Public sitting held on Thursday 3 October 2024, at 3 p.m., at the Peace Palace, President Salam presiding, in the case concerning Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea)

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CR 2024/33
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2024
Public sitting
held on Thursday 3 October 2024, at 3 p.m., at the Peace Palace,
President Salam presiding,
in the case concerning Land and Maritime Delimitation and Sovereignty over Islands
(Gabon/Equatorial Guinea)
____________________
VERBATIM RECORD
____________________
ANNÉE 2024
Audience publique
tenue le jeudi 3 octobre 2024, à 15 heures, au Palais de la Paix,
sous la présidence de M. Salam, président,
en l’affaire de la Délimitation terrestre et maritime et souveraineté sur des îles
(Gabon/Guinée équatoriale)
________________
COMPTE RENDU
________________
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Present: President Salam
Vice-President Sebutinde
Judges Tomka
Abraham
Yusuf
Xue
Iwasawa
Nolte
Charlesworth
Brant
Gómez Robledo
Cleveland
Aurescu
Tladi
Judges ad hoc Wolfrum
Pinto
Registrar Gautier

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Présents : M. Salam, président
Mme Sebutinde, vice-présidente
MM. Tomka
Abraham
Yusuf
Mme Xue
MM. Iwasawa
Nolte
Mme Charlesworth
MM. Brant
Gómez Robledo
Mme Cleveland
MM. Aurescu
Tladi, juges
M. Wolfrum
Mme Pinto, juges ad hoc
M. Gautier, greffier

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The Government of the Gabonese Republic is represented by:
HE Mr Régis Onanga Ndiaye, Minister for Foreign Affairs, in charge of Sub-Regional Integration
and Gabonese Living Abroad;
HE Mr Paul-Marie Gondjout, Minister of Justice, Keeper of the Seals;
HE Ms Marie-Madeleine Mborantsuo, Honorary President of the Constitutional Court,
as Agent;
HE Mr Guy Rossatanga-Rignault, Secretary General of the Office of the President of the Republic,
as Co-Agent, Counsel and Advocate;
HE Mr Serge Mickoto Chavagne, Ambassador of the Gabonese Republic to the Kingdoms of
Belgium and the Netherlands, to the Grand Duchy of Luxembourg and to the European Union,
as Co-Agent;
Mr Ben Juratowitch, KC, member of the Bar of England and Wales, member of the Paris Bar, Essex
Court Chambers, London,
Ms Alina Miron, Professor of International Law, University of Angers, member of the Paris Bar,
Founding Partner of FAR Avocats,
Mr Daniel Müller, member of the Paris Bar, Founding Partner of FAR Avocats,
Mr Alain Pellet, Professor Emeritus, University Paris Nanterre, former Chairperson of the
International Law Commission, member and former President of the Institut de droit international,
Ms Isabelle Rouche, member of the Paris Bar, Asafo & Co.,
Ms Camille Strosser, member of the Paris Bar and of the Bar of the State of New York, Freshfields
Bruckhaus Deringer LLP,
Mr Romain Piéri, member of the Paris Bar, Founding Partner of FAR Avocats,
Ms Élise Ruggeri Abonnat, Senior Lecturer, University of Lille,
Mr Ysam Soualhi, PhD candidate, Faculty of Law, University of Angers,
Mr David Swanson, David Swanson Cartography, LLC,
Mr Samir Moukheiber, trainee lawyer, Freshfields Bruckhaus Deringer LLP,
as Counsel and Advocates.
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Le Gouvernement de la République gabonaise est représenté par :
S. Exc. M. Régis Onanga Ndiaye, ministre des affaires étrangères, chargé de l’intégration sousrégionale
et des Gabonais de l’étranger ;
S. Exc. M. Paul-Marie Gondjout, ministre de la justice, garde des sceaux ;
S. Exc. Mme Marie-Madeleine Mborantsuo, présidente honoraire de la Cour constitutionnelle,
comme agente ;
S. Exc. M. Guy Rossatanga-Rignault, secrétaire général de la présidence de la République,
comme coagent, conseil et avocat ;
S. Exc. M. Serge Mickoto Chavagne, ambassadeur de la République gabonaise près les Royaumes
de Belgique et des Pays-Bas, le Grand-Duché de Luxembourg et auprès de l’Union européenne,
comme coagent ;
M. Ben Juratowitch, KC, membre du barreau d’Angleterre et du pays de Galles et du barreau de
Paris, Essex Court Chambers (Londres),
Mme Alina Miron, professeure de droit international à l’Université d’Angers, membre du barreau de
Paris, associée fondatrice du cabinet FAR Avocats,
M. Daniel Müller, membre du barreau de Paris, associé fondateur du cabinet FAR Avocats,
M. Alain Pellet, professeur émérite de l’Université Paris Nanterre, ancien président de la
Commission du droit international, membre et ancien président de l’Institut de droit international,
Mme Isabelle Rouche, membre du barreau de Paris, cabinet Asafo & Co.,
Mme Camille Strosser, membre des barreaux de Paris et de l’État de New York, cabinet Freshfields
Bruckhaus Deringer LLP,
M. Romain Piéri, avocat au barreau de Paris, associé fondateur du cabinet FAR Avocats,
Mme Élise Ruggeri Abonnat, maîtresse de conférences, Université de Lille,
M. Ysam Soualhi, doctorant à la faculté de droit de l’Université d’Angers,
M. David Swanson, David Swanson Cartography, LLC,
M. Samir Moukheiber, avocat stagiaire, cabinet Freshfields Bruckhaus Deringer LLP,
comme conseils et avocats.
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The Government of the Republic of Equatorial Guinea is represented by:
HE Mr Domingo Mba Esono, Minister Delegate of Hydrocarbons and Mining Development,
as Agent;
HE Mr Carmelo Nvono Ncá, Ambassador of the Republic of Equatorial Guinea to the French
Republic, the Principality of Monaco and the United Nations Educational, Scientific and Cultural
Organization,
as Co-Agent;
HE Mr Simeón Oyono Esono Angué, Minister of State for Foreign Affairs, International Cooperation
and Diaspora,
HE Mr Pastor Micha Ondó Bile, Adviser to the Presidency of the Government,
HE Mr Juan Olo Mba Nseng, Adviser to the Presidency of the Government,
HE Mr Rafael Boneke Kama, Adviser to the Presidency of the Government,
HE Mr Lamberto Esono Mba, Secretary General of the Ombudsman, Lawyer at the Malabo Bar
Association,
HE Ms Rosalía Nguidang Abeso, Director General of Borders, Lawyer at the Malabo Bar
Association,
HE Mr Pascual Nsue Eyi Asangono, Director General of Consular, Cultural, Legal and Diaspora
Affairs, Lawyer at the Malabo Bar Association,
HE Mr Miguel Oyono Ndong Mifumu, Ambassador of the Republic of Equatorial Guinea to the
Kingdom of Belgium,
Mr Francisco Moro Nve, State Attorney, member of the Malabo Bar Association,
Mr Aquiles Nach Dueso, Lawyer at the Malabo Bar Association,
HE Mr Domingo Esawong Ngua, official in the Ministry of National Defence,
Mr Asensi Buanga Beaka, official in the Ministry of Hydrocarbons and Mining Development,
as Members of the Delegation;
Mr Derek C. Smith, Attorney at Law, Foley Hoag LLP, member of the Bar of the District of
Columbia,
HE Mr Anatolio Nzang Nguema Mangue, Attorney General of the Republic of Equatorial Guinea,
Lawyer at the Malabo Bar Association,
Mr Dapo Akande, Chichele Professor of Public International Law, University of Oxford, Barrister,
member of the Bar of England and Wales, Essex Court Chambers,
Mr Pierre d’Argent, Full Professor, Université catholique de Louvain, member of the Institut de droit
international, Foley Hoag LLP, member of the Bar of Brussels,
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Le Gouvernement de la République de Guinée équatoriale est représenté par :
S. Exc. M. Domingo Mba Esono, ministre délégué aux hydrocarbures et au développement minier,
comme agent ;
S. Exc. M. Carmelo Nvono Ncá, ambassadeur de la République de Guinée équatoriale auprès de la
République française, de la Principauté de Monaco et de l’Organisation des Nations Unies pour
l’éducation, la science et la culture,
comme coagent ;
S. Exc. M. Simeón Oyono Esono Angué, ministre d’État chargé des affaires étrangères, de la
coopération internationale et de la diaspora,
S. Exc. M. Pastor Micha Ondó Bile, conseiller auprès de la présidence du Gouvernement,
S. Exc. M. Juan Olo Mba Nseng, conseiller auprès de la présidence du Gouvernement,
S. Exc. M. Rafael Boneke Kama, conseiller auprès de la présidence du Gouvernement,
S. Exc. M. Lamberto Esono Mba, secrétaire général du bureau du défenseur des droits, juriste,
barreau de Malabo,
S. Exc. Mme Rosalía Nguidang Abeso, directrice générale des frontières, juriste, barreau de Malabo,
S. Exc. M. Pascual Nsue Eyi Asangono, directeur général des affaires consulaires, culturelles,
juridiques et de la diaspora, juriste, barreau de Malabo,
S. Exc. M. Miguel Oyono Ndong Mifumu, ambassadeur de la République de Guinée équatoriale
auprès du Royaume de Belgique,
M. Francisco Moro Nve, avocat de l’État, membre du barreau de Malabo,
M. Aquiles Nach Dueso, juriste, barreau de Malabo,
S. Exc. M. Domingo Esawong Ngua, fonctionnaire au ministère de la défense nationale,
M. Asensi Buanga Beaka, fonctionnaire au ministère des hydrocarbures et du développement minier,
comme membres de la délégation ;
M. Derek C. Smith, avocat au cabinet Foley Hoag LLP, membre du barreau du district de Columbia,
S. Exc. M. Anatolio Nzang Nguema Mangue, procureur général de la République de Guinée
équatoriale, juriste, barreau de Malabo,
M. Dapo Akande, professeur de droit international public (chaire Chichele) à l’Université d’Oxford,
barrister, membre du barreau d’Angleterre et du pays de Galles, Essex Court Chambers,
M. Pierre d’Argent, professeur titulaire à l’Université catholique de Louvain, membre de l’Institut
de droit international, cabinet Foley Hoag LLP, membre du barreau de Bruxelles,
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Mr Andrew B. Loewenstein, Attorney at Law, Foley Hoag LLP, member of the Bar of the
Commonwealth of Massachusetts,
Ms Alison Macdonald, KC, Barrister, Essex Court Chambers, London,
Mr Yuri Parkhomenko, Attorney at Law, Foley Hoag LLP, member of the Bar of the District of
Columbia,
Ms Tafadzwa Pasipanodya, Attorney at Law, Foley Hoag LLP, member of the Bars of the District
of Columbia and the State of New York,
Mr Paul S. Reichler, Attorney at Law, 11 King’s Bench Walk, member of the Bars of the Supreme
Court of the United States and the District of Columbia,
Mr Philippe Sands, KC, Professor of International Law, University College London, Barrister,
11 King’s Bench Walk,
as Counsel and Advocates;
Mr Diego Cadena, Attorney at Law, Foley Hoag LLP, member of the Bar of Ecuador,
Ms Alejandra Torres Camprubí, Adjunct Professor on International Environmental Law, IE Law
School, member of the Madrid and Paris Bars,
Mr Baldomero Casado, Attorney at Law, Foley Hoag LLP, member of the Texas and Madrid Bars,
Mr Coalter G. Lathrop, Sovereign Geographic, member of the Bar of North Carolina,
Mr Remi Reichhold, Barrister, 11 King’s Bench Walk,
Mr Peter Tzeng, Attorney at Law, Foley Hoag LLP, member of the Bars of the District of Columbia
and the State of New York,
Ms Elena Sotnikova, Foley Hoag LLP,
Mr M. Arsalan Suleman, Attorney at Law, Foley Hoag LLP, member of the Bars of the District of
Columbia and the State of New York,
as Counsel;
Ms Gretchen Sanchez, Foley Hoag LLP,
Ms Nancy Lopez, Foley Hoag LLP,
as Assistants.
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M. Andrew B. Loewenstein, avocat au cabinet Foley Hoag LLP, membre du barreau du
Commonwealth du Massachusetts,
Mme Alison Macdonald, KC, barrister, Essex Court Chambers (Londres),
M. Yuri Parkhomenko, avocat au cabinet Foley Hoag LLP, membre du barreau du district de
Columbia,
Mme Tafadzwa Pasipanodya, avocate au cabinet Foley Hoag LLP, membre des barreaux du district
de Columbia et de l’État de New York,
M. Paul S. Reichler, avocat au cabinet 11 King’s Bench Walk, membre des barreaux de la Cour
suprême des États-Unis d’Amérique et du district de Columbia,
M. Philippe Sands, KC, professeur de droit international à l’University College London, barrister,
cabinet 11 King’s Bench Walk,
comme conseils et avocats ;
M. Diego Cadena, avocat au cabinet Foley Hoag LLP, membre du barreau de l’Équateur,
Mme Alejandra Torres Camprubí, professeure associée en droit international de l’environnement à la
faculté de droit de l’IE, membre des barreaux de Madrid et de Paris,
M. Baldomero Casado, avocat au cabinet Foley Hoag LLP, membre des barreaux du Texas et de
Madrid,
M. Coalter G. Lathrop, Sovereign Geographic, membre du barreau de Caroline du Nord,
M. Remi Reichhold, barrister, cabinet 11 King’s Bench Walk,
M. Peter Tzeng, avocat au cabinet Foley Hoag LLP, membre des barreaux du district de Columbia
et de l’État de New York,
Mme Elena Sotnikova, cabinet Foley Hoag LLP,
M. M. Arsalan Suleman, avocat au cabinet Foley Hoag LLP, membre des barreaux du district de
Columbia et de l’État de New York,
comme conseils ;
Mme Gretchen Sanchez, cabinet Foley Hoag LLP,
Mme Nancy Lopez, cabinet Foley Hoag LLP,
comme assistantes.
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The PRESIDENT: Please be seated. The sitting is open.
I would like to welcome once more the eminent representatives of the Gabonese and Equatorial
Guinean Governments who are in the Great Hall of Justice today. In particular, I recognize the
presence of His Excellency Mr Simeón Oyono Esono Angué, Minister of Foreign Affairs,
International Cooperation and the Diaspora of the Republic of Equatorial Guinea, and their
excellencies Mr Régis Onanga Ndiaye, Minister for Foreign Affairs, in charge of Sub-Regional
Integration and Gabonese Living Abroad, and Mr Paul-Marie Condjout, Minister of Justice, Keeper
of the Seals as leaders of their respective national authorities present at the Court today.
La Cour se réunit cet après-midi pour entendre le second tour de plaidoiries du Gabon. Je
donne maintenant la parole au Professeur Pierre d’Argent. Vous avez la parole, Monsieur.
M. D’ARGENT : Je vous remercie, Monsieur le président.
LA PORTÉE DU COMPROMIS
1. Monsieur le président, Mesdames et Messieurs les juges, les plaidoiries du Gabon que vous
avez entendues hier peuvent se résumer en quelques mots : « la convention de Bata ou le chaos ». La
stratégie est limpide, mais elle ne trompe personne.
Elle ne trompe personne car les termes du compromis ont été soigneusement choisis pour
éviter le chaos que le Gabon agite devant vous comme un épouvantail si, comme nous le soutenons…
Le PRÉSIDENT : [Inaudible]… de traduction, donc… Vous pouvez essayer ?
M. D’ARGENT : Je continue ? C’est bon ? Je recommence.
Le PRÉSIDENT : Allez-y, s’il vous plaît.
M. D’ARGENT : Je recommence, Madame la vice-présidente ? Merci. Mesdames et
Messieurs les juges, Monsieur le président, comme je le disais, les plaidoiries du Gabon que vous
avez entendues hier peuvent se résumer en quelques mots : « la convention de Bata ou le chaos ».
Cette stratégie est limpide, mais elle ne trompe personne.
2. Elle ne trompe personne car les termes du compromis ont été soigneusement choisis pour
éviter le chaos que le Gabon agite devant vous comme un épouvantail si, comme nous le soutenons,
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la prétendue convention de Bata ne fait pas droit dans les relations entre les Parties. Alors, il n’est
pas douteux bien entendu que cette question  celle de savoir si cette convention, cette prétendue
convention fait ou non droit entre Parties  est le noeud central de ce différend. Et, en réalité, les
Parties auraient pu conclure un accord se limitant à demander à la Cour de se prononcer à cet égard.
Ce n’est toutefois pas ce qu’elles ont fait et le compromis de 2016 confère à la Cour une compétence
plus large dont les termes méritent d’être examinés de près à nouveau compte tenu de ce qui a été dit
hier. Les voilà à nouveau à votre écran et je me permettrai, excusez-moi, de les lire à nouveau :
« La Cour est priée de dire si les titres juridiques, traités et conventions
internationales invoqués par les Parties font droit dans les relations entre la République
Gabonaise et la République de Guinée équatoriale s’agissant de la délimitation de leurs
frontières maritime et terrestre communes et de la souveraineté sur les îles Mbanié,
Cocotiers et Conga. »
3. La Cour est donc appelée à dire si chacun des titres juridiques, traités et conventions
invoqués par les Parties fait droit dans leurs relations « s’agissant de la délimitation de leur[]
frontière[] maritime … commune[] », « s’agissant de la délimitation de leur[] frontière[] … terrestre
commune[] » ou « s’agissant … de la souveraineté »  trois questions que le professeur Pellet a
justement appelées « les trois éléments du différend énumérés au paragraphe 1 de l’article premier »1
 vous venez de le voir. Faisant cela, nous en convenons, la Cour n’est pas appelée  je le répète 
à délimiter le territoire ou la mer, ni à attribuer les îles en souveraineté. Et c’est bien pour cela que la
Cour peut connaître de titres juridiques, traités et conventions « s’agissant de la délimitation »
terrestre, « s’agissant de la délimitation » maritime, « s’agissant … de la souveraineté » insulaire.
4. En espagnol  l’autre version authentique du compromis , les mots « s’agissant de la
délimitation » sont « en lo que se refiere a la delimitación », ce qui peut se traduire plus littéralement
par « en ce qu’ils concernent la délimitation », ce que reflète la traduction anglaise établie par le
Greffe : « in so far as they concern the delimitation … [or] the sovereignty over the islands ». Il n’est
donc pas seulement question d’identifier des titres juridiques, des traités ou des conventions qui sont
des titres de souveraineté ou qui procèdent à des délimitations terrestres ou maritimes. Les mots
« s’agissant de la délimitation »/« en lo que se refiere a la delimitación » ont été choisis avec soin et
à dessein. Comme la traduction anglaise du Greffe le manifeste clairement, ces mots signifient que
1 CR 2024/31, p. 36, par. 22 (Pellet).
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la Cour peut identifier comme faisant droit entre parties des titres juridiques, des traités et des
conventions dans la mesure où ils concernent (« in so far as they concern ») la délimitation terrestre,
la délimitation maritime ou la souveraineté insulaire, et cela quand bien même, je le répète, ces titres
juridiques ne seraient pas le titre de délimitation ou le titre de souveraineté, et quand bien même le
traité ou la convention qui fait droit ne contient pas une ligne de délimitation. Il suffit que le titre
juridique, le traité ou la convention concerne la délimitation ou la souveraineté insulaire, au sujet
desquelles la Cour, à nouveau, n’est pas appelée à se prononcer.
5. Mon collègue et ami le professeur Pellet a diagnostiqué dans ma plaidoirie de lundi « un
véritable abcès de fixation sur l’expression “titre documentaire” »2, tout en déclarant, et je m’en
réjouis, n’être « pas particulièrement attaché[] à la notion de titre documentaire »3. Dont acte. Dès
lors, mon « abcès de fixation » est relativement bénin, mais je suis en revanche plus inquiet de la
véritable cécité dont fait preuve le Gabon au sujet du texte du compromis et qui l’amène à en tronquer
les termes. Comme je viens de le rappeler, ses termes ne limitent pas la compétence de la Cour à
l’identification des titres de souveraineté ou des textes conventionnels contenant une délimitation
terrestre ou maritime. La Cour n’est donc pas condamnée, pour reprendre le titre de la plaidoirie du
professeur Pellet, à « [l]a recherche d’un titre juridique »  pas plus d’ailleurs qu’elle n’est
condamnée à la recherche du temps perdu, même si elle devra s’interroger sur la signification des
quelque 10 477 jours de silence gabonais sur lesquels mes collègues reviendront. La Cour n’est pas
condamnée à la recherche d’un titre juridique  qui pour le Gabon est évidemment, et à tous égards,
la prétendue convention de Bata  parce que le compromis lui permet d’identifier tous les titres
juridiques, traités et conventions qui, ayant été invoqués par une Partie, font droit entre Parties
« s’agissant de »  « in so far as they concern »  la délimitation terrestre ou maritime, ou de la
souveraineté insulaire.
6. Ainsi, Mesdames et Messieurs les juges, au regard des termes du compromis, vers lesquels
il faut évidemment toujours revenir, la Cour est compétente pour se prononcer sur toutes les
prétentions de la Guinée équatoriale.
2 CR 2024/31, p. 27, par. 6 (Pellet).
3 CR 2024/31, p. 28, par. 7 (Pellet).
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7. Je commence par la convention des Nations Unies sur le droit de la mer. Il n’est pas contesté
qu’il s’agit d’une convention internationale. Il n’est pas contesté non plus qu’elle fait droit dans les
relations entre Parties. Toutefois, le Gabon considère que la Cour ne peut pas se prononcer à son
égard car la convention de Montego Bay ne serait, en matière de délimitation maritime, qu’un
« entitlement », une « vocation au titre » et non un « titre juridique »4. Nous sommes bien d’accord,
mais tel n’est pas le problème.
8. En effet, au risque de me répéter, le compromis donne pour mission à la Cour de dire si les
conventions invoquées par les Parties font droit dans leurs relations « s’agissant de la délimitation
de leurs frontières maritime [ou de leur frontière] terrestre » ou de la souveraineté insulaire. Ces mots
du compromis ne limitent donc pas la compétence de la Cour aux seules conventions « de
délimitation », c’est-à-dire celles qui tracent une ligne dans l’eau ou sur la terre. Si, comme nous le
soutenons, la prétendue convention de Bata ne fait pas droit entre Parties, il n’en reste pas moins que
la convention des Nations Unies sur le droit de la mer sera incontestablement une convention faisant
droit entre Parties « s’agissant de la délimitation de leur[] frontière[] maritime ». L’alternative « la
convention de Bata ou le chaos » est donc une fausse alternative : même sans la convention de Bata,
qui n’en est pas, il y a du droit international applicable entre Parties « s’agissant de la délimitation
de leur[] frontière[] maritime » et cela quand bien même l’instrument conventionnel en question
n’effectuerait pas lui-même de délimitation.
9. Pour dire les choses concrètement et simplement : si Me Juratowitch a tort, mais que le
professeur Pellet et Me Rouche ont raison, la Cour devrait conclure que la convention des
Nations Unies sur le droit de la mer n’est pas une convention faisant droit entre Parties « s’agissant
de la délimitation de leur[] frontière[] maritime ». Ce résultat est parfaitement absurde. Et, bien sûr,
le compromis ne peut se comprendre en présumant que Me Juratowitch a raison.
10. Pour la même raison, « s’agissant [à nouveau] de la délimitation de leur[] frontière[]
maritime » — « in so far as [it] concern[s] » —, l’extrémité de la frontière terrestre fait assurément
droit entre Parties, de même que le principe de droit coutumier selon lequel la terre domine la terre,
la mer ! La terre, pardon, domine la mer. Voilà ce qui arrive quand on dort peu.
4 CR 2024/31, p. 29, par. 10 (Pellet).
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11. Qu’en est-il de la succession d’États dont il a beaucoup été question ?
12. Le professeur Pellet a affirmé qu’« on ne peut succéder qu’à quelque chose et ce quelque
chose, c’est le titre juridique »5. En réalité, Mesdames et Messieurs les juges, on ne succède jamais
à quelque chose. On succède toujours à quelqu’un. Cela est vrai pour les personnes, mais également
pour les États. Succéder à une personne physique ou à une personne morale signifie devenir, en lieu
et place de celle-ci, titulaire de ses droits ou de ses obligations, lesquels, par l’effet de la succession,
changent de titulaire. Le successeur n’a aucun titre sur les droits du de cujus sans l’opération juridique
de succession. Bien sûr, s’il n’y a pas de droits préalables sur un objet déterminé, cette opération est
sans effet à cet égard. Mais s’il y a des droits, c’est la succession qui crée la nouvelle titularité du
droit, qui crée le titre sur l’objet, au profit du successeur. Il ne s’agit pas seulement d’identifier un
« possesseur »6, comme l’a dit mon ami le professeur Pellet. L’État successeur est bien plus que le
possesseur du titre d’autrui. Et c’est bien en ce sens que la jurisprudence de la Cour considère la
succession d’États comme titre juridique au sens de source du droit de l’État successeur sur le plan
international7. Il s’agit bien du droit du successeur, pas du droit du prédécesseur. Et le dictionnaire
coordonné par le regretté professeur Salmon ne dit rien d’autre. Aucune des trois acceptions du mot
« titre » qui y sont reprises n’est exclue par le compromis. Le Gabon et la Guinée équatoriale ne sont
pas titulaires de titres au nom des anciennes puissances coloniales. Ils possèdent chacun leur propre
titre territorial et celui-ci est constitué par la succession d’États. Soutenir que, sur la base du
compromis, la Cour ne pourrait pas dire que le titre juridique résultant de la succession d’États fait
droit entre Parties s’agissant de la délimitation terrestre, ou s’agissant de la délimitation maritime, ou
s’agissant de la souveraineté insulaire, est à nouveau absurde. Et j’imagine que le Gabon ne soutient
pas être simplement possesseur du titre juridique de la France et qu’il ne soutient pas non plus que le
titre juridique de la France est le sien car la France, Mesdames et Messieurs les juges, n’a aucun titre
juridique qui fait droit entre Parties.
13. S’agissant de l’uti possidetis, le professeur Pellet a soutenu que ce principe « n’est qu’une
modalité de transmission d’un titre préexistant » étant prétendument, comme la succession d’États
5 CR 2024/31, p. 28, par. 8 (Pellet).
6 CR 2024/31, p. 29, par. 10 (Pellet).
7 Différend frontalier terrestre, insulaire et maritime (El Salvador/Honduras ; Nicaragua (intervenant)), arrêt,
C.I.J. Recueil 1992, p. 389, par. 45.
- 15 -
un « passeur » de titre, mais non un « créateur » de titre8. Il a aussi cité l’arrêt Nicaragua c. Honduras
qui rappela que « l’uti possidetis juris présuppose que les autorités coloniales centrales aient procédé
à une délimitation territoriale », ce qui signifie simplement que la condition d’application de l’uti
possidetis juris est l’existence, avant les indépendances, d’une ligne administrative interne au sein
du même empire colonial. Si cette condition d’application existe en tant que fait, ce que réalise
l’application effective du principe uti possidetis juris est la transformation (la transformation — et
non la « transmission ») de la ligne administrative interne en frontière internationale au moment des
indépendances.
14. Monsieur le président, la Guinée équatoriale ne remet en rien en cause la jurisprudence
Burkina Faso/Mali par laquelle la Cour articula les quatre rapports bien connus pouvant exister entre
titres et effectivités. C’est en connaissant cette jurisprudence que les Parties ont conclu le compromis
de 2016 et ses mots, à nouveau, permettent à la Cour d’identifier tout titre juridique faisant droit dans
les relations entre Parties « s’agissant de la délimitation » terrestre en particulier. Les effectivités
peuvent assurément être confirmatives du titre9. Et en l’espèce, elles confirment l’« instantané »10
colonial qu’il y a lieu d’identifier « s’agissant de la délimitation » de la frontière terrestre, et cet
instantané est formé par la convention de Paris telle qu’appliquée paisiblement et de commun accord
par les puissances coloniales au jour des indépendances. C’est en ce sens que la Guinée équatoriale
invoque les effectivités sous le vocable « infra legem » et c’est en ce sens qu’elles concernent la
délimitation terrestre. Elles relèvent donc du compromis.
15. Monsieur le président, Mesdames et Messieurs les juges, comme vous le voyez, l’espèce
que vous êtes appelés à trancher ne requiert pas de vous aventurer dans des grandes théories sur ce
qui compte ou ce qui ne compte pas dans l’abstrait comme titre juridique de souveraineté ou de
délimitation. Le compromis vous permet d’identifier tous les titres juridiques invoqués par les
Parties, tous les traités, toutes les conventions, pourvu qu’ils fassent droit entre elles « s’agissant de
la délimitation » terrestre, « s’agissant de la délimitation » maritime ou « s’agissant … de la
8 CR 2024/31, p. 29, par. 9 (Pellet).
9 Différend frontalier (Burkina Faso/République du Mali), arrêt, C.I.J. Recueil 1986, p. 586-587, par. 63 ;
Différend territorial et maritime entre le Nicaragua et le Honduras dans la mer des Caraïbes (Nicaragua c. Honduras),
arrêt, C.I.J. Recueil 2007 (II), p. 712-713, par. 172-175.
10 Différend frontalier (Burkina Faso/République du Mali), arrêt, C.I.J. Recueil 1986, p. 568, par. 30.
- 16 -
souveraineté » insulaire. Le titre juridique, le traité, la convention faisant droit entre Parties doit,
comme le disent la version espagnole du compromis et sa traduction anglaise, « concerner » l’un de
ces « trois éléments du différend ». Si tel est le cas, le titre juridique, le traité, la convention peut être
identifié par la Cour comme tel puisque la Cour n’est pas appelée à délimiter la terre ou la mer, pas
plus qu’à dire pour droit qui est souverain sur les îles.
16. Mesdames et Messieurs de la Cour, je termine en soulignant encore un point au sujet des
mots du compromis. Les termes du compromis vous demandent de dire si les titres juridiques, traités
et conventions invoqués « font droit dans les relations entre » Parties. La version espagnole de « font
droit dans les relations » est « son aplicables en las relaciones », la traduction anglaise étant « have
the force of law in the relations between the Parties ». Alors ces mots peuvent paraître quelque peu
désuets ou procéder d’une circonvolution. En réalité, ils n’ont pas été choisis au hasard. Et s’agissant
de la prétendue convention de Bata, mais aussi des autres titres juridiques, traités et conventions
invoqués, ils invitent la Cour à regarder les choses de manière globale, concrète et substantielle, et
non de manière formelle. Comme mon ami Me Juratowitch l’a dit tout en pratiquant l’inverse,
« international law puts substance over form »11. C’est exactement ce que le compromis vous
demande de faire en examinant si un titre juridique, un traité ou une convention fait droit, son
aplicables, has the force of law, dans les relations entre Parties. En d’autres termes, dans le contexte
très particulier et obscur de la prétendue conclusion de la prétendue convention de Bata, puis de sa
totale disparition dans les archives de l’ancienne puissance coloniale et de sa non-application entre
Parties durant près de trois décennies alors que les circonstances de leurs relations demandaient qu’il
soit fait état de ce document entre elles, et enfin, dans les circonstances de sa soudaine et totalement
inattendue résurgence photocopiée, vous ne pouvez vous arrêter à la seule question de son existence
documentaire (encore que celle-ci soit douteuse en l’absence d’original) et au seul article 10 qui
figure sur le document présenté pour la première fois en 2003. Pas plus d’ailleurs que vous ne pouvez
vous arrêter à l’invocation, incantatoire et désincarnée, de pacta sunt servanda12.
17. Sur ce sujet, puis-je vous demander, Monsieur le président, de bien vouloir appeler à la
barre le professeur Philippe Sands ? Je remercie à nouveau la Cour pour sa bienveillante attention.
11 CR 2024/31, p. 40, par. 16 (Juratowitch).
12 CR 2024/31, p. 24, par. 39 (Rossatanga-Rignault).
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Le PRÉSIDENT : Je remercie le professeur Pierre d’Argent pour sa déclaration. I now invite
the next speaker, Professor Philippe Sands, to take the floor.
Mr SANDS:
THE HUNTING OF THE DOCUMENT PRESENTED BY GABON IN 2003
1. Mr President, Madam Vice-President, Members of the Court, I will respond to the
arguments you heard yesterday from Gabon, on the subject of the agreement which is said to have
been signed in September 1974. This was addressed by the distinguished Agent of Gabon
(Ms Mborantsuo), the distinguished Co-Agent (Mr Rossatanga-Rignault) and Counsel including
Mr Juratowitch.
2. Gabon’s Agent confirmed that “durant plusieurs années”  29 years to be precise  “la
Convention de Bata n’a pas été mentionnée expressément dans les relations entre les . . . États”13.
From this, she continued, two things followed: the first was that “les différends étaient réglés”, which
is very obviously not true; the second was the suggestion that as a result of the silence “les relations
entre les deux États s’étaient considérablement améliorées”14. This is what one might call pure
supposition, a claim that the silence of Gabon was a matter of choice, almost tactical. There is not a
shred of evidence before the Court to support that wholly implausible assertion.
3. Nor is there evidence to support the other claims made by the distinguished Agent. She told
you that the failure to mention the supposed agreement reflected a desire to avoid rocking the boat,
to maintain a degree of harmony, as though it was not 10,477 days of silence but 10,477 days of
sheer unadulterated friendliness. This, she said, was “[d]ans la plus pure tradition africaine”15.
Again, there is not a shred of evidence before you to support this assertion and then she continued
that the conclusion of the so-called treaty was “l’un des motifs du coup d’État qui a coûté la vie au
président Macías”16. Again, there is no evidence whatsoever to support this explanation for decades
of silence.
13 CR 2024/31, p. 11, para. 5 (Mborantsuo).
14 Ibid.
15 CR 2024/31, p. 11, para. 6 (Mborantsuo).
16 Ibid.
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4. Then the Agent turned to the question of why Gabon did not have a copy of the supposed
agreement. This is what she said: “la mauvaise tenue des archives du fait de la conjonction de
conditions climatiques défavorables, du manque de personnel qualifié et de moyens techniques”17.
5. Please forgive me, Madam Agent, if I confess to a degree of scepticism. Yesterday morning,
I happened to go on the website of the Journal Officiel de la République gabonaise, which you will
find at: www.journal-officiel.ga. This is what you will see if you go onto the website.
6. If you type in the word “traité” in the search bar, you will find numerous agreements from
1963 to 2022. If you type in the word “convention”, you will get even more hits. They include
agreements from the very period in question. For example, you will see on the screen now in the
Journal Officiel of 8 October 1973, the details on the ratification of ILO Convention No. 106. If you
then click on the link, you will see what is up on the screen now.
7. The Journal Officiel website indicates that the ILO Convention was deliberated and adopted
by the Gabonese National Assembly. This of course is in strict accordance with Article 52 of Gabon’s
Constitution of 1972, in force at the time, which provided that treaties “that entail cession, exchange,
or addition of territory may be ratified only by virtue of a law”, and “shall take effect only after
having been properly ratified”. The same provision of the Constitution then goes on to state as you
can see “[n]o cession, no exchange, no addition of territory shall be valid without the consent of the
Gabonese people called upon to decide by referendum, after consultation with the populations
concerned”18.
8. In short, if there was an agreement in September 1974, Gabon could very easily have put it
before the National Assembly, or published it in the Journal Officiel, as it did with so many other
treaties from that period. And it could have called for a popular consultation, as required by its
Constitution. With respect, the claim of poor archives, or climatic conditions, or the absence of
personnel or the absence of technical means, is not substantiated by readily available other
information on Gabon’s practice at the very time we are concerned with.
17 CR 2024/31, p. 12, para. 9 (Mborantsuo).
18 The Gabonese Republic, Constitution of the Gabonese Republic (29 July 1972), Article 52. MEG, Vol. VI,
Annex 189.
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9. The explanation that was given for 29 years of silence is totally implausible. So why the
silence? That is a matter of argument and of evidence, and it is a question that cannot be answered
clearly on the basis of direct evidence in these proceedings. But the evidence that is before the Court
allows you, the judges, to draw reasonable inferences: either Gabon chose not to publish this
particular document, for reasons unknown, or there was no agreement. The failure to deliberate or to
ratify, or to publish in the Journal Officiel, or to even mention an agreement, is consistent really with
only one conclusion. There was no agreement, and there was no agreement that was intended to, or
did, produce legal effects under the law of Gabon or international law.
10. In this regard, widely known and manifestly public, Article 7 of Equatorial Guinea’s 1973
Constitution also required procedures to be followed, and rendered “illegal and invalid conventions
and treaties which infringe or diminish its jurisdiction or sovereignty over any portion of the national
territory, the territorial sea, and air space”19. The failure to follow procedures, or to publish, or to talk
about, or to even mention, indicates that the document  or the documents, because there are several
versions  were not intended to, or did not have, legal force between the countries in relation to title
over territory.
11. The question also arises as to which version of this document Gabon seeks to  or is
entitled to  invoke in these proceedings. You will recall that, yesterday, Mr Juratowitch very very
briefly put Version 2 on the screen, and then it just disappeared20. But Version 2  which is Gabon’s
re-transcription  is the only document that Gabon registered with the United Nations Treaty
Section (UNTS)21. It has not been corrected and it has not been updated. Paragraph 2 of Article 102
of the United Nations Charter stipulates that Gabon cannot invoke before the Court  the principal
judicial organ of the United Nations  a treaty that has not been registered. In contrast to Qatar v.
Bahrain, the Special Agreement in this case specifically provides for the invocation of legal titles,
19 Letter No. OR 511 EQGU from the Permanent Representative of the Republic of Equatorial Guinea in the United
Nations to the Secretary General of the United Nations concerning the Distribution of the Constitution of the Republic of
Equatorial Guinea of 4 August 1973 (13 December 1973), p. 5, art. 7. REG, Vol. III, Annex 7.
20 CR 2024/30, p. 41 (Juratowitch).
21 The Republic of Equatorial Guinea and The Gabonese Republic, Convention Delimiting the Land and Maritime
Boundaries of Equatorial Guinea and Gabon (12 September 1974) (Retyped Spanish-language version, as published in the
UNTS). MEG, Vol. VII, Annex 216.
- 20 -
including treaties and conventions22. Gabon has now told you that it only seeks to invoke Annex 155
to its Counter-Memorial, which I referred to on Monday as Version 323. But that document  which
is different from Version 2  has not been registered under Article 102 of the UN Charter. It is not
open to Gabon to invoke Annex 155 to its Counter Memorial in these proceedings. It is stuck with
Version 2, which Mr Juratowitch has, in this very courtroom, disavowed.
12. Gabon’s Co-Agent turned to address the events that led to the signature of the supposed
agreement of 1974. This is what he assured you: “Cette signature . . . ne tombait pas du ciel”. No,
he argued, it was “l’aboutissement d’un processus de plusieurs années de négociations dans le cadre
de la médiation et de rencontres bilatérales”24.
13. Well, over the past 30 years, I have been involved in the negotiation of a number of land
and boundary agreements, although surely not as many as many of you sitting on this Court. On
every occasion, the act of signature and adoption of a final text is preceded by lengthy, substantive
negotiations, with draft language and text that reflect offer and counter-offer and re-offer, as various
texts and drafts and documents see the light of day. Indeed I may make a slight excursus  this
has been going on, in my own direct experience, in relation to the negotiations on the exercise of
sovereignty over the Chagos Archipelago, which began in November 2022. Since then, there have
been 13 rounds of talks, as recently as last week and even last night, involving a huge amount of
paper and many drafts. As you may know, this morning  a historic day  the Prime Ministers of
Mauritius and the United Kingdom announced that an agreement had been reached to resolve all
outstanding matters, on the basis of international law. That includes, of course, this Court’s seminal
Advisory Opinion of February 2019, the ITLOS Judgment of 2021, and the two dissenting opinions
in Annex VII’s arbitration of 2015 which opened the door to this historic and remarkable moment.
The simple point is: we all know that negotiations on these things produce volumes of paper.
14. What happened to the paper and the drafts in this case? It seems nothing exists. The
supposed agreement appears indeed to have emerged out of thin air, literally from one day to the
22 Maritime Delimitation and Territorial Questions between Qatar and Bahrain Bahrain (Qatar v. Bahrain),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, p. 122, para. 29.
23 RG, Vol. I, para. 2.2 (b); Lettre du président du Gabon à l’ambassadeur de France au Gabon (28 October 1974),
CMG, Vol. V, Annex 155.
24 CR 2024/31, pp. 20-21, para. 22 (Rossatanga-Rignault).
- 21 -
next. There is no evidence before this Court of any negotiations on the text of a treaty, or any draft
language. We have no idea who prepared the text, who drafted it, and apparently, Gabon doesn’t
either. The Co-Agent pointed to no evidence to support his claim about lengthy negotiations, you
have no witness testimony; you have no evidence. As I said on Monday, the burden is on Gabon to
prove that the document on which it relies is a treaty, that it was truly discussed and negotiated, and
that it has the force of law between the Parties25. Mr Juratowitch did not challenge that assertion.
15. But neither he nor the Agent, nor the Co-Agent, pointed to any evidence to support their
claims as to how this so-called agreement was negotiated and adopted, or why no mention of it was
made of it for nearly 30 years.
16. What did Mr Juratowitch say? Well, he started by telling us that the so-called “Bata
Convention” exists as a treaty with the force of law. That is pure assertion. But does it? The only
thing we know for certain is that a piece of paper exists that includes the word “convention” on it. I
can write the word convention on this piece of paper, but that is not going to give it the force of law
or make it a treaty with the force of law, as the finely drafted compromis in this case requires. The
mere existence of a piece of paper with typewritten material on it does not make it a treaty. The issue
for proof is whether that scrap is a treaty that has the force of law in relations between the Parties.
We say the paper on which Mr Juratowitch relies did not, then, and does not, today, and has never
had the force of law. For 29 years Gabon proceeded in negotiations, engagements, discussions on the
basis that it did not have the force of law.
17. That conclusion follows inexorably from the following undisputed evidence:
 First, no original copy of a treaty having the force of law appears to exist. Gabon did not retain
an original, Equatorial Guinea does not have an original and, despite extensive searches,
including at the official French archives, no original is before the Court.
 Second, Gabon did not  as Mr Juratowitch said  send the French Ambassador an
authenticated copy: it sent a photocopy. Mr Juratowitch’s theory of auto-certification by a Head
of State or an accredited diplomat is novel and unsupported by evidence or practice.
25 CR 2024/29, p. 40, para. 20 (Sands).
- 22 -
 Third, Gabon did not publish the supposed agreement in its own Journal Officiel, as it could have
done.
 Fourth, Gabon did not refer the supposed agreement to its National Assembly for deliberation
and adoption as its Constitution required, and it could have done. Nor did Equatorial Guinea.
 Fifth, Gabon did not hold a referendum on the contents of the agreement as its Constitution
required and as it could have done.
 Sixth, for 29 years Gabon did not seek to register the supposed agreement at the United Nations
as the Charter requires.
 Seventh, Gabon’s President made no public statements in relation to the adoption of a supposed
agreement having the force of law.
 Eighth, the President of Equatorial Guinea has never said that an agreement was signed which
had the force of law.
18. That is the hill that Gabon has to climb and to explain. Mr Juratowitch told you that there
are “four key documents in evidence that permit the Court to reach a conclusion on the existence of
the Bata Convention and the authenticity of the copy of it relied on by Gabon”26. With great respect,
he is wrong.
19. First, he relies on the copy sent by the President of Gabon to the French ambassador in
Libreville, received on 31 October 197427. This is not an “authenticated duplicate of an official act”,
as contended28. It is a copy of a copy of a document that appears to be in the form of a treaty. Sure,
it adopts the kind of language we tend to see in a treaty, but that does not mean that it has the force
of law or is even a treaty. There is a signature that is said to be that of the President of Equatorial
Guinea. But actually, we have no idea whether the President of Equatorial Guinea signed the
document or did not; or if it is his signature or not. Mr Juratowitch suggested there is no “forensic
difficulty” in relation to that signature29. But of course, he overlooks the fact that a forensic analysis
usually requires physical examination of an actual document, and in this case, of course, we do not
26 CR 2024/31, p. 40, para. 18 (Juratowitch).
27 Lettre du président du Gabon à l’ambassadeur de France au Gabon (28 Oct. 1974), CMG, Vol. V, Annex 155.
28 CR 2024/31, p. 38, para. 7 (Juratowitch).
29 CR 2024/31, p. 39, para. 13 (Juratowitch).
- 23 -
have such a document. And no forensic analysis has been performed. We invite you to treat that
document and the supposed signature with caution.
20. Mr Juratowitch then mentioned, as a second “key document”, the letter under cover of
which the supposed agreement was sent to France. He made reference to the letterhead, to the “stamp
in the left corner”, to an “official seal” and to a “reference number”30. Counsel for Gabon seems
curiously attached to matters of form. How does any of this authenticate or evidence the existence of
a final agreement entered into six weeks earlier, specifically on 12 September 1974, and which is
said to have the force of law? Plainly, it does not.
21. The third “key document” on which he relies is a letter of 16 January 2004 from the French
Ambassador to Gabon. But all this letter does is confirm that a “photostat”  its word  of a
document exists31. It does not offer confirmation of any “chain of custody of an authentic copy”, as
counsel claimed32. Sure, it supports a chain of custody  but of what? Of a piece of paper that has
the word convention written on it. Nothing more. It says nothing about the authenticity or force of
law of what the document purports to say.
22. The final “key document” referred to by Mr Juratowitch perhaps is the most interesting. It
is a dispatch from the French Ambassador, a distinguished gentleman, in Equatorial Guinea to the
French Minister of Foreign Affairs, no less. It is dated 2 October 197433, and it is Annex 152 to
Gabon’s Counter-Memorial. It is a lengthy letter, and Mr Juratowitch relied on carefully selected
parts of it to support his claim that Equatorial Guinea’s President had recognized Gabonese
sovereignty over Mbañe, Cocoteros and Conga34. We invite you to read all of that letter with care. It
is at tab 1 of your judges’ folder, with an English translation. I will just deal with parts of it.
23. The Ambassador describes at the beginning President Bongo’s demeanour on his return
from Equatorial Guinea after 12 September, and he mentions his claim — the President’s claim —
that the frontier dispute was “définitivement réglé”35. “Définitivement réglé” is not the same thing as
30 CR 2024/31, p. 37, para. 3; p. 38, para. 8 (Juratowitch).
31 CR 2024/31, p. 41, para. 18 (d) (Juratowitch).
32 CR 2024/31, p. 41, para. 19 (Juratowitch).
33 CR 2024/31, pp. 40-41, para. 18 (Juratowitch).
34 CR 2024/31, p. 43, para. 30 (Juratowitch).
35 Dépêche d’actualité No. 40/DA/DAM-2 de l’ambassadeur de France en Guinée équatoriale à la direction des
affaires africaines et malgaches du ministère des affaires étrangères français (2 Oct. 1974), p. 2. CMG, Vol. V, Annex 152.
- 24 -
saying that a treaty was signed. And indeed, if you carry on reading the letter, you will see that the
situation is not as straightforward as Gabon says. The French Ambassador explains that his colleague,
M. Dépenaud Ndouna, the Gabonese Ambassador to Equatorial Guinea, “no longer conceals the fact
and even confirms that the conversations that took place in Malabo, and especially, on September 11
and 12, in Bata, were conducted with difficulty under unpleasant conditions”.
24. On this account, it seems that on the morning of 12 September the Parties may have made
some progress, but very obviously things then went wrong — belly up. According to the account of
Gabon’s Ambassador, “[a]t the end of an afternoon of prickly discussions, the Head of State of
Gabon, tired of these about-faces, ultimately returned to his capital without anything having been
definitively signed, except for a purely formal communiqué whose text only received limited
publicity”36.
25. The French Ambassador continues in his letter on the state of negotiations by the end of
the evening. It seems that offers may have been made in relation to the land and maritime boundaries,
and that President Macías may have been willing to countenance a deal on Mbañe, Cocoteros and
Conga37. But was a deal actually reached and agreed? It was not, because Equatorial Guinea, if you
read the letter carefully, had concerns about certain elements, including in respect of territorial
waters, the use of a “parallel line” as opposed to a parallel along the latitude38.
26. So in clear terms, the French Ambassador then writes — this is more than two weeks after
12 September — “no final decision could be made before President Bongo left”39. No final decision.
What followed? The Gabonese delegation returned, the French Ambassador says, but the Gabonese
Ambassador, he continues, “does not yet know if the delegation of Gabonese experts that came to
Bata around September 20 was able to achieve a final result”40. That is not proof of an agreement.
27. Let us be really clear here: this is the French Ambassador to Equatorial Guinea writing on
2 October 1974. There is no doubt — none — from this letter that as of that date he was not saying
that an agreement in the form of a treaty was signed on 12 September.
36 Ibid.
37 Ibid., p. 3.
38 Ibid.
39 Ibid., p. 4.
40 Ibid.
- 25 -
28. The French Ambassador then proceeds to explain that the previous day, 1 October, he was
received by President Macías in Bata, who assured him that France was one of the first countries that
would be informed of “the status of the boundary negotiations underway”41. “Underway” in English
is not the same as “concluded”. “En cour” in French is not the same as “conclus”. There is no
evidence here of any agreement having been signed.
29. The only reasonable conclusion to be drawn from this evidence is that as of 2 October
1974, negotiations were still underway, no final agreement had been reached, and no treaty having
the force of law had been signed.
30. Twelve days later, on 14 October 1974, the French Ambassador sent an update to the
French Minister of Foreign Affairs. This is at tab 2 of your folders. The French Ambassador reports
on President Macías’ meeting with heads of diplomatic missions on 13 October 1974. Here are some
of the salient points that are reported:
 First, President Macías says that “as soon as the accord is signed” — “dès la signature de
l’accord” — certain things would follow. It is plain from reading this letter that as of 13 October
1974, or afterwards, there was no document signed, because there was no relocation of any
inhabitants from Equatorial Guinea.
 Second, the Ambassador reports that President Macías had “given up on any subsequent
discussion of land boundaries; however, the same cannot be said about maritime boundaries. In
fact, the current impasse regarding them is at the level of expert negotiations and the two heads
of state have not yet personally discussed them”42.
 Third, while various alternatives had been discussed with respect to the delimitation of the
maritime boundary, the Gabonese delegation told President Macías that “negotiations could
continue on this subject for months in vain”. And so they did, not just months, but years, decades.
This caused President Macías to reply that “he would wait for the opportunity to discuss the
matter with President Bongo himself”43. It seems that never happened.
41 Ibid., p. 5 (emphasis added).
42 Ibid., p. 5.
43 Ibid., p. 6.
- 26 -
31. There is, in short, no evidence before the Court that the two Presidents did meet and did
agree. But there is clear evidence that no treaty having the force of law within the meaning of the
Special Agreement had been concluded on 12 September 1974. You simply cannot read the totality
of the evidence before you and conclude, to a standard of “conclusive evidence”, or with a sufficient
“degree of certainty”, that on 12 September 1974 a binding agreement was signed44.
32. Mr President, this case is very different from others in which the question of an agreement
signed by two Heads of States has come up. Let us not forget what this Court said in Nicaragua v.
Honduras: “[t]he establishment of a permanent maritime boundary is a matter of grave importance
and agreement is not easily to be presumed”45. Those words were cited with approval by the
International Tribunal for the Law of the Sea (ITLOS) in Bangladesh v. Myanmar46. ITLOS, in that
case, said, “[t]he fact that the Parties did not submit the [document in question] to the procedure
required by their respective constitutions for binding international agreements is an additional
indication that the Agreed Minutes were not intended to be legally binding”47.
33. Equally the Court’s Judgment in Cameroon v. Nigeria is easily distinguishable48. Unlike
the supposed agreement in this case, the Maroua Declaration in that case, signed on 1 July 1975, was
recognized by both parties as authentic and its validity was confirmed by a subsequent exchange of
letters between the parties49. As the Court noted, the parties “treated the Declaration as valid and
applicable”, and Nigeria did “not claim to have contested its validity or applicability” for two years50.
By stark contrast in the present case, there is no evidence before the Court that the Parties ever
recognized the validity or applicability of the 1974 document, but there is evidence that Equatorial
Guinea contested its applicability and validity from the very moment it was first invoked by Gabon,
in 2003, and at all times thereafter. Moreover, unlike the Maroua Declaration, this supposed
44 Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 17.
45 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.
46 Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports
2012, para. 95.
47 Ibid., para. 97.
48 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 303.
49 Ibid., p. 426, para. 253.
50 Ibid., p. 431, para. 267.
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agreement was adopted in manifest violation of the internal laws of Gabon and Equatorial Guinea,
laws which had been duly publicized, and which concerned rules of their internal laws of fundamental
importance, as I have already shown you51. Gabon readily admits that its own President purposively
sought to circumvent Gabon’s constitutional requirements52.
34. Mr President, the evidence before you suggests that it is possible that the Parties may have
reached an understanding on elements of a possible future agreement. But the evidence makes it
crystal clear that no such agreement with the force of law, in the sense of the Special Agreement in
this case, was concluded on 12 September 1974, or at any time thereafter.
35. That is why the negotiations continued, in September and October of that year, and then
in 1979, and then for years and decades thereafter. At no point after 12 September 1974, and at no
point in any of these exchanges, engagements or negotiations, did Equatorial Guinea accept Gabon’s
claims to Mbañe, Cocoteros and Conga. And, more significantly still, at no point in that period or in
any of those contacts did Gabon refer to any supposed agreement in response to Equatorial Guinea’s
assertions of sovereignty over those islands, and maritime claims.
36. That is what the evidence shows, and it is reflected in Judge Tomka’s question of yesterday.
He said:
“From 1985 to 2003, Gabon appears to have never asserted its rights under the
‘Bata Convention’ in response to Equatorial Guinea’s claims to the Mbanié, Cocotiers
and Conga islands. Can Gabon explain why it did not invoke the alleged treaty before
Equatorial Guinea or its negotiators from 1985 to 2003 and, if Gabon did invoke it
during this period, where is the evidence?”53
37. Mr Parkhomenko will have more to say on this in due course. But the evidence makes it
clear that at no point after 12 September 1974 did Gabon ever invoke the supposed agreement. Why
not? The explanation provided by Gabon’s Agent  that Gabon did not wish to hurt the feelings of
its neighbour  is, we say, with the very greatest respect, totally unconvincing. The only plausible
explanation is that Gabon failed to assert its rights under the supposed agreement because there was
no agreement treated as having the force of law between the Parties.
51 Ibid., p. 430, para. 265. See also: REG, Vol. I, paras. 9 and 3.52-3.57; Article 46 (1) of Vienna Convention on
the Law of Treaties 1969.
52 RG, Vol. I, para. 2.2 (g).
53 CR 2024/32, p. 55 (Judge Tomka).
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38. Against this background, you can understand with greater clarity the so-called
corroborative evidence on which Mr Juratowitch relies. One aspect of this stuck out to us: the only
persons he only referred to were nationals of third parties. He invoked the French ambassador or the
Spanish ambassador. But the most striking aspect of all the evidence that is before you is that there
is no expression of belief on the part of Gabon itself that there was an agreement, and certainly not
one that had the force of law.
39. The newspaper article in L’Union says that the two Presidents signed a communiqué, not
a boundary agreement54. The communiqué is said, in the newspaper report, to refer to an agreement,
but of course as for the agreement, we have never seen the communiqué, for the original of that too
seems to have been lost.
40. You were shown a short video clip, the best 45 seconds from Gabon’s perspective — you
watched it, we watched it. Did President Bongo say in that video that an agreement was signed? No,
he did not. He is reported only to have said that “tout est réglé”. But, as the French Ambassador made
clear in his letter which came after that video, matters were most definitely not “réglé” on
12 September, or 14 October.
41. The same goes for every instance of the supposed corroboration cited by Gabon and
Mr Juratowitch. This or that ambassador expresses this or that view that they understand there is an
agreement  or a possible agreement  or something is going on  we do not quite know what: it
is all hearsay, and it all emanates from a single source: President Bongo and his claim that “tout est
réglé”. Unilateral statements and hearsay do not give rise to an agreement between two States on the
delimitation of their land and maritime boundaries. And none of this is evidence of Gabon’s
understanding of whether a binding agreement had entered into force. All of its conduct, and all of
its statements during 30 years of negotiations with Equatorial Guinea, show that it did not understand
there to be an agreement in force.
42. And this is why, presumably, by February 1977, Gabon’s Foreign Minister was able to
share with the Spanish Ambassador the view that the agreement had not been submitted to the
54 “‘Tout est réglé !’ avec la Guinée Équatoriale”, L’Union (20 Sept. 1974), p. 1. CMG, Vol. V, Annex 150.
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National Assembly or ratified and the Ambassador concluded, presumably from that conversation,
that it had “fallen by the wayside”55.
43. A brief word on one point made by Maître Rouche. She said, yesterday, that it was, her
word, “incontestable” that the supposed agreement of 1974 delimits the Parties’ maritime
boundary56. Really? Really? It’s just not true. Equatorial Guinea has contested that proposition from
the moment it first set eyes on the document. And we go further: even on its own terms, as I explained
on Monday, with the nota bene in the version that has been registered at the United Nations, the two
Heads of State were said to be obliged to “subsequently proceed with a new drafting of Article 4”57.
No new drafting ever happened, no new drafting even appears to have been requested by Gabon.
And Gabon offers no explanation for the material differences between the various versions of the
nota bene.
44. Ms Rouche did, however, say that the nota bene was put in place for a reason. That reason,
she said, was to respond to the “frustration” of President Macías, which was said to have been
expressed “immédiatement après la signature de la Convention de Bata”. In support of that
argument, she refers to “des échanges avec les représentants diplomatiques en poste en Guinée
Équatoriale juste après la signature de la Convention de Bata”58. What does she refer to? She refers
to the letter of 2 October 1974, which I have just taken you through at some length, which is
Annex 152 of Gabon’s Counter-Memorial. You have now seen parts of that document for yourself59.
Where in Annex 152 does the French Ambassador say that a treaty was signed on 12 September
1974? Nowhere. Where in Annex 152 is it said that a nota bene was added to a signed agreement
after 12 September 1974 to respond to the frustrations of President Macías? Nowhere. This is pure
invention. What the French Ambassador said was that President Bongo “returned to his capital
without anything having been definitively signed...”60. There was no agreement.
55 Letter No. 85 from the Director General of the Ministry of Foreign Affairs to the Spanish Ambassador in Malabo
(25 February 1977). REG, Annex 44.
56 CR 2024/32, p. 43, para. 7 (Rouche).
57 The Republic of Equatorial Guinea and The Gabonese Republic, Convention Delimiting the Land and Maritime
Boundaries of Equatorial Guinea and Gabon (12 September 1974) (Retyped Spanish-language version, as published in the
UNTS). MEG, Vol. VII, Annex 216.
58 CR 2024/32, p. 43, para. 10 (Rouche).
59 CR 2024/31, pp. 40-41, para. 18 (Juratowitch).
60 Ibid.
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45. I conclude. The arguments put by Gabon are unfortunate. You have before you a scrap of
paper  actually, various versions of scraps of paper  whose authenticity has not been proved,
which disappeared for nearly three decades, which was not invoked for 10,477 days of sublime
friendliness across repeated rounds of negotiations over nearly 30 years, which was not ratified,
which was not published, which was not registered, which on its face required further action which
has not been performed over 50 years, and which is accompanied  as I have shown you  by the
clearest possible evidence from France’s ambassador that nothing definitive was signed on
12 September 1974. And yet, somehow, against the background of all of that, Gabon stands before
you and argues that you have a binding agreement with the force of law.
46. It is not a compelling argument, Mr President. It is, however, one that brings to mind
certain lines written by a great, late Canadian poet, Leonard Cohen. You are probably not aware that
Mr Cohen was a classmate of Maître Yves Fortier’s, former mediator in this case, at McGill Law
School  they sat next to each other  in the 1950s. Cohen left the law but always remained
attached to it, and many of his poems and songs touch on the law. There is one in particular, which
appears in his last album, which is called “You Want it Darker”. The poem is called “Treaty”61. Let
me read you three lines: “I wish there was a treaty . . . I wish there was a treaty . . . I wish there was
a treaty we could sign”.
47. I thank you, Mr President, for your kind attention, and I invite you to call Mr Parkhomenko
to the podium.
The PRESIDENT: I thank Professor Sands for his statement. I now invite the next speaker,
Mr Parkhomenko, to take the floor.
61 Leonard Cohen, “You Want It Darker” (2016), track 2 “Treaty”, available at: https://www.youtube.com/
watch?v=NU5FPAR7ass (last accessed 3 October 2024).
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Mr PARKHOMENKO:
THE PARTIES’ CONDUCT SINCE 1974 CONFIRMS THAT THE DOCUMENT PRESENTED
BY GABON IN 2003 HAS NO FORCE OF LAW AND ESTABLISHES NO LEGAL TITLE
IN THE RELATIONS BETWEEN THE PARTIES
1. Mr President, Madam Vice-President, Members of the Court, good afternoon.
2. When two States consider they have concluded a treaty that definitively has resolved their
sovereignty and boundary disputes, what do they normally do — and what are they expected to do
under international law — when one of them calls into question the rights established by such a
treaty? A State would invoke — and is expected to invoke — that treaty. Why? To protect its rights
under that treaty, especially if they concern such “a matter of grave importance” as “[t]he
establishment of a permanent . . . boundary” and territorial sovereignty62.
3. But this is not what happened in this case. The record conclusively shows that not once prior
to 1979 or since 1979 until 2003 did Gabon invoke the 1974 document to protect its alleged rights
under that document63. The record conclusively shows that Gabon admitted that the Parties have
continued to have the same outstanding sovereignty and boundary disputes and that these disputes
should be resolved based on other treaties, legal titles and legal principles64.
4. Yesterday, Gabon avoided this history of non-invocation of the document between 1974
and 2003, just like it did in its written pleadings. All Gabon was able to argue was that: (1) “States
often negotiate about matters on which they have already agreed”65, and that (2) Gabon’s failure to
invoke the 1974 document as an alleged title is “not relevant” to the question of whether this
document is a “title”66 having the force of law between the Parties, as the Court is asked to find under
the compromis. Neither argument has any merit.
5. I will address them in turn.
6. Gabon admits that it did not invoke the 1974 document before 1979, and that in 1979 the
Parties resumed their diplomatic efforts to resolve their disputes over islands and continental
62 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.
63 CR 2024/29, pp. 52-56, paras. 3-21 (Parkhomenko); MEG, Vol. I, paras. 5.1-5.17; REG, Vol. I, paras. 3.58-3.80.
64 Ibid.
65 CR 2024/31, p. 56, para. 86 (g) (Juratowitch).
66 CR 2024/31, p. 57, para. 86 (i) (Juratowitch).
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territory. Gabon expressly admitted during those negotiations that the Parties sought to establish a
joint development zone because they had “overlapping sovereignty in [those] waters” and that the
determination of their maritime boundaries was still to be made “in due time”  sometime in the
future67. If a State believes that it has concluded a treaty that definitively established a maritime
boundary and thus resolved overlapping boundary disputes and sovereignty claims in disputed
waters, why would it say that the parties continued to have overlapping sovereignty claims and that
their maritime boundary was yet to be determined? It makes no sense. But that is what Gabon did.
7. During those negotiations, Equatorial Guinea also made clear that the joint development
zone “proposed by” Gabon “is located entirely within territory that falls under the sovereignty of
Equatorial Guinea”, and that Gabon’s proposal did not respect Equatorial Guinea’s sovereignty over
the islands in Corisco Bay, including Mbañe68. If a State, like Gabon, believes that it has concluded
a treaty definitively establishing title over insular features claimed by another State, would it not
invoke such a treaty to protect its rights? Yes, it would. But, significantly, Gabon did not69.
8. Gabon does not dispute that the Parties ultimately failed to agree on a joint development
zone. But Gabon does not address what happened next: the Parties continued negotiations to resolve
the very same disputes that Gabon now pretends to have been definitively resolved in 197470.
9. When the Parties met in November 1985, they negotiated about a maritime boundary. That
is why they agreed to establish “a sub-commission of experts”71. Did they establish it to implement
Article 4 or revise this provision based on the nota bene in the 1974 document? No. The jointly
signed negotiation minutes confirm that the Parties established the sub-commission “to study in detail
the delimitation of the maritime boundaries”72 based on certain “principles and basic criteria” that
they considered should “be used in delimiting” their maritime boundary73. I mentioned those
67 Minutes of the Second Session of the Ad Hoc Commission on the Review of the Oil Cooperation Agreement
Between the Republic of Equatorial Guinea and The Gabonese Republic, Malabo (10-13 September 1984), p. 139. MEG,
Vol. VII, Annex 205.
68 Ibid., p. 140. MEG, Vol. VII, Annex 205.
69 Ibid., p. 141. MEG, Vol. VII, Annex 205.
70 CR 2024/29, p. 53, para. 8-9 (Parkhomenko).
71 Minutes of the Guinean-Gabonese Ad Hoc Commission on the Delimitation of the Maritime Boundary in Corisco
Bay, Bata (10-16 November 1985), p. 165. MEG, Vol. VII, Annex 207.
72 Ibid., p. 165. MEG, Vol. VII, Annex 207.
73 Ibid., p. 166. MEG, Vol. VII, Annex 207.
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principles and criteria already in my first round. Gabon responded nothing to that. These principles
included “[t]he principle of acceptance of the borders inherited from the former colonial powers
(Treaty of Paris of 1900)”, “[t]he principle of applying law of the sea international conventions that
have been ratified and accepted by the States” and “[r]espect for States’ sovereignty over their
respective national territories”74. Did Gabon include the 1974 document on the list of these principles
and basic criteria? No. How did it fail to do so if it believed that this document was a binding treaty
that should be applied for the delimitation of their maritime boundary? The only credible answer is
that it knew that this document was not a binding treaty.
10. Gabon’s position during the negotiations in November 1985 further confirms that Gabon
did not consider itself to have any rights under the 1974 document — unless you accept an
implausible claim that it passed it in silence so as not to upset its neighbour. Equatorial Guinea
expressly “reject[ed] the baseline that Gabon presented, since it pass[ed] through Mbane island”,
which Equatorial Guinea claimed as “an integral part of [its] national territory”75. Gabon objected to
that claim and insisted that Mbañe is “an integral part of [the] Gabonese territory”76. If a State
believes that it has concluded a treaty that definitively established a right over a disputed insular
feature, would it not invoke that treaty to protect its right and to object to a claim inconsistent with
that right? Of course, it would! Did Gabon? No. Because it knew that no such treaty ever had the
force of law between the Parties.
11. After Gabon resumed its negotiations with Equatorial Guinea in January 1993, the record
reflects that the Parties still could not “proceed to determine the maritime boundary”77. Why?
Because “each Party” still “claim[ed] sovereignty over Conga, Cocoteros, and Mbañe”78. That is why
Equatorial Guinea then “proposed” to resolve those outstanding disputes through “international
mediation or arbitration”79. If a State believes that sovereignty over certain islands has been already
determined by a treaty having the force of law, would it not invoke such a treaty to protect its rights?
74 Ibid.
75 Ibid., p. 167. MEG, Vol. VII, Annex 207.
76 Ibid.
77 Report of the Border Subcommission of the Ad Hoc Commission on the Gabon-Equatorial Guinea Boundaries
(20 January 1993), p. 206. MEG, Vol. VII, Annex 210.
78 Ibid. MEG, Vol. VII, Annex 210.
79 Ibid.
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Of course, it would. Did Gabon? No, it did not. It is not credible that Gabon truly believed there was
a treaty giving it the disputed island but chose not to invoke it.
12. Gabon also failed to invoke the 1974 document to support its claims regarding the land
boundary. During the Parties’ negotiations in January 1993, Gabon relied exclusively on the 1900
Convention80. Equatorial Guinea explained that the land border “is a logical result of the work of the
Franco-Spanish Commission”81. How did Gabon respond? It took “proper note”82 of Equatorial
Guinea’s position to raise the boundary “situations bequeathed by the colonial powers” to “the
highest echelons of [both] countries so that a definitive boundary may be adopted”83. Took “proper
note”? Why did not Gabon properly note that the land boundary had been settled by the 1974
document? The only plausible explanation is that it knew that the Parties had no agreement having
the force of law between them.
13. “At the invitation” of Gabon84, the Parties again met in January 2001. The head of the
Gabonese delegation
“asked the Parties to work in compliance with the following [treaties] governing the
legal framework of this work:
 The French-Spanish Convention of June 27, 1900;
 The United Nations Charter;
 The Charter of the Organization of African Unity;
 The International Convention on the Law of the Sea.”85
14. There is a glaring omission from Gabon’s list of applicable treaties. How could Gabon
have failed to include the 1974 document on this list if it truly considered that the document was a
binding agreement having the force of law between the Parties?
80 Ibid., p. 203, MEG, Vol. VII, Annex 210; French Report of the Border Sub-Commission of the Ad-Hoc Border
Commission Gabon-Equatorial Guinea (20 January 1993), p. 193. MEG, Vol. VII, Annex 209.
81 Report of the Border Sub-Commission of the Ad Hoc Commission on the Gabon-Equatorial Guinea Boundaries
(20 January 1993), p. 204. MEG, Vol. VII, Annex 210.
82 Ibid., p. 205. MEG, Vol. VII, Annex 210.
83 Ibid.
84 The Gabonese Republic, Minutes of the Ad Hoc Border Committee, Libreville (31 January 2001), p. 230. MEG,
Vol. VII, Annex 212.
85 Ibid.
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15. Gabon also “urged” the Parties “to base their work” on such “principles” as “respecting
borders inherited from colonization” and “respecting the sovereignty and territorial integrity of each
State”86. Another glaring omission: Gabon failed to urge for the 1974 document. In fact, it failed to
mention it at all. Moreover, the 1974 document, which purports to modify the borders inherited from
colonization, is inconsistent with the principle of respecting borders inherited from colonization,
which Gabon urged the Parties to apply in resolving their sovereignty and boundary disputes.
16. Equally glaring is Gabon’s failure to mention Article 4 or its nota bene from the 1974
document when discussing a maritime boundary during the 2001 negotiations87. Gabon, as before,
completely ignored this document. Instead, Gabon negotiated over delimitation solution proposed by
Equatorial Guinea, which, as you can see on this slide, is completely different from the line Gabon
now alleges was “definitively established” in 197488. Why did not Gabon tell Equatorial Guinea that
its proposal was unacceptable because it conflicted with the idea that the Parties allegedly established
a boundary in 1974? Obviously, because, whatever the 1974 document may be, it is not a binding
agreement that can be invoked against Equatorial Guinea.
17. In sum, Gabon’s consistent and continuous position that the Parties’ negotiations for three
decades was marked by total silence about the 1974 document and its acceptance that the Parties
should resolve their ongoing disputes about the same matters, based on other treaties, legal titles and
legal principles.
18. Gabon was also silent about the 1974 document outside the formal negotiations when the
Parties were asserting maritime claims, granting oil and gas concessions in the disputed maritime
areas, and delimiting their maritime boundaries with third States. Mr Juratowitch told you these were
not of such a nature as to call for Gabon’s invocation of the 1974 document89. That is not an argument.
It is an excuse.
19. In May 1990, Gabon protested an oil exploration permit granted by Equatorial Guinea in
Corisco Bay. In that protest, Gabon did not assert any alleged rights under the 1974 document.
86 Ibid.
87 Ibid., p. 232. MEG, Vol. VII, Annex 212.
88 RG, Vol. I, para. 5.7.
89 CR 2024/31, p. 56, para. 86 (g) (Juratowitch).
- 36 -
Instead, it claimed that the “permit does not respect either this median line or this parallel”90. This
was the line that Gabon believed defined the extent of rights it believed it could claim. But the line
Gabon asserted in 1990 is different from the line that Gabon alleges to have been definitively
established in 1974. And the reason Gabon did not invoke the 1974 document is clear from its
admission that “the area in which the . . . permit is located is very much under dispute and is the
subject of negotiations”91, by “the ad hoc commission on borders of the two countries”92.
20. On 13 September 1999, Gabon protested Equatorial Guinea’s decree establishing its
maritime boundary with Gabon as the median line constructed using Mbañe, Cocoteros and Conga
as base points93. But the basis of that protest was not any right under the 1974 document, but rather
Gabon’s “Decree No. 2066/PR dated December 4, 1992”, a unilateral act establishing Gabon’s
straight baselines that itself made no reference to the 1974 document, let alone to any rights allegedly
created by this piece of paper94.
21. On Monday, I showed you on slides 5 and 6 in tab 5 of the judges’ folders the maritime
boundaries that the Parties established in their treaties with São Tomé and Príncipe. We heard nothing
from Mr Juratowitch about why Gabon chose not to protest the delimitation agreement between
Equatorial Guinea and São Tomé and Príncipe, which established a boundary that Gabon admits is
located “well to the south” of the putative delimitation line under the 1974 document and covers a
maritime area that would have fallen to Gabon if the 1974 document had the force of law between
the Parties95. Nor did Mr Juratowitch explain why Gabon, in its own maritime delimitation agreement
with São Tomé and Principe, ended the maritime boundary well to the south, instead of extending it
further north to give effect to its alleged rights under the 1974 document.
90 Letter No. 293 from the Minister of Foreign Affairs and Cooperation to the Embassy of the Republic of Equatorial
Guinea in Gabon concerning Note. No 253.89/AMGE of 16 October 1989 in reference to the Clarion Petroleum Permit
Issued to the Company of the Same Name (4 May 1990), p. 295. REG, Vol. IV, Annex 46.
91 Ibid., p. 296. REG, Vol. IV, Annex 46.
92 Ibid.
93 Republic of Equatorial Guinea, Decree No. 1/1999 Designating the Median Line as the Maritime Boundary of
the Republic of Equatorial Guinea (6 March 1999), pp. 359-363. MEG, Vol. VI, Annex 193.
94 Note Verbale from the Embassy of The Gabonese Republic to the Republic of Equatorial Guinea to the Ministry
of External Affairs, International Cooperation, and Francophony of the Republic of Equatorial Guinea (13 September
1999), p. 207. MEG, Vol. VI, Annex 178.
95 CMG, Vol. I, para. 4.18.
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22. On Wednesday, Mr Juratowitch referred to a principle of international law that a territorial
régime established by a treaty achieves a permanence which the treaty itself does not necessarily
enjoy96. The Court first articulated this principle in Libya/Chad97. What is lacking in our case is a
treaty. Here, the only thing that has achieved permanence in 30 years between 1974 and 2003 was
the Parties’ mutual recognition that their disputes over islands, land territory and maritime boundary
were unresolved by any treaty or any agreement. Unlike the conduct of the parties in Libya/Chad,
which the Court found dispositive, the conduct of the Parties in this case does not show that the
Parties have “accepted and acted upon” the 1974 document98. It shows the opposite.
23. Mr Juratowitch spent a considerable amount of time that Equatorial Guinea failed to
establish “a conceptual basis” for “the termination of the Bata Convention under the law of
treaties”99. That is because we have never argued that the so-called Bata Convention was terminated.
Our case is that it never entered into force between the Parties. Something that never came into
existence cannot be terminated. There was nothing to terminate in this case, as confirmed by the
Parties’ consistent conduct over a 30-year period.
24. Mr Juratowitch cannot be right in asserting that Gabon’s consistent failure to invoke the
1974 document for 30 years is “not relevant” for the question of whether it constitutes a “title”100. It
is very pertinent — and we say it is conclusive — on the question of Gabon’s understanding of what
that document signified. We say that Gabon’s failure to invoke — or even to mention this document
during bilateral negotiations with Equatorial Guinea over the very same issues addressed in that
document  especially in circumstances where any reasonable State would have been sure to invoke
it  constitutes irrefutable proof that Gabon, like Equatorial Guinea, did not consider any binding
agreement to have been reached in 1974. In terms that may be familiar to the Court, Gabon’s failure
to invoke the 1974 document for 30 years manifested “an attitude manifestly contrary to the right”
that it now claims, such that Gabon “is precluded from claiming” the alleged right101.
96 CR 2024/31, pp. 55-56, para. 86 (f) (Juratowitch).
97 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 37, paras. 72-73.
98 Ibid., pp. 34-35, para. 66.
99 CR 2024/31, pp. 54-55, para. 86 (a)-(d) (Juratowitch).
100 CR 2024/31, p. 56, para. 86 (i) (Juratowitch).
101 Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, separate opinion of
Vice-President Alfaro, p. 40.
- 38 -
25. We do not oppose the suggestion that States sometimes engage in negotiations over matters
that have been resolved by prior agreements. But it is simply not credible that they would completely
ignore a prior agreement on the very same subject-matter, if such an agreement existed. At the very
least, if Gabon were prepared to reopen issues that it believed had been resolved in an earlier treaty,
it would have invoked the treaty as a starting-point for any further negotiations, especially if such a
treaty were entirely in its favour. Again, it is simply not credible that Gabon understood the
1974 document to have the force of law between the Parties but chose not to invoke it for 30 years
in the course of those negotiations. Its consistent conduct, as well as that of Equatorial Guinea,
manifested a common understanding that both Parties had no agreement having the force of law
between them either in 1974, or any time thereafter.
26. Mr President, Members of the Court, Gabon’s argument on Wednesday brought to my
memory what Franz Kafka once said: “By believing passionately in something that still does not
exist, we create it.” Unfortunately for Gabon, this is not a rule of international law. Gabon may have
began believing in 2003 that it really exists but before this Court, that is not sufficient to create one.
I thank you for your kind attention and ask you to invite Mr Reichler to the podium.
The PRESIDENT: I thank Mr Yuri Parkhomenko for his statement. Before asking Mr Reichler
to take the floor, the Court will observe a 15-minute break.
The Court adjourned from 4.30 p.m. to 4.45 p.m.
The PRESIDENT: Please be seated. Mr Reichler, you have the floor.
Mr REICHLER:
THE LEGAL TITLES TO DISPUTED ISLANDS
1. Mr President, Members of the Court, I will begin by giving Equatorial Guinea’s answer to
Judge Cleveland’s question about the meaning and legal significance of the term “dependencies”,
and whether this has relevance here. Our answer begins by referring to the Court’s jurisprudence,
and then applies it to the facts of this case.
- 39 -
2. In its Advisory Opinion in the Chagos Archipelago case, without which Professor Sands
especially, and I can assure you, from personal experience, the historic agreement announced today
would have been inconceivable. In that Advisory Opinion, the Court determined that the Chagos
Archipelago was a “dependency” of Mauritius, and thus an integral part of Mauritius’ territory. There
are a number of references to this in the Opinion:
“By the Treaty of Paris of 1814, France ceded Mauritius and all its dependencies
to the United Kingdom.”102
“Following the conclusion of the 1814 Treaty of Paris, the ‘island of Mauritius
and the Dependencies of Mauritius’, including the Chagos Archipelago, were
administered without interruption by the United Kingdom.”103
“The Mauritius Constitution Order of 26 February 1964 . . ., promulgated by the
United Kingdom Government, defined the colony of Mauritius in Section 90 (1) as ‘the
island of Mauritius and the Dependencies of Mauritius’.”104
“In many of these reports [by the United Kingdom to the Fourth Committee], the
islands of the Chagos Archipelago, and sometimes the Chagos Archipelago itself, are
referred to as dependencies of Mauritius.”105
3. The Advisory Opinion does not define the word “dependency” but it leaves little doubt
about what it comprehended: small islands, including — but not only — uninhabited islands, that
had no autonomous administration but were historically administered from a larger geographic entity
upon which they were dependent and to which they were considered attached. In the case of Chagos,
the detachment of these dependencies by the United Kingdom was regarded by the Court as a
violation of Mauritius’ territorial integrity.
4. In El Salvador/Honduras, the Court found that:
“The small size of Meanguerita, its contiguity to the larger island, and the fact
that it is uninhabited, allow its characterization as a ‘dependency’ of Meanguera, in the
sense that the Minquiers group was claimed to be a ‘dependency of the Channel
Islands’”106.
5. In the Minquiers and Ecrehos case, the Court found that:
102 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019 (I), p. 107, para. 27.
103 Ibid., p. 136, para. 170.
104 Ibid., p. 107, para. 28.
105 Ibid., p. 108, para. 29.
106 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J.
Reports 1992, p. 570, para. 356.
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“When the British Embassy in Paris, in a Note of November 12th, 1869, to the
French Foreign Minister, had complained about alleged theft by French fishermen at the
Minquiers and referred to this group as ‘this dependency of the Channel Islands’, the
French Minister, in his reply of March 11th, 1870, refuted the accusation against French
fishermen, but made no reservation in respect of the statement that the Minquiers group
was a dependency of the Channel Islands.”107
On the basis of its sovereignty over the Channel Islands, Britain was thus declared sovereign over
these small rocks and islets, as well108.
6. The rule goes back at least as far as the Island of Palmas case: “As regards groups of islands,
it is possible that a group may under certain circumstances be regarded as in law a unit, and that the
fate of the principal part may involve the rest”109.
7. These cases are directly relevant here. Both Parties agree that Mbañe, Cocoteros and Conga
are very tiny islets in close proximity to Corisco Island. The Parties agree, as well, that, as
Professor Miron told you, the three islets “have never had a permanent population”110. And the
evidence shows that these tiny, uninhabited islets were historically regarded — by both Spain and
France — as dependencies of Corisco Island, and that both States consistently recognized that Spain
held title to Corisco Island “and its dependencies”, including, specifically, these three islets.
8. I am afraid to say that my dear friend, Professor Miron, has been very casual with you in
addressing this evidence, by making assertions that are demonstrably wrong or unsupported by any
citation to the record.
9. Professor Miron told you that “two colonial powers thought they had sovereignty over these
islands”111. This is simply false. There is no evidence — absolutely none — that France ever claimed
sovereignty over Mbañe, Cocoteros or Conga. To the contrary, the evidence shows that France
expressly recognized Spain’s title to Mbañe and Cocoteros by name. The only island in Corisco Bay
to which France ever — ever — claimed title was Elobey, and by 1900 France had renounced its
claim and recognized Spain’s title to that island as well. And today, Gabon recognizes Equatorial
Guinea’s title to that island. It is not disputed.
107 Minquiers and Ecrehos (France/United Kingdom), Judgment, I.C.J. Reports 1953, p. 71.
108 Ibid., p. 72.
109 Island of Palmas Case (Netherlands/United States of America), Award of 4 April 1928, RIAA, Vol. II (1949),
p. 855.
110 CR 2024/32, p. 30, para. 43 (Miron).
111 CR 2024/32, p. 36, para. 65 (Miron).
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10. This is what France actually said about Corisco Island and Mbañe in 1886 in the Mixed
Commission with Spain:
“The former king of Corisco died in 1843, shortly after the annexation of that
island. Oregock, who succeeded him that same year, took the title of King of Corisco,
Elobey and dependencies, in the act of February 18, 1846, which confirmed this
annexation; and he recognized that these islands were Spanish, swearing loyalty in the
hands of the Most Illustrious envoy of Her Majesty the Queen of Spain”112.
11. Let me stop here for a moment, with France’s own words on the subject. Professor Miron
questioned the derivation of Spain’s title by virtue of agreement with a local leader. She asked: who
recognized him as a leader who could convey title to territory? We have the answer here: France.
France itself recognized Spanish title based on annexation and the agreement of the king of that
territory. There is no evidence  none  that France ever questioned the legitimacy of Spain’s
agreement with the King of Corisco, or the King’s authority to cede his territory to Spain, or place it
under the Spanish Crown’s sovereignty. Now, more than 180 years after this agreement, and more
than 55 years after Spain’s title passed to Equatorial Guinea, Gabon  or at least, its counsel  asks
the Court to find the 1843 agreement invalid. Just imagine the chaos that would be created,
throughout Africa and the world, if titles to territory, acquired by succession from former colonial
powers, could be disputed simply by questioning the authority of local leaders who conveyed the
territory two centuries earlier. No thank you, Professor Miron.
12. To continue reading France’s memorandum: “The letter of nationality, issued on that
occasion to the inhabitants of Corisco specifies that Elobey Chico is part of the dependencies of the
first of these islands”113.
13. At which point there is a footnote, which reads, as you saw on Monday: “The geographical
dependencies of Corisco are: Laval [Leva] and the one called Baynia [Mbañe].”114
14. This French memorandum goes on to assert that “Spain cannot rely on this document to
claim Elobey Grande; as for Elobey Chico, an uninhabited rock at the time, it depends on Grande,
and not on Corisco”115. This is consistent with France’s claim, at the time, to the Elobeys, Grande
112 French-Spanish Commission, Conference on the Delimitation in West Africa, Archives of the French Ministry
of Foreign Affairs, Annex to Protocol No. 17 (24 December 1886), p. 2. MEG, Vol. III, Annex 11.
113 Ibid.
114 Ibid.
115 Ibid.
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and Chico, but not to any other islands in Corisco Bay, and certainly not to Mbañe, which it
recognized as a dependency of Corisco, which it recognized as Spanish.
15. The act of 1846 to which the French memorandum refers is the Record of Annexation
issued by the King of Corisco, which we showed you on Monday. Professor Miron challenged this
on two grounds. First, she said, our version, Annex 112 to the Memorial, is a transcription rather than
an authentic copy of the original manuscript. This criticism came as a surprise to us, because Gabon
made no such complaint in its Counter-Memorial or its Rejoinder. But, no matter, because we do
have an authentic copy of the original manuscript — right here — and we will be glad to supply it to
Gabon or to the Court immediately upon request.
16. Professor Miron’s second objection was to our translation, specifically of the Spanish
words: “la Isla de Corisco, Elobey y sus actuales dependencias son españolas”. The English
translation attached to our Memorial reads: “The Island of Corisco, Elobey and its current
dependencies are Spanish”. We discovered what we thought was an error while we were preparing
for these hearings and we asked our professional translators to take another look. Their corrected
translation reads: “The Island of Corisco, Elobey and their dependencies are Spanish.” To be sure,
the word “sus” could mean “their” or “its”, but in this context “its” would be incorrect because it is
followed by “dependencies” — plural — and Elobey has only one dependency, Elobey Chico.
Corisco has several dependencies, as France itself has recognized, including Mbañe and Leva. The
correct translation is therefore: “The Island of Corisco, Elobey and their dependencies are Spanish.”
17. Professor Miron claims to be “lost in translation”, and I am prepared to take her at her
word. But there is no reason for her to presume that anyone else is lost, and certainly not the Court.
We provided in Monday’s judges’ folders the original Spanish, our initial translation and a corrected
one. We leave it to the Court to determine which to rely upon, knowing that it is benefited by having
native Spanish speakers on the Bench.
18. This is another French document presented at the Mixed Commission, in 1887.
Professor Miron called your attention to this part: “From the facts that we have just recalled it is clear
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and evidenced that there was an attempt to give the text acts of 1843, 1846 and 1858 an extension
they could not contain.”116
19. Professor Miron asserted that this shows that France “vigorously opposed the extension of
Spain’s claim beyond Corisco Island”117. But if you read further, you find that France accepted
Spain’s title to the Corisco Island dependencies; its objection was to the extension of this title to the
mainland coast, as Spain was then claiming:
“In effect, the act of 1843 is the one to which Spain owes the annexation of
Corisco and of its natural dependencies, the islets of Laval [Leva] and Baynia [Mbañe],
included in the zone of the territorial waters of that island. The proof that Corisco’s
dependencies did not extend to any part of the African Continent is that the letter of
nationality . . .”118.
And it goes on to explain what that proof is: that the Corisco Island dependencies did not include the
African coast. That part was omitted from Professor Miron’s presentation.
20. Next, she tells us that this does not constitute French recognition that Leva and Mbañe are
natural dependencies of Corisco, as this appears to say, because in her estimation they are not
included in the “zone of territorial waters” of that island since they lie six miles from it119, and, she
tells us, Corisco’s territorial waters extended only for “three nautical miles”120. Where did she come
up with that? We cannot tell, because she provided no citation. In any event, that was definitely not
France’s position. On Monday, we showed you this memorandum from the French Foreign Minister
to the Minister of Overseas France. We present it again only to respond to Professor Miron, who
skipped right over it: “Over the past fifty years, Baynia Island [Mbañe] was occupied by the Spanish
on several occasions, without protest or alternate occupation by us. Baynia Island is located within
the six nautical mile limit forming the boundary of Spanish territorial waters”121.
21. There can be no doubt — none — that Mbañe was, and is, a dependency of Corisco Island
and that France has always — always — recognized it as such. There is no record — none — that
116 French-Spanish Commission, Conference on the Delimitation in West Africa, Archives of the French Ministry
of Foreign Affairs, Protocol No. 30 (16 September 1887), pp. 12-13. MEG, Vol. III, Annex 3.
117 CR 2024/32, p. 26, para. 25 (Miron).
118 French-Spanish Commission, Conference on the Delimitation in West Africa, Archives of the French Ministry
of Foreign Affairs, Protocol No. 30 (16 September 1887), p. 13. MEG, Vol. III, Annex 3.
119 CR 2024/32, p. 31, para. 48 (Miron).
120 Ibid.
121 MEG, Vol. I, para. 3.32; The French Republic, Letter from the Minister of Foreign Affairs to the Minister of
Overseas France (6 May 1955), pp. 3-4. MEG, Vol. IV, Annex 94.
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France ever claimed Mbañe for itself or challenged Spain’s claim to title over it as a dependency of
Corisco. Professor Miron had the opportunity yesterday, but she did not present a single document
in which France ever  ever  claimed Mbañe or opposed Spain’s claim to it. On Monday, we
showed you this map. An official French map from 1968. It was produced by the Institut
géographique national  which was then an agency of the French Government. It shows that, for
France, Mbañe belonged to Equatorial Guinea. What did Professor Miron have to say about this?
Absolutely nothing. She chose to ignore it. There is no doubt about Spain’s and then Equatorial
Guinea’s sovereignty over Mbañe. Certainly, France had no doubt about this.
22. Nor can there be any doubt that France regarded Cocoteros as another dependency of
Corisco, and also under Spanish, and then Equatoguinean, title. The same May 1955 memorandum
from the French Foreign Minister, at tab 15 of our judges’ folder on Monday, described Mbañe as
“the primary land mass . . . to which the Cocotier islet belongs”, and it went on to state “‘Cocotier’
must be considered as following the fate of Baynia Island [Mbañe], of which it is a geographical
dependency”122. Those are France’s words.
23. On Monday, we called your attention to a French Notice to Mariners issued the following
month, in June 1955, which states, in English translation: “As Spanish sovereignty over Cocoteros
Island has been recognized by the French High Officials, the Cocotiers beacon located in Spanish
territory is Spanish”123. Yesterday, Professor Miron told you that this was just a draft, never
published. Again, where did this come from? Again, there is no citation, just the words of counsel.
Maybe she was giving us her own unbiased opinion, instead of evidence. So let’s go back to the
document. Right here in the third line under the words I just read, it says, in English translation of
the French text: “Date on which the AVURNAV” — that is the French acronym for “Avis d’urgence
aux navigateurs” — or Urgent Navigation Warning, that is, this very notice — was sent: “June 11,
1955”124. On the next page of the French original, it shows that this document was signed on 4 July
1955, confirming that this warning had been sent. Professor Miron tells us it was signed by a low-
122 MEG, Vol. I, para. 3.32; The French Republic, Letter from the Minister of Foreign Affairs to the Minister of
Overseas France (6 May 1955), pp. 3-4. MEG, Vol. IV, Annex 94.
123 REG, Vol. I, para. 4.31; Bulletin to Advise Sailors, Bulletin of Information No. 626 (1955), p. 1. REG, Vol. III,
Annex 17.
124 Ibid.
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level person. The stamp identifies the signer as the Chief of the Subdivision of Maritime Beacons.
Presumably, he, or she, would know if the warning had been sent on 11 June 1955, as the document
says.
24. Earlier that year, France began to construct the beacon at Cocoteros before it received
Spain’s authorization. The Spanish Governor directed the French territorial administrator to suspend
the work and the French complied125. The following year, the French Director of the Maritime and
Beacons Service wrote this, which is at grey tab 3 of today’s judges’ folder: “Following a minor
dispute with the Spanish authorities, Spanish sovereignty over the islet of Baynia [Mbañe] and the
islet of Cocoteros had to be recognized. The Spanish authorized the completion, by the French
services, of the construction of the beacon at the islet of Cocoteros”126.
25. Professor Miron had the temerity to draw a comparison between Spain’s expulsion of
unauthorized persons from its own sovereign territory — recognized by France as Spanish
territory — and Gabon’s military invasion and conquest of Mbañe, despite the fact that France and
Gabon itself had previously recognized Mbañe as Spanish, and then Equatoguinean. The “wild
west”? Hardly. The only outlaws were those dispatched by Gabon in 1972.
26. Where is the evidence that France ever claimed title to Mbañe, to Cocoteros or to Conga?
Professor Miron supplied none yesterday. Zero. Nor did Gabon in its written pleadings or annexes.
The evidence, as we have shown you, establishes that only one colonial Power — Spain — ever
claimed title to these particular islands and that France never opposed Spain’s claim.
27. You were told yesterday about “overlapping claims in the Gulf of Guinea”127. That was
true, but misleading. The evidence shows that France’s only claim was to the Elobeys  Elobey
Grande and Elobey Chico — and nothing more. This is the map, shown to you yesterday, reflecting
the territory Gabon claims that France acquired through agreements with local leaders.
125 MEG, Vol. I, para. 3.30-3.31; The Spanish State, Telegram No. [ ]11 from the General Directorate of Morocco
and Colonies to the Governor of Spanish Territories of the Gulf of Guinea (8 Mar. 1955). MEG, Vol. IV, Annex 88. The
Spanish State, Telegram No. 7 from the Governor of Spanish Territories of the Gulf of Guinea to the Director-General of
Morocco and Colonies (12 Mar. 1955). MEG, Vol. IV, Annex 91; The Spanish State, Letter from the Governor-General of
the Spanish Territories of the Gulf of Guinea to the General Directorate of Morocco and Colonies (17 Mar. 1955). MEG,
Vol. IV, Annex 89.
126 REG, para. 4.31; The French Republic, Letter from the Director of the Lighthouse and Beacon Service to the
Director General of Public Works of French Equatorial Africa (26 Jan. 1956), pp. 4-6 (emphasis added). CMG, Vol. IV,
Annex 102.
127 CR 2024/32, p. 25, para. 23 (Miron).
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Professor Miron told you that this showed “there were indeed rival claims”128. However, as you can
see, the only islands claimed by France are the Elobeys. So, too, with this map, which was also shown
to you yesterday. This, too, shows that the only overlapping claims of Spain and France in Corisco
Bay were to the Elobeys, which are the only islands depicted in maroon, representing territory
claimed by Gabon.
28. Professor Miron told you the Mixed Commission dealt with disputed islands in addition to
the mainland. Again, this is true, but misleading. At the Mixed Commission, the only disputed islands
were the Elobeys. As the French documents from the Mixed Commission, which we just saw,
showed, France did not challenge Spain’s claims to any other islands. It expressly recognized them
as dependencies of Corisco, and thus Spanish. And as I have said, the dispute over the Elobeys was
resolved in Spain’s favour before the 1900 Convention. As Professor Miron acknowledged,
Article VII of that Convention gave France a right of first refusal in case Spain ever wished to cede
Corisco or Elobey to another State, an undeniable reflection of France’s acceptance of Spain’s title
to these islands.
29. Professor Miron points to the absence of reference to Mbañe, Cocoteros or Conga in the
1900 Convention. But what of it? There were no disputes about title to these islands. There was not
a single document ever produced that identified any of these islands as disputed. France had long
recognized them as Spanish. There was no need to address them in a Convention focused on resolving
disputed claims. It is just as false to assert that “the question of sovereignty remained unresolved
after the 1900 Convention”129. The evidence shows that there were no disputes over Mbañe,
Cocoteros or Conga before or after that Convention, because France never claimed them or disputed
Spain’s title.
30. I do not have time to correct all of the inaccurate or misleading statements about the
evidence that you heard yesterday. The fact that I have not addressed every one of them should not
be interpreted as an acceptance of any of them. It is one thing to be eloquent  something we all
aspire to be  it is another to strive to be accurate in presenting evidence to the Court.
128 CR 2024/32, p. 25, para. 23 (Miron).
129 CR 2024/32, p. 32, para. 52 (Miron).
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31. I come finally to the matter of sources of title. On Monday, I referred to the sources of title
identified by the Court in its jurisprudence, including Burkina Faso/Mali, El Salvador/Honduras and
Western Sahara, and I stated that Spain had satisfied the conditions for establishing title laid down
by the Court. Professor Miron disagreed, so I will briefly return to this issue.
32. Colonial occupation. Professor Miron said that this can only be a source of title to territory
not previously inhabited130. That legal assertion is debatable but whatever its legal correctness, she
agreed that Mbañe, Cocoteros and Conga have never been inhabited131.There is one exception. The
evidence showed that Spain, and then Equatorial Guinea, sent guards there to protect their
sovereignty over the islet. This, however, is a manifestation of occupation, not evidence of prior
habitation.
33. Agreement with local rulers. The evidence, which we reviewed again today, shows that
Spain acquired title to Corisco Island and its dependencies through agreement with the King of
Corisco, and that France accepted this132.
34. Public and notorious assertion of sovereignty without protest. There can be no doubt that
Spain openly and continuously proclaimed and asserted sovereignty over Corisco Island and its
dependencies  including specifically Mbañe, Cocoteros and Conga  for at least 125 years, from
1843 to 1968, when Equatorial Guinea became independent, and that no State, not France or anybody
else, ever protested or challenged Spain’s sovereignty to these islands. The only challenge was to
Spain’s claim to the Elobeys, and France recognized Spain’s sovereignty even over these islands by
1900.
35. Effective administration over a prolonged period. One hundred and twenty-five years of
effective Spanish administration  uninterrupted and unchallenged, and undisputed  constitutes a
sufficiently prolonged period to vest title in Spain.
36. And finally, succession. It cannot be disputed that the title to territory possessed by a
colonial Power passes by succession to the newly independent State, in this case Equatorial Guinea.
130 CR 2024/32, p. 32, para. 51 (Miron).
131 CR 2024/32, p. 30, para. 43 (Miron).
132 Kingdom of Spain, Ministry of State, Record of Annexation (18 Feb. 1846). MEG, Vol. V, Annex 112.
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France itself recognized Equatorial Guinea’s sovereignty over Mbañe, specifically, as reflected in its
official 1968 map, issued in the same year as Equatorial Guinea’s independence.
37. Mr President, Members of the Court, the applicable law and the relevant evidence lead to
only these conclusions: Mbañe, Cocoteros and Conga are dependencies of Corisco Island. Spain had
uncontested legal title to all of them from 1843 to 1968. That title was recognized by France and then
by Gabon after its independence in 1960. Spain’s title passed by succession to Equatorial Guinea in
1968. As my colleagues have shown you, that title was never relinquished by Equatorial Guinea, and
it could not be detached from Equatorial Guinea by an unlawful use of force.
38. I thank you, again, for your kind courtesy and patient attention, and I ask you to please call
Professor Akande to the podium.
The PRESIDENT: I thank Mr. Paul Reichler for his statement. I now invite the next speaker,
Professor Dapo Akande to take the floor.
Mr AKANDE:
LEGAL TITLE AND TREATIES THAT CONCERN THE DELIMITATION
OF THE COMMON LAND BOUNDARY
1. Thank you, Mr President. Members of the Court, my task this afternoon is to address you
once again on the legal titles that have the force of law in so far as they concern the delimitation of
the common land boundary between the Parties. You have been provided with four written pleadings
and you have already heard two rounds of oral pleadings on this subject. At this stage of the
proceedings, in order to assist the Court, I propose:
 first, to set out the issues on which it is clear that the Parties are in agreement in relation to the
land territory;
 second, to discuss those issues where on the basis of Gabon’s presentation it might appear that
the Parties disagree, but where examination of the record indicates that there is in fact agreement;
and
 third, to identify those issues where disagreement remains. In relation to this third set of issues,
I will respond to the mischaracterizations and, dare I say it, errors in the arguments of the other
side.
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I. Agreement between the Parties in relation to
title to the land territory
2. Despite what might appear to be the case at first sight, and despite some of the portrayals
by Gabon yesterday of Equatorial Guinea’s arguments, there is in fact much agreement between the
Parties with respect to the relevant points on the land territory.
3. First, the Parties agree that on the date of independence, first of Gabon, and then of
Equatorial Guinea, each of those States succeeded to the territory to which France and Spain,
respectively, had title on the basis of the 1900 Convention. It is not in dispute, and it need hardly be
said, that neither of the Parties in these proceedings were parties to the 1900 Convention. However,
on the date of independence that Convention became a relevant basis for their title to territory because
of the legal operation of their succession to the rights and titles of France and Spain.
4. Second, it is not disputed that the 1900 Convention not only sets out a land boundary in
Article IV, but that it also allowed for modifications to that boundary on the basis of procedures
provided for in Article VIII of the Convention and Appendix I. It is agreed that these modifications
could take place on the basis of proposals of commissioners or local delegates. This aspect of the
1900 Convention could not be put any better than Mr Müller put it yesterday, “Of course, [he said]
it was possible to propose changes to the demarcation lines and submit them to the respective
governments for approval”133.
5. Third, the evidence is clear, and the Parties do not disagree, that the commissioners were in
fact appointed and they made proposals for changes to the boundaries134. It is also not in dispute that
local officials also made proposals for changes to the boundary135.
6. Fourth, it is agreed that any modifications to the boundary required approval by the
Parties136.
7. The effect of all of these points on which the Parties are agreed is that upon independence
the Parties succeeded to title to territory as set out in the 1900 Convention and that the 1900
133 CR 2024/31, p. 65, para. 23 (Müller).
134 MEG, Vol. I, paras. 3.43-3.50; Letter from the French Minister of Colonies to the Administrator of the
Franco-Spanish Delimitation Commission (19 June 1901), p. 1. MEG, Vol. IV, Annex 55; Franco-Spanish Delimitation
Commission of the Gulf of Guinea, Border Project: Southern Border (1 January 1902). MEG, Vol. III, Annex 14; CMG,
Vol. I, paras. 1.41-1.43.
135 Letter from French Minister of Colonies to Minister of Foreign Affairs (24 November 1919), MEG, Annex 68.
136 CR 2024/32, p. 13, para. 35 (Müller).
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Convention allocates territory not just on the basis of the lines provided for in Article 5 but on the
basis of any modifications that had been approved by that time. This is the title that existed for Gabon
in August 1960 and which existed for Equatorial Guinea in October 1968. In our submissions,
nothing has changed with respect to title since those dates.
II. Misleading impression by Gabon as to disagreements
8. Mr President, Members of the Court, let me now turn to those issues where the arguments
made by Gabon give the misleading impression that there is disagreement between the Parties, but
where, in reality, the Parties are in agreement.
9. Yesterday, Mr Müller argued that the 1900 Convention does not require replacement of the
boundaries set out in Article 4 by natural features137. He stated, and I quote, “Contrary to what
Equatorial Guinea’s lawyer tried to suggest . . . neither Article 8 of the Paris Convention nor its annex
requires the border defined in article 4 to be replaced by a new natural border.” Well, we agree with
him! There was no requirement to change the borders and no requirement to change it on the basis
of natural features. What we said, in agreement with him, is that those provisions of the 1900
Convention allow for modifications and that they provide a procedure for doing so. Article 8 did
require the appointment of commissioners who could propose modifications but since those
proposals required approval, it necessarily follows that there could be no requirement that
modifications be made.
10. Gabon also asserts that Equatorial Guinea relies on effectivités in order to overrule legal
reality138. You were reminded of your case law which makes clear that in cases where there are
effectivités which stand in contrast with the title, effect must be given to the legal title139. We do not
dispute this legal principle. However, we do not argue that the actions on the ground by Spain, or
indeed by France, stand in contrast with title or that they prevail over the legal title. We simply say,
as Gabon agrees, that the proposed changes must be approved by the Parties, and we set out how the
conduct of the parties to the 1900 Convention, and indeed the conduct of the Parties to this case,
137 CR 2024/31, p. 65, para. 23 (Müller).
138 CR 2024/31, p. 65, para. 23 (Müller).
139 CR 2024/32, p. 65, para. 25, note 234 (Müller).
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provide evidence of such approval. Nothing here overturns legal reality. By contrast, this is a situation
where it is the treaty itself that provides for the possibility of change.
11. Gabon insists, on a number of occasions, that the Paris Convention has not been
amended140. We agree and we do not suggest otherwise. We do argue that the boundary line as set
out in Article 4 was not the boundary at the moment of independence of Equatorial Guinea, or indeed
of Gabon. However, this is not because the Convention was amended or changed. Not at all! Our
argument is that the provisions of the 1900 Convention were applied and given effect!
12. So, as a general matter  and returning to what the Court is called upon to decide  there
is agreement between the Parties that on the day before independence, the title that had the force of
law relating to the delimitation of the land boundary is the 1900 Convention, and to the extent that
any modifications to the boundary were approved by the Parties in accordance with the procedures
set out in the Convention, there would be such title to territory based on the 1900 Convention. What
then happened on the day of independence? Well, on that day, each of the Parties to this case, Gabon
and Equatorial Guinea, succeeded to that title.
III. Matters truly in dispute in relation to the land boundary
13. Members of the Court, having identified the points in respect of which there is agreement
on the titles relating to the delimitation of the land boundary, let me now turn to what remains truly
in dispute.
14. Although both Parties are in agreement that proposals could be made to modify the
boundary line in Article 4, and that proposals were in fact made, the first area of disagreement is
whether these proposals were approved, both in the Utamboni and in the Kie River areas.
15. The second area of disagreement relates to whether anything has changed with regard to
title since the day of independence. On this, as you have heard from my colleagues, Equatorial
Guinea submits that there is no other convention or title that provides a new basis for title to territory
in the period since both Gabon and Equatorial Guinea gained independence.
16. Let me return to whether the modifications proposed were approved in accordance with
the 1900 Convention. Mr Müller told you yesterday that Equatorial Guinea seeks to replace approval
140 See e.g. CR 2024/32, pp. 65-66, para. 26 (Müller).
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“in due and proper form” with a simple claim of acquiescence141. However, no indication is given as
to what this due and proper form is. Certainly, there is nothing in the 1900 Convention that specifies
any particular form that approval must take.
17. Mr Müller also said that the Parties did not understand that the 1901 Commission would
have a high degree of flexibility in engaging in their work. However, flexibility with regard to the
proposals that the Commissioners may make is not to be confused, as he appeared to do, with the
seriousness with which the Parties would inevitably handle matters of approval. We agree that Spain
and indeed France did not take the issue of approval lightly. In fact, they examined the proposals
seriously, and in relation to the southern boundary, some modifications were approved and others
were rejected. You will recall that while the Parties implemented the proposals made by the 1901
Commission in the Utamboni River area, they rejected proposals for modifications further east.
18. Mr President, Members of the Court, nothing you heard yesterday calls into question the
fact that Spain and France approved modifications to the boundary in the Utamboni and Kie River
areas.
19. Turning first to the Utamboni River area, let us examine the situation existing when Gabon
attained independence in 1960. Does the evidence show that France had approved modifying the
Article IV line so as to give effect to the 1901 Commission’s proposal in this area? The answer is:
yes. In that regard, you need only to refer to the map of Gabon published by France’s National
Geographic Institute in 1961 to see France’s contemporaneous official view of the territorial title to
which Gabon had succeeded in this area. As you can see, France does not depict Gabon’s northern
boundary as following the parallel of 1 degree north described in Article IV of the 1900 Convention.
Instead, the boundary continues to follow the Utamboni River after its first intersection with the
parallel 1 degree north.
20. And, as you can see on your screens, the modifications that France approved track the
course of the 1901 Commission’s proposals for modifying the boundary in this area. The only
meaningful difference between the French and the Spanish views on the modification’s course
concerns the means by which the boundary reconnects with the 1 degree north parallel in the eastern
141 CR 2024/32, p. 13, para. 35 (Müller).
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part of the Utamboni River area. But, Mr President, we need not be detained by the divergence on
that matter. The Court is only asked to determine the titles in force between the Parties “in so far as
they concern delimitation”. It is not asked to delimit their boundary. It will be for the Parties
themselves, either on a bilateral basis or having recourse to other peaceful means of dispute
settlement, to delimit this portion of the boundary.
21. Gabon sought to deny France’s approval of the modification on the basis that it was not
reflected in the boundaries set out, internally, for the French administrative district on the southern
side of the border. Let us examine that contention. The administrative district in question is known
as Cocobeach. On Monday, my colleague Ms Pasipanodya explained how, in 1965, Spain and Gabon
each listed villages located within 10 km of their respective sides of the border. You can see the
locations of the places that were listed in the area identified as Guinee Espagnole on the 1961 map
of the French National Geographic Institute. That area is south of the 1 degree north latitude. All of
the villages listed in this area were listed by Spain. Gabon did not list any of them as belonging to it,
even though they were located in the Cocobeach district. In other words, there was acceptance that
the boundaries of Cocobeach had been modified in conformity with the 1901 Commission’s proposal.
There can be no doubt that this occurred. You can see on your screens the 1961 map’s depiction of
the Cocobeach district’s northern limits. As you can see, they do not follow the parallel but rather the
course of the Utamboni River.
22. Unable to deny, with any credibility, that France approved the boundary’s modification,
Gabon grasps at straws by trying to argue that Spain did not approve the modification. This, of course,
requires trying to explain away decades of Spain’s exercise of sovereignty south of the parallel of
1 degree north. How does Gabon attempt this feat? By raising the possibility that perhaps Spain
believed that it was actually acting north of 1 degree north.
23. Now, to be fair, Gabon is correct in observing that the 1901 Commission located two
settlements  Asobla and Anguma  north of the 1 degree parallel when they were actually located
south of that line. But any misconception as to the locations of these towns in relation to the parallel
was quickly dispelled. You can see on your screens a 1914 map of this area. Both Asobla and Anguma
are correctly depicted as being south of the parallel of 1 degree north. Importantly, the 1914 Spanish-
German Commission used an edition of this map when it surveyed the area and identified both towns
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as being Spanish142. So, there is no doubt that Spain understood that when it was exercising
sovereignty in those towns, it was doing so south of the parallel.
24. If any further confirmation were needed, it is supplied by the Geographic Service map of
the Spanish Army, which subsequently surveyed the area. The results of its work can be seen in the
topographic map appearing on your screens. Asobla and Anguma are both correctly located south of
the line of 1 degree north. And, because the Geographic Service placed physical geodetic markers in
the field, it pinpointed the precise geographic co-ordinates of each town, as you can see on your
screens. The upshot is plain: Spain knew exactly where it was exercising sovereignty.
25. Mr President, this brings me to the Kie River area. That Spain and France approved
modifying the boundary here is clear. The colonial powers’ approval of the modification is
undeniable because they entered into an agreement in 1919 via an exchange of notes. The terms of
that agreement are unambiguous: the boundary is the Kie River and this modification was authorized.
France’s Minister of Colonies, writing to the French Minister of Foreign Affairs, in November 1919,
makes this crystal clear when he says: “for the eastern border of Guinea . . . with your assent . . . I
authorised the Governor General of French Equatorial Africa to accept . . . as the demarcation
line . . . the course of the Kie River until the source of the said river”143.
26. Gabon tries to make something of the fact that the terms of the 1919 agreement stated that
the boundary was provisional. However, Gabon does not contest that the agreement continued to be
applied, and that the Kie River was respected as the boundary until the moment when Gabon became
independent. Accordingly, the photographs of the territorial situation existing at the moment of
independence depicted the territories of Gabon and Equatorial Guinea as being delimited by the Kie
River. In the words of the Chamber of the Court in Burkina Faso/Mali, the “principle of uti possidetis
freezes the territorial title”144.
27. Indeed, Gabon continues to act in conformity with this boundary modification in the Kie
River area. You can see on your screens a satellite image of the northern portion of the boundary in
the vicinity of the Equatorial Guinean city of Ebebiyin. The 9th degree meridian runs through this
142 REG, Vol. I, para. 5.26.
143 MEG, Vol. IV, Annex 68.
144 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 568, para. 30.
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substantial metropolitan area. The locations of Equatorial Guinea’s customs and immigration
facilities on the left bank of the Kie River are marked, as is the border bridge that is the subject of
the Parties’ 2007 agreement. If the boundary fixed in the 1919 agreement had somehow lost its legal
effect upon the Parties’ independence with the result that the boundary reverted back to the 9th degree
meridian, as counsel for Gabon appeared to suggest, these facilities would be located in Gabonese
territory. Yet, Gabon has never protested their presence. The only reasonable explanation for the
absence of any such complaint by Gabon is that Gabon accepts that they are located on the Equatorial
Guinea side of the line established in the 1919 agreement and that this line became part of the
international boundary between Equatorial Guinea and Gabon upon independence.
28. Mr President, Members of the Court, this concludes my presentation. I am grateful to you
and the Members of the Court for your kind attention. I ask that you now invite Mr Derek Smith to
the podium to provide some concluding words with regard to Equatorial Guinea’s case.
The PRESIDENT: I thank Professor Akande for his statement. I now invite the next speaker,
Mr Derek Smith, to take the floor.
Mr SMITH:
SUMMATION
1. Mr President, Madam Vice-President, Members of the Court, it falls upon me to give some
final remarks on what we have learned over the course of these oral proceedings.
2. With all the maps and documents and figures presented over these past few days, one might
be forgiven for thinking that this is a very complex dispute. But at its core, it is really quite simple.
There are four key facts that the Court should keep in mind.
3. First, before Equatorial Guinea and Gabon gained independence, Spain held legal title to
the islands of Mbañe, Cocoteros and Conga, and the continental boundary between Spain and France
was settled by the 1900 Convention as applied by the Parties.
4. Second, upon independence, Equatorial Guinea inherited Spain’s legal title, and Gabon
inherited France’s legal title. France had no legal title to any of the islands in Corisco Bay, and
recognized these islands as Spanish, and then as Equatoguinean, including on its own official maps.
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5. Third, after independence, Gabon used armed force to occupy and claim title to Mbañe.
6. And fourth, 30 years later, Gabon attempted to justify this occupation and secure even more
of Equatorial Guinea’s inherited territory by presenting a dubious document and claiming that this
document was alleged to upend the territorial situation existing at independence by:
 first, legitimizing Gabon’s forceful occupation of Equatorial Guinea’s territory,
 purporting to delimit the land boundary to Gabon’s advantage compared to the colonial boundary
just described by Professor Akande, and
 allegedly delimiting the maritime boundary on terms that obliterated the concept of equitable
delimitation required under international law.
7. Gabon did this after engaging in decades of negotiations during which it never mentioned
this document. It did not even do so when Gabon itself listed the legal titles, treaties and international
conventions applicable to the resolution of the dispute between the Parties145. And it did not do so to
oppose the claims of Equatorial Guinea, as noted by Professor Sands in his comments on the question
by Judge Tomka.
8. Nothing said by Gabon during these oral proceedings has changed these four facts, and
nothing has altered Equatorial Guinea’s request based on them that the Court confirm the legal titles
acquired by the Parties through succession.
9. Of course, Gabon characterizes things a little differently. Yesterday, Gabon again denied
that its occupation of Mbañe was the origin of this dispute146. Rather, according to Gabon, this dispute
arose from “divergences prevailing between France and Spain in the Gulf of Guinea during the
colonial expansion of the European powers in Africa”147. This is simply false as a matter of historical
fact — as Mr Reichler has aptly explained in both of his speeches148. Both Spain and France
repeatedly acknowledged that Mbañe and the other islands and islets of Corisco Bay fell under the
sovereignty of Spain and thus subsequently to Equatorial Guinea by succession149. And Gabon
145 CR 2024/29, p. 55, paras. 16-18 (Parkhomenko); MEG, Vol. I, paras. 5.6, 5.16-5.17.
146 CR 2024/31, p. 15, para. 4 (Rossatanga-Rignault).
147 Ibid.
148 CR 2024/29, pp. 61-67, paras. 12-34 (Reichler).
149 Ibid.
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acknowledged this as well for nearly 12 years after its independence150. There was no dispute until
Gabon asserted its aggressive maritime claims and invaded Mbañe, after Equatorial Guinea’s
independence.
10. In its written pleadings Gabon attempted to downplay its unlawful seizure of Equatorial
Guinea’s sovereign territory by calling what happened on 23 August 1972 a “police operation”151.
Yesterday, Gabon’s counsel doubled down on this euphemism, saying that Gabon’s permanent
armed occupation of Equatorial Guinea’s territory was merely “the installation of a gendarmerie post
on Mbañe”152. Of course, an armed “police operation” that arrests and expels officials and civilians
of a sovereign neighbour from the neighbour’s territory153 is the seizure of territory by force, no
matter what you call it, and the installation of a permanent post for the armed officials on that territory
is occupation by force  again, no matter what you call it. Moreover, Gabon’s counsel has never
denied the fact that, subsequent to the invasion of Mbañe, Gabon stationed warships in the Río Muni
estuary that sunk several Equatoguinean vessels supplying and connecting Corisco Island and its
dependencies to the Equatoguinean mainland, thereby killing their crews154. There is also no dispute
that Gabon later invaded Equatorial Guinea on the continent in 1974155.
11. In relation to Gabon’s 1974 land invasion, it is notable that Gabon’s counsel yesterday
tried to portray the events leading up to 12 September 1974 as a normal process of peaceful
negotiation to settle a dispute between African brothers156. This is a total fabrication. Gabon, like the
biblical Cain, was not behaving as a true brother. After signing the Joint Communiqué in Kinshasa
in 1972, Gabon refused to withdraw from Mbañe and never co-operated to establish the OAU
150 CR 2024/29, p. 68, paras. 38-39 (Reichler).
151 CMG, Vol. I, para. 2.50.
152 CR 2024/31, p. 18, para. 15 (Rossatanga-Rignault).
153 MEG, Vol. I, para. 4.9; Permanent Mission of the Republic of Equatorial Guinea to the United Nations,
Statement Before the United Nations Security Council by His Excellency Mr Jesus Alfonso Oyono Alogo (September 1972),
p. 9 (MEG, Vol. III, Annex 28); Telegram from Equatorial Guinea’s Minister of Foreign Affairs to the Permanent
Representative of the Republic of Equatorial Guinea to the United Nations (11 Sept. 1972) (MEG, Vol. VI, Annex 164).
154 MEG, Vol. I, para. 4.9; Telegram from Equatorial Guinea’s Minister of Foreign Affairs to the Permanent
Representative of the Republic of Equatorial Guinea to the United Nations (11 Sept. 1972) (MEG, Vol. VI, Annex 164);
Memorandum from the Ministry of Foreign Affairs of Spain summarizing President Macías’ September 8th Speech to the
Diplomatic Corps (15 Sept. 1972), p. 1 (MEG, Vol. VI, Annex 173).
155 REG, Vol. I, paras. 3.4, 5.76; Message Text from the US Department of State EO Systematic concerning
Equatorial Guinea-Gabon Land Border Problem (20 June 2005), p. 2 (REG, Vol. IV, Annex 52).
156 CR 2024/31, pp. 20-21, para. 22 (Rossatanga-Rignault).
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Commission to delimit the boundary that was the result of the mediation that Gabon said it engaged
in normally157. There were no negotiations until 1974  no further negotiations until 1974  when
Gabon’s invasion near Ebebeyin forced President Macías to enter into talks again with Gabon.
12. It is this string of events, Mr President, Madame Vice-President and Members of the Court,
that constitutes the origin of the dispute before you today. There was no territorial dispute between
the Parties or their colonial predecessors before this.
13. All this proves that the legal titles, treaties and international conventions that have the force
of law between the Parties concerning their disputed territory and maritime areas are those inherited
by Equatorial Guinea and Gabon from Spain and France by virtue of succession. And with respect
to the delimitation of maritime areas, of course, the United Nations Convention on the Law of the
Sea and customary international law concern the delimitation. The relevant legal titles, treaties and
international conventions do not include the use of force to occupy Mbañe, and they do not include
the document Gabon asks the Court to impose on Equatorial Guinea to legitimate its occupation of
Equatoguinean territory.
14. The Agent of Gabon was thus correct when she observed yesterday that “[t]his case should
not have existed”158. If it were not for Gabon’s repeated attempts to take more than what it inherited
from France, there would be no dispute before the Court today.
15. Gabon tries to deny its invasion because it knows that peace and stability are pillars of the
international order. As enshrined in the United Nations Declaration on Principles of International
Law concerning Friendly Relations, peace requires that States do not use force to violate existing
international boundaries or as a means of solving territorial disputes159. Gabon breached this
principle. Equatorial Guinea, on the other hand, has for 50 years pursued only peaceful means to
resolve this dispute, including direct referral to the Security Council, negotiations over the course of
more than 30 years, three mediations and now bringing this matter to the Court160. It has refrained
from all action that might escalate the situation into a deadly and destructive armed conflict. In these
157 MEG, Vol. I, paras. 410-412.
158 CR 2024/31, p. 10, para. 2 (Mborantsuo).
159 UN General Assembly, resolution 2625 (XXV), Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (24 Oct. 1970),
pp. 77-78 (REG, Vol. III, Annex 6).
160 MEG, Vol. I, Chaps. 4-5.
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circumstances, it is appropriate to ask: what message would be sent to States if, in the end, the
aggressor keeps the illegally seized territory and the State that puts its trust in international law is
deprived of it?
16. Peace and stability are furthered by preserving Equatoguinean villages as Equatoguinean,
and Gabonese cities and villages as Gabonese  as Spain and France agreed during their
implementation of the 1900 Convention under Article 8 and Appendix 1 of that Convention.
17. In the instant matter, peace and stability will also be furthered if the Court pronounces on
all legal titles, treaties and conventions invoked by the Parties, and does not exclude titles because
they are not documentary titles — which was Gabon’s position in its written pleadings161  or
exclude conventions and treaties invoked by Equatorial Guinea because they are allegedly not legal
titles  which was Gabon’s position yesterday162.
18. Recognition of the legal titles, treaties and international conventions invoked by Equatorial
Guinea  the real titles, not like the photocopy Gabon first presented in 2003  will preserve stable
colonial boundaries, allow for a final settlement, permit peaceful relations between Equatorial
Guinea and Gabon and stand as a strong affirmation of the principle that States shall refrain from the
use of force against the territorial integrity of other States.
19. Mr President, Madame Vice President, Members of the Court, this brings my presentation
to a close. I thank you for your attention to my presentation, and I would now ask, Mr President, that
you give the floor to our honourable Agent, who will present the final submissions of Equatorial
Guinea.
The PRESIDENT: I thank Mr Derek Smith for his statement. I shall now give the floor to
His Excellency Mr Domingo Mba Esono, Agent of Equatorial Guinea. You have the floor, Sir.
161 CMG, Vol. I, para. 5.69.
162 CR 2024/31, p. 30, para. 11 (Pellet).
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Mr MBA ESONO:
FINAL SUBMISSIONS OF THE REPUBLIC OF EQUATORIAL GUINEA
1. Mr President, Equatorial Guinea reiterates that it appears before the Court in a spirit of
friendship towards Gabon, with the desire to strengthen the relationship with its sister nation, on the
basis of mutual respect and the rule of law. As these proceedings reach their end, my country’s faith
in the Court’s wisdom, and its conviction that the Court’s judgment will significantly help our
countries to resolve their outstanding dispute over sovereignty and borders, are stronger than ever.
2. On behalf of my country, I wish to express my sincere gratitude to you, to
Madam Vice-President and the distinguished Members of the Court, to the distinguished Registrar,
the Registry and members of the staff, and also  crucially, in this case  to the interpreters and
translators, for your courtesy and patience throughout all stages of this case.
3. I will now present Equatorial Guinea’s final submissions pursuant to Article 60,
paragraph 2, of the Rules of Court.
“The Republic of Equatorial Guinea respectfully requests the Court to adjudge
and declare:
I. The Special Agreement allows the Court to determine whether the legal titles,
treaties and international conventions invoked by the Parties have the force of law
in the relations between them in so far as they concern the delimitation of their
common maritime and land boundaries and sovereignty over the islands of Mbañe,
Cocoteros and Conga.
II. The document first presented by the Gabonese Republic in 2003 has no force of law
or any legal consequences in the relations between the Parties.
III. The legal titles, treaties and international conventions that have the force of law in
the relations between the Parties in so far as they concern the delimitation of their
common land boundary are the succession by the Gabonese Republic and the
succession by the Republic of Equatorial Guinea to all titles to territory, held
respectively on 17 August 1960 by France and on 12 October 1968 by Spain, on the
basis of the 1900 Convention163, including those titles to territory held on the basis
of the modifications made, in the application of that Convention, to the boundary
described in Article IV of the Convention.
IV. The legal title that has the force of law in the relations between the Parties in so far
as it concerns 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.
163 Special Convention on the Delimitation of Spanish and French Possessions in Western Africa on Coasts of the
Sahara and the Gulf of Guinea, between the Kingdom of Spain and The French Republic (signed 27 June 1900, ratified
27 March 1901). MEG, Vol. III, Annex 4.
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V. Considering paragraphs (III) and (IV) above, the legal titles, treaties and
international conventions that have the force of law in the relations between the
Parties in so far as they concern the delimitation of their common maritime
boundary are:
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.”
4. Mr President, Madam Vice-President, distinguished Members of the Court, I thank you for
your kind attention. This closes Equatorial Guinea’s oral pleadings. Thank you very much.
The PRESIDENT: I thank His Excellency Mr Domingo Mba Esono, Agent of Equatorial
Guinea. The Court takes note of the final submissions which you have just read out on behalf of
Equatorial Guinea. The Court will meet again on Friday 4 October, at 3 p.m., to hear the second
round of oral argument of Gabon. The sitting is adjourned.
The Court rose at 6.05 p.m.
___________