon’s Counter-Memorial138, the signing of
the Bata Convention was also relayed in Spanish diplomatic correspondence from the time. For
example, in a letter dated 10 October 1974, the Spanish Ambassador to Libreville confirmed that a
129 REG, Vol. I, para. 3.56; Letter No. 84 from the Director-General of the Spanish Ministry of Foreign Affairs to the
Ambassador of Spain to Equatorial Guinea, 25 Feb. 1977 (REG, Vol. IV, Ann. 44) (Equatorial Guinea’s translation of the
original Spanish: “Ha quedado en agua de borrajas, por ahora”).
130 REG, Vol. I, para. 3.10.
131 Ibid., para. 3.10.
132 Audiovisual report on the State visit of President Bongo to Equatorial Guinea and its transcription (CMG, Vol. II,
Ann. V2) (emphasis added).
133 REG, Vol. I, para. 3.12.
134 “‘Tout est réglé!’ avec la Guinée Équatoriale”, L’Union, 20 Sept. 1974 (CMG, Vol. V, Ann. 150).
135 Letter No. 191 from the Ambassador of Spain to Gabon to the Spanish Ministry of Foreign Affairs, 25 Sept. 1974
(RG, Vol. II, Ann. 45).
136 REG, Vol. I, para. 3.13.
137 Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V, Ann. 155).
138 See CMG, Vol. I, paras. 3.17-3.25.
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boundary agreement between Equatorial Guinea and Gabon had been signed during President Bongo’s
visit to Bata on 12 September 1974139. He also recounted statements made by the Ambassador of
Equatorial Guinea to Gabon, Clemente Ateba Nso, who confirmed that Equatorial Guinea had
renounced the border dispute between the two States140.
2.11 Similarly, in October 1974, the Spanish Ambassador to Malabo reported that President
Macías Nguema had expressed his gratitude to Spain “for having discovered the existence of a
Gabonese enclave beyond the first parallel, in the area of Medouneu (Acurenán district), information
of which he was unaware and which he ha[d] been able to use in his negotiations with the Gabonese
president”141. This is reflected in the Bata Convention, Article 2 of which provides for an exchange of
land areas along the boundary in the area of Medouneu.
2.12 The Bata Convention is also mentioned in a 1984 information note sent by the French
Embassy in Malabo to the Ministry of Foreign Affairs of Equatorial Guinea142. This note, sent further
to a request for information from the President of Equatorial Guinea, stated: “The maritime limits set
between Equatorial Guinea and Gabon are those fixed by the Convention of 12 September 1974”143.
Gabon is not aware of any response from Equatorial Guinea to this Note Verbale. Nevertheless, the note
confirms that Equatorial Guinea could not have been “taken completely by surprise”144 in May 2003,
when Gabon reminded it of the existence and content of the Convention.
2.13 In its Reply, Equatorial Guinea seeks to reinterpret to its advantage the diplomatic exchanges
from that time. It maintains, for example, that Gabon cannot rely on two diplomatic cables — French
and US — reporting on the statement made by President Bongo on his return from Bata in September
1974, since they “do no more than report on the same unilateral statement by President Bongo at his
press conference at Libreville Airport”145. However, these accounts corroborate the substance of
President Bongo’s declaration as reported by the newspaper L’Union. Therefore, Gabon has every right
to rely on them. In addition, the United States diplomatic cable not only relays President Bongo’s
statement, it also reports that a “French Embassy source says agreement acknowledges Gabonese rights
to Mbagne island in exchange for concessions by Gabon along its northwest border area”146. This
description is in keeping with the agreement reflected in the Bata Convention.
2.14 Equatorial Guinea also denies that President Macías Nguema’s speech to representatives of
the diplomatic corps in October 1974 confirms the existence of the Bata Convention147. It claims that
this speech shows that a land boundary agreement was signed on the condition that compensation would
139 Letter No. 209 from the Ambassador of Spain to Gabon to the Spanish Ministry of Foreign Affairs, 10 Oct. 1974
(RG, Vol. II, Ann. 47).
140 Ibid.
141 Letter No. 568/74 from the Ambassador of Spain to Equatorial Guinea to the Spanish Minister for Foreign Affairs,
9 Oct. 1974 (RG, Vol. II, Ann. 46). Translation of the original Spanish: “Por haberle descubierto la existencia de un enclave
gabonés por encima del paralelo 1, en la zona de Medoune (distrito de Acurenán), información que ignoraba y que ha permitido
utilizarla en sus negociaciones con el Presidente Gabonés”.
142 Note Verbale No. 83/AL/84 from the Embassy of France in Malabo to the Ministry of Foreign Affairs of Equatorial
Guinea, 22 Mar. 1984 (RG, Vol. II, Ann. 49).
143 Ibid., p. 2.
144 REG, Vol. I, para. 3.7(12).
145 Ibid., para. 3.14.
146 Telegram No. 1139 from the United States Embassy in Cameroon to the US Secretary of State, 14 Sept. 1974
(CMG, Vol. V, Ann. 149).
147 REG, Vol. I, para. 3.18.
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be paid148. However, during the speech, the President of Equatorial Guinea confirmed that “Bongo has
categorically refused to grant any type of compensation” and that this refusal “would not result in any
problem to Equatorial Guinea”149. Equatorial Guinea also disregards the fact that its President’s
description of the reciprocal concessions is in line with the Bata Convention and thus confirms its
existence. In particular, the President of Equatorial Guinea recognized that:
(a) The two Heads of State had discussed the question of boundaries at Bata150.
(b) The two Presidents had agreed to “an exchange of territories with an equal surface area”151. This
exchange is provided for in Article 2 of the Bata Convention. The report of the British authorities
on the speech in question confirms that this agreement about an exchange of territories resolved the
dispute relating to the land boundary152.
(c) Equatorial Guinea “had completely relinquished its sovereign rights over M’Banie, Cocotier and
Conga”153. This agreement is recorded in Article 3 of the Bata Convention.
(d) Equatorial Guinea had consented to “grant Gabonese vessels a right of innocent passage through its
territorial waters, in exchange for the same treatment for its vessels in Gabonese territorial
waters”154. This description is in line with Article 5 of the Bata Convention.
2.15 President Macías Nguema’s attempt to cast doubt on the binding force of the agreement,
notably as regards the maritime boundary, cannot deny the existence of the Convention or contradict
the clear terms employed by the Parties therein155.
2.16 Equatorial Guinea also claims that the letter of the French Ambassador to Gabon of
7 November 1974 “evidences more of a disagreement between the two Parties, and their failure to
conclude a treaty”156. Yet in that letter, the French Ambassador reported in unequivocal terms on what
had been said by President Bongo: “it had . . . been possible to draw up an agreement and for the two
148 Ibid.
149 Letter No. 582/74 from the First Secretary of the Spanish Embassy in Malabo to the Spanish Ministry of Foreign
Affairs, 16 Oct. 1974 (REG, Vol. IV, Ann. 40). Equatorial Guinea’s translation of the original Spanish: “Bongo se ha negado
rotundamente a cualquier tipo de compensación” and “que esto no supone ningún problema para Guinea Ecuatorial”.
150 Dispatch No. 43/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs at the French Ministry of Foreign Affairs, 14 Oct. 1974 (CMG, Vol. V, Ann. 153) (“It was because
the [Gabonese experts] had failed to reach agreement with their counterparts from Equatorial Guinea in Malabo that the matter
was raised in Bata at the level of the two Heads of State.”). See also Letter No. 582/74 from the First Secretary of the Spanish
Embassy in Malabo to the Spanish Ministry of Foreign Affairs, 16 Oct. 1974 (REG, Vol. IV, Ann. 40).
151 Dispatch No. 43/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs at the French Ministry of Foreign Affairs, 14 October 1974 (CMG, Vol. V, Ann. 153), p. 4.
152 Summary of the address given by President Macías Nguema to members of the diplomatic corps, 13 Oct. 1974,
Foreign and Commonwealth Office (REG, Vol. IV, Ann. 32); Letter from the Chargé d’affaires of the Spanish Embassy in
Malabo to the Spanish Ministry of Foreign Affairs, 16 Oct. 1974 (REG, Vol. IV, Ann. 40).
153 Dispatch No. 43/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs at the French Ministry of Foreign Affairs, 14 Oct. 1974 (CMG, Vol. V, Ann. 153). See also Summary
of the address given by President Macías Nguema to members of the diplomatic corps, 13 Oct. 1974, Foreign and
Commonwealth Office (REG, Vol. IV, Ann. 32); Letter from the Chargé d’affaires of the Spanish Embassy in Malabo to the
Spanish Ministry of Foreign Affairs, 16 Oct. 1974 (REG, Vol. IV, Ann. 40) (“With respect to Islet of Mbañe, President Macias
asserted that he had already ceded it to Gabon”).
154 Dispatch No. 43/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs at the French Ministry of Foreign Affairs, 14 Oct. 1974 (CMG, Vol. V, Ann. 153), p. 6.
155 See below, paras. 2.23-2.31.
156 REG, Vol. I, para. 3.22.
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Heads of State to sign a convention, dated 12 September”157. Furthermore, contrary to Equatorial
Guinea’s contention158, the description of the agreement given by President Bongo and reported in that
letter matches the one given by the President of Equatorial Guinea in October 1974159. Indeed, the
Gabonese President confirmed that sovereignty over Mbanié had been accorded to Gabon and that
exchanges of territories had been agreed along the land boundary160.
2.17 Similarly, the United States diplomatic cable of 29 April 1975 confirms that an agreement
was concluded between Gabon and Equatorial Guinea in 1974161. To argue the contrary, Equatorial
Guinea focuses on a single sentence in the document which reads “Gabonese-Equatorial Guinean border
problem [is] far from solved and may indeed be heating up”162. It fails to mention, however, that
according to the United States Ambassador, this dispute was due to the fact that “[Macías] feels last
year’s ‘settlement’ was imposed upon him by Bongo” and that the “maritime bound[a]ry settlement
[was] also very shaky”163. The post-1974 boundary dispute between the Parties thus has its origins in
Equatorial Guinea’s questioning of the Bata Convention. This position is supported by the letter of the
French Ambassador to Equatorial Guinea of 28 November 1976, in which he confirmed that the Bata
Convention had been signed, but described difficulties in the relations between the two States164.
2.18 Finally, Equatorial Guinea relies on certain diplomatic correspondence which suggests that
no agreement was concluded during the meeting between the two Presidents in September 1974165. The
majority of this correspondence was sent by the French and Spanish Ambassadors stationed in
Equatorial Guinea, where the political climate was opaque166. They frequently complained about how
difficult it was to obtain information on the negotiations between the two States167. Indeed, the evidence
before the Court suggests that neither Ambassador was aware of the actual text of the Bata Convention
until the end of 1976 and the beginning of 1977, respectively168. Their professed ignorance at the end
of 1974 has no bearing on the existence of the Bata Convention; what is more, in diplomatic
157 Dispatch No. 141/DAM from the Ambassador of France to Gabon to the French Minister for Foreign Affairs,
7 Nov. 1974 (CMG, Vol. V, Ann. 156), p. 2.
158 REG, Vol. I, para. 3.22.
159 See above, para. 2.14.
160 See Dispatch No. 141/DAM from the Ambassador of France to Gabon to the French Minister for Foreign Affairs,
7 Nov. 1974 (CMG, Vol. V, Ann. 156), p. 2.
161 Telegram No. 621 from the United States Embassy in Gabon, 29 Apr. 1975 (CMG, Vol. V, Ann. 159)
162 REG, Vol. I, para. 3.25.
163 Telegram No. 621 from the United States Embassy in Gabon, 29 Apr. 1975 (CMG, Vol. V, Ann. 159).
164 Dispatch No. 255/DAM/2 from the Ambassador of France to Equatorial Guinea to the French Minister for Foreign
Affairs, 28 Nov. 1976 (CMG, Vol. V, Ann. 160)
165 REG, Vol. I, paras. 3.15-3.17, 3.31; Dispatch No. 40/DA/DAM-2 from the Ambassador of France to Equatorial
Guinea to the Directorate of African and Madagascan Affairs at the French Ministry of Foreign Affairs, 2 Oct. 1974 (CMG,
Vol. V, Ann. 152); Letter from the Spanish Ambassador to Malabo to the Spanish Ministry of Foreign Affairs 25 Sept. 1974
(REG, Vol. IV, Ann. 34).
166 See e.g. Letter from the Spanish Ambassador to Malabo to the Spanish Ministry of Foreign Affairs, 25 Sept. 1974
(REG, Vol. IV, Ann. 34); Letter from the French Ambassador to Malabo to the French Ministry of Foreign Affairs, 17 Sept.
1974 (REG Vol. IV, Ann. 33). See also Information note from the Gabonese police sent to the French Ministry of Foreign
Affairs, 13 July 1972 (RG, Vol. II, Ann. 20).
167 See e.g. Letter No. 524/74 from the Ambassador of Spain to Equatorial Guinea to the Spanish Ministry of Foreign
Affairs, 2 Oct. 1974 (REG, Vol. IV, Ann. 38).
168 Letter No. 84 from the Director-General of the Spanish Ministry of Foreign Affairs to the Spanish Ambassador to
Malabo, 25 Feb. 1977 (REG, Vol. IV, Ann. 44).
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correspondence of 1979, the French Embassy in Equatorial Guinea confirmed that the Convention
existed. On 7 November 1979, the French Ambassador wrote:
“To my knowledge, the convention of 12 September 1974 is still in force. Indeed,
the new authorities made clear from the beginning that they intended to respect the treaties
and conventions signed by the previous régime and would only seek their revision if the
interests of the country warranted it.”169
2.19 In any event, the few documents that cast doubt on the existence of the Bata Convention
must be considered in the light of the vast body of evidence before the Court. For example, the undated
report of unknown authorship from the French Embassy in Gabon, which states that in 1974 a draft
agreement “was, in the end, not signed”, cannot undermine the existence of the Bata Convention170. It
is contradicted by numerous documents, emanating in particular from the French Embassy in Gabon,
which confirm that the Bata Convention was signed171, and, above all, by the certified copy of the
document signed by the two Heads of State172.
II. The Bata Convention is a treaty that is binding between the Parties
2.20 In its Counter-Memorial, Gabon demonstrated that the Bata Convention is a treaty under
international law because: (a) it satisfies the conditions for the conclusion of a treaty under international
law as set out in the Vienna Convention; and (b) the text of the Convention and the context in which it
was concluded confirm the clear and unequivocal intent of the Parties to be bound under international
law173.
2.21 In its Reply, Equatorial Guinea maintains that the Bata Convention is not a binding
instrument establishing a legal title. Equatorial Guinea’s argument is centred on its interpretation of the
circumstances in which the Bata Convention was concluded174 and the conduct of the Parties after it
was signed175. It claims that the evidence presented by Gabon is insufficient “to support its allegation
that on 12 September 1974 the Parties concluded a final and binding agreement”176. Equatorial Guinea
fails to mention, however, that foremost among the evidence put forward by Gabon is the certified copy
of the Convention.
169 Telegram No. 269/72 from the Embassy of France in Malabo to the Ministry of Foreign Affairs, 7 Nov. 1979 (RG,
Vol. II, Ann. 48).
170 REG, Vol. I, para. 3.36.
171 See e.g. Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V,
Ann. 155); Telegram No. 691/692 from the Embassy of France in Gabon to the French Ministry of Foreign Affairs, 13 Sept.
1974 (CMG, Vol. V, Ann. 148); Dispatch No. 141/DAM from the Ambassador of France to Gabon to the French Minister for
Foreign Affairs, 7 Nov. 1974 (CMG, Vol. V, Ann. 156).
172 Dispatch No. 141/DAM from the Ambassador of France to Gabon to the French Minister for Foreign Affairs,
7 Nov. 1974 (CMG, Vol. V, Ann. 156).
173 CMG, Vol. I, Chap. VI(III).
174 REG, Vol. I, Chap. 3(I).
175 Ibid., Chap. 3(II).
176 Ibid., para. 3.9.
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2.22 In accordance with the Court’s jurisprudence177, the binding force of the Convention is
established by the very text of that instrument (A) and by the circumstances in which it was
concluded (B). This binding force is not and cannot be undermined by the subsequent conduct of the
Parties (C).
A. The text of the Bata Convention
2.23 The intention of the parties is the principal factor by which a non-legally binding instrument
may be distinguished from a treaty178. This intention is inferred primarily from the terms used by the
parties in the instrument in question179. Equatorial Guinea does not and cannot contest this fundamental
rule of interpretation. However, it disregards the clear and unequivocal terms contained in the Bata
Convention180. In its Reply, Equatorial Guinea makes no mention of the following elements, in
particular:
(a) The instrument is entitled “Convention demarcating the land and maritime frontiers of Equatorial
Guinea and Gabon”.
(b) Its preamble recalls that the Parties “[c]onside[r] that treaties and conventions constitute an
important means of developing peaceful cooperation between nations, irrespective of their political
regimes”, and “[d]esir[e] to lay firm foundations for peace between their two countries, notably by
definitively establishing their common land and maritime frontiers”.
(c) The Parties are designated “High Contracting Parties” in the Convention.
(d) Under the Convention, each Party “cedes” land areas to the other.
(e) The Parties “recognize” Gabon’s sovereignty over the island of Mbanié and Equatorial Guinea’s
sovereignty over the Elobey Islands and the island of Corisco.
(f) The two States agree to grant guarantees and facilities to each other’s ships on a reciprocal basis
and to conclude arrangements relating to border relations, as provided for in the Paris Convention.
(g) The Bata Convention also contains final clauses of the type characteristic of treaties, including the
possibility to settle disputes in accordance with Article 33 of the Charter of the United Nations, the
place and date of signature, the number of original copies and the language versions, both of which,
it is stated, are equally authentic.
2.24 Disregarding these provisions, which are difficult to overlook, Equatorial Guinea claims
that the Bata Convention cannot be a treaty because “it required the Parties to take additional steps to
resolve the territorial issues and conclusively establish their boundaries”181. Nevertheless, Equatorial
Guinea accepts Professor Shaw’s contention that “the fact that an instrument provides for modification
by mutual agreement of its terms does not detract from the fact that a fully delimited frontier line has
177 Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment, I.C.J. Reports 1961,
pp. 31-32; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1994, pp. 120-122, para. 27.
178 CMG, Vol. I, paras. 6.32-6.33.
179 Ibid., para. 6.35.
180 See ibid., paras. 6.36-6.53.
181 REG, Vol. I, para. 3.38.
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been established”182. The Parties’ disagreement is about the existence of a boundary delimitation within
the Bata Convention.
2.25 “Delimitation” is the process of describing a boundary line in words before that line is
marked on the ground183. The Bata Convention undeniably describes the Parties’ common boundaries.
(a) Articles 1 and 2 describe the land boundary between the two States. In particular, they set out the
starting-point of the boundary line and its course in relation to specific lines of latitude and
longitude184. As stated in the Counter-Memorial and in Chapter III below185, these articles merely
envisage a subsequent demarcation exercise aimed at determining the “precise” land areas “ceded”
by each Party under Article 2 of the Convention, and the “marking” of the boundaries186.
(b) Article 4 describes the maritime boundary by reference to a line of latitude and by establishing the
starting-point of the boundary. It also provides for water areas of the precise dimensions stated.
Equatorial Guinea does not dispute that this article describes a boundary, but it claims that the
boundary is not final owing to the nota bene187. Contrary to what Equatorial Guinea contends, the
nota bene does not state that Article 4 of the Bata Convention “was a placeholder for an agreement
yet to be reached”188. It envisages a “new text”, which would modify and replace Article 4. The
nota bene is thus nothing more than an agreement between the Parties to conclude a further
agreement. The fact remains that, when the Bata Convention was signed, the Parties were
nonetheless in agreement about the initial text of Article 4, which describes in unequivocal terms
the maritime boundary between the two States. There is nothing to suggest that the Parties wished
to deprive this article of binding force until it was modified. This conclusion is in keeping with the
Court’s reasoning in the Libya/Chad case189. In any event, the nota bene, which refers to Article 4
alone, cannot undermine the binding force of the Bata Convention as a whole.
2.26 Nor do the other arguments raised by Equatorial Guinea concerning the text of the Bata
Convention cast doubt on the objective intention of the Parties to conclude a treaty.
2.27 First, disregarding the Court’s jurisprudence190, Equatorial Guinea asserts that the
provisions of the Bata Convention concerning the instrument’s entry into force do not confirm that the
Parties intended it to be binding191. It refers in this regard to the statements made by President Macías
Nguema, as relayed by Equatorial Guinea’s Minister for Foreign Affairs in 1984. According to the
latter, the President added a handwritten note to the Convention at its signing, stating “that this text is
182 Ibid., para. 3.45.
183 R. Jennings, A. Watts, Oppenheim’s International Law, p. 662.
184 Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V, Ann. 155).
185 See below, paras. 3.2-3.18.
186 Equatorial Guinea wrongly contends that the French version of Article 8 refers to the “physical delimitation” rather
than the “marking of the frontiers”. See Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct.
1974 (CMG, Vol. V, Ann. 155).
187 REG, Vol. I, para. 3.43.
188 Ibid., para. 3.44.
189 Equatorial Guinea disputes the relevance of this case to the present proceedings, arguing that, unlike the 1995 treaty
at issue in the Libya/Chad case, the Bata Convention is not final and establishes neither a territorial régime nor boundaries.
Gabon has demonstrated the contrary in its Counter-Memorial and in this pleading.
190 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment, I.C.J. Reports
2017, p. 21, para. 42.
191 REG, Vol. I, para. 3.51.
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not valid until it has been ratified by the national assemblies of both countries”192. Not only are these
statements — made ten years after the Convention was signed and five years after the fall from power
of one of the Presidents who signed it — ambiguous, but they are also completely unfounded and
contradict the text of Article 10 of the Bata Convention, the only authentic text, which provides that
“[t]he present Convention shall enter into force on the date of signature thereof”. Consequently, these
statements are not a determining factor as regards either the intention of the Parties in 1974 or the legal
value of the Convention, especially since this handwritten note does not appear in the certified copy of
the instrument.
2.28 Equatorial Guinea also insinuates that this alleged note was cut out of the Spanish version
of the Convention. It states that “[i]t is thus more than coincidental that every copy of the Spanish version
of the document is cut off on the last page, before the full signature line”193. This insinuation is not
credible. It is only the names of the signatories that are partially cut off in the text of the Spanish version
of the certified copy of the Bata Convention194. For the rest, the Spanish version is in keeping with and
contains all the provisions appearing in the French version.
2.29 Second, Equatorial Guinea contends that the signatures of the Presidents of Gabon and
Equatorial Guinea cannot denote their intention to conclude a treaty, because they did not have “the
constitutional authority to conclude such an agreement”195. As in the Qatar/Bahrain case, there is no
evidence in the case file that would “justify deducing from any disregard by [the Parties] of [their]
constitutional rules relating to the conclusion of treaties that [they] did not intend to conclude, and did
not consider that [they] had concluded, an instrument of that kind”196. In any event, as the Court ruled,
“[no] such intention, even if shown to exist, [could] prevail over the actual terms of the instrument in
question”197.
2.30 Moreover, the law of treaties as codified by the Vienna Convention expressly recognizes
that a treaty may be validly concluded by a State, even if there has been a violation of a provision of its
internal law198. Consequently, the constitutional provisions of Gabon and Equatorial Guinea are
irrelevant in discerning the objective intention of the Parties in concluding the Convention. Nor do they
affect the validity of the Bata Convention199. The signatures of the two Presidents attest to the intention
of the Heads of State to engage their respective States at the international level.
192 Telegram No. 254 from the Embassy of France in Equatorial Guinea to the French Ministry of Foreign Affairs,
3 Sept. 1984 (CMG, Vol. V, Ann. 168).
193 REG, Vol. I, para. 3.51.
194 See above, para. 2.2(c).
195 REG, Vol. I, para. 3.52.
196 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1994, p. 122, para. 29.
197 Ibid.
198 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, UNTS, Vol. 1155, No. 18232, p. 331, Art. 46.
199 Under Article 46 of the Vienna Convention, Equatorial Guinea cannot invoke Gabonese internal law to question
the validity of the Bata Convention. Nor can it invoke its own internal law because it has not demonstrated that there was a
“manifest” violation “concern[ing] a rule of its internal law of fundamental importance” such as could invalidate its consent
to the treaty (Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, UNTS, Vol. 1155, No. 18232, p. 331, Art. 46).
See also Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 430, para. 265; Maritime Delimitation in the Indian Ocean (Somalia v. Kenya),
Preliminary Objections, Judgment, I.C.J. Reports 2017, pp. 23-34, para. 48.
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2.31 Third, Equatorial Guinea claims that the handwritten modifications to the French version,
replacing the word “treaty” with “convention”, “cas[t] further doubt on the alleged finality of this
purported ‘agreement’”200. Equatorial Guinea’s position is unfounded. Each handwritten note is duly
initialled, thereby confirming the consent of both Presidents to these modifications. As Equatorial
Guinea recognizes, “‘convention’ and ‘treaty’ are normally used interchangeably in international
law”201. In addition, these initialled modifications are in keeping with the description of the Bata
Convention given by President Bongo to the Ambassador of France to Gabon in 1974202.
B. The circumstances in which the Bata Convention was concluded
2.32 The relevance of the “circumstances in which [the Bata Convention] was drawn up” is not
disputed by the Parties203. In its Reply, Equatorial Guinea accepts that following a number of border
incidents between 1970 and 1974, in particular along the land boundary, Presidents Bongo and Macías
Nguema met from 9 to 12 September 1974204. While Equatorial Guinea’s description of these events is
inaccurate205, the Parties nevertheless agree that the purpose of the visit to Equatorial Guinea in
September 1974 by the Gabonese Head of State was to settle the territorial disputes between the two
States206.
2.33 Nonetheless, Equatorial Guinea makes no mention of the negotiations that were entered into
by the two States from 1970 onwards with the aim of delimiting their common boundaries207. The Bata
Convention must be assessed in this context: it is the result of negotiations between Gabon and
Equatorial Guinea which began after the latter’s independence.
2.34 Thus, in June 1970, representatives of Gabon and Equatorial Guinea expressed a desire to
establish their maritime boundary “in accordance with the principles of international law”208. Spain had
already expressed such a desire before Equatorial Guinea’s independence209. Numerous meetings
between the authorities of Gabon and Equatorial Guinea were held on the subject of maritime
200 REG, Vol. I, para. 3.55.
201 Ibid.
202 President Bongo declared that “it was a convention . . . and not a treaty, in order to avoid parliamentary ratification,
which could have been used as a pretext for a further challenge or even a calling into question of the agreement”. See Dispatch
No. 141/DAM from the Ambassador of France to Gabon to the French Minister for Foreign Affairs, 7 Nov. 1974 (CMG, Vol.
V, Ann. 156), p. 3.
203 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 39, para. 96; Maritime
Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1994, p. 121, para. 23.
204 REG, Vol. I, para. 3.5.
205 See in this regard CMG, Vol. I, paras. 2.49-2.59.
206 REG, Vol. I, para. 3.5.
207 See Letter No. 156 from the Embassy of Spain in Gabon to the Spanish Ministry of Foreign Affairs, 23 June 1970
(RG, Vol. II, Ann. 13).
208 Note Verbale No. 1966/MAE-C/DAAP from the Gabonese Ministry of Foreign Affairs to the Embassy of
Equatorial Guinea in Gabon, 4 June 1970 (CMG, Vol. II, Ann. 112); Note No. 1524 from the Ministry of Foreign Affairs of
Equatorial Guinea to the Ambassador of Equatorial Guinea to Gabon, 15 June 1970 (CMG, Vol. V, Ann. 113).
209 Letter from the Director-General of the Spanish Ministry of Foreign Affairs to the Spanish Minister for Foreign
Affairs, 11 May 1966 (RG, Vol. II, Ann. 8); Information note from the Spanish Ministry of Foreign Affairs, 8 July 1996 (RG,
Vol. II, Ann. 9); Note Verbale No. 04564/MAE/SG from the Gabonese Ministry of Foreign Affairs to the Spanish Ministry of
Foreign Affairs, 11 Sept. 1967 (RG, Vol. II, Ann. 10); Letter No. 585 from the Embassy of Spain in Gabon to the Spanish
Ministry of Foreign Affairs, 3 Dec. 1968 (RG, Vol. II, Ann. 11); Letter from the Director-General of the Spanish Ministry of
Foreign Affairs to the Spanish chargé d’affaires in Equatorial Guinea, 16 Dec. 1968 (RG, Vol. II, Ann. 12).
- 33 -
delimitation. As Gabon explained in its Counter-Memorial, three meetings took place between February
1971 and June 1972, but it did not prove possible to conclude an agreement210. An incident on Mbanié
in 1972 breathed new life into the negotiations between the two States. A meeting was held in Dar-es-
Salam in September 1972, during which a quadripartite commission charged with facilitating the
peaceful resolution of the boundary dispute between the two States was created211. This commission
met in Kinshasa in September 1972 and in Brazzaville in November 1972212. Incidents along the land
boundary, in particular in the spring of 1974, led the Presidents to meet once more213. This time they
agreed to establish “a joint commission charged with verifying and definitively establishing, along its
entire length, the course of the mainland boundary between Gabon and Equatorial Guinea”214.
2.35 In the context of these negotiations, Equatorial Guinea held legal consultations with the
USSR and sought the help of Spanish experts, including experts in international law215. Gabon likewise
developed its position on the maritime boundary on the basis of the principles of international law216.
The intention of both States to reach an agreement under international law is thus clear from these
negotiations.
C. The subsequent conduct of the Parties does not affect the binding force of the Bata Convention
2.36 While Equatorial Guinea does not contest the relevance of the circumstances in which the
Bata Convention was drawn up, none of the evidence it invokes relates to them. Indeed, it relies solely
on the diplomatic correspondence recounting what happened after the Bata Convention was signed217.
In accordance with the jurisprudence of the Court, the subsequent conduct of the parties to a treaty,
including statements made after its signing by one of the parties, cannot call into question the terms of
a treaty when those terms clearly provide for mutual undertakings218. Consequently, Equatorial Guinea
cannot seek to rely on the subsequent conduct of the Parties, and even less so on the diplomatic
correspondence of ambassadors of third States, in order to cast doubt on the binding nature of the Bata
Convention219.
2.37 In any event, the subsequent conduct of the Parties is in fact in keeping with the Bata
Convention. In particular, whereas between 1970 and 1974 relations between the two States were
punctuated by numerous meetings and visits between the two Heads of State aimed at resolving the
boundary dispute, these meetings ceased once the Bata Convention had been signed, thus attesting to
210 CMG, Vol. I, paras. 2.45-2.47. See also Telegram No. 16 from the Embassy of France in Equatorial Guinea to the
French Ministry of Foreign Affairs, 13 Feb. 1971 (RG, Vol. II, Ann. 14); Letter No. 118 from the Embassy of Spain in Gabon
to the Spanish Minister for Foreign Affairs, 29 June 1972 (RG, Vol. II, Ann. 19).
211 CMG, Vol. I, para. 2.51.
212 Ibid., paras. 2.52-2.54.
213 Ibid., paras. 2.57-2.59.
214 Telegram No. 561/563 from the Embassy of France in Gabon to the French Ministry of Foreign Affairs, 15 July
1974 (CMG, Vol. V, Ann. 138). See also CMG, Vol. I, para. 3.4.
215 Telegram No. 85 from the Embassy of France in Equatorial Guinea to the French Ministry of Foreign Affairs,
20 July 1974 (CMG, Vol. V, Ann. 141). See also Letter No. 6 from the Embassy of Spain in Libreville to the Spanish Ministry
of Foreign Affairs, 12 Apr. 1972 (RG, Vol. II, Ann. 18); Telegram No. 72 from the Embassy of Spain in Equatorial Guinea to
the Spanish Ministry of Foreign Affairs, 5 Apr. 1972 (RG, Vol. II, Ann. 17).
216 CMG, Vol. I, para. 3.6.
217 REG, Vol. I, paras. 3.28-3.37.
218 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1994, p. 122, para. 29.
219 REG, Vol. I, para. 3.81.
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the settlement of the dispute. The only discussions that took place were those provided for in Article 7
of the Convention. Pursuant to this provision, a meeting was held on 23 September 1974 between the
commissions of Gabon and Equatorial Guinea in order to determine the limits of the land areas ceded
by both Parties along the land boundary220. The failure of these negotiations does not affect the legally
binding nature of the Bata Convention.
2.38 Furthermore, the documents on which Equatorial Guinea relies cast no doubt on the binding
force of the Bata Convention. Some merely illustrate President Macías Nguema’s desire to call the
agreement into question after its conclusion221.
2.39 Others show that their authors lacked access to reliable information, particularly the
ambassadors stationed in Malabo. This is especially true in the case of the letter of the French
Ambassador to Equatorial Guinea of 17 September 1974. Equatorial Guinea claims that “the French
Ambassador thus reported to Paris that no final and binding agreement had been reached on
12 September 1974”222. However, the French Ambassador confirmed that he had received only a very
small amount of information about President Bongo’s visit223. In particular, he stated that
“in Malabo, where we are deprived of any written press and where the radio is broadcasting
more and more in the Fang dialect, as of September 17 no one had the slightest indication
of the result of this state visit and concerning the decisions that it may have brought with
it”224.
He further observed that he could only convey information “with reservations” owing to the “very
suspicious silence that the Equatorial Guinean government continues to maintain, and of which the
official radio has not even recounted the purely formal aspects of the end of the state visit”225. Likewise,
the Spanish Ambassador to Equatorial Guinea confirmed that “no public information about this matter
had been provided as of yet, this was due to the fact that they were attempting to resolve the problem
amicably and do not like to publicly air these petty disagreements”226.
2.40 In its Reply, Equatorial Guinea’s argument is also largely based on its assertion that “at no
point during those twenty-four years did either Party rely on, or even mention, the document Gabon
presented in 2003”227. Although Equatorial Guinea mentioned the principle of estoppel in its
220 Letter No. 509/74 from the Spanish Ambassador to Malabo to the Spanish Ministry of Foreign Affairs, 25 Sept.
1974 (REG, Vol. IV, Ann. 34); Letter No. 125 from the Spanish Ambassador to Malabo to the Spanish Ministry of Foreign
Affairs, 27 Sept. 1974 (REG, Vol. IV, Ann. 35).
221 It is clear from the evidence in the case file that President Macías Nguema regretted concluding the Convention.
See e.g., Telegram No. 134 from the Embassy of France in Equatorial Guinea to the French Ministry of Foreign Affairs,
23 Dec. 1974 (CMG, Vol. V, Ann. 157).
222 REG, Vol. I, para. 3.30.
223 Letter from the Ambassador of France to Malabo to the French Ministry of Foreign Affairs, 17 Sept. 1974 (REG
Vol. IV, Ann. 33) (“No information filtered through concerning the meetings that the two heads of state were in principle to
have during the late morning and the private lunch”).
224 Ibid.
225 Ibid.
226 Letter No. 509/74 from the Spanish Ambassador to Malabo to the Spanish Ministry of Foreign Affairs, 25 Sept.
1974 (REG, Vol. IV, Ann. 34); Letter No. 125 from the Spanish Ambassador to Malabo to the Spanish Ministry of Foreign
Affairs, 27 Sept. 1974 (REG, Vol. IV, Ann. 35). Equatorial Guinea’s translation of the Spanish: “hasta ahora no se había
suministrado información sobre este tema con carácter público, ello se debía a que se estaban tratando de arreglar
amigablemente el problema y no les gustaba airear públicamente estas pequeñas diferencias”.
227 REG, Vol. I, para. 3.59.
- 35 -
Memorial228, it seems to have abandoned this argument in its Reply. For the first time, it asserts that,
through this alleged silence, Gabon acquiesced to the Bata Convention’s lack of binding force229. On
this basis, Equatorial Guinea claims that Gabon is “precluded from relying on that document for the
purpose of seeking to establish legal title within the meaning of Article 1 of the Special Agreement”230.
2.41 In support of its argument, Equatorial Guinea invokes the Court’s decision in the Temple of
Preah Vihear case. It asserts that “[t]he Court has held that the subsequent conduct of the Parties may
be determinative of whether a treaty constitutes a valid legal title”231. However, in that case, the Court
ruled on Thailand’s acquiescence not to the existence or validity of the 1904 Treaty between France
and Siam, which was not in dispute, but to France’s sovereignty over the temple and its vicinity232.
2.42 In contrast, Equatorial Guinea’s argument is founded on Gabon’s acquiescence not to the
modification of a boundary at a given location, but to the lack of binding force of a treaty, namely the
Bata Convention. However, the conditions for the termination and suspension of treaties are strictly
codified in Articles 54 to 62 of the Vienna Convention on the Law of Treaties. Pursuant to these rules,
the termination of a treaty, in the absence of a special provision to this end, may take place “by consent
of all the parties after consultation with the other contracting States”233. Equatorial Guinea has
demonstrated neither the consent of the Parties in any form, nor the existence of consultations.
2.43 In any event, Equatorial Guinea cannot conclude from the fact that no express mention was
made of the Bata Convention in the relations between the Parties that Gabon has acquiesced to the
termination of that Convention, because Gabon’s conduct has always been in keeping with the
Convention’s provisions. In particular, Gabon has objected to any attempt by Equatorial Guinea to
challenge the Bata acquis.
2.44 As far as the islands are concerned, Gabon has contested every attempt to encroach on its
sovereignty over Mbanié, Cocotiers and Conga234. It has also repeatedly reiterated its sovereignty over
Mbanié, which it has used as a maritime base point235. Since Gabon has acted in accordance with the
Bata Convention, notably as regards its sovereignty over the islands, the absence of express reference
to the Bata Convention in the discussions between the Parties cannot undermine that instrument’s
binding force.
228 MEG, Vol. I, fn. 367.
229 REG, Vol. I, para. 3.81.
230 Ibid.
231 REG, Vol. I, fn. 170.
232 Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment, I.C.J. Reports 1961,
pp. 31-32.
233 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, UNTS, Vol. 1155, No. 18232, pp. 344-345,
Art. 54.
234 Translation of Letter No. 412/90/Amb/Gab/DB from the Embassy of Gabon in London to the Secretary of State for
Foreign Affairs and the Commonwealth, 28 June 1990 (REG, Vol. IV, Ann. 47); Note Verbale No. 00251/AMBAG/GE/99
from the Embassy of Gabon in Equatorial Guinea to the Ministry of Foreign Affairs of Equatorial Guinea, 23 Sept. 1999 (REG,
Vol. IV, Ann. 48); REG, Vol. I, paras. 3.73-3.75.
235 Decree No. 2066/PR/MHCUCDM of Gabon, Official Journal of the Gabonese Republic No. 48/52-385, Dec. 1992
(REG, Vol. V, Ann. 54); REG, Vol. I, para. 3.74. See also J.D. Geslin, “The Island Coveted by All”, Jeune Afrique
L’Intelligent, 10-23 Aug. 2003 (REG, Vol. V, Ann. 64); REG, Vol. I, para. 3.78. See also Telegram No. 805 from the Embassy
of France in Gabon to the French Ministry of Foreign Affairs, 11 Sept. 1984 (RG, Vol. II, Ann. 50).
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2.45 As regards the land boundary, the Bata Convention in large part formally recognized a
situation that already existed on the ground236. While Gabon prudently chose to maintain the status quo,
in particular along the Kie River, pending the demarcation provided for in the Bata Convention, it by
no means relinquished its sovereignty over those territories237.
2.46 Nor can the mere fact that the Parties continued to negotiate the delimitation of their land
and maritime boundaries after the conclusion of the Bata Convention constitute the purported
acquiescence. In this regard, Equatorial Guinea makes much of the statements by the former Gabonese
Minister for Foreign Affairs, Jean Ping, about the negotiations that followed the signing of the Bata
Convention. The statements made by Mr Ping, who did not actually take part in the negotiations, in no
way contradict Gabon’s position. On the contrary, in an interview of 29 September 2006, appended by
Equatorial Guinea to its Reply, he confirmed that the 1972 negotiations between the two States had
“resulted in the signature, on September 12, 1974 in Bata, of the Agreement delimiting the land and
maritime borders between Gabon and Equatorial Guinea”, and that this Convention “regulates, globally
and clearly, the essence of the questions that are the subject of the dispute”238. The fact that the
assumption of power by the current President of Equatorial Guinea triggered “a new cycle of
negotiations” and the resurgence of a dispute (suggesting it had previously been settled) regarding
sovereignty over the islands off the coast of Gabon cannot undermine the validity of the Bata
Convention or the boundary it delimits.
Conclusion
2.47 It is clear from the above that:
(a) The Bata Convention exists and its text is authentic. Its existence is irrefutably established by the
certified copy of the Convention that Gabon has submitted to the Court. It is further confirmed by
an array of evidence, including certain evidence presented to the Court by Equatorial Guinea.
(b) The Bata Convention is a binding instrument under international law. Its binding force is clear from
the terms used by the Parties and cannot unilaterally be called into question by certain subsequent
statements made by the President of Equatorial Guinea. Equatorial Guinea has not established that
there are any grounds for the termination or suspension of this treaty, and indeed no such grounds
exist. Therefore, the Bata Convention has the force of law between the Parties.
236 CMG, Vol. I, paras. 6.67, 7.19.
237 Dispatch No. 92/DAM/2 from the Ambassador of France to Equatorial Guinea to the French Minister for Foreign
Affairs, 11 Apr. 1975 (CMG, Vol. V, Ann. 158). See also below, paras. 3.19-3.22.
238 J. Ping, “Gabon: History of the talks between Gabon and Equatorial Guinea on Mbanié Island”, 29 Sept. 2006
(REG, Vol. V, Ann. 65).
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CHAPTER III
THE LEGAL TITLES IN RESPECT OF THE LAND BOUNDARY
3.1 Equatorial Guinea contends in its Reply that the Bata Convention was not intended to
delimit the land boundary. However, Article 1 of this Convention simply reproduces, almost word
for word, the description of the land boundary contained in Article 4 of the Paris Convention. While
the Paris Convention — as Equatorial Guinea rightly confirms — delimited the land boundary
between Río Muni and Gabon, so too does the Bata Convention, making a few adjustments to that
boundary in its Article 2. It is therefore a legal title with the force of law between the Parties as
regards the delimitation of their land boundary (I). By proceeding in this way, Equatorial Guinea and
Gabon also confirmed in 1974 that no modifications were made to the land boundary established by
the Paris Convention prior to this date. Indeed, contrary to what Equatorial Guinea claims, no such
modifications were ever approved under the terms of the Paris Convention by either the colonial
Powers or the Parties. Consequently, the other titles invoked by Equatorial Guinea, including the
modifications allegedly made “in practice”, have no basis in law or fact (II).
I. The Bata Convention is a legal title concerning
the delimitation of the land boundary
3.2 In its Reply, Equatorial Guinea disputes the binding force of the Bata Convention and
denies that the Convention is a legal title delimiting the land boundary. In a single sentence it asserts
that “Gabon’s reliance on that document [the Bata Convention] is misplaced, however, since . . . it
does not have the force of law between the Parties”239. As has been shown above, this allegation of
Equatorial Guinea is entirely baseless240.
3.3 In addition to the separate question of the Bata Convention’s binding force, Equatorial
Guinea also disputes that the Convention was intended to delimit the land boundary. Nonetheless, it
makes no attempt to refute Gabon’s arguments in this regard241, neglecting even to mention them. It
simply claims repeatedly that the Bata Convention “fails to delimit the continental territory pertaining
to, or to be ceded to, either of the Parties”242.
3.4 This position leads Equatorial Guinea to make contradictory assertions. If it accepts — as
it expressly does — that the Paris Convention “described the course of the agreed boundary between
the Spanish territory of Río Muni and neighbouring French territory”243, it cannot deny that the Bata
Convention, in both form and substance, is an equivalent legal title as regards the delimitation of the
land boundary.
3.5 Save for a few purely editorial changes and the inclusion of the reservation referring to
Article 2 in Article 1 of the Bata Convention, Article 4 of the Paris Convention and Article 1 of the
Bata Convention are identical:
239 REG, Vol. I, para. 5.5.
240 See above, paras. 2.20-2.47.
241 CMG, Vol. I, paras. 7.5-7.14.
242 REG, Vol. I, para. 3.42. See also paras. 3.38 and 3.41.
243 MEG, Vol. I, para. 3.36. See also CMG, Vol. I, para. 7.17, and REG, Vol. I, paras. 5.1 and 5.4.
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Article 4 of the Paris Convention
Article 1 of the Bata Convention
“The boundary between the French and
Spanish possessions on the Gulf of
Guinea shall begin at the point where the
thalweg of the Muni River intersects a
straight line traced from the Coco Beach
point to the Diéké point. It shall, then,
proceed along the thalweg of the Muni
River and of the Utamboni River up to the
first point at which the first degree north
latitude crosses the latter river, and shall
proceed along this parallel until it
intersects the 9° longitude east of Paris
(11° 20' east of Greenwich).
“Subject to the provisions of article 2
below, the boundary between the
Republic of Equatorial Guinea and the
Gabonese Republic on the coast of the
Gulf of Guinea shall start from the point
of intersection between the Muni River
thalweg and a straight line drawn from the
Cocobeach headland to the Dieke
headland. It shall proceed along the Muni
River thalweg and that of the Outemboni
River to the point where that river is first
crossed by latitude 1° north, and follow
that parallel as far as its intersection with
longitude 9° east of Paris (11°20 east of
Greenwich).
From this point, the line of demarcation
shall be formed by said meridian 9° east
of Paris until it meets the southern border
of the German colony of Kamerun.”
From the latter point of intersection, the
second demarcation between the two
States shall follow meridian 9° east of
Paris (11°20 east of Greenwich) until it
meets the southern frontier of the United
Republic of Cameroon.”
3.6 These two provisions “describe the boundary line in words”244, and they do so in the same
way. If, as Equatorial Guinea contends and Gabon accepts,
“Article 4 of the [1900 Paris] Convention described the course of the land boundary
between the Spanish territory of Río Muni and French Congo, as running along the
thalweg of the Muni and Utamboni Rivers near the coast and then along the line of
latitude 1 degree North . . . until turning north to follow the line of longitude 9 degrees
East of Paris . . . to the boundary with German Kameroon”245,
then it follows that Article 1 of the Bata Convention describes the same boundary.
3.7 Equatorial Guinea also accepts that Article 8 and Annex I of the Paris Convention
established the procedure for the demarcation of the boundary delimited under Article 4246. The fact
that this procedure was never completed247 — which Equatorial Guinea does not dispute — does not
alter the purpose of Article 4 of the Paris Convention. That provision still defines the boundary. As
recalled in the Counter-Memorial248, providing for a means of precisely demarcating the boundary
244 REG, Vol. I, para. 3.41.
245 MEG, Vol. I, para. 3.19.
246 Ibid. (“The 1900 Convention, in Article 8 and Annex 1, provided that the exact boundary would be demarcated
by the two States’ commissioners or local delegates”). See also REG, Vol. I, para. 3.41 (“The document presented in 2003
does not even deal with demarcation, since no agreement on delimitation was reached. The Parties did not ‘describe the
boundary line in words’, as Oppenheim posits. In the case of Equatorial Guinea and Gabon, the delimitation of the boundary
was yet to be completed in the future, as confirmed by the plain language of relevant provisions conspicuously ignored by
Gabon.”).
247 See CMG, Vol. I, paras. 1.42-1.50.
248 Ibid., para. 7.12.
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“equally presupposes a frontier already regarded as essentially delimited”249. Equatorial Guinea is
therefore right not to challenge the status of Article 4 of the Paris Convention as a legal title.
3.8 Nevertheless, Equatorial Guinea continues to regard Article 8 of the Bata Convention,
concerning the “marking of the frontiers” (“matérialisation des frontières” in French), as evidence
that the Convention did not delimit the land boundary between the two States. In its view, this
provision “requires the precise boundary to be subsequently defined by representatives of Gabon and
Equatorial Guinea”250. That is simply untrue.
3.9 The French version of Article 8 of the Bata Convention provides that:
“La matérialisation des frontières sera faite par une équipe composée des
représentants des deux pays, en nombre égal, avec au besoin le concours ou la
participation de techniciens et observateurs de l’Organisation de l’Unité Africaine ou
de toute autre organisme international, choisis d’un commun accord.”251
3.10 The Spanish version also uses the phrase “materialisación de las fronteras”252. The
professional translators employed by Equatorial Guinea have consistently translated this as
“materialization of the boundaries”253. In the translation produced by the United Nations and
reproduced in the Treaty Series, the phrase “marking of the frontiers” is used254. The terms employed
and procedure envisaged for the “marking of the frontiers” suggest that it is a demarcation, i.e. the
laying of boundary markers on the ground. It would be incongruous, to say the least, to leave a team
of representatives, observers and technicians from an international organization with the
responsibility of delimiting a new boundary between two States.
3.11 As Equatorial Guinea itself acknowledges, “there could be no demarcation without prior
delimitation”255. Accordingly, Article 8 of the Bata Convention confirms that the parties considered
their boundary to be sufficiently defined to proceed with its demarcation on the ground.
3.12 Consequently, the parties to the Bata Convention defined the boundary in Article 1 of
that instrument just as the colonial Powers had done previously, in Article 4 of the Paris Convention.
In other words, in adopting the Bata Convention, Equatorial Guinea and Gabon confirmed the
delimitation of their land boundary as established by the Paris Convention, and did not ratify any
modifications purportedly made prior to 1974256. Although the Bata Convention supersedes the Paris
Convention and constitutes the legal title having the force of law between the Parties as regards the
249 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 340, para. 49. See also p. 359, para. 84.
250 REG, Vol. I, para. 3.42 (emphasis in the original); MEG, Vol. I, para. 7.19.
251 Convention demarcating the land and maritime frontiers of Equatorial Guinea and Gabon, 12 Sept. 1974,
appended to the Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V,
Ann. 155) (emphasis added). (In UNTS: “The marking of the frontiers shall be carried out by a team composed of
representatives of the two countries in equal number, with the aid or participation, as necessary, of technical experts and
observers from the Organization of African Unity or some other mutually agreed international body.”)
252 Ibid.
253 MEG, Vol. VII, Anns. 214, 215, 216 and 217.
254 UNTS, Vol. 2248, p. 102 (I-40037).
255 REG, Vol. I, para. 3.42.
256 See also below, paras. 3.23-3.61.
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delimitation of their common land boundary, it nonetheless confirms that the text of the 1900
Convention continues to reflect257, at least in part, the legal title applicable to that boundary258. In the
unlikely event that the Court should fail to recognize the Bata Convention’s status as a legal title with
the force of law as regards the delimitation of the land boundary, Article 4 of the Paris Convention,
whose text is identical to that of Article 1 of the Bata Convention, would constitute such a title.
3.13 Indeed, it is because the Parties considered in 1974 that the text of Article 4 of the Paris
Convention determined the boundary with the force of law in their bilateral relations that they
proceeded to adjust and modify that boundary in the areas identified in Article 2 of the Bata
Convention259. In so doing, they confirmed that no modifications had been made to the Paris
Convention between 1900 and 1974, and that any future modifications would require a new
delimitation agreement to be reached.
3.14 The adjustments made in Article 2 of the Bata Convention to the boundary thus defined
in its Article 1 do not alter the fact that the 1974 Convention is a legal title as regards the delimitation
of the land boundary. While it is true that Article 2 does not describe the course of the boundary
resulting from the territorial exchanges agreed between Gabon and Equatorial Guinea in the areas of
Medouneu, Ebebiyin (“carrefour international”), Ngong and Allen, it does however identify the land
areas ceded on either side of the boundary in sufficient detail to conclude that the parties had in fact
delimited that boundary. In its Counter-Memorial, Gabon showed that the authorities of Equatorial
Guinea and Gabon had a precise understanding of the extent of the ceded territories260, and in sketchmap
No. 3.1, reproduced below, it depicted the course of the land boundary resulting from Articles 1
and 2 of the Bata Convention combined261.
257 See below, paras. 3.13-3.16.
258 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 37, paras. 72-73.
259 See Letter No. 524/74 from the Spanish Ambassador to Malabo to the Spanish Ministry of Foreign Affairs,
2 Oct. 1974 (REG, Vol. IV, Ann. 38); Dispatch No. 40/DA/DAM-2 from the Ambassador of France to Equatorial Guinea
to the Directorate of African and Madagascan Affairs at the French Ministry of Foreign Affairs, 2 Oct. 1974 (CMG, Vol. V,
Ann. 152); Letter No. 568/74 from the Ambassador of Spain to Equatorial Guinea to the Spanish Minister for Foreign
Affairs, 9 Oct. 1974 (RG, Vol. II, Ann. 46); Summary of the address delivered by President Macías Nguema to the members
of the diplomatic corps on 13 Oct. 1974, Foreign and Commonwealth Office (REG, Vol. IV, Ann. 32); Dispatch No.
43/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African and Madagascan Affairs
at the French Ministry of Foreign Affairs, 14 Oct. 1974 (CMG, Vol. V, Ann. 153); Telegram No. 3385 from the United
States Embassy in Cameroon to the US Secretary of State, 16 Oct. 1974 (CMG, Vol. V, Ann. 154); Dispatch No. 141/DAM
from the Ambassador of France to Gabon to the French Minister for Foreign Affairs, 7 Nov. 1974 (CMG, Vol. V,
Ann. 156).
260 CMG, Vol. I, para. 7.11.
261 CMG, Vol. II, sketch-map No. 3.1, p. 103.
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Sketch-map No. 3.1
The boundary delimited by the Bata Convention
3.15 Equatorial Guinea saw no need to comment on these explanations. It simply accuses
Gabon of “conspicuously ignor[ing]”262 the provisions of Article 7 of the Bata Convention263. This
article, which is discussed at length in the Counter-Memorial264, states:
“Protocols shall be drawn up, on the one hand, to determine the surface area and
precise boundaries of the land area ceded to the Gabonese Republic and that ceded to
the Republic of Equatorial Guinea and, on the other, to specify procedures for the
application of the present Convention.”265
3.16 Contrary to what Equatorial Guinea alleges, this provision, interpreted in accordance with
the ordinary meaning of its terms and in its context, shows that the parties did indeed establish the
entire boundary, including in the areas affected by the territorial exchanges. The cession of “land
areas” under Article 2 is not contingent on the adoption of the protocols provided for in Article 7.
Such protocols were merely intended to determine the surface area and precise boundaries of the
ceded territories. Similarly, the procedures for the application of the Convention — which the parties
agreed to set out in a protocol — are just that: application procedures covering a number of matters,
such as the fate of the populations living in the ceded “land areas” and the practical implementation
262 REG, Vol. I, para. 3.41.
263 Ibid.
264 CMG, Vol. I, paras. 6.40 and 7.11.
265 Convention demarcating the land and maritime frontiers of Equatorial Guinea and Gabon, 12 Sept. 1974,
appended to the Letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V,
Ann. 155).
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of the navigation and fishing rights recognized under Article 5 of the Convention. They have neither
the aim nor the effect of modifying the Bata Convention or the definition of the boundary as
determined by the combined effect of Articles 1 and 2.
3.17 Moreover, the preamble of the Bata Convention confirms that the parties did not wish to
defer the delimitation of their boundary or of certain parts of it. The two Presidents declared that they
“[d]esir[ed] to lay firm foundations for peace between their two countries, notably by definitively
establishing their common land and maritime frontiers”266. The title of the Convention also
demonstrates that the parties intended it to be an instrument “demarcating the land and maritime
frontiers of Equatorial Guinea and Gabon” (“delimitando las fronteras terrestres y marítimas de la
Guinea Ecuatorial y del Gabón”).
3.18 Contrary to what Equatorial Guinea claims, the object and purpose of the Bata
Convention was thus to establish the boundaries definitively. That is what the parties did267.
3.19 Equatorial Guinea nonetheless attempts to deprive this legal title of any effect by claiming
that “Equatorial Guinea has continued to administer and exercise sovereignty over all the disputed
territory allegedly ceded to Gabon under that instrument”268. It states in this regard that it “[ha]s done
so not only without protest by Gabon, but, in some areas, with Gabon’s active cooperation and
consent”269. It does not fall within the Court’s jurisdiction in the present proceedings to establish
whether the Parties have in fact upheld or, as the case may be, disregarded the legal title. The task
entrusted to the Court by the Parties is simply to identify the relevant legal titles270. It is precisely
because the Parties have persistently encountered difficulties in this regard that they have bestowed
this task on the Court, so that they might subsequently resume their negotiations — or have recourse
to other means of settling their further disputes — on a legally sound footing.
3.20 In any event, the so-called effectivités invoked by Equatorial Guinea are not based on any
legal title271 and thus continue to have no bearing on the dispute before the Court272. What is more,
they in no way confirm Equatorial Guinea’s claims, either in fact or law. To give just one example,
the 2007 Agreement on the joint construction of several crossings in the area of Mongomo and
Ebebiyin273, by which Equatorial Guinea sets great store274, does not mention the boundary line or
allow any conclusions to be drawn about the boundary. On the contrary, how responsibility for the
construction of the crossings is shared between the parties is not determined by whether those
crossings are located on the territory of Gabon or Equatorial Guinea. The 2007 Agreement merely
266 Ibid.
267 CMG, Vol. I, para. 7.13. See also dispatch No. 43/DA/DAM-2 from the Ambassador of France to Equatorial
Guinea to the Directorate of African and Madagascan Affairs at the French Ministry of Foreign Affairs, 14 Oct. 1974
(CMG, Vol. V, Ann. 153), p. 5.
268 REG, Vol. I, para. 3.82.
269 Ibid.
270 See above, paras. 1.9-1.16.
271 See below, paras. 3.23-3.61.
272 See above, paras. 1.56-1.72.
273 Agreement between Gabon and Equatorial Guinea relating to the construction of a boundary bridge and a section
of paved road with crossings between the two countries, 3 Aug. 2007 (CMG, Vol. V, Ann. 176), Art. 1 (“The present
agreement is concluded with a view to the construction of a boundary bridge and a section of paved road with crossings
between the two countries.”).
274 REG, Vol. I, paras. 5.71-5.74.
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states that Equatorial Guinea will cover the cost of building the bridge to the east of Mongomo275,
while the cost of building the road and crossings to the east of Ebebiyin will be borne by both States
equally276. The two States also reached an agreement on construction methods and on the procedure
for the joint approval of the crossings277. There is thus nothing in the 2007 Agreement or in the
construction and inauguration of these crossings to suggest any form of recognition by the parties of
a boundary “following the Kie River”278.
3.21 A fortiori, under no circumstances can the “expeditions” organized by the authorities of
Equatorial Guinea and carried out with their counsel and experts in 2021 and 2022279 — thus after
the present proceedings were instituted — constitute effectivités or relevant evidence.
3.22 For these reasons, the Bata Convention, which has the force of law between the Parties280,
constitutes a legal title relating to the delimitation of the land boundary. It sufficiently determines the
land boundary between the two States. Moreover, it confirms that no modifications were made to the
Paris Convention prior to 1974 and that, to the extent that the parties did not make the boundary
adjustments considered necessary and appropriate in Article 2 of the Bata Convention, the text of the
1900 Convention continues to reflect the legal title applicable to the land boundary281.
II. The alleged modifications of the Paris Convention invoked
by Equatorial Guinea have no basis in law or fact
3.23 Despite the detailed explanations given by Gabon in this regard282, and the clear terms of
the task entrusted to the Court under Article 1 of the Special Agreement283, Equatorial Guinea
continues to claim, first, that France and Spain modified the 1900 Convention through their conduct,
and, second, that the so-called infra legem effectivités “constitute additional sources of its legal title
to territory in the Utamboni River and Kie River Areas”284. In other words, Equatorial Guinea claims
that these effectivités are variously a source of legal title, an additional title, and evidence confirming
the alleged modifications made by the colonial Powers to the Paris Convention285.
3.24 This carefully sown confusion has but one objective: to ensure that alleged effectivités
prevail over the text of the Paris Convention.
3.25 Before the Bata Convention was signed, Equatorial Guinea endeavoured to obtain from
the former administering Power evidence to substantiate modifications to the Paris Convention which
275 Agreement between Gabon and Equatorial Guinea relating to the construction of a boundary bridge and a section
of paved road with crossings between the two countries, 3 Aug. 2007 (CMG, Vol. V, Ann. 176), Art. 7.
276 Ibid., Art. 3.
277 Ibid., Arts. 4 to 8.
278 REG, Vol. I, para. 5.82.
279 Declaration of HE Domingo Mba Esono, President of the Sub-Technical Commission of the Special Borders
Commission, 25 Sept. 2022 (REG, Vol. III, Ann. 5).
280 See above, paras. 2.20-2.46. See also, CMG, Vol. I, paras. 6.1-6.76.
281 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 37, paras. 72-73.
282 CMG, Vol. I, para. 7.18.
283 See above, paras. 1.9-1.18 and 1.46.
284 REG, Vol. I, para. 5.4. See also ibid., para. 5.51.
285 See above, paras. 1.56-1.72.
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would explain the inconsistencies on the ground286. It could not find any. Therefore, as the documents
in the case file show, Equatorial Guinea, by its President’s own admission, had no choice other than
to recognize the rectilinear boundaries determined by the text of the Paris Convention287. In partially
reproducing the description of the land boundary contained in Article 4 of the Paris Convention, the
Bata Convention confirms that no modifications were made prior to its signature288.
3.26 The so-called effectivités that Equatorial Guinea invokes before the Court clearly diverge
from the delimitation lines constituted by the 1° north parallel of latitude and the 9° east of Paris
meridian adopted under the Paris Convention. They thus run counter to the applicable legal title and
could only constitute, in the absence of a legal title, contra legem effectivités289. As Equatorial Guinea
itself acknowledges290:
“Where the act does not correspond to the law, where the territory which is the
subject of the dispute is effectively administered by a State other than the one possessing
the legal title, preference should be given to the holder of the title.”291
3.27 To get around this, Equatorial Guinea attempts — not without some difficulty — to
fabricate a pseudo-legal title on which those effectivités might be based.
3.28 However, Equatorial Guinea cannot succeed in transforming contra legem effectivités
into evidence of a legal title or the modification of such title, into a basis for legal title or, even less,
into a legal title itself292. The reason for this is simple: there was no legal title other than the Paris
Convention before 1974. Not only are the so-called effectivités invoked contrary to the Paris
Convention, but they also provide no factual support for Equatorial Guinea’s claims.
A. There was no modification of the boundary in the Utamboni River area
3.29 Equatorial Guinea wrongly continues to assert that a modification was made to the
boundary in the Utamboni River area by Spain and France, “by designating the 1901 Commission in
accordance with Article 8 of the 1900 Convention, to modify the boundary and, by approving through
subsequent practice, the Commission’s modifications in that area”293. This allegation is both legally
and factually flawed.
286 Letter No. 435/74 from the Ambassador of Spain to Equatorial Guinea to the Ministry of Foreign Affairs,
24 Aug. 1974 (RG, Vol. II, Ann. 44); Letter No. 524/74 from the Ambassador of Spain to Equatorial Guinea to the Spanish
Ministry of Foreign Affairs, 2 Oct. 1974 (REG, Vol. IV, Ann. 38).
287 Letter No. 524/74 from the Ambassador of Spain to Equatorial Guinea to the Spanish Ministry of Foreign
Affairs, 2 Oct. 1974 (REG, Vol. IV, Ann. 38). See also Telegram No. 561/563 from the Embassy of France in Gabon to
the French Ministry of Foreign Affairs, 15 July 1974 (CMG, Vol. V, Ann. 138); Information bulletin
No. 82/GAB/AFA/CD from the military attaché at the Embassy of France in Gabon, 18 July 1974 (CMG, Vol. V,
Ann. 140).
288 See above, para. 3.12.
289 See above, paras. 1.61-1.67.
290 REG, Vol. I, para. 5.3.
291 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 587, para. 63; Territorial
Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 38, paras. 75-76; Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002,
p. 353, para. 68.
292 See above, paras. 1.23 and 1.63-1.66.
293 REG, Vol. I, para. 5.15.
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1. The Paris Convention was not modified in accordance with its Article 8 and Annex I
3.30 Equatorial Guinea’s argument that Spain and France entrusted the 1901 Commission with
the task of modifying the boundary and replacing abstract lines with a boundary following natural
obstacles and man-made features conflicts with the provisions of the Paris Convention and the
instructions given to the 1901 Commission. Contrary to what Equatorial Guinea asserts, Gabon never
agreed that “the boundaries set out in the 1900 Convention had to be adjusted to conform to the
reality on the ground”294. First, international law does not oblige States to use any particular method
when choosing their boundaries. While a so-called natural boundary may have certain advantages
(and disadvantages), it is not required by law. Second, France and Spain’s choice of abstract lines
was largely a deliberate one. Thus, at Spain’s request, in the Utamboni River area the parties adopted
a boundary based on the 1° north parallel of latitude, rather than one determined by the course of that
river295. The parallel and meridian adopted in the text of Article 4 of the Paris Convention are not
mere points of reference in relation to which the boundary was subsequently to be delimited; they
themselves constitute the delimitation agreed by both parties. In providing that the Commissioners
designated by each party “shall be responsible for tracing on the ground the demarcation lines
between the French and Spanish possessions, in accordance with and in the spirit of the provisions
of this Convention”296, the terms of Article 8 of the Paris Convention leave no room for ambiguity
in this regard.
3.31 This is also confirmed by the instructions given to and the work carried out by the
1901 Commission297. This work was primarily aimed at identifying and marking out on the ground
points that could be used to determine the 1° north parallel of latitude and the 9° east of Paris
meridian. Captain Roche, a member of the French section, described the mission and working method
of the 1901 Commission as follows:
“Clearly, the Commission could not follow the parallel and meridian boundary
lines exactly: in terrain as dense and impenetrable as this, it is essential to keep to the
paths. Although we could have cleared a route through the forest in both directions
(parallel and meridian), this would have been a Herculean task which would have taken
several years to complete and whose results, moreover, would have been very shortlived,
since the vegetation would quickly have grown back. It was therefore necessary
to keep to the indigenous paths, which follow the boundary as closely as possible, to
survey them precisely, transfer the results onto a map and, using that map, identify the
boundary in relation to the points plotted, indicating, for example, that the boundary
runs midway between such and such villages, that it crosses a waterway or that it follows
the waterway so many metres upstream from a particular confluent, and so on. This is
the method that was adopted.”298
3.32 The records of the 1901 Commission also confirm that it was tasked with identifying
three points needed to plot the rectilinear boundary, using astronomical observations to determine
their geographical co-ordinates. It thus identified the place at which the Utamboni meets the 1° north
parallel of latitude299 (from where the boundary proceeds along the parallel), the place at which that
294 Ibid., para. 5.1.
295 CMG, Vol. I, paras. 1.28-1.29.
296 Convention on the delimitation of French and Spanish possessions in West Africa, on the coasts of the Sahara
and the Gulf of Guinea, Paris, 27 June 1900 (CMG, Vol. III, Ann. 47), Art. 8, para. 2.
297 Letter from the French Minister for the Colonies to the Head of the Franco-Spanish Commission, 19 June 1901
(MEG, Vol. IV, Ann. 55).
298 Report for the Minister for the Colonies by Mr Bonnel de Mézières (RG, Vol. II, Ann. 1), p. 82.
299 Ibid., p. 98.
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parallel intersects the 9° east of Paris meridian300, and the place at which that meridian intersects the
southern boundary of Kamerun. These locations, which enabled the above-mentioned points to be
identified, as well as a number of intermediate observation sites, were recorded and plotted on the
map produced by Equatorial Guinea301 (identified by the △ symbol) (see sketch-map No. 3.2); the
co-ordinates determined by mutual agreement were recorded in the Commission’s documents302.
3.33 The members of the Spanish section of the 1901 Commission fully shared this
understanding of the task entrusted to them. Hence, they refused to confine themselves to any
particular practice of the administration of either colonial Power on the ground. Referring to the
instructions received by the Commission, they insisted that whether a town or village was located in
Río Muni or Gabon was to be determined with regard to its position relative to the 1° north parallel
of latitude303.
3.34 Annex I of the Paris Convention confirms that the 1901 Commission was never instructed
by Spain and France to replace the abstract boundary with a natural one. On the contrary, according
to Annex I, it had to “use as a basis the description of the boundaries as established in the
Convention” to carry out its task. The terms of Annex I read as follows:
“Although the lines of demarcation traced on the maps attached to this
Convention (appendices numbers 2 and 3) are generally assumed to be accurate, these
lines cannot be considered an absolutely correct representation until confirmed by new
maps.
Therefore, it is agreed that the Commissioners or local Delegates of both Nations
that are subsequently responsible for delimiting the boundaries on the ground of all or
some of the boundaries, shall use as a basis the description of the boundaries as
established in the Convention. At the same time, they may modify said lines of
demarcation in order to delimit them more accurately and to rectify the position of the
dividing lines of roads, rivers, cities, or villages indicated on the above-mentioned maps.
The changes or corrections proposed by mutual agreement by said Commissioners or
Delegates shall be submitted to the respective Governments for approval.”304
300 With regard to this point, see also the itinerary followed by the Delimitation Commission in the Gulf of Guinea,
1901 (MEG, Vol. III, Ann. 12), pp. 7-8.
301 REG, Vol. II, Ann. MR1. The Spanish map drawn up by d’Almonte and published by royal order in 1903 also
shows the boundary as determined by Article 4 of the Paris Convention and depicts the work of the 1901 Commission, in
particular the astronomical survey points (indicated by the △ symbol here too) (CMG, Vol. II, Ann. C9).
302 Itinerary followed by the Delimitation Commission in the Gulf of Guinea, 1901 (MEG, Vol. III, Ann. 12). See
also Report for the Minister for the Colonies by Mr Bonnel de Mézières (RG, Vol. II, Ann. 1), p. 103.
303 REG, Vol. III, Ann. 8. This document directly contradicts Equatorial Guinea’s allegation in its Memorial that
the Commission “assigned French nationality to the village[] of Mitombe” (MEG, Vol. I, para. 3.47). In fact, the
Commission considered that Mitombé, located to the north of the 1° north parallel of latitude, was in Spain. The
Commission, therefore, merely proposed that the village be French (MEG, Vol. III, Ann. 15). See also below, para. 3.34.
304 Convention on the delimitation of French and Spanish possessions in West Africa, on the coasts of the Sahara
and the Gulf of Guinea, Paris, 27 June 1900 (CMG, Vol. III, Ann. 47), Ann. I.
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Excerpt 1: Utamboni (M’ Beto, Ekododo, confluence with the Mitombé)
Excerpt 2: Ephong
Excerpt 3: Etang-Abam
- 48 -
Excerpt 4: Aquas
Excerpt 5: Intersection 1° north - 9° east
Sketch-map No. 3.2
The work of the 1901 Commission (REG, Ann. MR1; astronomical observation sites  and 1° north
parallel of latitude highlighted)
3.35 Accordingly, any proposed modification of the demarcation lines had to be agreed
between the Commissioners and approved by their respective governments. In other words, the 1901
Commission could only make proposals to modify the boundary, proposals which remained subject
to the approval of the States parties. In practice, the 1901 Commission demonstrated the same
understanding of the terms of Annex I. Well aware of the limits of its mandate, it simply “proposed”
the boundary it had drawn up as “the natural border that is the most convenient and most in keeping
- 49 -
with the spirit of the Convention”305. This proposal, therefore, does not reflect what the 1901
Commission considered to be the boundary delimited by the Paris Convention, but rather what in its
view could constitute the boundary in the future. Thus, the tables annexed to the Commission’s
proposals do not set out which of the two States actually exercised authority over a particular village,
but which of those two States — in the opinion of the Commission, as reflected in its proposed
boundary — might do so306. Mindful that its proposed modifications strayed from the definition of
the boundary as set out in Article 4, the Commission noted:
“Nevertheless, the Commissioners propose the boundary described, on account
of the advantages that it presents owing to its determination by reference to the natural
features on the ground, and leave it to their respective Governments to make a decision
regarding this discrepancy and what, if any, compensation is to be provided.”307
3.36 As Gabon has explained, France and Spain never approved the proposals of the 1901
Commission308. While in its Memorial, Equatorial Guinea conveniently had very little to say on the
question of the approval of the modifications, in its Reply, it effectively dismisses this requirement
out of hand. It states that “in Annex 1 there were no special procedures adopted for ‘approval’ of
boundary modification proposals”309, before concluding that
“any form of approval by the contracting parties — including implied approval, or
approval demonstrated by practice — sufficed in regard to boundary modifications
mutually agreed to by the relevant Commissioners or local Delegates”310.
It even goes so far as to argue that no exchange between France and Spain was needed in order for
proposed boundary modifications to be approved311, meaning that each State could unilaterally
approve such proposals simply by remaining silent.
3.37 This new position of Equatorial Guinea lacks all credibility and largely disregards the
ordinary meaning of the terms of Annex I of the Paris Convention. In providing for proposed changes
or corrections to be “submitted to the respective Governments for approval” (“sometarán á la
aprobacion de los Gobiernos respectivos” in the Spanish version), the text of the Convention not only
requires proof that the governments have been informed of these proposals (“submitted to”), but also
that they explicitly approve them. Such is the ordinary meaning of the term “approval”, which refers
to the action of consenting to something in order to give effect to it312.
305 Franco-Spanish Delimitation Commission, Border Project: Southern Border, 1 Jan. 1902 (MEG, Vol. III,
Ann. 14).
306 Table of villages recognized by the Delimitation Commission of Spanish Guinea, with names of chiefs, tribes
and nationality according to the proposed boundary (MEG, Vol. III, Ann. 15, and CMG, Vol. IV, Ann. 56). Owing to a
technical error, this document is not reproduced in Ann. 55, as indicated in the Counter-Memorial, but in Ann. 56.
307 Note on the assessment of the land ceded by France and Spain, respectively, according to the proposed boundary
presented by the Commission, 20 Mar. 1903 (CMG, Vol. IV, Ann. 55) (emphasis added).
308 CMG, Vol. I, paras. 1.44-1.49.
309 REG, Vol. I, para. 5.13.
310 Ibid.
311 Ibid.
312 See Dictionnaire de l’Académie française, 9th ed., online: https://www.dictionnaire-academie.fr/article/
A9A2262 (“Action of approving; acceptance, assent, consent.”; emphasis added). See also J. Salmon, Dictionnaire de droit
international public, Bruylant, 2001, p. 74 (“Expression of the agreement or consent of a State with or without legal effect,
given in respect of instruments, proposals or resolutions drawn up by other States with or without the participation of that
State”; emphasis added); G. Cornu, Vocabulaire juridique, 12th ed., PUF, 2018, p. 77 (“Consent granted by a higher
authority giving full effect to an instrument emanating from an authority under its control”; emphasis added).
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3.38 Equatorial Guinea’s position also runs counter to the object and purpose of the Paris
Convention, namely the establishment of a stable boundary313. Contrary to what Equatorial Guinea
claims, the authors of the Paris Convention clearly did not intend to enable the boundary they had
agreed, following fiercely contested negotiations and transactions — it must be recalled314 — to be
modified by the Commissioners without any further formalities, on the basis of the subsequent
practice of one of the parties. On the contrary, mindful that the establishment of a permanent
boundary was “a matter of grave importance” and that “agreement is not easily to be presumed”315,
the parties to the Paris Convention took care to set out in detail the procedures by which proposals
made by the 1901 Commission might — or might not — be endorsed. That is why, on several
occasions, the French authorities followed up with their Spanish counterparts with a view to
“reaching an agreement” on the “proposals”316, quickly bringing the talks to a successful
conclusion317, or obtaining a “prompt response” to the proposals318. Spain’s letter putting a definitive
brake on the question of the 1901 Commission’s work also left no room for doubt in this regard.
Declaring that it was “impossible . . . to give a categorical response” to his French counterparts, the
Spanish Minister of State explained:
“Indeed, we could not make light of a question as important as this, to approve or
reject the work of the 1901 Franco-Spanish Commission, without a clear picture of the
reliability of its work.
Thence the examination and the thorough and necessarily slow survey to which
the Spanish delegates have had to dedicate the last three and a half years in order to be
able to determine a precise boundary line and, in addition, to safeguard the interests of
both France and Spain.”319
3.39 It is quite clear that Spain and France never approved the work of the 1901 Commission,
not even in part. Both expressed doubts as to its reliability and voiced the strongest reservations
concerning the proposed boundary. The fact that both Powers drew attention to the most obvious and
significant errors in justifying their rejection does not mean, a contrario, that in practice they partially
approved the 1901 Commission’s proposals for the Utamboni River area. In 1903, the French
authorities began to question the proposed boundary in that area and wished to explore whether they
could persuade Spain to agree to a boundary that, “instead of following the line of the Utamboni,
follows the line of the Bongué River up to its eastern confluence with the Utamboni, giving France
possession of the land in between”320. Spain was aware of these requests, and the members of the
Spanish section of the 1901 Commission acknowledged that “there [could] be no disadvantage”321 in
313 Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 34.
314 See CMG, Vol. I, paras. 1.24-1.30.
315 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253.
316 Letter No. 124 from the Ambassador of France to Spain to the French Minister for Foreign Affairs, 24 July 1905
(CMG, Vol. IV, Ann. 59).
317 Letter No. 391 from the French Minister for Foreign Affairs to the French Minister for the Colonies, 31 July
1905 (CMG, Vol. IV, Ann. 60).
318 Letter from the French Minister for Foreign Affairs to the French Minister for the Colonies, 19 Sept. 1905
(CMG, Vol. IV, Ann. 61).
319 Letter from the Spanish Minister of State to the Ambassador of France to Spain, 20 April 1907 (CMG, Vol. IV,
Ann. 64), p. 6.
320 Letter from the French Minister for the Colonies to the French Minister for Foreign Affairs, 8 Apr. 1903 (CMG,
Vol. IV, Ann. 57), pp. 58-59.
321 Report of Mr Vilches and Mr Nieves to the Colonial Division of the Spanish Ministry of State, 2 Oct. 1905
(CMG, Vol. IV, Ann. 62). See also Letter from the Spanish Minister of State to the Ambassador of France to Spain, 20 Apr.
1907 (MEG, Vol. IV, Ann. 56).
- 51 -
granting them. These exchanges confirm that the Commission’s proposals as a whole were not
approved by the two States. Moreover, Spain was of the opinion that only a review of the
Commission’s entire work could be envisaged, and indicated that, on this basis, it would propose
“the drawing of a natural frontier as close as possible to the meridian 9° east of Paris and the parallel
of latitude 1° north”322.
3.40 In view of the foregoing considerations, it is clear that, in the absence of any approval,
there could never have been any de jure “modifications to the boundary described in Article 4 of the
1900 Convention in accordance with the terms of the 1900 Convention and international law”323.
Spain’s supposed subsequent practice cannot alter this fact. It cannot compensate for the lack of
approval of any modification of the boundary pursuant to the provisions of the Paris Convention.
Nor can it, on its own, modify the definition of the boundary established by that Convention.
2. The contra legem effectivités invoked cannot establish or provide de facto confirmation of a
modification of the Paris Convention
3.41 Not having any legal effect, nor do the acts upon which Equatorial Guinea seeks to rely
enable any de facto modification of the Paris Convention to be identified. The so-called effectivités,
which — in the absence of any modification of the Convention — remain contra legem effectivités,
in no way show that Spain and France considered the 1901 Commission’s proposals in the Utamboni
River area as being agreed. It is interesting to note in this regard that the Spanish authorities never
relied on the modifications proposed by the 1901 Commission to justify their occupation of the bend
in the Utamboni River or of the territories to the north of the Mitombé River.
3.42 Take, for example, the alleged effectivités in the village of Asobla, which according to
Equatorial Guinea was a seemingly thriving Spanish colonial hub324. On the map produced by the
1901 Commission, Asobla lies well to the north of the boundary, i.e. the 1° north parallel of latitude
(see sketch-map No. 3.3). In 1963, the Spanish authorities continued to locate that village to the north
of the parallel325 (see sketch-map No. 3.4). There is nothing to suggest that the colonial authorities
considered [other than] that Asobla belonged to Spain because it lay to the north of the 1° north
parallel of latitude, or north of the boundary proposed by the 1901 Commission (i.e. the Utamboni
River). The same must be said of the censuses carried out by the Spanish authorities326.
322 Letter from the Spanish Minister of State to the Ambassador of France to Spain, 20 Apr. 1907 (CMG, Vol. IV,
Ann. 64), p. 143.
323 REG, Vol. I, p. 144 (point III (3) of the submissions).
324 Ibid., paras. 5.20, 5.21 and 5.32.
325 Economic development plan for Equatorial Guinea, 1964 to 1967 (REG, Vol. IV, Ann. 25) and REG, Vol. II,
sketch-map No. R5.14.
326 REG, Vol. I, para. 5.32, and REG, Vol. II, sketch-map No. R5.5.
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Sketch-map No. 3.3
Location of Asobla (Assoubéla) according to the work of the 1901 Commission (highlighting
and annotation added)
[In white: 1° north parallel of latitude identified by the 1901 Commission]
3.43 Likewise, the proposals made to the German authorities by the Governor-General of
Spanish Guinea, Mr Barrera, in 1913 — of which much is made by Equatorial Guinea in its
Reply327 — in no way confirm the acceptance of the 1901 Commission’s proposals in the Utamboni
River area. Despite how it is presented by Equatorial Guinea in its Reply328, the agreement in
question329 does not concern the delimitation of the boundary. It is merely an agreement on a modus
vivendi enabling the authorities on either side of the boundary to pursue fugitives some 30 km into
the territory of the other party330. Mr Barrera confirmed that he was providing only his personal
opinions and that the modus vivendi, or “special status quo”, was to apply “while our Governments
come to an agreement and a clear and stable delimitation that merits the approval of our respective
Sovereigns”331, and “without, I repeat, prejudging anything”332.
327 Ibid., paras. 5.24-5.25.
328 REG, Vol. I, para. 5.24.
329 Certification from the head of the archives of the General Government of the Spanish territories in the Gulf of
Guinea, 27 Dec. 1948 (REG, Vol. III, Ann. 14).
330 Ibid., p. 278.
331 Report No. 1196 from the Government of Kamerun to the Secretary of State for the Imperial Colonial Office,
6 Aug. 1913 (REG, Vol. III, Ann. 9), p. 156 (translation by Equatorial Guinea of the original Spanish: “y en tento que por
nuestros Gobiernos no se llega a acuerdo y a una delimitación clara y estable que merezca la sanción de nuestro respectivos
Soberanos”).
332 Ibid., p. 162 (translation by Equatorial Guinea of the original Spanish: “sin que ello, repito, prejuzgue nada”).
- 53 -
Sketch-map No. 3.4
Location of Asobla according to the map of schools in Río Muni (1963) (highlighting added)
3.44 Even more interesting is Governor-General Barrera’s statement specifically recalling that
the work of the Commission “did not later merit the approval of the French and Spanish
governments”333. He was clearly not even aware of the proposals that had been made by the 1901
Commission. Far from following the natural boundary along the Mitombé River to the east of the
Utamboni River, as had been proposed by the 1901 Commission, he agreed that, from the confluence
of the Utamboni and Mitombé rivers (which the Commission identified as lying slightly to the north
of the 1° 0' 14.77″ north parallel of latitude), the boundary followed the 1° north parallel of latitude
as indicated on the Moisel map. The boundary was thus located significantly further north than
Equatorial Guinea alleges, leaving villages that had been allocated to Spain under the 1901
Commission’s proposals (such as Mendong (Mandung), Angouma, Ebé and Mébé), and over which
Equatorial Guinea claims sovereignty, to the south of the dividing line and therefore in German
333 Ibid., p. 159 (translation by Equatorial Guinea of the original Spanish: “que si bien no merecieron despues la
sancien de los gobiernos Frances y español”).
- 54 -
territory (sketch-map No. 3.5). Unaware of the 1901 Commission’s proposals334, Governor-General
Barrera stated that the village of Mitombé, which had been allocated to France under the
Commission’s proposals, belonged to Spain335. In correspondence with his superiors, moreover, the
Governor-General of Spanish Guinea indicated that his aim was not to confirm with the German
authorities the boundary proposed by the 1901 Commission, of which he knew nothing, but to assert
certain Spanish interests in respect of earlier claims made by France336.
Sketch-map No. 3.5
The Barrera proposal of 1913, the proposal of the 1901 Commission and the position of
Equatorial Guinea (lines and annotations added to the Moisel map, CMG, Vol. II, Ann. C12)
[In green: Dividing line (1° N) proposed by Barrera in 1913; in red: Boundary according to
Equatorial Guinea (approximate) (see sketch-map No. R5.1); black circle: Confluence of the
Utamboni and the Mitombé; in yellow: Villages allocated to Spain under the 1901 Commission’s
proposals]
3.45 In 1914, the Spanish authorities considered that their possessions in the Gulf of Guinea,
which were completely surrounded by German possessions at the time, remained “without the
borders being delimited except for parallels 1° and 2°10′20″ north latitude, and the meridian 9°
334 Table[s] of the villages recognized by the Delimitation Commission of Spanish Guinea, with names of chiefs,
tribes, and nationality according to the border project, 2 Jan. 1905 (MEG, Vol. III, Ann. 15).
335 Certification from the head of the archives of the General Government of the Spanish territories in the Gulf of
Guinea, 27 Dec. 1948 (REG, Vol. III, Ann. 14), p. 17.
336 See also ibid., pp. 13-14 and p. 18.
- 55 -
longitude east of Paris, intangible lines not established on the ground”337. There is no mention of a
boundary being modified according to the 1901 Commission’s proposals in the Utamboni River or
Mitombé River areas.
3.46 Nor do the work of the Spanish-German Commission or the report drawn up in 1914
confirm the existence of an agreement on the boundary proposed by the 1901 Commission338.
Equatorial Guinea still fails to understand the terms — and even the title — of that report339. There
is nothing in that document to suggest that the Spanish-German Commission recognized certain
villages as belonging to Spain on account of “the reality that Spain administered those villages”340.
According to the report, the Commission based its observations and conclusions solely on the
“astronomical observations made by the two sections” and “the routes followed”, and thus
necessarily on their geographical co-ordinates and not on whether they lay to the south or north of
the 1° north parallel of latitude341. Governor-General Barrera confirmed this in 1919, explaining that
“it was seen that several of them [i.e., the villages] were located north of the first parallel north and
therefore, were in Spanish territory”342. The geographical location of the villages mentioned in the
work of the Spanish-German Commission in relation to the boundary proposed by the 1901
Commission was not taken into consideration.
3.47 In 1940, the Spanish colonial authorities again acknowledged that they were unaware of
the legal basis on which they occupied the territories to the south of the 1° north parallel of latitude.
While recognizing that the Paris Convention left the bend in the Utamboni River to France343, the
Spanish administrator for the area confirmed that he was entirely unaware of any modification made
on the basis of and in accordance with the 1901 Commission’s proposals, asking:
“What proof do we have that the reservations in Annex I [of which he had no
knowledge] do not actually say that the abstract boundary will be replaced by natural
boundaries if and when possible?”344
3.48 The other effectivités relied on by Equatorial Guinea are similarly flawed. The Miang
forestry concession cannot substantiate the boundary modifications proposed by the 1901
337 Letter from the Spanish Minister for Foreign Affairs to the Ambassador of Spain to the German Empire, 4 Feb.
1914 (MEG, Vol. IV, Ann. 62), p. 223 (translation by Equatorial Guinea of the original Spanish: “sin que las fronteras
esten delimitadas nada mas, que por los paralelos 1° y el de 2° 10′ y 20″ ambos de latitud Norte, y el meridiano 9° de
longitud Este de Paris, lineas immateriales no fijadas sobre el terreno”).
338 MEG, Vol. V, Ann. 115.
339 Gabon notes that Equatorial Guinea continues to refer to the document contained in Ann. 115 of its Memorial
as a “Decree Signed by the German Empire and the Kingdom of Spain for the Delimitation Between Spanish Guinea and
the Protectorate of Cameroon” (see, e.g. REG, Vol. I, pp. 107-108, fns. 328 and 330). It adds moreover in a footnote that
“[a]ll of Equatorial Guinea’s translations of annexed documents are certified by professional translators” (REG, Vol. I,
fn. 327). However, the title of the translated document provided by Equatorial Guinea and certified by its professional
translators is simply “Record”. See also CMG, Vol. I, para. 2.6.
340 REG, Vol. I, para. 5.28.
341 CMG, Vol. I, para. 2.7.
342 Letter from the Governor-General of Spanish Guinea to the Governor-General of French Equatorial Africa,
1 May 1919 (MEG, Vol. IV, Ann. 67) (translation by Equatorial Guinea of the original Spanish: “pero comprobada en
1914, sobre el terreno por la misión hispano-alemana de delimitación, la situación geográfica de algunos de aquellos
lugares, se vió, que bastantes de entre ellos esban emplazados al Norte del paralelo de un grado de latitud Norte y por lo
tanto, en territorio español”). See also CMG, Vol. I, para. 2.7.
343 Letter No. 18 from the Head of the Cocobeach Subdivision to the Head of the Estuaire Department, 9 Mar. 1940
(CMG, Vol. IV, Ann. 90).
344 Ibid.
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Commission345. By Equatorial Guinea’s own account, the land area awarded under the concession
extends far to the south of the boundary proposed by the Commission. Equatorial Guinea has offered
no explanations in this regard. The “Echam” forestry concession, for its part, is also at odds with
Equatorial Guinea’s claims. The southern limit of this concession is described as corresponding to
the land “on the border with Gabon” (“terreno de la frontera con el Gabón”)346. However, the
boundary proposed by the 1901 Commission lay further to the south (see sketch-map No. 3.6). Also
inconsistent with the proposals made by the 1901 Commission, as well as being of doubtful probative
value347, are the lists of villages drawn up by Spain and Gabon during the negotiation of the
agreement on transboundary movement and trade between them, which never entered into force.
Indeed, the Spanish authorities’ list of villages considered to form part of Spanish possessions
included some, such as Masilé (Masili) and Tom (the name the Spanish used for Mitombé348), which
the 1901 Commission had attributed to France.
Sketch-map No. 3.6
The forestry concessions and the 1901 Commission’s natural boundary proposal (REG,
sketch-map No. R.57 with annotations and proposal added)
[In brown: Natural boundary proposal of the 1901 Commission (as interpreted by Equatorial
Guinea, see sketch-map No. R5.3) (added)]
3.49 Equatorial Guinea’s claims in these proceedings also deviate from the proposals made by
the 1901 Commission. It admits to having made errors in transposing the proposals onto its own
sketch-maps349. In its Reply, Equatorial Guinea provides a revised depiction. However, by Equatorial
Guinea’s own account, it is not the proposed boundary that is shown on its sketch-map, but the route
345 Miang River Forestry Concession (Kogo District), 28 Jan. 1961 (REG, Vol. III, Ann. 19).
346 Spanish Decree No. 1505/1961, 20 July 1961 (REG, Vol. IV, Ann. 24).
347 CMG, Vol. I, para. 2.56.
348 Letter No. 18 from the Head of the Cocobeach Subdivision to the Head of the Estuaire Department, 9 Mar. 1940
(CMG, Vol. IV, Ann. 90).
349 REG, Vol. I, para. 5.17. On this subject, see CMG, Vol. I, paras. 7.31-7.33.
- 57 -
followed by the Commission350. This is obviously not the same thing. Notwithstanding these
inaccuracies, Equatorial Guinea saw no need to modify the depiction of the boundary that it wrongly
believes can be inferred from the alleged titles on which it relies. Despite its insistence on the
existence of a modified boundary along natural features and based on the proposals of the 1901
Commission, Equatorial Guinea simply draws a straight, rather ill-defined line to connect the
Utamboni River to a point on the parallel which is never identified. This line in no way corresponds
to the proposals of the 1901 Commission (sketch-map No. 3.7). Somewhat embarrassed, Equatorial
Guinea offers the beginnings of an explanation for this in a footnote: “[T]hat is due to further
uncontested administrative actions and agreements during and after the colonial period, which gave
rise to additional adjustments to the Southwest boundary”351. This confirms that, in Equatorial
Guinea’s own opinion, the proposals of the 1901 Commission do not constitute a legal title on which
the so-called effectivités may be based. Since they do not tally with the law, the facts relied on and
effectivités invoked by Equatorial Guinea therefore remain contra legem.
Sketch-map No. 3.7
The 1901 Commission’s natural boundary proposal and the boundary according to
Equatorial Guinea (sketch-map No. R5.3 with annotations added)
[In red: Boundary according to Equatorial Guinea (approximate) (see sketch-map No. R5.1)
(added)]
350 Ibid., para. 5.17, fn. 302.
351 Ibid., p. 113, fn. 354.
- 58 -
3.50 On the other hand, the French (and German) authorities have consistently confirmed that
the southern boundary of Spanish Guinea followed the 1° north parallel of latitude from its first
downstream intersection with the Utamboni River. The texts establishing the limits of the
subdivisions of French Gabon, and the extensive correspondence between the local authorities352,
demonstrate that at no time did those authorities envisage approving the proposals of the 1901
Commission. On the contrary, they considered that they continued to have a legal title to the
territories to the south of the boundary established by Article 4 of the Paris Convention. The
documents submitted by Equatorial Guinea confirm, moreover, that the Spanish colonial authorities
had exactly the same understanding. They knew that the French authorities considered the area in the
bend in the Utamboni as falling under their authority353 and had no reason to believe that France had
waived the legal title established by the Paris Convention.
B. There was no modification of the boundary in the vicinity of the Kie River
3.51 Equatorial Guinea also wrongly continues to claim that the boundary in the vicinity of
the Kie River was modified. It states that “Spain and France also agreed to a modification of the
boundary set out in Article 4 of the 1900 Convention, pursuant to the procedures of Annex 1”354. In
its view, the modification of the eastern boundary was carried out by what it refers to as the “1919
Governors’ Agreement”355, which is said to have replaced the 9° east of Paris meridian with the
course of the Kie River up to its source.
3.52 Once again, Equatorial Guinea refuses to face the facts: the “1919 Governors’
Agreement” does not form any part of the procedure of Annex I of the Paris Convention, which
allows for changes or corrections to the boundary delimited by Article 4 of the Convention to be
proposed, subject to the approval of the respective Governments356. Neither the Governor-General
of Spanish Guinea nor the Governor-General of French Equatorial Africa acted within the framework
of and limits imposed by Annex I. The provisions of the Paris Convention were not even mentioned
by the two Governors-General in their respective letters.
352 See CMG, Vol. I, para. 7.33. See, in particular, Letter from the Spanish Minister for Foreign Affairs to the
Ambassador of Spain to the German Empire, 4 Feb. 1914 (MEG, Vol. IV, Ann. 62); Letter from the Governor-General of
the Spanish Territories in Africa to the Governor of French Gabon, 22 Nov. 1917 (MEG, Vol. IV, Ann. 65); Letter from
the Governor-General of Spanish Guinea to the Governor of French Equatorial Africa, 1 May 1919 (MEG, Vol. IV,
Ann. 67); Letter No. 439 from the French Minister for the Colonies to the Governor-General of French Equatorial Africa,
3 May 1937 (CMG, Vol. IV, Ann. 88); Letter from the National Commissioner for Foreign Affairs to the National
Commissioner for the Colonies, 27 Feb. 1943 (CMG, Vol. IV, Ann. 91).
353 Certification from the head of the archives of the General Government of the Spanish territories in the Gulf of
Guinea, 27 Dec. 1948 (REG, Vol. III, Ann. 14), pp. 13-14 (“The French who have apparently located, of their own accord,
some points on the southern border of the territory [sic] placed the entire river N’vmy on which banks Asobla is located
south of parallel 1° N. Therefore, if this is true, the town would belong to the Germans today, and if the borders are not
rectified as soon as possible, I repeat, this would lead us again to constant friction in the south of our continental
possessions”. Equatorial Guinea’s translation of the original Spanish: “los franceses que por lo visto han situado por su
cuenta algunos puntos de la frontera Sur del territorio colocan todo el rio N’vym en cuyas orillas está situado Asobla al Sur
del paralelo 1° de latitud Norte, y por lo tanto de ser cierto esto resultaría que dicha localidad pertenecería a los alemanes
hoy día, y al no rectificar cuanto antes las fronteras no conduciría repito a constantes rozamientos en el Sur de nuestra
Posesión Continental”).
354 REG, Vol. I, para. 5.51.
355 Letter from the Governor-General of the Spanish Territories in Africa to the Governor of French Gabon, 22 Nov.
1917 (MEG, Vol. IV, Ann. 65); Letter No. 03 from the Governor-General of French Equatorial Africa to the Governor-
General of the Spanish Territories in the Gulf of Guinea, 24 Jan. 1919 (MEG, Vol. IV, Ann. 66).
356 Convention on the delimitation of French and Spanish possessions in West Africa, on the coasts of the Sahara
and the Gulf of Guinea, Paris, 27 June 1900 (CMG, Vol. III, Ann. 47), Ann. I.
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3.53 It is with good reason that the authors of these letters did not include any such references.
As demonstrated above357, the Paris Convention did not require the boundaries delimited by Article 4
to be replaced with natural ones, let alone “invite” the Commissioners or Delegates to do so, contrary
to what Equatorial Guinea claims358. Most importantly, neither the Governor-General of Spanish
Guinea nor the Governor-General of French Equatorial Africa was a “local [d]elegat[e] . . .
subsequently responsible for delimiting . . . on the ground . . . all or some of the boundaries”359, i.e.
for demarcating them on site360. Nor did they do so. The two Governors-General conducted this
exchange of letters with the sole aim of reaching an agreement on a more acceptable provisional
boundary, pending a definitive solution to the question and without having visited the site.
3.54 The explanations provided by the Governor-General of Spanish Guinea confirm this. He
did not consider himself vested under the Paris Convention with the power to “substitute natural lines
for the artificial lines established as a boundary”361 or to adjust the boundary line to conform to the
“reality on the ground”362; rather, he offered the following explanation to his French counterpart:
“When the current European war was declared, the Imperial Governor of
Kamerun had proposed to me that the part between the Benito River and the 2°10′20″N
line of latitude, the Kié River, be temporarily considered the eastern border of Spanish
Guinea and the western border of the Kamerun River territories, which I could not
accept at that time. Because the campaign in Kamerun had started, I did not believe it
was a good time to accept the proposal since it was the opposite of neutrality, and
accepting the proposal would have allowed the Germans to withdraw the forces that
defended the passage of the aforementioned river.”363
3.55 The Governor-General was merely repeating a proposal originally made by the German
authorities. This proposal, which had been unacceptable during the war (since the Spanish authorities
wanted the Germans to continue to defend the Kie River passage), was reiterated once the war ended.
Since France was once again occupying that part of Gabon, the Governor-General proposed that:
“in the eastern part of the Spanish territory, between the parallel of latitude 2° 10' 20"
North and the location of the source of the Kié river, we can consider this river as a
provisional border, as long as an exact delimitation of the border has not yet been
357 See above, para. 3.34.
358 REG, Vol. I, para. 5.54.
359 Convention on the delimitation of French and Spanish possessions in West Africa, on the coasts of the Sahara
and the Gulf of Guinea, Paris, 27 June 1900 (CMG, Vol. III, Ann. 47), Ann. I.
360 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 340, para. 49.
361 REG, Vol. I, para. 5.54.
362 Ibid., para. 5.1. See also paras. 5.19, 5.23 and 5.28.
363 Letter from the Governor-General of the Spanish territories in Africa to the Governor-General of French Gabon,
22 Nov. 1917 (MEG, Vol. IV, Ann. 65). Equatorial Guinea’s translation of the original Spanish: “Al declararse la actual
guerra europea al Gobernador Imperial de Camerún había propuesto a este Gobierno General, el considerar
provisionalmente como frontera Este de la Guinea española y Oeste de los territorios del Rio Camerun, la parte
comprendida entre el Benito y el paralele de 20-10’-20’’ de latitud Norte, el rio Kie, le que no pudo aceptar en aquello
momentos éste Gobierno general, debido á que empezada la luche en Camerun, no consideré oportuno aceptar la
proposición por considerar la opuesto a la neutralidad ya que de aceptarla hubiera permitido á los alemanes retirar las
fuerzas que pudieren defender el paso del mencionado rio”.
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established, which will remove any cause for incident in almost all the northern half of
the eastern border of Spanish Guinea”364.
3.56 The French authorities also confirmed that there was no question of delimiting the
boundary established by the Paris Convention on the ground, or of determining a definitive boundary.
Recalling the provisional nature of the arrangement, the Minister for the Colonies stated that
“it is essential that I have the position of this river [the Kie] verified, in order to
determine the extent to which the territory accorded to Spain would increase if, the
Moisel map having been recognized as accurate, the provisional boundary were to be
adopted as final”365.
3.57 The reconnaissance work relating to a natural boundary in the area, which was carried
out in 1920366 and is mentioned by Equatorial Guinea in its Reply367, likewise confirms that neither
the French nor the Spanish authorities — including the Governor-General of Spanish Guinea, who
was involved in this work — understood the “1919 Governors’ Agreement” as modifying the Paris
Convention. The Governor-General of Spanish Guinea and the head of the Gabonese district of
Woleu-N’Tem observed that the exposé on the study of a natural boundary in the east of Spanish
Guinea “may be used as a basis for proposals subsequently made to the two governments to
[substitute] a natural border [for] the 9° longitude east of Paris”368. There is no question that these
proposals were never approved by the respective governments369. Their mere existence nonetheless
proves that in 1920 — one year after the “1919 Governors’ Agreement” — the local authorities,
including one of the authors of the 1919 agreement, remained convinced that the “[substitution of] a
natural border [for] the 9° longitude east of Paris” had not been formally approved. They knew that
any modification of the boundary delimited by the Paris Convention in fact required proposals to be
made and submitted to the governmental authorities for approval370.
3.58 The absence of any modification of the eastern boundary defined by the Paris Convention
is also borne out by regulatory instruments adopted by Spain and France. In 1936, the French
authorities confirmed the 1900 land boundary delimitation line, i.e. the 9° east of Paris meridian,
which was expressly mentioned in the definition of the limits of the Bitam and Oyem subdivisions371.
In addition, much as it may displease Equatorial Guinea372, the texts adopted by its former colonial
Power in 1935 defined the eastern limit of the border districts by reference to a “linea recta” (straight
line) and not the natural boundary of the Kie River or other rivers or artificial boundaries further to
364 Letter from the Governor-General of the Spanish territories in Africa to the Governor-General of French Gabon,
22 Nov. 1917 (MEG, Vol. IV, Ann. 65); our English translation of the original Spanish. See CMG, Vol. I, para. 2.18.
365 Letter from the French Minister for the Colonies to the French Minister for Foreign Affairs, 24 Nov. 1919
(CMG, Vol. IV, Ann. 72), p. 219 (emphasis added).
366 Succinct exposé on the study of a natural border in the east of Spanish Guinea, 7 Oct. 1920 (REG, Vol. III,
Ann. 10).
367 REG, Vol. I, para. 5.57.
368 Succinct exposé on the study of a natural border in the east of Spanish Guinea, 7 Oct. 1920 (REG, Vol. III,
Ann. 10), p. 1.
369 Note by the Co-ordination Division for French Equatorial Africa on the delimitation of the boundary between
Gabon and Spanish Guinea, 15 Sept. 1952 (CMG, Vol. IV, Ann. 92), pp. 2-3.
370 Succinct exposé on the study of a natural border in the east of Spanish Guinea, 7 Oct. 1920 (REG, Vol. III,
Ann. 10), p. 1.
371 Order of the Governor-General of French Equatorial Africa, 5 Nov. 1936 (CMG, Vol. IV, Ann. 87), pp. 2-3.
372 REG, Vol. I, para. 5.64.
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the south373. Even if this “linea recta” did not correspond to the 9° east of Paris meridian exactly374,
these regulatory texts unmistakeably confirm that the abstract boundaries had not been replaced with
natural lines.
3.59 The provisional arrangement between the Governors-General in 1919, therefore, is not
and was never understood to be a modification of the Paris Convention. It was nothing more than its
drafters intended it to be: a temporary arrangement making it possible to avoid incidents pending a
more comprehensive review of the boundary delimited by the Paris Convention. As the Court has
explained, “[e]ven if there had been a provisional line found convenient for a period of time, this is
to be distinguished from an international boundary”375. Similarly, the arbitral tribunal in the territorial
and maritime delimitation case between Slovenia and Croatia stated that:
“Th[e] legal boundary is not necessarily the same as what might be called the
‘practical’ boundary. In any particular place, it may have been the habit to treat that
location as part of one or other republic — for example, for the purpose of allocating
postal codes or connecting to public utilities such as gas, electricity, water and
sewage — on the basis of practical convenience or local traditions or preferences, and
without regard to the precise location of the legal boundary.”376
3.60 And as that same arbitral tribunal recalled, the impractical nature of a boundary
determined as a matter of law is not a reason for its replacement with a boundary that is more
appropriate in practical terms377.
3.61 In these circumstances, the acts invoked by Equatorial Guinea — even conveniently
described as “administrative acts”378 — cannot change the provisional nature of the arrangement
between the Governors-General. In fact, they do not even constitute effectivités, i.e. activities carried
out à titre de souverain. The Spanish authorities could not have been unaware that the administration
of the territories had been authorized by their French counterparts on a provisional basis only, subject
to the full regularization of the eastern boundary of Spanish Guinea.
Conclusion
3.62 For the reasons set out above, Gabon maintains its submissions on the legal titles having
the force of law with regard to the delimitation of the land boundary:
373 Decree adopting an organic statute, 13 Apr. 1935 (CMG, Vol. IV, Ann. 85), first basis.
374 Indeed, the Spanish authorities had claimed since 1920 that this meridian lay further to the east than it appeared
on the maps in existence at the time. See Note by the Co-ordination Division for French Equatorial Africa on the
delimitation of the boundary between Gabon and Spanish Guinea, 15 Sept. 1952 (CMG, Vol. IV, Ann. 92), pp. 2-3.
375 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253.
376 Arbitration between the Republic of Croatia and the Republic of Slovenia, Final Award, 29 June 2017, para. 337.
377 Ibid., para. 565.
378 REG, Vol. I, para. 5.62. There is reason to question some of these “effectivités”, such as the alleged construction
of a floating bridge over the Kie in the vicinity of Ebebiyin and “on the road to French Gabon” (ibid., Vol. III, Ann. 13).
The map on which Equatorial Guinea attempts to indicate the position of the floating bridge (by adding the river and the
bridge) does not show it. What is more, the road on which Equatorial Guinea seeks to position its floating bridge lies well
to the north of the 2°10′20″ north parallel of latitude and thus beyond the southern boundary of Spanish Guinea.
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(a) The 1974 Bata Convention, which confirms and partially reproduces the boundary delimitation
resulting from Article 4 of the Paris Convention, is today the legal title with the force of law
between the Parties as regards the delimitation of their land boundary.
(b) No other legal title concerning the delimitation of the land boundary exists or has the force of
law between the Parties. In particular, there was no modification of the Paris Convention prior to
1974.
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CHAPTER IV
THE TITLE RELATING TO SOVEREIGNTY OVER THE ISLANDS
4.1 The Parties have diametrically opposed views on the legal titles that “have the force of
law . . . between [them] in so far as they concern . . . sovereignty over the islands of Mbanié/Mbañe,
Cocotiers/Cocoteros and Conga”379.
4.2 In its Reply, Equatorial Guinea maintains the position expressed in its Memorial that:
“The legal title that has the force of law in the relations between the Gabonese
Republic and the Republic of Equatorial Guinea with respect to the sovereignty over the
islands of Mbanié/Mbañe, Cocotiers/Cocoteros and Conga is the succession by the
Republic of Equatorial Guinea to the title held by Spain on 12 October 1968 over
Mbanié/Mbañe, Cocotiers/Cocoteros and Conga, which itself was founded on 1) the
general cession of rights from Portugal in the 1778 Treaty of El Pardo, 2) Spain’s 1843
Declaration of Spanish Sovereignty for Corisco Island, 3) Spain’s 1846 Record of
Annexation signed with King I. Oregek of Corisco Island, 4) Spain’s 1846 Charter of
Spanish Citizenship Given to the Inhabitants of Corisco, Elobey and their
Dependencies, 5) Spain’s 1858 Charter Reaffirming Spanish Possession of the Island of
Corisco and 6) Spain’s uncontested effective and public sovereign occupation of these
islands from 1843 until Equatorial Guinea’s independence in 1968.”380
4.3 Equatorial Guinea does not specify whether it is these elements as a cumulative whole that
are supposed to establish its legal title to the islands, or whether each element is capable of doing so
individually. As the first part of this chapter will show, none of the elements invoked by Equatorial
Guinea, analysed separately and in turn, constitutes a legal title in its relations with Gabon regarding
the islands in dispute. Consequently, they are no more capable, as an ill-defined whole, of furnishing
such a title.
4.4 In Gabon’s view, the Bata Convention is, within the meaning of Article 1 of the Special
Agreement, the legal title that has the force of law in its relations with Equatorial Guinea as regards
sovereignty over the islands381. It cements the agreement between the Parties regarding sovereign
title to the disputed islands, because they “recognize . . . that Mbane island forms an integral part of
the territory of the Gabonese Republic”. Since Gabon has never in any way abandoned this title, it
continues to have the force of law in relations with Equatorial Guinea, as the second part of this
chapter will show.
I. Equatorial Guinea has provided no evidence of its title to the islands in dispute
4.5 The arguments advanced by Equatorial Guinea with regard to legal title over the islands
of Mbanié, Cocotiers and Conga are woefully inadequate. Indeed, the elements invoked by
Equatorial Guinea do not amount to a legal title (A), any more than do the Spanish effectivités to
which Equatorial Guinea refers extensively in its written pleadings, all the while distorting their
factual and legal significance (B). Equatorial Guinea’s argument that France and its successor State
Gabon recognized a purported Spanish title pre-dating the Paris Convention is equally untenable (C).
379 Special Agreement, Art. 1.
380 See REG, Vol. I, p. 145 (para. IV of the submissions); see also MEG, p. 144 (para. B of the submissions).
381 See CMG, Vol. I, p. 291, para. (a) of the submissions; see also paras. 8.48-8.60.
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A. The elements invoked by Equatorial Guinea are not capable of constituting a legal title
4.6 In its Counter-Memorial, Gabon exposed the fatal flaws and contradictions in Equatorial’s
arguments on the legal titles to the islands. It is clear that, in its Reply, Equatorial Guinea is once
again avoiding any discussion of the (lack of) legal force of the elements it characterizes as titles; it
simply asserts Spanish sovereignty, but without specifying the rule of international law to which
those titles are linked. Gabon can only reiterate here, in analysing each of the elements invoked by
Equatorial Guinea to establish its title to the disputed islands, the reasons why none satisfies the
conditions for a valid legal title.
4.7 It is apparent from Equatorial Guinea’s submissions that, as regards sovereignty over the
islands, it relies solely on its “succession . . . to the title held by Spain on 12 October 1968”382. But
succession does not in itself constitute a legal title enforceable against another newly independent
State, which is also a successor State and which claims the same territory by virtue of succession383.
Equatorial Guinea acknowledges this384, moreover, and endeavours to show that Spain itself held a
legal title to the islands of Mbanié, Cocotiers and Conga.
4.8 However, none of the elements invoked to this end is capable of establishing Spain’s title
and therefore of supporting Equatorial Guinea’s claims in respect of the islands. As recalled in
Chapter I, in order to establish the sovereignty of a State, i.e. to constitute a title (cause or basis of
title), an element must be the direct source of that alleged sovereignty; similarly, if that element is
invoked as “proof of title”, it must, in point of fact, support the claims that are based on it and be
endowed with such force under international law385.
4.9 In general, when two successor States make competing claims over territories which, as in
the present case, were also the subject of a dispute between two predecessor colonizing States386, the
title of one of the successor States may in theory be based on an agreement between the predecessor
States which is said to govern the fate of the territories in dispute387. Yet Equatorial Guinea does not
invoke any title that purportedly derives from an agreement between France and Spain.
4.10 The only conventional title invoked, surreptitiously, by Equatorial Guinea is the 1778
Treaty of El Pardo. However, the latter is not put forward as a conventional title — Equatorial Guinea
having realized only belatedly that France was in fact a party to it388 — but as the basis of a “general
cession of rights”, the nature and scope of which are not specified: “1) the general cession of rights
from Portugal in the 1778 Treaty of El Pardo”389.
382 See REG, Vol. I, p. 147 (para. IV of the submissions); see also MEG, Vol. I, p. 144 (para. B of the submissions).
383 See above, para. 1.37 (and more generally, paras. 1.27-1.37) and para. 1.45.
384 REG, Vol. I, paras. 2.22-2.23.
385 See above, para. 1.23.
386 Equatorial Guinea was careful not to make any mention in its Memorial of this Franco-Spanish dispute, whose
existence it continues to deny in its Reply. In contrast, see CMG, Vol. I, paras. 8.3-8.8 and 8.40-8.47.
387 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, pp. 338-339, para. 48.
388 CMG, Vol. I, para. 1.4 and fn. 17.
389 REG, Vol. I, para. 4.2, and p. 145 (para. IV of the submissions).
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4.11 However, there is not in fact any Spanish title based on a cession agreed by convention.
The Treaty of El Pardo provides for the cession by Portugal to Spain of the islands of Annobón and
Fernando Pó, and of these two islands alone390. Like France, Gabon has never disputed Equatorial
Guinea’s sovereignty over those islands, even though one of them — Annobón — is located off its
mainland coast. But the Treaty of El Pardo simply does not apply to the island territories in dispute,
i.e. Mbanié, Cocotiers and Conga, which are not referred to in its provisions391. Since Equatorial
Guinea has not responded to Gabon’s arguments that the Treaty of El Pardo was not capable of
constituting a title to the disputed islands, there is no need to dwell on this point any further.
4.12 The other alleged Spanish “causes of title” invoked by Equatorial Guinea are:
“2) Spain’s 1843 Declaration of Spanish Sovereignty for Corisco Island,
3) Spain’s 1846 Record of Annexation signed with King I. Oregek of Corisco Island,
4) Spain’s 1846 Charter of Spanish Citizenship Given to the Inhabitants of Corisco,
Elobey and their Dependencies,
5) Spain’s 1858 Charter Reaffirming Spanish Possession of the Island of Corisco”392.
4.13 Before refuting the probative value of these documents, it should be noted that none falls
into the category of agreements or treaties enforceable against France, and thus against Gabon, and
therefore none is capable of constituting a legal title. Moreover, they are divided by Equatorial
Guinea into several categories393, including unilateral acts of Spain. The latter can at best constitute
Spanish acts à titre de souverain, thus effectivités. Yet effectivités do not in themselves amount to a
title, and invoking them separately from a title is in fact an implicit admission that a legal title does
not exist394.
4.14 The document reproduced in Annex 110 of Equatorial Guinea’s Memorial — christened
“Spain’s 1843 Declaration of Spanish Sovereignty for Corisco Island”, even though the original is
untitled — is an act signed by Juan José de Lerena, captain of the Nervión, which seeks to annex the
island of Corisco following the earlier practice of the conquistadors, not on the basis of a
conventional title derived from the Treaty of El Pardo, but on the basis of “discovery” and
occupation395. However, the African territories were no longer considered terrae nullius at that
390 CMG, Vol. I, para. 1.4; Treaty of Amity, Guarantee and Commerce between Spain and Portugal (“Treaty of El
Pardo”), 11 Mar. 1778 (MEG, Vol. III, Ann. 1), Art. XIII.
391 Ibid., para. 8.10.
392 REG, Vol. I, p. 145 (para. IV of the submissions); see also REG, Vol. I, para. 4.2.
393 These categories include “Historical Correspondence and Official Documents” (MEG, Vol. IV, which
comprises Spain’s 1846 Charter of Spanish Citizenship Given to the Inhabitants of Corisco, Elobey and their Dependencies
(MEG, Vol. IV, Ann. 47) and Spain’s 1858 Charter Reaffirming Spanish Possession of the Island of Corisco (MEG, Vol.
IV, Ann. 48)), which is distinguished from “Colonial Legislation, Census and Official Reports” (MEG, Vol. V, which
includes Spain’s 1843 Declaration of Spanish Sovereignty for Corisco Island (MEG, Vol. V, Ann. 110) and Record of
Annexation, 18 Feb. 1846 (MEG, Vol. V, Ann. 112)).
394 See above, paras. 1.56-1.72, and below, paras. 4.22-4.27, esp. para. 4.23.
395 See Island of Palmas case, Permanent Court of Arbitration, Arbitral Award of 4 Apr. 1928, United Nations,
RIAA, Vol. II, p. 839. See also Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, pp. 45 and
46.
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time — if they ever had been396. The document is therefore not in itself capable of constituting a legal
title, since it is not endowed with any particular force under international law. Moreover, the same
territories had also been “discovered” by France, as evidenced by the description made of them in
1839 by Lieutenant Commander Bouët-Willaumez397, under whose authority the Gabon trading post
was established in 1843398.
4.15 The third document invoked by Equatorial Guinea, reproduced in Annex 112 of its
Memorial and entitled “Record of Annexation (18 February 1846)”, is a declaration by which a
certain “S. Orejeck”, referred to as the “King of the Island of Corisco, Elobey, and dependencies”,
undertakes to submit to Spanish sovereignty, “[r]ecognizing that the Island of Corisco, Elobey and
its current dependencies are Spanish”399.
4.16 In so far as this document falls into the category of agreements with local indigenous
rulers within the meaning of the jurisprudence of the Court400 — which Equatorial Guinea neither
claims nor demonstrates — it cannot form the basis of a Spanish legal title enforceable against France
at that time. There are several reasons why the document cannot be characterized as a “legal title”.
First, as the Court noted in its Advisory Opinion on the status of Western Sahara, “such agreements
with local rulers, whether or not considered as an actual ‘cession’ of the territory, were regarded as
derivative roots of title, and not original titles obtained by occupation of terrae nullius”401. They
cannot in themselves constitute an autonomous legal title, and their significance is especially unclear
given that the scope of the authority of the local rulers concerned is open to debate402. Moreover,
such acts were recognized as having a certain legal significance in territorial matters only in so far
as it was established that they concerned territories which were inhabited, or possessed by indigenous
rulers403, which is not true of the islands in dispute. Finally, and in any event, France too concluded
agreements with other local rulers — the king and chiefs of Elobey Grande and then the chiefs of
Elobey Chico — in respect of the same island territories404.
396 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 80 (“Whatever differences of opinion there
may have been among jurists, the State practice of the relevant period [end 19th century] indicates that territories inhabited
by tribes or peoples having a social and political organization were not regarded as terrae nullius. It shows that in the case
of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through ‘occupation’
of terra nullius by original title but through agreements concluded with local rulers. On occasion, it is true, the word
‘occupation’ was used in a non-technical sense denoting simply acquisition of sovereignty; but that did not signify that the
acquisition of sovereignty through such agreements with authorities of the country was regarded as an ‘occupation’ of a
‘terra nullius’ in the proper sense of these terms.”)
397 See MEG, Vol. I, para. 1.7, and L.-E. Bouët-Willaumez, Nautical Description of the Coast of West Africa
between Senegal and the Equator (started in 1838 and completed in 1845), 1848 (CMG, Vol. III, Ann. 7).
398 See MEG, Vol. I, para. 1.9. Bouët-Willaumez then became Governor of Senegal.
399 See MEG, Vol. V, Ann. 112 (Equatorial Guinea’s translation of the original Spanish: “Reconociendo que la Isla
de Corisco, Elobey y sus actuales dependencias son españolas”).
400 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, pp. 404-407, paras. 203-209, especially paras. 205 and 207. For a nuanced
analysis of the different types of agreements with local rulers and their variable legal scope, see M. Hébié, Souveraineté
territoriale par traité. Une étude des accords entre puissances coloniales et entités politiques locales, PUF, 2015, esp.
pp. 515-551.
401 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 80.
402 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, pp. 405-406, para. 207.
403 Arbitral award between Portugal and the United Kingdom, regarding the dispute about the sovereignty over
the Island of Bulama, and over a part of the mainland opposite to it, 21 Apr. 1870, RIAA, Vol. XXVIII, p. 136.
404 CMG, Vol. I, para. 1.10.
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4.17 Another document which, like the previous one, is dated 18 February 1846, and which is
reproduced in Annex 47 of Equatorial Guinea’s Memorial, is entitled “Letter of Spanish Citizenship
Given to the Inhabitants of Corisco, Elobey and their Dependencies”405. It is another unilateral act,
by which Spain grants Spanish citizenship to the inhabitants of Corisco and its dependencies. It
invites the same comments as Annex 110 discussed above: it was not capable of constituting a legal
title in relations between Spain and France.
4.18 The same conclusion must be drawn about the document reproduced in Annex 48 of
Equatorial Guinea’s Memorial, “Spain’s 1858 Charter Reaffirming Spanish Possession of the Island
of Corisco” (20 July 1858). By this act, Commander Chacon y Michelena, “Governor General of the
Islands of Fernando Pó, Annobon, Corisco and dependencies and Head of the Gulf of Guinea Naval
Division”, sought to retake possession of the island of Corisco, from which the Spanish had been
ousted by the English in 1841, as he himself acknowledges406. By dint of this detail, the document
itself casts doubt on the effectiveness of Spain’s occupation of the territories concerned in the three
above-mentioned documents. What is more important here, however, is the fact that this document
is equally incapable of furnishing Equatorial Guinea with a legal title, since the same considerations
that led the other Spanish unilateral acts to be dismissed also apply to this one: it was not enforceable
against France, and it does not have the force of a title to territory under international law407.
4.19 Finally, the last Spanish title invoked by Equatorial Guinea is the following: “6) Spain’s
uncontested effective and public sovereign occupation of these islands from 1843 until Equatorial
Guinea’s independence in 1968”408. As will be shown below, this lacks any factual basis, since
France and Gabon have long made competing claims to the islands in dispute, which amounts to an
objection409. However, it is important to note at this stage that occupation cannot, in any event,
constitute a valid legal title as regards the disputed islands. Indeed, those islands were not legally
considered terrae nullius, for
“‘[o]ccupation’ being legally an original means of peaceably acquiring sovereignty over
territory otherwise than by cession or succession, it was a cardinal condition of a valid
‘occupation’ that the territory should be terra nullius — a territory belonging to noone
— at the time of the act alleged to constitute the ‘occupation’”410.
4.20 As for the purported “historic title” held by Spain, which Equatorial Guinea mentions in
a passage of its Reply411 but not in its submissions, this lacks any basis or significance. Indeed, as
the Court noted in its Judgment in Cameroon v. Nigeria,
405 This is the title of Annex 47. The document itself is entitled “Charter of Spanish Citizenship Given to the
inhabitants of Corisco, Elobey and dependencies”/“Carta de Nacionalidad Española dada á los habitantes de Corisco,
Elobey, y sus dependencias”.
406 Letter from the Spanish Ministry of State, 20 July 1958 (MEG, Vol. IV, Ann. 48), p. 1 (“Spaniards have been
established on the island of Corisco and its dependencies for many years without any nation disputing their possession and
rights. They left due to burning and looting by an English warship without the authorization of its government in 1841”.
Equatorial Guinea’s translation of the original Spanish: “habiendo establecido los españoles desde muchos años sin que
ninguna otra Nación les haya disputado su posesión ni derecho, abandonado por ellos en vigor del incendio y saqueo
efectuado por un buque de guerra inglés sin autorización de su gobierno en el año 1841”).
407 See above, paras. 4.14 and 4.17.
408 See REG, Vol. I, p. 145 (para. IV of the submissions); see also REG Vol. I, para. 4.2.
409 See below, paras. 4.41-4.42, 4.48-4.49, 4.53, 4.63-4.73.
410 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 79, referring to Legal Status of Eastern
Greenland, P.C.I.J., Series A/B, No. 53, pp. 44 and 45, and pp. 63 and 64.
411 REG, Vol. I, para. 1.7 (“historic legal title”).
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“the notion of historical consolidation has never been used as a basis of title in other
territorial disputes, whether in its own or in other case law.
Nigeria contends that the notion of historical consolidation has been developed
by academic writers, and relies on that theory, associating it with the maxim quieta non
moveré.
The Court notes that the theory of historical consolidation is highly controversial
and cannot replace the established modes of acquisition of title under international law,
which take into account many other important variables of fact and law.”412
4.21 In addition, the purported Spanish legal titles identified by Equatorial Guinea are different
from the one that Spain believed it had identified when the question was put to it in 1972413. Spain
relied mainly on geomorphological arguments and the theory of adjacency, as well as on
effectivités414. These differences of position between the successor State and the predecessor State,
when the former is supposed to have inherited the latter’s legal title, show that the dispute concerning
the title to sovereignty over the islands was not in fact settled until the Bata Convention was signed415.
B. The effectivités invoked by Equatorial Guinea cannot constitute a legal title
4.22 Equatorial Guinea’s argument essentially seeks to establish a legal title on the basis of a
number of sovereign acts which Spain is said to have undertaken in respect of the island of Corisco
and its “dependencies”. However, this argument must be dismissed for several reasons, it being
recalled that it is well-established jurisprudence that effectivités do not in themselves amount to a
legal title416.
4.23 The jurisprudence of the Court in the Nicaragua v. Honduras and Nicaragua v. Colombia
cases is representative of the linkage between title and effectivités in relation to small, uninhabited
islands. In those cases, the Court first examined whether a legal title existed, concluding that it was
impossible for it to identify one. It was only in a second step, clearly distinguished from the first, that
the Court had recourse to effectivités for the purpose of fulfilling its mission, which was to determine
sovereignty over the islands in dispute:
“65. In light of the foregoing, the Court concludes that in the present case the
principle of uti possidetis juris affords inadequate assistance in determining sovereignty
over the maritime features in dispute between Nicaragua and Colombia because nothing
clearly indicates whether these features were attributed to the colonial provinces of
Nicaragua or of Colombia prior to or upon independence. The Court accordingly finds
that neither Nicaragua nor Colombia has established that it had title to the disputed
maritime features by virtue of uti possidetis juris.
412 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 352, para. 65.
413 See below, para. 4.70; see also CMG, Vol. I, paras 2.52-2.53.
414 Letter from the Spanish Minister for Foreign Affairs to the Ambassador of Spain to Equatorial Guinea, 19 Sept.
1972 (RG, Vol. II, Ann. 34). See also Spanish memorandum on sovereignty over and the administration of the islands of
Mbanié, Conga and Cocotiers, 16 Oct. 1972 (CMG, Vol. V, Ann. 130).
415 See below, paras. 4.74 et seq.
416 See above, paras. 1.56-1.72; see also CMG, Vol. I, paras. 5.89-5.94.
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66. Having concluded that no title over the maritime features in dispute can be
found on the basis of the 1928 Treaty or uti possidetis juris, the Court will now turn to
the question whether sovereignty can be established on the basis of effectivités.”417
4.24 The present case is clearly different from the circumstances mentioned above, since the
Special Agreement does not ask the Court to resolve the sovereignty dispute, but only to identify the
legal titles that have the force of law in the relations between the Parties. Indeed, while a judicial
decision may be based on effectivités for the purpose of settling a dispute concerning sovereignty
over islands, such reasoning does not entail any confusion between legal title and effectivités.
4.25 It goes without saying that, in the present case, the Court could not conclude that the
effectivités invoked by Equatorial Guinea can constitute a legal title, without contradicting wellestablished
jurisprudence. Moreover, those effectivités do not concern the islands in dispute and thus
have no probative value in the case at hand.
4.26 It is for Equatorial Guinea to demonstrate that the islands in dispute formed part of the
“Corisco Dependencies” mentioned in the documents which it invokes as title. In fact, in its written
pleadings, Equatorial Guinea challenges Gabon to show that the disputed islands were “treated
separately from Corisco Island in regard to sovereignty”418. Equatorial Guinea is plainly seeking to
reverse the burden of proof, which sleight of hand is clearly aimed at masking the fact that its
reasoning is based on circular arguments419. There is no evidence that the term “Corisco
Dependencies” used in certain documents invoked as titles by Equatorial Guinea included Mbanié,
Cocotiers and Conga. Indeed, none of these islands is mentioned in the six purported titles invoked
by Equatorial Guinea. Equatorial Guinea’s position is therefore based on an unfounded assumption.
The persistent repetition in Equatorial Guinea’s written pleadings of the term “Corisco
Dependencies”, with initial capital letters, cannot provide a credible basis for this assumption.
4.27 As Gabon stated in its Counter-Memorial, the term “dependencies” used in those
documents necessarily referred to inhabited territories420, which was not the case for any of the
islands. This is also the interpretation put forward by Spain at the time, including in its relations with
France, as a basis for claiming vast mainland territories from the mouth of the Campo River in the
north to Cape Santa Clara in the south, encompassing the whole of Corisco Bay421. Spain’s
contemporaneous interpretation of the term “dependencies” as used in its own acts is thus different
from the one proposed by Equatorial Guinea in these proceedings. It is no doubt because Equatorial
Guinea had no arguments to counter this line of reasoning that it chose to disregard it in its Reply.
4.28 In conclusion, the six purported titles invoked by Equatorial Guinea in support of its
contention relating to the island territories do not, by their very nature, have the force of a legal title;
nor do they have any probative value as regards the islands in dispute, since they make no mention
of Mbanié, Cocotiers or Conga.
417 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), pp. 651-652,
paras. 65-66 (emphasis added); see also Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 710-711, para. 167.
418 REG, Vol. I, para. 4.22.
419 See below, para. 4.43.
420 CMG, Vol. I, paras. 8.17-8.19.
421 Ibid., para. 1.18 (c). See also CMG, Vol. I, paras. 8.24-8.26.
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C. The non-existent recognition of an alleged Spanish legal title over the islands in dispute
4.29 Like Gabon, Equatorial Guinea does not consider the Paris Convention between France
and Spain to be a legal title with the force of law as regards sovereignty over the islands. However,
Equatorial Guinea mistakenly regards it as evidence of recognition by France of a pre-existing
Spanish title over the islands in dispute (1). Moreover, there is nothing in the subsequent conduct of
France or Gabon to attest to such recognition (2).
1. The Paris Convention does not constitute, by creation or confirmation, a legal title over the
islands in dispute
4.30 The 1900 Paris Convention is not among the instruments put forward in Equatorial
Guinea’s written pleadings as the bases of titles on which it relies as regards the disputed islands422.
At most, Equatorial Guinea regards the Convention as confirmation, and hence as subsidiary
evidence, of France’s recognition of Spain’s sovereignty over the islands in dispute, when it states
that “[t]he 1900 Convention is premised upon a recognition of Spain’s existing legal title to the
islands of Corisco Bay”423 and “[t]he 1900 Convention neither created nor transferred any legal title
to the islands of Corisco Bay”424.
4.31 Not only is this an erroneous interpretation of the Paris Convention in so far as it concerns
the islands425, but moreover, none of the six elements invoked by Equatorial Guinea as bases for its
alleged legal title, and examined above, can be characterized as a pre-existing (Spanish) title426. The
Paris Convention could not therefore confirm a title that had not been created in law.
4.32 Furthermore, as Gabon made clear in its Counter-Memorial, the negotiations between
France and Spain, which concerned not just the islands at the mouth of the Mondah River in Corisco
Bay but also the mainland coast of the Gulf of Guinea, faltered over the question of legal title.
4.33 The Franco-Spanish Mixed Commission met between March 1886 and June 1891 “with
a view to delimiting French and Spanish possessions in West Africa in northern Senegal and
Gabon”427. Yet the Mixed Commission’s work ended with an admission that it had failed because
the two States were unable to identify or decide on the legal titles serving as the bases for their
respective claims428. As the Commission explained:
“The rights that each nation believes it holds in respect of the disputed regions
were meticulously examined on both sides, but it was not possible to determine the
extent of the respective rights of Spain and France over those lands. However, since the
Spanish Government, and the French Government too of course, is prepared to adopt a
422 See above, para. 4.2 (for a discussion of those bases of titles, see paras. 4.6-4.21).
423 REG, Vol. I, p. 75 (heading of Sec. B, Chap. 4). See also MEG, Vol. I, para. 3.19.
424 Ibid., para. 4.19 (fn. omitted).
425 For the correct interpretation of the Paris Convention as regards the island territories see above, paras. 4.35-
4.43.
426 See above, paras. 4.6-4.21.
427 Protocol No. 1 of the Franco-Spanish Commission for the Northern Delimitation of Gabon, 22 Mar. 1886 (RG,
Vol. II, Ann. 2). See also CMG, Vol. I, paras. 1.15-1.20.
428 CMG, Vol. I, para. 8.33.
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transactional approach, it is worth considering on what bases a transaction might be
made”429.
4.34 Some of the evidence that Equatorial Guinea now invokes as titles relating to the island
territories was put forward, unsuccessfully, by Spain when this work took place430. The failure of the
search for legal titles caused the two colonial Powers to base their subsequent talks on a desire to
reach an agreement of a transactional nature431.
4.35 Equatorial Guinea is therefore wrong to ask this Court to establish as legal titles
documents which were not regarded as such by the two colonial Powers at that time. Those Powers
decided not to invoke any earlier titles they may have held, choosing instead to reach a compromise
on sovereignty over the relevant territories in the Gulf of Guinea, which the 1900 Convention
unequivocally divides between its two parties432.
4.36 Contrary to Equatorial Guinea’s argument that the Convention merely confirmed a preexisting
Spanish title433, the 1900 Convention in fact created, in relations between France and Spain,
a title to sovereignty over both the land territory and Corisco and the Elobey Islands. This is clearly
how it was viewed by the parties after its signature434. Moreover, as successor States, Equatorial
Guinea and Gabon consistently referred to it as the only legal instrument that might be of relevance
in determining the extent of their territories, until the Bata Convention — which also makes reference
to the Paris Convention — resolved the questions left outstanding at Paris435.
4.37 However, the Paris Convention does not grant Equatorial Guinea sovereignty over the
islands in dispute. Equatorial Guinea cannot, by extrapolation — or “extension”, as it writes436 —
apply the 1900 Convention to the disputed islands, on the ground that they are alleged
“dependencies” of Corisco437. Not only are Mbanié, Cocotiers and Conga not mentioned in the
429 Protocol No. 31 of the Franco-Spanish Commission for the Northern Delimitation of Gabon, 17 Oct. 1887 (RG,
Vol. II, Ann. 3), p. 2. See also Protocol No. 32 of the Franco-Spanish Commission for the Northern Delimitation of Gabon,
31 Oct. 1887 (CMG, Vol. III, Ann. 32), p. 1; CMG, Vol. I, para. 1.19.
430 CMG, Vol. I, para. 8.24.
431 Ibid., paras. 1.19-1.23 and 8.33-8.34.
432 Ibid.
433 REG, Vol. I, para. 4.19.
434 CMG, Vol. I, para. 1.21. See Letter from the French Minister for the Colonies to the French Minister for Foreign
Affairs, 26 Jan. 1900 (CMG, Vol. III, Ann. 40), p. 3; Letter No. 18 from the Ambassador of France to Spain to the French
Minister for Foreign Affairs, 8 Feb. 1900, summarizing an enclosed Note of 6 Feb. 1900 from the Spanish Minister of State
(CMG, Vol. III, Ann. 41), p. 3, and the Note from the Spanish Minister of State to the Ambassador of France to Spain,
6 Feb. 1900, appended to Letter No. 18 from the Ambassador of France to Spain to the French Minister for Foreign Affairs,
8 Feb. 1900 (CMG, Vol. III, Ann. 41), p. 2.
435 See, for example, Report prepared by the Gabon-Equatorial Guinea Joint Commission after the meeting in
Libreville from March 25 to 29, 1972, 29 Mar. 1972 (MEG, Vol. VII, Ann. 199), p. 1 ter (the parties “state that they adopted
[the Paris Convention] as the basic document for delimitation of maritime borders”) and p. 4, para. 5.2 (Equatorial Guinea
states that its sovereignty over the islands “dates back to 1900, according to the Paris Convention of June 27, 1900”); Letter
from the President of Equatorial Guinea to the President of Gabon, 20 July 1972 (CMG, Vol. V, Ann. 119) (“I am . . .
pleased to note that Your Excellency recognizes Equatorial Guinea’s sovereignty over the Elobey Islands and Corisco, as
set out in the Convention of 27 June 1900”) and the response of the President of Gabon in the Letter from the President of
Gabon to the President of Equatorial Guinea, 30 Aug. 1972 (CMG, Vol. V, Ann. 120), p. 1 (“I am pleased to note that you
refer primarily to the Convention of 27 June 1900 . . . Indeed, that Convention, for us, is and has always been the basic
document which unequivocally determines the land boundaries between our two countries”).
436 REG, Vol. I, para. 4.19.
437 See CMG, Vol. I, paras. 8.37-8.39.
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Convention — which Equatorial Guinea acknowledges438 — but the term “dependencies” itself,
whatever the meaning attributed to it, is also absent.
4.38 The Court has always refused to establish a title to sovereignty on the interpretation by
“extension” of a treaty term (which, moreover, is absent in this case). Thus, in the case concerning
the Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court refrained from interpreting
by extrapolation a treaty and acts from the colonial period that formed the basis of the uti possidetis
juris in such a way that the latter would extend to the islands in dispute, even though those documents
did not explicitly refer to them:
“53. . . . Article I of the 1928 Treaty does mention ‘the other islands, islets and
reefs forming part of the San Andrés Archipelago’. This provision could be understood
as including at least the maritime features closest to the islands specifically mentioned
in Article I . . . Be that as it may, the question about the composition of the Archipelago
cannot, in the view of the Court, be definitively answered solely on the basis of the
geographical location of the maritime features in dispute or on the historical records
relating to the composition of the San Andrés Archipelago referred to by the Parties,
since this material does not sufficiently clarify the matter.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55. The Court further observes that the historical material adduced by the Parties
to support their respective arguments is inconclusive as to the composition of the San
Andrés Archipelago. In particular, the historical records do not specifically indicate
which features were considered to form part of that Archipelago.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64. The Court observes that, as to the claims of sovereignty asserted by both
Parties on the basis of the uti possidetis juris at the time of independence from Spain,
none of the colonial orders cited by either Party specifically mentions the maritime
features in dispute.”439
4.39 In its Reply, Equatorial Guinea revisits the basis of France’s purported recognition of the
islands in dispute as “dependencies” of Corisco, which is said to pre-date the Paris Convention and
to be implicitly reflected in its provisions440. This assertion rests on a comment contained in the
records of the Franco-Spanish Mixed Commission that the islets of Laval and Mbanié (or Baynia)
were “geographical dependencies” or “natural dependencies” of Corisco441.
4.40 Without distorting the spirit and letter of those exchanges, it is not possible to see in them
any form of recognition by France of Spain’s sovereignty over the islands in dispute. As previously
observed by Gabon in its Counter-Memorial, the French Commissioner responded to the Spanish
argument that the term “dependencies” was intended to encompass sizeable portions of the mainland
438 REG, Vol. I, para. 4.19.
439 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), pp. 649 and
651, paras. 53, 55 and 64 (emphasis added).
440 REG, Vol. I, paras. 4.5 and 4.19.
441 Ibid., para. 4.11, citing respectively Protocols Nos. 17 and 30 of the Franco-Spanish Commission for the
Northern Delimitation of Gabon of 24 Dec. 1886 and 16 Sept. 1887 (MEG, Vol. III, Anns. 11 and 3).
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territory. He linked the notion of “dependencies” with that of adjacency442, but by no means accepted
that the documents invoked by Spain, namely the proclamation of sovereignty of 16 March 1843, the
“Record of Annexation” and “Carta de Nacionalidad Española dada á los habitantes de Corisco,
Elobey, y sus dependencias” of 18 February 1846, and the “letter reaffirming Spanish possession of
the island of Corisco” of 20 July 1858, constituted a legal title enforceable against France443.
Equatorial Guinea therefore cannot conclude that France “recognized [the Corisco island and its
dependencies] as belonging to Spain long before the Convention was signed”444, when the work of
the Mixed Commission on which it relies actually ended in failure, since the Commission’s mandate
was in fact to identify the respective legal titles of France and Spain over the territories in dispute445.
Equatorial Guinea cannot now advance against Gabon, on the grounds of an alleged recognition, a
negotiating position put forward by France against Spain which is not crystallized in an agreement
between the two States446.
4.41 Furthermore, after the Commission had concluded its work, the two parties continued to
make competing claims over the island territories currently in dispute. It is only by distorting or
disregarding the documents which undermine its argument447 that Equatorial Guinea can deny that
France had laid claim to those islands even before the Paris Convention was signed448. These
competing claims reflect both the failure of the negotiations and the absence of recognition by France
of a link between Corisco and the disputed islands, as “dependencies”.
4.42 It is in this context that the Paris Convention was concluded. But while it settles the
sovereignty dispute relating to the Elobey Islands and the island of Corisco449, it remains silent on
the subject of Mbanié, Cocotiers and Conga. Although the three islands had been known to exist for
many years450, they are not mentioned either in the text of the Paris Convention or on the map
contained in Annex III of that instrument. This omission could not have been unintentional, given
that the islands in question were the subject of discussions within the Mixed Commission and that
the two States had made conflicting claims in respect of Mbanié, reiterated on the eve of the
negotiations451.
442 CMG, Vol. I, paras. 8.20-8.22.
443 Annex to Protocol No. 30 of the Franco-Spanish Commission for the Northern Delimitation of Gabon, 16 Sept.
1887 (MEG, Vol. III, Ann. 3), pp. 12-13 of the annex — passage in which the French delegation demonstrates at length
why “it is apparent that [the Spanish delegation] sought to give the text of the 1843, 1846 and 1858 documents and extended
meaning that they could not possess” (ibid., p. 12). Equatorial Guinea has in reality produced in Annex 3 of its Memorial,
under the heading “Protocol No. 30”, very short select excerpts (some pages out of order) from that brief protocol (3 pages
in the original) and its lengthy annex (39 pages in the original) submitted by the French delegation.
444 REG, Vol. I, para. 4.21.
445 CMG, Vol. I, para. 8.31.
446 Ibid., paras. 8.28-8.29.
447 REG, Vol. I, paras. 4.9-4.10 and 4.14-4.15.
448 See CMG, Vol. I. para. 8.8, and Letter No. 367 from the Governor-General of Fernando Pó to the Minister for
Spanish Overseas Possessions 21 Nov. 1895 (MEG, Vol. IV, Ann. 49) and Letter No. 368 from the Governor-General of
Fernando Pó to the Commissioner General of French Congo, 22 Nov. 1895 (MEG, Vol. IV, Ann. 50).
449 CMG, Vol. I, paras. 8.35-8.36. Equatorial Guinea argues that there was no dispute between France and Spain as
regards the islands. This assertion is surprising to say the least, since the negotiations also concerned the islands (see CMG,
Vol. I, para. 8.34 and fn. 729) and since they were the subject of difficult discussions within the Franco-Spanish Mixed
Commission (see CMG, Vol. I, para. 1.18 (b) and fns. 54 and 56).
450 CMG, Vol. I, para. 1.7.
451 Ibid., paras. 1.18 (c) and 1.20.
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4.43 Consequently, Equatorial Guinea’s contention that “the lack of depiction of the Corisco
Dependencies confirmed that the Parties to the 1900 Convention did not consider those islands to be
separate from Corisco”452 lacks credibility. It is just one example of Equatorial Guinea’s circular
argument, which is based on a series of unsubstantiated assumptions:
(a) the assumption that Spain held a title to sovereignty over Corisco, enforceable against France,
which pre-dated the 1900 Convention, quod non453;
(b) the assumption that the islands in dispute were legally “dependencies” of Corisco, quod non454;
(c) the assumption that this “dependency” relationship was recognized as such by France, quod
non455; and
(d) the assumption that the mention in the 1900 Convention of only the island of Corisco was
intended to encompass all three islands in dispute, which is contradicted by the text itself, read
in the light of the competing claims made in respect of Mbanié.
2. The absence of subsequent recognition by either France or Gabon of any Spanish legal title
over the islands in dispute
4.44 Equatorial Guinea then refers to an alleged recognition of Spain’s legal title by France,
which is said to have occurred after 1900456. Before examining the documents it produces to this end,
some introductory comments are called for.
4.45 At this stage, Equatorial Guinea has neither demonstrated the existence nor identified the
nature of this purported legal title. It is therefore difficult to see how it could have been recognized,
since recognition can concern only a clearly identified claim457. Moreover, the only recognition of
any relevance is recognition by France or Gabon, which would be affected by Spain’s unlikely claim:
the attitude of other States has no bearing on the question of the legal title. For this reason, internal
documents of third States, such as those produced by the United Kingdom on the occasion of the
wrecking of the Pierre Loti458, cannot by their nature serve as evidence of a supposed recognition by
France or Gabon of Spanish sovereignty. Furthermore, the documents in question are ambiguous,
since they refer to the “waters adjacent to a Spanish colony”459, without naming them.
4.46 In any event, Equatorial Guinea does not consider recognition as constituting an
autonomous legal title; at most it regards it as confirmation of a pre-existing title, in the same way as
for the 1900 Convention. But Equatorial Guinea avoids, in general, any discussion of the conditions
under which recognition or acquiescence might be used to supplement an inchoate or incomplete
title. In the case concerning the Temple of Preah Vihear, Thailand’s acquiescence to the exercise of
452 REG, Vol. I, para. 4.23.
453 See above, paras. 4.33-4.36.
454 See above, paras. 4.37-4.38.
455 See above, paras. 4.39-4.41.
456 REG, Vol. I, paras. 4.26 et seq.
457 Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 138, to which reference is made in
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgment, I.C.J. Reports 2021, pp. 227-228, para. 51.
458 See MEG, Vol. I, paras. 3.24-3.25; REG, Vol. I, para. 4.27.
459 Report on Libreville and Port Gentil of the United Kingdom Ministry of War Transport, 22 June 1943 (MEG,
Vol. IV, Ann. 80).
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French sovereignty over the temple and its vicinity enhanced the inchoate conventional title held by
Cambodia resulting from a convention concluded in 1904 between Siam and France, Cambodia’s
predecessor State. The Court studied the conduct of both States as evidence of how Article 1 of that
convention, which fixed the boundary, had been interpreted460. It considered that the map on which
Cambodia relied as proof of its sovereignty over the temple was part of the “treaty settlement”461. To
reinforce its interpretation of the “treaty settlement”, and in particular the cartographic evidence put
forward by Cambodia, the Court also relied on the conduct of the parties, which confirmed Thailand’s
recognition of the inchoate conventional title on which Cambodia relied462.
4.47 In these proceedings, unlike in the case concerning the Temple of Preah Vihear,
Equatorial Guinea does not invoke any conventional title applicable to the disputed island territories.
As shown above463, the six elements on which it relies, which are not of a conventional nature, do
not constitute a legal title either individually or collectively, and are not enforceable against Gabon.
Consequently, however France’s conduct is understood, it cannot have the legal effect attributed to
it by Equatorial Guinea, because it cannot make good a non-existent title.
4.48 It is in this context that the exchanges between France and Spain regarding the beacon
installed on Cocotiers by France must be framed. In February 1955, France began constructing a
beacon on the island of Cocotiers464, without seeking any prior authorization from Spain. Equatorial
Guinea’s assertion that “France began work on the beacon in 1955 believing it had received Spanish
authorization in 1954 for such work, but Spain had only authorized temporary installations, not
permanent ones” is entirely false465. None of the documents produced by Equatorial Guinea shows
that Spain’s authorization for the construction of beacons on Cocotiers (or Mbanié or Conga) was
sought by France (or granted by Spain) prior to February 1955. The only Spanish authorization
requested by France dates from February 1954 and concerns the “intended visit of the French
hydrographic boat BEAUTEMPS-BEAUPRE to Corisco Bay in the years 1954, 55 and 56”466. As
regards the letter dated 22 March 1955 — so after France had begun constructing the beacon — from
the Governor-General of the Spanish Territories of the Gulf of Guinea to the High Commissioner of
the (French) Republic in French Equatorial Africa, this makes no reference to any prior authorization
to build. It simply refers to the discussions taking place between the captain of the Beautemps-
Beaupré and the captain of Spanish vessel the Canovas del Castillo, which resulted in
“all the necessary facilities . . . be[ing] provided for the construction — on territory
under Spanish sovereignty — of as many signals as necessary to carry out the
hydrographic work, as long as they are of [a] temporary nature”467.
460 Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, pp. 16-17.
461 Ibid., p. 33.
462 Ibid., pp. 30-31.
463 See above, paras. 4.6-4.21.
464 Work to construct the beacon was carried out by the team from the Beautemps-Beaupré, which the previous
year had conducted reconnaissance of Corisco Bay with a view to installing beacons and soundings (French sketch-map
“Reconnaissance of Corisco Bay”, Nov. 1954 (RG, Vol. II, Ann. 4)).
465 REG, Vol. I. para. 4.29.
466 Letter No. 87 from the Spanish Ministry of Foreign Affairs to the Department for Morocco and the Colonies,
24 Feb. 1954 (Equatorial Guinea’s translation of the Spanish: “proyectada visita del barco hidrográfico francés
BEAUTEMPS-BEAUPRE a la Bahía de Corisco en los años 1954, 55 y 56”) (MEG, Vol. IV, Ann. 81).
467 Letter from the Governor-General of the Spanish Territories of the Gulf of Guinea to the High Commissioner
for French Equatorial Africa, 22 Mar. 1955 (Equatorial Guinea’s translation of the Spanish: “cuantas facilidades fueran
precisas para el levantamiento en territorio de Soberanía española, de cuantas señales fueran necesarias para llevar a cabo
los trabajos hidrográficos, siempre que tuviesen un carácter eventual”) (MEG, Vol. IV, Ann. 93).
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4.49 These circumstances show that France considered itself to have sovereignty over
Cocotiers, contrary to Equatorial Guinea’s claim that there had been a “recognition” of Spain’s
sovereignty over this island468. Moreover, the High Commissioner of the Republic in French
Equatorial Africa did not regard Spain’s protest against the construction work, illustrated by a landing
of troops on the island on 28 February 1955, as a claim of sovereignty:
“it is not that the Spanish authorities are actually claiming possession of the island of
Cocotier. They are simply expressing their surprise at not being consulted beforehand
[in accordance with Article 5 of the 1900 Convention on navigation and beacons in the
area]”.
He concluded:
“It is likely that this minor incident will be resolved at the local level.
Nevertheless, in the event that the Spanish authorities were to contest our possession of
the island of Cocotier, I should be grateful to know whether there are documents in the
Department’s archives or in those at the Quai d’Orsay establishing the respective rights
of France and Spain over the islands in Corisco Bay”469.
4.50 And in fact, this “minor incident” was resolved at the local level (i.e. without the
involvement of the central authorities and therefore of authorized representatives of the French and
Spanish States): on the same day, without awaiting the return of the responsible minister, the High
Commissioner of the Republic in French Equatorial Africa sought the agreement of his Spanish
counterpart for the completion of the beacon, and to prevent any further incidents declared that
“[w]hatever the legal scope of Article 5 of the Convention of 27 June 1900, about which I am seeking
clarification from Paris, I will henceforth inform you of the beaconing work to be carried out in
Corisco Bay”470. This episode was brought to a definitive close by a meeting of 15 September 1955
between the captain of the Beautemps-Beaupré (French) and the captain of the Canovas del Castillo
(Spanish), who was supposed to arrange for the cost of constructing the Corisco beacon to be
reimbursed, again at the local level — as stated in the Reply — i.e. by the Puerto Iradier authorities
(Spanish Guinea) to the authorities of Cocobeach (Gabon)471.
4.51 Nowhere in these Franco-Spanish exchanges — assuming that they are to be taken into
consideration as a matter of law despite their purely local scope, quod non472 — is there any
expression of recognition of Spain’s sovereignty over Cocotiers (or Mbanié or Conga). The only
468 REG, Vol. I, para. 4.29.
469 Letter No. 956 AP 3 from the Governor-General for Overseas France, High Commissioner of the Republic in
French Equatorial Africa, 14 Mar. 1955 (RG, Vol. II, Ann. 5).
470 Letter No. 955 AP 3 from the Governor-General for Overseas France, High Commissioner of the Republic in
French Equatorial Africa, to the Governor-General of Spanish Settlements in the Gulf of Guinea, 14 Apr. 1955 (RG, Vol. II,
Ann. 6). The French Minister for Foreign Affairs recommended in turn that the incident be resolved at the local level (Letter
No. 438/AL from the Minister for Foreign Affairs to the Minister for Overseas France, 6 May 1955 (MEG, Vol. IV,
Ann. 94)).
471 REG, Vol. I, para. 4.32; Note No. 207 from the Spanish Navy in Central Africa, 6 Sept. 1955 (REG, Vol. III,
Ann. 18).
472 Nor does Equatorial Guinea dare to claim that the High Commissioner of the Republic in French Equatorial
Africa was competent to commit France at the international level regarding sovereignty over the territories for whose
administration he was responsible.
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recognition by the captain of the Beautemps-Beaupré in that final document setting out the agenda
for the meeting of 15 September 1955 concerned (Spain’s) ownership of the beacon of Cocotiers473.
4.52 Equatorial Guinea adopts the same wanton approach to its treatment of the facts and
documents when it asserts that Gabon too recognized Spain’s sovereignty over the islands in
dispute474.
4.53 It relies in this regard on a sketch-map showing a concession awarded to a Spanish oil
company in 1962 on which the islands at issue are marked as Spanish475, arguing that Gabon failed
to protest. Yet first, it appears that Spain did not give notification of those concessions or that map —
which has no probative value, moreover476 — to Gabon, notification that is nonetheless necessary in
order to trigger a duty to protest477; and second, Gabon had at the time begun to issue its own oil
concessions and, contrary to Equatorial Guinea’s claims478, there is nothing in those concessions to
suggest that they were based on the assumption that the disputed islands belonged to Spain479.
4.54 The two sketch-maps put forward by Equatorial Guinea, purportedly illustrating the fact
that “Gabon’s Libreville Marin Permit Northern Limit is a Median Line Using Corisco Dependencies
as Spanish Basepoints”480, cannot deceive the Court: they were not issued by the Gabonese
authorities but by the company Shell, which drew those limits itself at a time when it was seeking to
expand its exploration activities in the region481. Moreover, Shell’s sketch-maps do not show the
islands in dispute and their purpose is not to depict the maritime boundary, which they do not.
4.55 In contrast, Decree No. 391 of 2 August 1967, subsequently adopted by the Gabonese
Government, defines the northern limit of the “Libreville Marine Concession” as the “common
maritime border between Gabon and Equatorial Guinea”, but that boundary is not shown and there
is no reference to any median line or to Spanish base points on the disputed islands. That line was
473 Note No. 207 from the Spanish Navy in Central Africa, 6 Sept. 1955 (REG, Vol. III, Ann. 18). (“[t]he French
side has acknowledged in the correspondence regarding the COCOTEROS islet buoy that this buoy was Spanish property”,
Equatorial Guinea’s translation of the original Spanish: “en la correspondencia cruzada sobre la baliza del islote
COCOTEROS, se ha reconocido por parte francesa que esta baliza era propiedad española”).
474 REG, Vol. I, paras. 4.36-4.39 and 4.46-4.47.
475 MEG, Vol. II, sketch-map No. 3.5, mentioned in REG, para. 4.36.
476 Equatorial Guinea states that this sketch-map is based on MEG, Vol. VI, Ann. 163 (REG, Vol. I, para. 4.36),
yet that particular annex is a circular of 19 September 1972, to which no map is appended and which has nothing to do with
oil concessions. It is in fact, contrary to the formal way in which it is presented by Equatorial Guinea (as a map of an oil
concession awarded by Spain to the Spanish Gulf Oil Company and the Compañia Española de Petróleos), a map drawn
up by the Spanish Gulf Oil Company itself and entitled “Mapa Mostrando la zona de interes proxima à la frontera entre
Guinea Espanola y Gabon”, i.e. with no mention of any Spanish oil concession (MEG, Vol. II, sketch-map No. 3.23).
477 It is well established in the jurisprudence that, for State conduct to be considered as requiring a response from
other States, that conduct must be, among other things, notorious (Maritime Delimitation in the Indian Ocean (Somalia v.
Kenya), Judgment, I.C.J. Reports 2021, p. 228, para. 51, referring to Fisheries (United Kingdom v. Norway), Judgment,
I.C.J. Reports 1951, pp. 138-139).
478 REG, Vol. I, paras. 4.36 and 4.39.
479 CMG, Vol. I, paras. 2.38-2.39.
480 MEG, Vol. II, sketch-map No. 3.21.
481 Ibid., sketch-map No. 3.21 (“Map of Permit Areas and Oil fields of Gabon and Congo”, drawn up by the
company Shell and on which the “Libreville” petroleum block, for which Shell was making an application at the time,
appears as under investigation (the Libreville block is labelled as follows: “Application made 7th September 1964”) and
MEG, Vol. II, sketch-map No. 3.23 (idem. in 1967, Shell this time presenting itself on the map as the beneficiary of the
“Libreville” petroleum block).
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subsequently clarified, so as to correspond to the maritime boundary claimed by Gabon during the
negotiations with Equatorial Guinea as an extension of the land boundary, along the parallel from
the point at which the thalweg of the Muni River intersects a straight line drawn between Cocobeach
and Dieke point482.
4.56 Lastly, Spain itself refused to use the islands as its base points for a delimitation: when
in 1967 it proposed holding talks with Gabon to delimit their common maritime boundary, it was
aware that “if we start from the island Cocotier or Bane, we greatly fear that those negotiations will
be clouded with difficulties”483.
4.57 The same tendency to misrepresent documents can be seen in Equatorial Guinea’s
presentation of the Implementation Protocol in Compliance with the Maritime Signal Organization
for the Buoyage and Signaling of Corisco Bay and the Muni River of 23 May 1962, Article 3 (c) of
which referred “to the beacon on Cocoteros placed by the French as falling under Spanish authority
and paid for by Spain”484. In reality, that provision reads as follows:
“After broad discussions regarding the installation of a light on the Cocoteros
Island beacon, the parties agree to halt construction and propose to exchange the Baynia
buoy for another one that is taller and more visible”485.
4.58 Far from documenting “Spain’s sovereign authority and responsibility”486, this document
in fact appears to be establishing a joint régime for the management of the beacons and buoys in
Corisco Bay and at the mouth of the Mondah, and is therefore in no way indicative of sovereignty
over the islands in dispute.
4.59 Finally, Equatorial Guinea puts forward the supposed construction of a radio antenna on
the islands of “Corisco, Bayna, or Laval”, against which Gabon raised no protest487. There is no
evidence to suggest that the project actually materialized or, if it did, that the antenna was built on
Mbanié. The documents on which Equatorial Guinea relies consist of an exchange of letters between
a company applying for the project and the Spanish authorities, which was not brought to the
attention of Gabon.
4.60 In conclusion, none of the six elements invoked by Equatorial Guinea — whether
examined objectively or in the light of an untraceable recognition by Gabon, or by France before
482 CMG, Vol. I, para. 6.21. See also Letter from the Ambassador of Spain to Gabon to the Under-Secretary of the
Spanish Ministry of Foreign Affairs, 23 Mar. 1971 (RG, Vol. II, Ann. 15); Note entitled “Permit to explore for offshore
hydrocarbons in the disputed area between Gabon and Equatorial Guinea” from the Embassy of France in Gabon, 5 Oct.
1972 (RG, Vol. II, Ann. 38).
483 Confidential report by the Spanish Ministry of Industry, 12 July 1966 (MEG, Vol. IV, Ann. 103) (Equatorial
Guinea’s translation of the original Spanish: “si nosotros partimos de la isla Cocotier o la de Bañe, mucho nos tememos
que dichas negociaciones van a estar sombradas de dificultades”); see also CMG, Vol. I, para. 2.40.
484 REG, Vol. I, para. 4.37. The original Spanish title of that implementation protocol produced by Equatorial
Guinea is “Protocolo de aplicación de conformidad con la organización de señales maritimas para el balizaje y señalización
de la bahia de Corisco y del Rio Muni” (REG, Vol. III, Ann. 1).
485 REG, Vol. III, Ann. 1 (Equatorial Guinea’s translation of the original Spanish: “Después de amplias discursiones
sobre la instalación de una luz en la baliza de la Isla de Cocoteros se acuerda desistir de esta instalación y proponer el
cambio de la boya Baynia por otra mas alta y de mayor visibilidad”).
486 REG, Vol. I, para. 4.37.
487 Ibid., para. 4.38.
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it — has the characteristics necessary for qualification as a legal title, particularly as regards the
islands in dispute, so that the Bata Convention appears to be the only legal title currently enforceable
between the Parties that is capable of governing sovereignty over those islands.
II. The Bata Convention is the only legal title that has the force of law
as regards the islands in dispute
4.61 When Gabon became independent in 1960, it inherited a situation in which no legal title
had been established in respect of the islands in dispute488. The question was brought back to the
table during discussions on the maritime boundary with Equatorial Guinea, which began shortly after
the latter achieved independence489. It is in this context that the tensions between the two States in
1972 must be viewed (A), tensions which the Bata Convention resolved by establishing, for the first
time and in unequivocal terms, the title to sovereignty over the islands in dispute (B). There is nothing
in Gabon’s subsequent conduct to suggest that it renounced the irrefutable conventional title it thus
holds over those islands (C).
A. The context and significance of the 1972 tensions
4.62 In its Reply, Equatorial Guinea levels serious charges against Gabon, accusing it of an
invasion and of annexing territory490 when, in 1972, it set up a permanent police station on Mbanié.
The severity of these charges calls for a clarification of that incident, already described in the
Counter-Memorial491.
4.63 It took place against the backdrop of negotiations concerning the fixing of the Parties’
common maritime boundary. Those negotiations opened at the end of February 1971, at Gabon’s
suggestion, with the visit of a Gabonese delegation to Bata492. During the second meeting of the
delegations of the Parties, this time in Libreville from 25 to 29 March 1972, Equatorial Guinea
persisted in claiming sovereignty over Mbanié, Cocotiers and Conga, in keeping with its Decree
No. 17/790 of 24 September 1970, which it claimed was opposable to Gabon. This claim ran counter
to Gabon’s own in respect of the three islands, reaffirmed by Decree 670/PR/MNERH-DMG of
14 May 1970 and Decree 1/72-PR of 5 January 1972, which extended Gabon’s territorial sea to
30 nautical miles. At this second meeting, Gabon also proposed that the maritime boundary should
begin at the intersection of the Muni River thalweg with a straight line drawn from Cocobeach point
to Dieke point (i.e. the thalweg at the mouth of the Muni River) and extend westwards along the
parallel on which that point of intersection is located, and that bands of 3 nautical miles of territorial
sea be created around the islands of Corisco, Elobey Chico and Elobey Grande, thus partially
enclaving them in Gabonese waters493. Gabon observed that Equatorial Guinea could not lay claim
to any other islands “in the underwater area constituting the natural prolongation of Gabonese
territory”494.
488 CMG, Vol. I, paras. 8.40-8.45.
489 Ibid., para. 2.40.
490 REG, Vol. I, paras. 4.54-4.56.
491 CMG, Vol. I, paras. 2.49-2.54.
492 Dispatch No. 57/DAM from the Ambassador of France to Gabon to the French Minister for Foreign Affairs, 23
Mar. 1971 (CMG, Vol. I, Ann. 115).
493 Report prepared by the Gabon-Equatorial Guinea Joint Commission after the meeting in Libreville from March
25 to 29, 1972, 29 Mar. 1972 (MEG, Vol. VII, Ann. 199).
494 Letter No. 55/DAM from the Ambassador of France to Gabon to the French Minister for Foreign Affairs, 1 Apr.
1972 (RG, Vol. II, Ann. 16), p. 2.
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4.64 For several months, the number of incidents around Mbanié grew: on multiple occasions,
Gabonese fishermen working on Mbanié and Cocotiers came under fire from Equatorial Guinea’s
military495; gunfire from those armed forces “almost took the lives of a French family, including a
woman and a child, mere recreational fishers”496. However, to put a stop to this escalation and enable
the negotiations on the maritime boundary, which had reached a standstill497, to continue, the Head
of the Gabonese State proposed on 18 July 1972 that a neutral zone be established in Corisco Bay,
to be jointly operated and monitored by a joint maritime police force498. His counterpart from
Equatorial Guinea rejected this proposal outright and doubled down on his position as regards the
maritime boundary and sovereignty over the islands499.
4.65 In the face of the obstructive attitude of his counterpart from Equatorial Guinea, and
aware that urgent action was needed to put a stop to the incidents so as to ensure the safety of his
citizens, the Head of the Gabonese State decided on 23 August 1972 to set up a police station on
Mbanié500. He also sought to continue the discussions that were vital to resolving the territorial
dispute: one week later, he informed President Macías Nguema of his disappointment at the latter’s
refusal to make Corisco Bay a neutral zone, emphasizing that it “would be most regrettable if our
two Governments were unable to find some common ground and had to resort to arbitration or
solutions of force”, and recalling that he remained “open to any constructive proposal that might lead
to a fair settlement for both our countries”501.
4.66 Despite the ongoing efforts of the Gabonese Government to reach a negotiated settlement
of the question of the maritime boundary and the islands, President Macías Nguema refused all
dialogue, preferring to instil within the population of Equatorial Guinea, subject to censorship and
fierce repression — particularly the people of Corisco, who had seen one of their two deputies
“beaten to death by rifle butts during the great purge of [May 1972]”502, and the other flee the
country — a culture of hatred of the Gabonese people503.
495 P. Decraene, “Une mauvaise querelle entre la Guinée Equatoriale et le Gabon”, Le Monde Diplomatique, Oct.
1972 (RG, Vol. II, Ann. 37), p. 11. See also Interview of the President of the Gabonese Republic by AFP and AGB, 10 Sept.
1972 (REG, Vol. V, Ann. 60).
496 Dispatch No. 162/DAM from the Ambassador of France to Equatorial Guinea to the French Minister for Foreign
Affairs, 9 Sept. 1972 (CMG, Vol. V, Ann. 122), p. 5. See also Letter No. 118 from the Embassy of Spain in Gabon to the
Spanish Minister for Foreign Affairs, 29 June 1972 (RG, Vol. II, Ann. 19).
497 See the Final communiqué of the Gabon-Equatorial Guinea Joint Commission (24-27 June 1972), transmitted
by the Letter from the Embassy of France in Gabon to the French Ministry of Foreign Affairs, 6 July 1972 (CMG, Vol. V,
Ann. 118). The Commission noted that the views of the two delegations remained irreconcilable and referred the matter of
finding a solution to a meeting between the two Heads of State.
498 Interview of the President of the Gabonese Republic by AFP and AGB, 10 Sept. 1972 (REG, Vol. V, Ann. 60).
499 Letter from the President of Equatorial Guinea to the President of Gabon, 20 July 1972 (CMG, Vol. V,
Ann. 119).
500 See CMG, Vol. I, paras. 2.49-2.50.
501 Letter from the President of Gabon to the President of Equatorial Guinea, 30 Aug. 1972 (CMG, Vol. V,
Ann. 120).
502 Dispatch No. 162/DAM from the Ambassador of France to Equatorial Guinea to the French Minister for Foreign
Affairs, 9 Sept. 1972 (CMG, Vol. V, Ann. 122), p. 3. (“[a]s regards Mr Etanguino [opponent of the régime], according to
the Spanish Ambassador, he recently travelled to New York to complain to the UN about the crimes of Equatorial Guinea’s
régime and to request, on behalf of his compatriots of Corisco, that the island be reattached to Gabon”). For testimony on
the dramatic situation in Equatorial Guinea, see also, e.g. Letter No. 007/CF from the Ambassador of Gabon to Equatorial
Guinea to the Gabonese Ministry of Foreign Affairs, 2 Sept. 1972 (RG, Vol. II, Ann. 25).
503 P. Decraene, “Une mauvaise querelle entre la Guinée Equatoriale et le Gabon”, Le Monde Diplomatique, Oct.
1972 (RG, Vol. II, Ann. 37), p. 11.
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4.67 The responses of Equatorial Guinea’s Head of State transmitted (indirectly) to his
Gabonese counterpart were confined to protesting against (i) Gabon’s decision, notified to France on
14 August504 and to Equatorial Guinea on 23 August, to increase the extent of Gabon’s territorial sea
to 100 nautical miles505, and (ii) the presence of two Gabonese vessels (the Léon Mba and the Albert-
Bernard Bongo) in Equatorial Guinean waters in Corisco Bay506. Equatorial Guinea also transmitted
a copy of these Notes Verbales to the United Nations and to the Organisation of African Unity (OAU)
on 7 September 1972507. On the same day, its President gave an outrageously false presentation of
Gabon’s activity in Corisco Bay to the diplomatic corps, stating that “[s]ince 23 August, the
Gabonese army has seized all the islands and islets of Corisco Bay, which form part of Equatorial
Guinea’s territory”508.
4.68 This led Gabon to write to the Secretary-General of the United Nations to inform him “of
the reasons for establishing a police station on the island of Mbanié and to put the incident back in
its true proportions”509. Gabon sought to re-establish the truth of its operation of 23 August 1972 —
which was confined to restoring order on Mbanié and Cocotiers and protecting Gabonese
fishermen — through both media510 and diplomatic511 channels, in particular at the Conference of the
Heads of State and Government of Central and East Africa, which simultaneously tasked the Heads
of State of the People’s Republic of the Congo and Zaire with mediating to assist with the settlement
of the dispute512. Lastly, it remonstrated directly with Equatorial Guinea, rejecting its presentation of
the facts and reaffirming Gabon’s sovereignty over Mbanié and Cocotiers513.
4.69 The Head of State of Equatorial Guinea nevertheless continued to make
misrepresentations to the United Nations, asking the Security Council to intervene in the conflict in
response to Gabon’s purported invasion, on 23 August, of all Equatorial Guinea’s islands, and to the
equally supposed destruction by the two above-mentioned Gabonese military vessels of shuttle boats
504 See Note Verbale No. 86/MPG-C1 from the Permanent Mission of the Gabonese Republic to the United Nations
Office at Geneva to the Permanent Mission of France, 14 Aug. 1972 (RG, Vol. II, Ann. 21).
505 See Note Verbale No. 2549 from the Ministry of Foreign Affairs of Equatorial Guinea to accredited diplomatic
missions in Equatorial Guinea, 31 Aug. 1972 (RG, Vol. II, Ann. 22); Note Verbale No. 2581 from the Ministry of Foreign
Affairs of Equatorial Guinea to accredited diplomatic missions in Equatorial Guinea, 1 Sept. 1972 (RG, Vol. II, Ann. 23).
Equatorial Guinea declared that it regarded this extension of Gabon’s territorial sea as an attempt to annex Corisco and
adjacent islands.
506 Note Verbale No. 2581 from the Ministry of Foreign Affairs of Equatorial Guinea to accredited diplomatic
missions in Equatorial Guinea, 1 Sept. 1972 (RG, Vol. II, Ann. 23); Note Verbale No. 2574 from the Ministry of Foreign
Affairs of Equatorial Guinea to accredited diplomatic missions in Equatorial Guinea, 1 Sept. 1972 (RG, Vol. II, Ann. 24).
507 Telegram No. 41/43 from the Ambassador of France to Equatorial Guinea, 8 Sept. 1972 (RG, Vol. II, Ann. 26).
508 Dispatch No. 162/DAM from the Ambassador of France to Equatorial Guinea to the French Minister for Foreign
Affairs, 9 Sept. 1972 (CMG, Vol. V, Ann. 122), p. 1.
509 Telegram No. 430/431 from the Ambassador of France to Gabon to the French Ministry of Foreign Affairs, 9
Sept. 1972 (RG, Vol. II, Ann. 27).
510 Interview of the President of the Gabonese Republic by AFP and AGB, 10 Sept. 1972 (REG, Vol. V, Ann. 60).
511 Letter No. 005194/MAEC/SG from the Gabonese Ministry of Foreign Affairs to accredited diplomatic and
consular missions in Gabon, 12 Sept. 1972 (CMG, Vol. V, Ann. 123).
512 See Telegram No. 426/429 from the Ambassador of France to Gabon to the French Ministry of Foreign Affairs,
9 Sept. 1972 (RG, Vol. II, Ann. 28).
513 Dispatch No. 5192/MAEC/SG from the Gabonese Ministry of Foreign Affairs to the Ministry of Foreign Affairs
of Equatorial Guinea, 11 Sept. 1972 (RG, Vol. II, Ann. 29).
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connecting Corisco and the mainland514. His Gabonese counterpart objected to a Security Council
meeting being held on the dispute and wrote to the United Nations Secretary-General to explain once
again the truth of the Mbanié operation of 23 August and to confirm his wish to have the Presidents
of Congo and Zaire act as joint mediators515. The following day, on 14 September 1972, Equatorial
Guinea asked that no action be taken for the moment on its request for a Security Council meeting516.
At the same time, it sent “a secret agent to the Ministry of the Navy in Madrid to obtain a Spanish
map of Equatorial Guinea from the turn of the century, on which the islands in Corisco Bay are
shown as belonging to France”517.
4.70 Equatorial Guinea ultimately resolved with Gabon to “settle their dispute within the
African framework and by peaceful means”518, and the Conference of the four Heads of State (Congo,
Zaire, Equatorial Guinea and Gabon) agreed to create a quadripartite ad hoc commission tasked with
reaching a definitive solution519. This Commission met from 18 September 1972 onwards to allow
the Parties’ delegations to put forward their respective arguments regarding the basis of their
sovereignty over the islands in dispute520; those arguments were transmitted to the Governments of
France and Spain for their views521.
4.71 Giving the Parties the opportunity to “raise” the 23 August 1972 operation and the
consequences it had on the African negotiations, as well as the diligence of the quadripartite
commission, enabled the tensions between the Parties to be gradually dispelled: by 23 September
1972, the Ambassador of Equatorial Guinea was preparing to return to Gabon, and the French
diplomatic service was urging the Ambassador of Gabon to resume his post in Malabo522; on
12 October, Equatorial Guinea’s national day, President Macías Nguema delivered a “very peaceful
address, making no mention of the dispute between Equatorial Guinea and Gabon”523, while
514 Letter from the President of the Republic of Equatorial Guinea to the President of the United Nations Security
Council asking the Council to intervene in the conflict between the parties surrounding Mbanié, 11 Sept. 1972, as
reproduced in Telegram No. 4028/31 from the Permanent Representative of France to the United Nations to the French
Ministry of Foreign Affairs and the Embassies of France in Gabon and Equatorial Guinea, 12 Sept. 1972 (RG, Vol. II,
Ann. 30).
515 Telegram No. 4045/46 from the French Representative to the United Nations to the French Ministry of Foreign
Affairs, 13 Sept. 1972 (RG, Vol. II, Ann. 31).
516 Telegram No. 4067 from the French Representative to the United Nations to the Embassies of France in Zaire,
Gabon and Equatorial Guinea, 14 Sept. 1972 (RG, Vol. II, Ann. 32).
517 Telegram No. 34 from the Embassy of Spain in Gabon to the Spanish Minister for Foreign Affairs, 15 Sept.
1972 (RG, Vol. II, Ann. 33) (translation of: “agente secreto a Madrid a Ministerio de Marina para conseguir mapa español
de Guinea Ecuatorial de principio siglo, en el que islotes de la bahia Corisco figuran como franceses”).
518 Final communiqué of the Conference of the Heads of State of Congo, Zaire, Equatorial Guinea and Gabon,
Kinshasa, 17 Sept. 1972 (CMG, Vol. V, Ann. 125), p. 1.
519 Ibid.
520 Telegram No. 673/681 from the Ambassador of France to Zaire to the French Ministry of Foreign Affairs,
19 Sept. 1972 (RG, Vol. II, Ann. 35).
521 Telegram No. 670/672 from the Embassy of France in Kinshasa to the French Ministry of Foreign Affairs, 19
Sept. 1972 (CMG, Vol. V, Ann. 126).
522 Telegram No. 52/53 from the Ambassador of France to Equatorial Guinea to the French Ministry of Foreign
Affairs, 23 Sept. 1972 (RG, Vol. II, Ann. 36).
523 Telegram No. 58 from the Ambassador of France to Equatorial Guinea to the French Ministry of Foreign Affairs,
14 Oct. 1972 (RG, Vol. II, Ann. 39).
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President Bongo, for his part, called on the Gabonese press to “stop the attacks on the sister
republic”524.
4.72 On 13 November 1972, in Brazzaville, the Parties were able to reach an understanding
thanks to the mediation of the OAU, agreeing to
“A — the neutralization of the disputed area in Corisco Bay; [and] B — the
delimitation by the OAU ad hoc Commission of the maritime boundaries between the
Gabonese Republic and the Republic of Equatorial Guinea in Corisco Bay”525.
4.73 After the Brazzaville summit, relations between the two States returned to normal526.
However, from the summer of 1973, and increasing in intensity in 1974, further border incidents
broke out along the eastern part of the territorial boundary, close to Ebebiyin527. It was against this
backdrop that the two Heads of State concluded the Bata Convention528.
B. The Bata Convention grants Gabon an unequivocal conventional title over the islands in
dispute
4.74 The Bata Convention resolves the sovereignty dispute in respect of the islands of Mbanié,
Cocotiers and Conga. Article 3 of that instrument states in this regard:
“The High Contracting Parties recognize, on the one hand, that Mbane Island
forms an integral part of the territory of the Gabonese Republic and, on the other, that
the Elobey Islands and Corisco Island form an integral part of the territory of the
Republic of Equatorial Guinea.”
4.75 The text of Article 3 of the Bata Convention is clear. The two States recognize Gabon’s
sovereignty over the island of Mbanié, on the one hand, and Equatorial Guinea’s sovereignty over
Corisco and the Elobey Islands, on the other. Whatever the legal situation regarding sovereignty over
the uninhabited islands may have been before the Bata Convention was signed, and regardless of that
situation, Article 3 of the Convention settles the matter once and for all529. It encompasses the group
of three islands in dispute, which were considered a single unit by the Parties. This is confirmed by
Article 4 of the Convention, which fixes the limits of the enclaves around Corisco and the Elobey
Islands — belonging to Equatorial Guinea — within Gabon’s territorial waters, but does not create
enclaves around the Mbanié-Cocotiers-Conga group, which lies to the south of the maritime
boundary, thus indicating that these three islands belong to Gabon530.
524 Telegram No. 598 from the Ambassador of France to Gabon to the French Ministry of Foreign Affairs, 17 Oct.
1972 (RG, Vol. II, Ann. 40).
525 Excerpt from the Final communiqué of 13 Nov. 1972 of the quadripartite conference for the resolution of the
dispute between Gabon and Equatorial Guinea held in Brazzaville from 11 to 13 Nov. 1972, as reproduced in Briefing note
No. 45/46-72 from the Embassy of France in Gabon, 20 Nov. 1972 (RG, Vol. II, Ann. 42). See also Letter No. 512 from
the Ambassador of Spain to Zaire to the Spanish Minister for Foreign Affairs, 15 Nov. 1972 (RG, Vol. II, Ann. 41).
526 Letter No. 35/73 from the Ambassador of Spain to Equatorial Guinea to the Spanish Minister for Foreign Affairs,
18 Jan. 1973 (RG, Vol. II, Ann. 43).
527 CMG, Vol. I, paras. 2.57-2.59.
528 See above, paras. 2.34-2.35.
529 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 38-39,
paras. 75-76.
530 See CMG, Vol. II, sketch-map No. 8.1.
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4.76 There is no question that the toponym “Mbanié” refers both to the island of Mbanié itself
and to Conga and Cocotiers. Equatorial Guinea now appears to dispute this, in a footnote531 and
without offering any response to the evidence produced by Gabon in this regard in its Counter-
Memorial532. Not only does Equatorial Guinea fail to refute this evidence, but it should also be noted
that the negotiations preceding the signing of the Bata Convention concerned sovereignty over the
three islands mentioned in the Special Agreement, as indeed confirmed by documents submitted by
Equatorial Guinea533. The toponym Mbanié is commonly used to refer to the Mbanié-Conga-
Cocotiers group534, including and most recently by Equatorial Guinea itself535.
4.77 Furthermore, in the days after the Bata Convention was signed, the two countries’
respective authorities expressed concordant views on the subject of sovereignty over the group of
islands. Hence, Equatorial Guinea’s Acting Deputy-Minister for Foreign Affairs informed the French
Ambassador to Malabo that “[t]he islets of M’Banie, Cocotier and Conga will be legally declared to
belong to Gabon, and the territorial waters in dispute in this region will be relinquished to Gabon”536.
4.78 The Gabonese Ambassador to Equatorial Guinea likewise explained to his French
counterpart that “Gabon ha[d] obtained de jure recognition of its sovereignty over M’Banie, Cocotier
and Conga”537. Equatorial Guinea’s President Macías Nguema also stated in an interview with the
French Ambassador to Equatorial Guinea that he “had relinquished to Gabon de jure sovereignty
over M’Banie, Cocotier and Conga”538.
4.79 During a presentation to diplomatic representatives in Malabo on 13 October 1974,
President Macías Nguema again recalled that Equatorial Guinea had
“completely relinquished its sovereign rights over M’Banie, Cocotier and Conga,
although the Commission appointed by the OAU and the document signed by the four
531 REG, Vol. I. fn. 290.
532 CMG, Vol. I, paras. 8.52-8.59.
533 See, inter alia, Letter No. 0002967 from the Gabonese Minister for Foreign Affairs to the Minister for Foreign
Affairs of Equatorial Guinea, 28 Aug. 1971 (MEG, Vol. VI, Ann. 154); Report prepared by the Gabon-Equatorial Guinea
Joint Commission after the meeting in Libreville from March 25 to 29, 1972, 29 Mar. 1972 (MEG, Vol. VII, Ann. 199),
pp. 1, 5-6. See also Letter from the President of Equatorial Guinea to the President of Gabon, 20 July 1972 (CMG, Vol. V,
Ann. 119); Letter from the President of Gabon to the President of Equatorial Guinea, 30 Aug. 1972 (CMG, Vol. V,
Ann. 120).
534 See the illustrative sketch-map appended to Letter No. 55/DAM from the Ambassador of France to Gabon to
the French Minister for Foreign Affairs, 1 Apr. 1972 (RG, Vol. II, Ann. 16), by which the French chargé d’affaires sent to
the Ministry the report drawn up on 29 Mar. 1972 by the Gabon-Equatorial Guinea Joint Commission at the end of the
meeting in Libreville from 25 to 29 March (that report is also produced in MEG, Vol. VII, Ann. 199). See also Letter No.
118 from the Embassy of Spain in Gabon to the Spanish Minister for Foreign Affairs, 29 June 1972 (RG, Vol. II, Ann. 19);
Telegram No. 304/12 from the French Ministry of Foreign Affairs to the Embassy of France in Kinshasa, 27 Sept. 1972
(CMG, Vol. V, Ann. 128).
535 Communiqué from the Prime Minister of Equatorial Guinea, 11 Mar. 2003 (REG, Vol. IV, Ann. 51).
536 Dispatch No. 39/DA/DAM from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs of the French Ministry of Foreign Affairs, 23 Sept. 1974 (CMG, Vol. V, Ann. 151), p. 6.
537 Dispatch No. 40/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs of the French Ministry of Foreign Affairs, 2 Oct. 1974 (CMG, Vol. V, Ann. 152), p. 3; Letter
No. 582/74 from the First Secretary of the Spanish Embassy in Malabo to the Spanish Minister for Foreign Affairs, 16 Oct.
1974 (REG, Vol. IV, Ann. 40).
538 Dispatch No. 40/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs of the French Ministry of Foreign Affairs, 2 Oct. 1974 (CMG, Vol. V, Ann. 152), p. 7.
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Heads of State who composed it had formally stipulated in 1972 that these islets would
be a neutral zone”539.
4.80 Thus, while President Macías Nguema’s interpretation of the Bata Convention may have
varied as regards the maritime boundary, he consistently and invariably acknowledged that it had the
effect of recognizing Gabon’s sovereignty over Mbanié, Cocotiers and Conga.
4.81 Consequently, the Bata Convention is the legal title on the basis of which the question of
sovereignty over Mbanié, Cocotiers and Conga is governed between the two Parties under
international law.
C. Gabon has not renounced its conventional title
4.82 This title to sovereignty over Mbanié, Cocotiers and Congo continues to be held by
Gabon, which has never since consented to transfer that sovereignty to Equatorial Guinea. Nor does
the latter claim otherwise.
4.83 It refrains in its written pleadings from advancing any arguments as an alternative to its
untenable contention that the Bata Convention is not an instrument in force definitively establishing
the title to the islands in dispute. Moreover, Equatorial Guinea recalls that Gabon has continually
asserted its sovereignty over the said islands when:
(a) effectively exercising that sovereignty, for example by including Mbanié in the baselines fixed
by Decree No. 2066/PR of 4 December 1992540; by awarding the company Shell the oil blocks
known as “Mbanié” and “West Mbanié”, encompassing both that island and Cocotiers and
Conga541; by using Mbanié as a base point for the purposes of the maritime delimitation542; and
by maintaining on Mbanié a police station which was visited by the Gabonese Minister of
Defence, among others, on 26 February 2003543;
(b) protesting against the opposing claims of Equatorial Guinea, such as the granting of an
exploration permit to the company Clarion Petroleum in 1989, which, Gabon observed,
“greatly encroaches upon Gabonese territory, not only by encompassing Mbanie Island,
but also by not respecting the median line that goes from the t[h]alweg of Muni to the
point of geographic coordinates 0° 50' 24" N 9° 20' 36" E, a point located equidistant
from Mbanie and Corisco”,
thereby incorporating
539 Dispatch No. 43/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the French Ministry of
Foreign Affairs, 14 Oct. 1974 (CMG, Vol. V, Ann. 153), p. 5. See also Letter No. 582/74 from the First Secretary of the
Spanish Embassy in Malabo to the Spanish Ministry of Foreign Affairs, 16 Oct. 1974 (REG, Vol. IV, Ann. 40). See also
above, paras. 2.14, 2.16.
540 See REG, Vol. I, para. 3.74 and Gabon’s Decree No. 2066/PR/MHCUCDM, Official Journal of the Gabonese
Republic, No. 48/52-385, Dec. 1992 (REG, Vol. V, Ann. 54).
541 See REG, Vol. I, para. 3.77 (license which elicited protests from Equatorial Guinea by Letter No. 4005 from its
Minister for Foreign Affairs, 3 Jan. 2001 (REG, Vol. IV, Ann. 49)).
542 See above, para. 2.44.
543 See REG, Vol. I, paras. 3.78-3.79 (visit reported in J.D. Geslin, “The Island Coveted by All,” Jeune Afrique,
10-23 Aug. 2003 (REG, Vol. V, Ann. 64.))
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“the Mbanie, Conga and Cocotiers Islands[,which] are in Gabonese territory”544; and
the delimitation of its maritime area in such a way that “the boundary line passes south
of the island of Mbanie, which is thus in Equatoguinean territory”545;
(c) engaging in bilateral negotiations with Equatorial Guinea, in particular within the framework of
the Gabon-Equatorial Guinea ad hoc Boundary Commission from 10 to 16 November 1985 and
17 to 19 January 1993546 — the 1993 session during which the acrimonious nature of the
discussions on the Parties’ claims over the islands became apparent547.
At the next session of that Commission, eight years later, Equatorial Guinea, in the face of
Gabon’s steadfast claim to sovereignty over Mbanié, Cocotiers and Conga, proposed that the
following approach be taken to the maritime delimitation: that first a median line “disregarding”
those islands should be drawn and then an “examin[ation of] the situation of the islands”
conducted separately548.
4.84 That Gabon has consistently asserted its sovereignty over the islands in dispute since the
conclusion of the Bata Convention is therefore not in question between the Parties. Indeed, this is
because, under that Convention, Gabon holds a legal title which, as envisaged in Article 1 of the
Special Agreement, has the force of law in its relations with Equatorial Guinea as regards sovereignty
over the islands of Mbanié, Cocotiers and Conga.
Conclusion
4.85 For the reasons set out above, the Bata Convention is the only legal title applicable to the
question, not addressed in the Paris Convention, of sovereignty over the islands in dispute; the title
invoked by Equatorial Guinea, namely succession to pre-existing Spanish legal titles that are
nowhere to be found, is nothing of the sort.
544 Letter No. 293 from the Gabonese Minister for Foreign Affairs to the Ambassador of Equatorial Guinea to
Gabon, 4 May 1990 (REG, Vol. IV, Ann. 46). See REG, Vol. I, paras. 3.72-3.73.
545 Note Verbale No. 1989/MAECF/SG/D1 from the Gabonese Ministry of Foreign Affairs to the Ministry of
Foreign Affairs of Equatorial Guinea, 13 Sept. 1999 (REG, Vol. IV, Ann. 48), protesting against Equatorial Guinea’s
Decree N/1/1999 of 6 Mar. 1999 fixing the baselines and delimitation of its maritime area (MEG, Vol. VI, Ann. 193). See
also REG, Vol. I, para. 3.75.
546 See REG, Vol. I, in particular paras. 3.64, 3.66-3.68 (negotiations of the Gabon-Equatorial Guinea ad hoc
Boundary Commission from 10-16 Nov. 1985 and 17-19 Jan. 1993).
547 Undated Note from the Ambassador of France to Gabon, included in a dispatch note to the French Ministry of
Foreign Affairs, 1 Feb. 1993 (RG, Vol. II, Ann. 51). See also Report of the “boundaries” sub-commission of the Gabon-
Equatorial Guinea ad hoc Boundary Commission, Libreville, 19 Jan. 1993 (MEG, Vol. VII, Ann. 209).
548 Minutes of the Gabon-Equatorial Guinea ad hoc Boundary Commission, Libreville, 31 Jan. 2001 (MEG, Vol.
VII, Ann. 212), p. 4; see CMG, Vol. I, para. 4.19. This session would be the last one.
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CHAPTER V
THE LEGAL TITLE IN RESPECT OF THE MARITIME BOUNDARY
5.1 Equatorial Guinea’s argument regarding the titles that have the force of law between the
Parties in respect of their common maritime boundary is based on a single premise: since, according
to Equatorial Guinea, there is no maritime delimitation treaty between the Parties, reference must be
made to other legal instruments, namely:
“1. the 1900 Convention in so far as it established the terminus of the land boundary in
Corisco Bay;
2. the United Nations Convention on the Law of the Sea signed on 10 December 1982
at Montego Bay, and
3. customary international law in so far as it establishes that a State’s title and
entitlement to adjacent maritime areas derives from its title to land territory.”549
5.2 This premise is doubly flawed: the Bata Convention is the only legal title that has the force
of law between the Parties in respect of maritime delimitation (I). No other such title exists; and in
the unlikely event of the Court finding that the Bata Convention does not have the force of law in the
present case, there would currently be no other title with the force of law between the Parties as
regards the delimitation of their maritime boundary (II).
I. The Bata Convention is the only legal title that has the force of law between the Parties in
respect of maritime delimitation
5.3 The Bata Convention is the only legal title that has the force of law between the Parties: it
delimits the maritime boundary between Gabon and Equatorial Guinea (A); the arguments of
Equatorial Guinea in response are unconvincing (B); and the Convention prevails over the alleged
titles invoked by Equatorial Guinea (C).
A. The Bata Convention delimits the maritime boundary between Gabon and Equatorial
Guinea
5.4 The Bata Convention clearly determines the maritime boundary between the two States.
As Gabon observed in its Counter-Memorial550, Article 4 of the Bata Convention defines the
“maritime frontier between the Republic of Equatorial Guinea and the Gabonese Republic” in the
form of three segments: the line parallel to 1° north parallel of latitude, starting at the land boundary
terminus, and the two enclaves around the islands belonging to Equatorial Guinea — Corisco, on the
one hand, and Elobey Grande and Elobey Chico, on the other — which are on the “wrong”551 side of
the line, lying as they do to the south of the first segment and therefore in Gabon’s maritime area.
Article 5 of the Convention goes on to provide that “[f]or access by sea to the Muni River as well as
to the Elobey Islands and Corisco Island, ships of Equatorial Guinea shall enjoy, in Gabonese
territorial waters, the same facilities as are granted to Gabonese ships”. The maritime space to the
549 REG, Vol. I, p. 146, Submissions, para. V.
550 CMG, Vol. 1, paras. 9.3-9.5.
551 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 624,
para. 198; Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and
the French Republic (1977), RIIA, Vol. XVIII, pp. 223-224, para. 183, and ILR, Vol. 54, p. 96; Delimitation of the maritime
boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 4, para. 309.
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south of the boundary line falls under the sovereignty or within the sovereign rights of Gabon (except
for the enclaves around Corisco Island and the Elobey Islands), and Equatorial Guinea enjoys
significant facilities in terms of access and passage.
5.5 Contrary to the position taken by Equatorial Guinea552, the Bata Convention does indeed
delimit the maritime boundary between the two States. The context in which the Bata Convention
was signed, which Equatorial Guinea seeks to overlook, confirms their common intention to resolve
all their territorial and boundary disputes553. Those negotiations, which had begun before Equatorial
Guinea gained independence554, intensified thereafter, when the uncertainties surrounding the course
of the land boundary agreed in the Paris Convention, and the latter’s silence on the maritime
boundary and sovereignty over Mbanié, Cocotiers and Conga, led the Parties to the realization that
it was essential for a legally binding agreement to be concluded. After the negotiations had started,
certain incidents took place on Mbanié555 and along the land boundary556 which made it even more
urgent to settle the questions of sovereignty over the islands in Corisco Bay and to delimit their
maritime boundary. Equatorial Guinea, recognizing the need to resolve the conflict with Gabon,
contacted Spain on several occasions with a view to obtaining legal and technical assistance on the
boundary dispute, which Spain agreed to provide557.
5.6 A look back at the negotiations on the conclusion of the Bata Convention shows that it
includes precisely the proposals that were discussed between the Parties, namely the principle of a
maritime boundary in a number of segments: a straight line drawn from the terminus of the land
boundary, and the creation of two enclaves around the islands of Corisco, Elobey Grande and Elobey
Chico558. Indeed, at the first negotiation meeting in February 1971, Gabon proposed that “the seaward
boundary follow the parallel drawn from the middle of the mouth of the Muni River”, with
adjustments made for the areas of Equatorial Guinea’s territorial waters around the Elobey Islands
and the island of Corisco559. At the next meeting, in March 1972, Gabon reiterated and clarified the
proposal made at the first meeting in Bata, namely the drawing of a straight line and enclaves whose
co-ordinates were described precisely by the Gabonese delegation560. During the summer of 1974,
after the resumption of negotiations following the incidents on Mbanié561 and along the land
boundary562, there were several meetings at the highest level between Gabon and Equatorial Guinea
aimed at finding a solution to the question of the delimitation of their land and maritime boundaries
and that of sovereignty over the islands of Mbanié, Cocotiers and Conga563, leading up to the meeting
between the two Presidents in September 1974, at which they concluded the Bata Convention. A few
days before that meeting, the legal adviser at the Gabonese Ministry of Mines, Industry, Energy and
552 REG, Vol. I, paras. 6.5-6.6: “it does not even purport to delimit a maritime boundary, in whole or in part,
between the Parties”.
553 CMG, Vol. I, paras. 2.49-2.54 and 6.54-6.61; see above, paras. 2.32-2.35.
554 CMG, Vol. I, paras. 2.38-2.41.
555 Ibid., paras. 2.49-2.54.
556 Ibid., paras. 2.55-2.58.
557 See above, para. 2.35.
558 CMG, Vol. I, paras. 2.45-2.48; CMG, Vol. II, sketch-map No. 2.2.
559 Dispatch No. 57/DAM from the Ambassador of France to Libreville to the French Minister for Foreign Affairs,
23 Mar. 1971 (CMG, Vol. V, Ann. 115).
560 Report prepared by the Gabon-Equatorial Guinea Joint Commission after the meeting in Libreville from
March 25 to 29, 1972, 29 Mar. 1972 (MEG, Vol. VII, Ann. 199), para. 4.1.
561 CMG, Vol. I, paras. 2.49-2.54.
562 Ibid., paras. 2.55-2.58.
563 Ibid., paras. 3.3-3.5; see above, paras. 2.32-2.35.
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Hydraulic Resources proposed delimiting the common maritime boundary along a straight line, while
creating two enclaves around the Elobey Islands and Corisco Island564. That is exactly the course of
the maritime boundary that was enshrined in the Bata Convention concluded on 12 September 1974.
5.7 In signing the Bata Convention, Gabon and Equatorial Guinea brought an end to nearly
four years of negotiations on their maritime boundary and confirmed their full and absolute intention
for it to be delimited, as is made clear in the text of the Convention itself: in the preamble of the
Convention, the Parties clearly recorded their desire “to lay firm foundations for peace between their
two countries, notably by definitively establishing their common land and maritime frontiers”565.
B. The arguments of Equatorial Guinea in response are unconvincing
5.8 Equatorial Guinea wrongly maintains that the Bata Convention “does not even purport to
delimit a maritime boundary, in whole or in part, between the Parties”566. With regard to the maritime
boundary, it bases itself in the first place on the presence of a nota bene567 stating that “[t]he two
Heads of State agree to proceed subsequently with a new text of article 4 to bring it into conformity
with the Convention of 1900”568. The fact that the signatories included a nota bene takes nothing
away from the established fact that Article 4 of the Bata Convention determines the maritime
boundary between the two States. Once again, the context in which the Bata Convention was
concluded, on which Equatorial Guinea continues to remain silent, gives an understanding of the
spirit and text of this nota bene. A few days after the signature of the Bata Convention, the President
of Equatorial Guinea told various diplomatic representatives of his frustration regarding the course
of the maritime boundary agreed in the Convention and two key elements in particular: its startingpoint,
and the territorial waters of Corisco Island and the two Elobey Islands. Thus he stated to the
Ambassador of France to Equatorial Guinea that Gabon had “insisted”569 on the maritime boundary
as described in Article 4 of the Convention, and that “[h]e would nevertheless have preferred the
boundary between the two countries’ territorial waters to be fixed, as the land boundary was, along
the 1° north parallel of latitude and for there to be no break between the territorial waters adjacent to
Río Muni and those surrounding the group of islands made up of Corisco, Elobey Grande and Elobey
Chico”570. Other diplomatic representatives to whom the President of Equatorial Guinea personally
presented the solution agreed in the Bata Convention concerning the maritime boundary571 — and to
whom he expressed his frustration as regards its starting-point and the territorial waters of the islands
belonging to Equatorial Guinea — pointed to President Macías’s “resigned, pained and passionate
564 Note by the technical adviser on the maritime boundaries between Equatorial Guinea and Gabon, 6 Aug. 1974
(CMG, Vol. V, Ann. 145), p. 1.
565 CMG, Vol. I, para. 9.7; Convention demarcating the land and maritime frontiers of Equatorial Guinea and
Gabon, 12 Sept. 1974, annexed to the letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct.
1974 (CMG, Vol. V, Ann. 155), preamble, third recital (emphasis added).
566 REG, Vol. 1, para. 6.5.
567 Ibid., paras. 3.43-3.50.
568 Convention demarcating the land and maritime frontiers of Equatorial Guinea and Gabon, 12 Sept. 1974,
annexed to the letter from the President of Gabon to the Ambassador of France to Gabon, 28 Oct. 1974 (CMG, Vol. V,
Ann. 155); in French, “[l]es deux Chefs d'Etat conviennent de procéder ultérieurement à une nouvelle rédaction de
l'article 4, afin de la mettre en conformité avec la Convention de 1900”; in Spanish, “[l]os dos jefes de Estado convienen
de procedir ulteriormente a una nueva redacción del articulo 4, para ponerla en conformidad con la Convención de 1900”.
569 Dispatch No. 40/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs at the French Ministry of Foreign Affairs, 2 Oct. 1974 (CMG, Vol. V, Ann. 152), p. 8.
570 Ibid., p. 7.
571 As reported by the Ambassador of France to Equatorial Guinea.
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tone”572. In December 1974, he reiterated his frustration, indicating that “he wanted and had always
wanted peace and, moreover, could not risk conflict with a sister country like Gabon, despite the
injustice suffered as regards the territorial waters of Corisco and the two Elobeys”573.
5.9 President Macías was aware that the purpose of the Bata Convention was to “draw[] a
definitive line”574 under the questions of land, island and maritime sovereignty, and that concluding
such a convention necessarily involved concessions on his part, some of them disadvantageous. It is
undeniably in this spirit that the nota bene was added to the Bata Convention: the Parties were
committing themselves to negotiating a new text of Article 4.
5.10 This nota bene was clearly intended to enable the two States to conclude an overall
agreement on the sensitive issues of land and maritime boundaries and sovereignty over islands,
despite their differences on certain points regarding the maritime boundary. It allowed the Parties to
negotiate in good faith, if need be, a new wording of Article 4 of the Bata Convention575. In the
immediate wake of the signing of the Convention, President Macías Nguema did not call for further
talks on the subject of this maritime boundary. In contrast, it was precisely in that spirit that the
Parties later discussed the delimitation of their maritime boundary in order to determine whether they
should ratify a different line from that fixed by the Bata Convention and agree on “proposals such as
to preserve peace and fraternal relations between the two countries”576. This nota bene simply
embodied the Parties’ commitment to negotiate in good faith a new text of Article 4 of the
Convention. Gabon, moreover, has always been willing to engage in negotiations to that end, and
remains ready to do so.
5.11 Secondly, Equatorial Guinea maintains that the Parties have never treated the Bata
Convention as delimiting the maritime boundary between them, relying on Gabon’s alleged silence
on the existence of this treaty in the years following its signature, and on subsequent Gabonese
practice577.
5.12 This position is misleading and fails to reflect the reality. Gabon has responded amply,
both in its Counter-Memorial and in this Rejoinder, on the lack of any ensuing acquiescence578.
5.13 Furthermore, even though Gabon may not have expressly mentioned the Bata Convention
in the negotiations subsequent to its conclusion, Gabon’s conduct has been in accordance with the
maritime boundary determined in that instrument:
(a) the negotiations that led to the conclusion of the Petroleum Co-operation Agreement in 1979
were focused on petroleum co-operation between the two States and not on delimiting their
572 Dispatch No. 43/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs at the French Ministry of Foreign Affairs, 14 Oct. 1974 (CMG, Vol. V, Ann. 153), pp. 6-7.
573 Telegram No. 134 from the Embassy of France in Equatorial Guinea to the French Ministry of Foreign Affairs,
23 Dec. 1974 (CMG, Vol. V, Ann. 157).
574 Dispatch No. 43/DA/DAM-2 from the Ambassador of France to Equatorial Guinea to the Directorate of African
and Madagascan Affairs at the French Ministry of Foreign Affairs, 14 Oct. 1974 (CMG, Vol. V, Ann. 153), p. 5.
575 CMG, Vol. I, paras. 6.49-6.53; see above, para. 2.25.
576 Letter from the President of the Gabonese Republic to the Secretary-General of the United Nations, 14 May
2007 (RG, Vol. II, Ann. 53), p. 1.
577 REG, Vol. I, paras. 6.5-6.6.
578 CMG, Vol. I, paras. 6.66-6.75; see above, paras. 2.36-2.46.
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maritime boundary579, and no provision of that Agreement called into question the maritime
delimitation laid down by the Bata Convention;
(b) the discussions within the ad hoc Commission in 1982 concerned the question of petroleum
co-operation between the two States580, and none of those discussions called into question the
maritime boundary provided for by the Bata Convention;
(c) the subsequent negotiations concerning the text of Article 4 took place in the spirit of the nota
bene of the Bata Convention, which presupposed the drafting of a new wording of Article 4.
5.14 This Convention has the force of law between the Parties as regards the delimitation of
the maritime boundary between them.
C. The Bata Convention prevails over the alleged titles invoked by Equatorial Guinea
5.15 The latest written pleading of Equatorial Guinea shows that the Parties agree in one
fundamental respect: where an agreement exists between the Parties on maritime delimitation, that
title prevails over any other instrument that might serve to delimit their common maritime boundary.
5.16 While this premise is merely touched on in its Memorial581, Equatorial Guinea
acknowledges it clearly in its Reply:
“Because the document presented in 2003 does not have the force of law between
the Parties in relation to delimitating their maritime boundary, Equatorial Guinea
submits that the ‘legal titles, treaties and international conventions’ that have the force
of law concerning the maritime areas adjacent to the Parties’ coasts include:
i. the 1900 Convention,
ii. the U.N. Convention on the Law of the Sea (“UNCLOS”), and
iii. legal titles to maritime areas adjacent to Equatorial Guinea’s land territory
derived under UNCLOS and customary international law.”582
And Equatorial Guinea goes on to state that:
“Because there is no agreement delimiting the Parties’ maritime boundary,
UNCLOS is an international convention with the force of law that ‘concern[s]’ the
Parties’ maritime boundary delimitation.”583
579 CMG, Vol. I, para. 4.6.
580 REG, Vol. I, paras. 3.74-3.78; Official Journal of the Gabonese Republic, No. 48/52, containing Decree
No. 2066/PR/MHCUCDM (Dec. 1992), p. 4 (REG, Vol. V, Ann 54), and J.D. Geslin, “The Island Coveted by All”, Jeune
Afrique L’Intelligent, 10-23 Aug. 2003 (REG, Vol. V, Ann. 64).
581 MEG, Vol. I, para. 6.54 (“in the absence of an agreement, the delimitation of their respective areas is to be
carried out in accordance with the principles set forth in UNCLOS Articles 15, 74 and 83, and the body of maritime
delimitation jurisprudence of the Court in interpreting and applying those principles”) (emphasis added).
582 REG, Vol. I, para. 6.7.
583 Ibid., para. 6.9.
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5.17 As it has already established in its Counter-Memorial, Gabon maintains that the Bata
Convention, which has binding force, prevails over the alleged titles invoked by Equatorial Guinea.
With regard to the Paris Convention, inasmuch as the Bata Convention uses terms almost identical
to those of the former in respect of the terminus of the land boundary, the Bata Convention prevails
over the Paris Convention. As regards the other alleged titles invoked by Equatorial Guinea, Gabon
has already established that the maritime delimitation methods provided for by UNCLOS,
international jurisprudence and custom apply only in the absence of a conventional title584.
II. No title other than the Bata Convention exists that has the force of law
between the Parties in respect of maritime delimitation
5.18 In the unlikely event of the Court finding that the Bata Convention is not a title that has
the force of law between the Parties in respect of their common maritime boundary, it would then
have to find that no other such title exists.
5.19 None of the alleged titles invoked by Equatorial Guinea, namely the Paris Convention,
the United Nations Convention on the Law of the Sea and international custom585, is a title that has
the force of law between the Parties for the purpose of delimiting their common maritime boundary.
5.20 The Paris Convention is silent on the course of the maritime boundary: it determines
neither the course nor its direction, and provides no information on the maritime areas surrounding
the Equatorial Guinean islands of Corisco, Elobey Grande and Elobey Chico586. The Paris
Convention cannot therefore constitute the legal title between the Parties as regards the delimitation
of their common maritime boundary. Equatorial Guinea takes the view that it constitutes a title in
these proceedings in so far as it establishes the terminus of the common land boundary. In its
Reply587, Equatorial Guinea does not explain how the Paris Convention constitutes a legal title
between the Parties, but merely states that it is “relevant” for the maritime delimitation in that it
establishes the land boundary terminus588. Gabon readily acknowledges that a treaty establishing the
terminus of a land boundary is relevant for maritime delimitation in that it fixes, in principle, the
starting-point of the maritime boundary. Nevertheless, in no way does such a treaty constitute a title
for the purpose of the maritime delimitation beyond that point.
5.21 Nor is UNCLOS a title that has the force of law between the Parties. It is not a title, but
only an instrument establishing the possibility of a title (entitlement). It cannot constitute a title: it
offers general guidance to States which have not concluded a maritime delimitation treaty, allowing
them to establish their legal title by agreement or by judicial means589. In maritime delimitation, the
title is not UNCLOS; the title would be the delimitation agreement or, where bilateral negotiations
fail, the decision on maritime delimitation handed down by an international court.
5.22 The fact that UNCLOS is an international convention relating to maritime delimitation
does not make it a convention equating to a legal title within the meaning of Article 1 of the Special
Agreement. Equatorial Guinea claims that “as the Special Agreement makes clear, the Court’s task
584 CMG, Vol. I, paras. 5.83 and 9.15; see above, paras. 1.40-1.41 and 1.52.
585 MEG, Vol. I, p. 144.
586 CMG, Vol. I, paras. 9.9-9.10.
587 REG, Vol. I, para. 6.8.
588 Ibid.
589 CMG, Vol. I, paras. 9.12-9.16.
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is not limited to determining titles but also treaties and conventions concerning maritime
delimitation”590. As previously explained591, the Parties can legitimately invoke in these proceedings
any treaty or international convention that has the force of law between them, subject to such treaties
and international conventions constituting legal titles. While UNCLOS has the force of law between
the Parties (both Gabon and Equatorial Guinea are parties to it), it is not a legal title for the purpose
of delimiting their common maritime boundary.
5.23 With regard to international custom, Equatorial Guinea wrongly argues that this
constitutes a legal title between the Parties “in so far as it establishes that a State’s title and
entitlement to maritime areas derives from its title to land territory”592. Its reasoning is simplistic: it
amounts to saying that, inasmuch as there exists a title to land and where, according to international
custom, the title to sea “derives” from the title to land, customary international law equates to title.
Once again, Gabon readily acknowledges that customary international law, and in particular the
principle that “the land dominates the sea” invoked by Equatorial Guinea593, are relevant for maritime
delimitation and regularly used in international jurisprudence to establish a maritime boundary.
However, while such customary international law may allow a title to be established, it in no way
constitutes a legal title. In a misleading way, Equatorial Guinea deliberately confuses the notions of
title and entitlement (the possibility of a title) by bracketing them together without distinction:
“customary international law . . . recognizes that a coastal State’s entitlement and legal title to
adjacent maritime areas derive from its title to land territory”594. The Court will see through this
confusion of terms: in the same way as UNCLOS, customary international law can only be the basis
for legal title (entitlement) in respect of maritime delimitation, but not the title itself.
5.24 None of the three elements invoked by Equatorial Guinea is therefore a title that has the
force of law between the Parties as regards their maritime delimitation. Nor would they be one in the
unlikely event of the Court finding that the Bata Convention is not a title with the force of law
between the Parties in respect of their common maritime boundary. In that scenario, the instruments
relied on by Equatorial Guinea would still not be legal titles within the meaning of Article 1 of the
Special Agreement, and the Court would have no choice but to find that there is no legal title with
the force of law between the Parties as regards their maritime boundary. Gabon and Equatorial
Guinea would then be in the same situation as the great majority of coastal States that wish to delimit
their common maritime boundaries: in the absence of agreement, they would proceed to delimit their
common maritime boundary by amicable or judicial means, basing themselves on the rules and
principles that will ultimately enable their title to their respective maritime areas to be established.
Like all States which have not concluded a delimitation agreement, they would refer to the methods
of delimitation set out in UNCLOS and supplemented by customary international law, as clarified
by the valuable jurisprudence of the Court, in order to establish the title of each of them to their
respective maritime areas and with a view to achieving an equitable solution.
5.25 However, that is a purely hypothetical scenario: Gabon and Equatorial Guinea have fixed
their common maritime boundary in the Bata Convention, and that Convention is the only title that
has the force of law between the Parties for the purpose of maritime delimitation.
590 REG, Vol. I, para. 6.9.
591 See above, paras. 1.46-1.55.
592 MEG, Vol. I, p. 144.
593 REG, Vol. I, para. 6.10.
594 Ibid., para. 6.11 (emphasis added).
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Conclusion
5.26 It is clear from the foregoing that:
(a) the Bata Convention constitutes the legal title in respect of the maritime boundary between Gabon
and Equatorial Guinea;
(b) neither the Paris Convention, nor the United Nations Convention on the Law of the Sea, nor
international customary law constitutes a legal title that has the force of law between the Parties
as regards their maritime boundary;
(c) in the unlikely event of the Court finding that the Bara Convention is not a title that has the force
of law between the Parties in respect of their common maritime boundary, it would then have to
find that no other such title exists.
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SUBMISSIONS
In view of the arguments presented in this Rejoinder and of any others produced, inferred or
substituted, including if necessary proprio motu, the Gabonese Republic respectfully requests the
Court:
(a) To declare that
(i) the Convention demarcating the land and maritime frontiers of Equatorial Guinea and
Gabon of 12 September 1974 (Bata) and the special Convention on the delimitation of
French and Spanish possessions in West Africa, on the coasts of the Sahara and the Gulf of
Guinea of 27 June 1900 (Paris), subject to the modifications made to the boundary by the
Bata Convention, are the legal titles having the force of law in the relations between the
Gabonese Republic and the Republic of Equatorial Guinea in so far as they concern the
delimitation of their common land boundary;
(ii) the Convention demarcating the land and maritime frontiers of Equatorial Guinea and
Gabon of 12 September 1974 (Bata) is the legal title having the force of law in the relations
between the Gabonese Republic and the Republic of Equatorial Guinea in so far as it
concerns the delimitation of their common maritime boundary and sovereignty over the
islands of Mbanié, Cocotiers and Conga.
(b) To reject all claims of the Republic of Equatorial Guinea to the contrary.
*
* *
Gabon reserves the right to modify or amend these submissions, as appropriate, in accordance
with the provisions of the Statute and the Rules of Court.
The Hague, 6 March 2023
(Signed) Ms Marie-Madeleine MBORANTSUO,
Agent of the Gabonese Republic.
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ATTESTATION
I hereby certify that the documents reproduced as annexes are true copies of the originals and
that translations into either of the Court’s official languages are accurate.
The Hague, 6 March 2023
(Signed) Ms Marie-Madeleine MBORANTSUO,
Agent of the Gabonese Republic.
___________
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LIST OF ANNEXES
VOLUME II
Annex 1 Report for the Minister for the Colonies by Mr Bonnel de Mézières
Annex 2 Protocol No. 1 of the Franco-Spanish Commission for the Northern
Delimitation of Gabon, 22 March 1886
Annex 3 Protocol No. 31 of the Franco-Spanish Commission for the Northern
Delimitation of Gabon, 17 October 1887
Annex 4 French sketch-map “Reconnaissance of Corisco Bay”, November
1954
Annex 5 Letter No. 956 AP 3 from the Governor-General for Overseas France,
High Commissioner of the Republic in French Equatorial Africa,
14 March 1955
Annex 6 Letter No. 955 AP 3 from the Governor-General for Overseas France,
High Commissioner of the Republic in French Equatorial Africa, to
the Governor-General of Spanish Settlements in the Gulf of Guinea,
14 April 1955
Annex 7 Constitutional Law No. 1/61 promulgating the Constitution of the
Gabonese Republic, 21 February 1961
Annex 8 Letter from the Director-General of the Spanish Ministry of Foreign
Affairs to the Spanish Minister for Foreign Affairs, 11 May 1966
Annex 9 Information note from the Spanish Ministry of Foreign Affairs, 8 July
1996
Annex 10 Note Verbale No. 04564/MAE/SG from the Gabonese Ministry of
Foreign Affairs to the Spanish Ministry of Foreign Affairs,
11 September 1967
Annex 11 Letter No. 585 from the Embassy of Spain in Gabon to the Spanish
Ministry of Foreign Affairs, 3 December 1968
Annex 12 Letter from the Director-General of the Spanish Ministry of Foreign
Affairs to the Spanish chargé d’affaires in Equatorial Guinea,
16 December 1968
Annex 13 Letter No. 156 from the Embassy of Spain in Gabon to the Spanish
Ministry of Foreign Affairs, 23 June 1970
Annex 14 Telegram No. 16 from the Embassy of France in Equatorial Guinea to
the French Ministry of Foreign Affairs, 13 February 1971
Annex 15 Letter from the Ambassador of Spain to Gabon to the Under-Secretary
of the Spanish Ministry of Foreign Affairs, 23 March 1971
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Annex 16 Letter No. 55/DAM from the Ambassador of France to Gabon to the
French Minister for Foreign Affairs, 1 April 1972
Annex 17 Telegram No. 72 from the Embassy of Spain in Equatorial Guinea to
the Spanish Ministry of Foreign Affairs, 5 April 1972
Annex 18 Letter No. 6 from the Embassy of Spain in Libreville to the Spanish
Ministry of Foreign Affairs, 12 April 1972
Annex 19 Letter No. 118 from the Embassy of Spain in Gabon to the Spanish
Minister for Foreign Affairs, 29 June 1972
Annex 20 Information note from the Gabonese police sent to the French Ministry
of Foreign Affairs, 13 July 1972
Annex 21 Note Verbale No. 86/MPG-C1 from the Permanent Mission of the
Gabonese Republic to the United Nations Office at Geneva to the
Permanent Mission of France, 14 August 1972
Annex 22 Note Verbale No. 2549 from the Ministry of Foreign Affairs of
Equatorial Guinea to accredited diplomatic missions in Equatorial
Guinea, 31 August 1972
Annex 23 Note Verbale No. 2581 from the Ministry of Foreign Affairs of
Equatorial Guinea to accredited diplomatic missions in Equatorial
Guinea, 1 September 1972
Annex 24 Note Verbale No. 2574 from the Ministry of Foreign Affairs of
Equatorial Guinea to accredited diplomatic missions in Equatorial
Guinea, 1 September 1972
Annex 25 Letter No. 007/CF from the Ambassador of Gabon to Equatorial
Guinea to the Gabonese Ministry of Foreign Affairs, 2 September
1972
Annex 26 Telegram No. 41/43 from the Ambassador of France to Equatorial
Guinea, 8 September 1972
Annex 27 Telegram No. 430/431 from the Ambassador of France to Gabon to the
French Ministry of Foreign Affairs, 9 September 1972
Annex 28 Telegram No. 426/429 from the Ambassador of France to Gabon to the
French Ministry of Foreign Affairs, 9 September 1972
Annex 29 Dispatch No. 5192/MAEC/SG from the Gabonese Ministry of Foreign
Affairs to the Ministry of Foreign Affairs of Equatorial Guinea,
11 September 1972
Annex 30 Telegram No. 4028/31 from the Permanent Representative of France
to the United Nations to the French Ministry of Foreign Affairs and the
Embassies of France in Gabon and Equatorial Guinea, 12 September
1972
Annex 31 Telegram No. 4045/46 from the French Representative to the United
Nations to the French Ministry of Foreign Affairs, 13 September 1972
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Annex 32 Telegram No. 4067 from the French Representative to the United
Nations to the Embassies of France in Zaire, Gabon and Equatorial
Guinea, 14 September 1972
Annex 33 Telegram No. 34 from the Embassy of Spain in Gabon to the Spanish
Minister for Foreign Affairs, 15 September 1972
Annex 34 Letter from the Spanish Minister for Foreign Affairs to the
Ambassador of Spain to Equatorial Guinea, 19 September 1972
Annex 35 Telegram No. 673/681 from the Ambassador of France to Zaire to the
French Ministry of Foreign Affairs, 19 September 1972
Annex 36 Telegram No. 52/53 from the Ambassador of France to Equatorial
Guinea to the French Ministry of Foreign Affairs, 23 September 1972
Annex 37 Philippe Decraene, “Une mauvaise querelle entre la Guinée
Equatoriale et le Gabon”, Le Monde Diplomatique, October 1972
Annex 38 Note entitled “Permit to explore for offshore hydrocarbons in the
disputed area between Gabon and Equatorial Guinea” from the
Embassy of France in Gabon, 5 October 1972
Annex 39 Telegram No. 58 from the Ambassador of France to Equatorial Guinea
to the French Ministry of Foreign Affairs, 14 October 1972
Annex 40 Telegram No. 598 from the Ambassador of France to Gabon to the
French Ministry of Foreign Affairs, 17 October 1972
Annex 41 Letter No. 512 from the Ambassador of Spain to Zaire to the Spanish
Minister for Foreign Affairs, 15 November 1972
Annex 42 Briefing note No. 45/46-72 from the Embassy of France in Gabon,
20 November 1972
Annex 43 Letter No. 35/73 from the Ambassador of Spain to Equatorial Guinea
to the Spanish Minister for Foreign Affairs, 18 January 1973
Annex 44 Letter No. 435/74 from the Ambassador of Spain to Equatorial Guinea
to the Ministry of Foreign Affairs, 24 August 1974
Annex 45 Letter No. 191 from the Ambassador of Spain to Gabon to the Spanish
Ministry of Foreign Affairs, 25 September 1974
Annex 46 Letter No. 568/74 from the Ambassador of Spain to Equatorial Guinea
to the Spanish Minister for Foreign Affairs, 9 October 1974
Annex 47 Letter No. 209 from the Ambassador of Spain to Gabon to the Spanish
Ministry of Foreign Affairs, 10 October 1974
Annex 48 Telegram No. 269/72 from the Embassy of France in Malabo to the
Ministry of Foreign Affairs, 7 November 1979
Annex 49 Note Verbale No. 83/AL/84 from the Embassy of France in Malabo to
the Ministry of Foreign Affairs of Equatorial Guinea, 22 March 1984
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Annex 50 Telegram No. 805 from the Embassy of France in Gabon to the French
Ministry of Foreign Affairs, 11 September 1984
Annex 51 Undated Note from the Ambassador of France to Gabon, included in a
dispatch note to the French Ministry of Foreign Affairs, 1 February
1993
Annex 52 Commission for the Gabon/Equatorial Guinea Dispute, Observations
of the Gabonese delegation on the new draft Article 1 regarding the
subject of the dispute as put to the Parties at the end of the final
mediation session, Geneva, 29-30 March 2001
Annex 53 Letter from the President of the Gabonese Republic to the Secretary-
General of the United Nations, 14 May 2007
Annex 54 Note of Luigi Condorelli, 21 July 2011
Annex 55 Note of Luigi Condorelli, 30 April 2012
Annex 56 Draft Special Agreement, 31 October 2013
Annex 57 Draft Special Agreement, 19 January 2016
Annex 58 Note Verbale No. 1514 from the Spanish Ministry of Foreign Affairs,
30 November 2022
Annex 59 Note Verbale No. 0613/23/ARGRERPGOMT/CABCMD/og from the
Embassy of Gabon in Spain, 25 January 2023
Annex 60 Note Verbale No. 1/14 from the Spanish Ministry of Foreign Affairs,
14 February 2023
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