Territorial Dispute (Libyan Arab Jamahiriya/Chad) - Judgment of the Court

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INTERNATIONALCOURTOF JUSTICE
PeacePalace,2517 KJ TheHague.Te1.(070-3023 23).Cables:Interco, he1lague.

Telefax(070-36499 28). Telex32323.

Communiqué

for inmsdiatormloama

NO. 94/4
3 February 1994

The following informationis communicated to the Press by the
Registry of the International Court of Justice:

Today, 3February 1994, the Court delivered its Judgment in the
above case, by which it found that the boundary between Libyaand Chad is
defined by the Treaty of Friendship and Good Neighbourliness concludedon
10 August 1955 betwesn France and Libya, and determined the course of
that boundary (cf. attached Sketch-map No.4).

The Court was composed as follows:

Preçident Sir Robert Jennings; yice-Pre- Oda; Ago,
Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen,
Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola, Herczegh; dudues ad hoc
Sette-Camara, Abi-Saab; Resistrar Valencia-Ospina.

The full text of the operative paragraphis as follows:

"77.For these reasons,

THE COURT,

By 16 votes to 1,

(1)Finds that the boundary between the Great Socialist
People's Libyan Arab Jarnahiriyaand the Republic ofChad is defined
by the Treaty of Friendship and Good Neighbourliness concludedon
10 August 1955between the French Republicand the United Kingdom of
Libya; (2) Findç that the courseof that boundary is as follows:

From the point of intersectionof the 24th meridian east
with the parallel 19O30' of latitude north, a straight lineto
the point of intersectionof the Tropic of Cancer with the
16th meridian east; and from that pointa straight line to the
point of intersectionof the 15th meridian east and the

parallel 23O of latitude north;

these lines are indicated, for the purpose of illustration, on
Sketch-Map No. 4 on page 39 of this Judgment.

IN FAVOUR: Eresident Sir Robert Jennings; Yice-Pr-- Oda;
Jvdses Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume,
Shahabuddeen,Aguilar Mawdsley, Weeramantry,Ranjeva, Ajibola,
Herczegh; mue ad hoc Abi-Saab.

AGAINST: Sette-Camara.

Judge Ago appends a declaration to the Judgment of the Court.

Judges Shahabuddeen and Ajibola append separate opinions to the
Judgment of the Court.
Judge & hoc sette-camaraappends a dissenting opinionto the
Judgment of the Court.
(The text of the Declaration and a brief summary of the opinions may be

found in Annex 1 to this Press Communiqué.)

The printed text of the Judgment will become available in due course
îordersand enquiries should be addressed to the Distribution and Sales
Section, Office of the United Nations, 1211 Geneva 10; the Sales
Section, United Nations, New York, N.Y. 10017; or any appropriately
specialized bookshop) .

A summary of the Judgment is given below. It has been preparedby
the Registry and in no way involves the responsibilityof the Court. It
cannot be quoted against the text of theJudgment, of which it does not
constitute an interpretation.

t of claims (Paras.1-21]

The Court outlines the successivestages of the proceedingsas from
the time the case was brought beforeit (paras.1-16] and sets out thesubmissionsof the Parties (paras. 17-21). It recalls thatthe

proceedingshad been institutedby two successivenotificationsof the
Special Agreement constituted by the 1989 "Framework Agreement
[Accord-Cadre]on the Peaceful Settlementof the Territorial Dispute
between the GreatSocialist People's Libyan Arab Jamahiriya and the

Republic of Chad" - the notification filedby Libya on 31 August 1990 and
the communication fromChad filed on 3 September 1990, read in
conjunctionwith the letter from the Agent of Chad of 20 Septernber 1990.

In the light of the :Parties1 communicationsto the Court, and their
submissions,the Court observes that Libya proceeds on the basis that
there is no existingboundary, and asks the Court to determine one, while
Chad proceeds on the basis that thereis an existing boundary, and asks

the Court to declare what that boundary is. Libya considersthat the
case concernsa dispute regardingattributionof territory, while in
Chad's view it concerns a dispute over the location of a boundary.

The Court then refers to the lines claimed by Chad and by Libya, as
illustratedin the attached Sketch-MapNo. 1; Libya's claim is on the
basis of a coalescenceof rights and titles of the indigenous
inhabitants,the Senoussi Order, the Ottoman Empire, Italyand Libya

itself; and that of Chad is on the basis of a Treaty of Friendshipand
Good Neighbourlinessconcluded by .r*nce and Libya on 10 August 1955, or,
alternatively,on French &fectlvit&, either in relationto, or
independentlyof, the provisions of earlier treaties.

ne 1955 Treatv of Fri-and Good Nei-s betwpen Fr-
a (paras. 23-56)

Having drawn attention to the long and complex historical background

to the dispute and having enumerated a number of conventional instruments
reflecting that history and which appearto be relevant, the Court
observes that it is recognizedby both Parties that the 1955 Treaty of
Friendship andGood Neighbourliness between Franceand Libya is the

logical starting point for considerationof the issues before the Court.
Neither partyquestions the validity of the 1955 Treaty, nor does Libya
question Chad's right to invoke against Libya any such provisions thereof
as relate to thefrontiers of Chad. The 1955 Treaty, a complex treaty,

comprised, in addition to the Treaty itself,four appended Conventions
and eight annexes; it dealt with abroad rangeof issues concerningthe
future relationshipbetween the two parties. Itwas provided by
Article 9of the Treaty that the Conventions and Annexes appendedto it

forrnedan integral part of the Treaty. One of the matters specifically
addressed was thequestion of frontiers,dealt with in Article 3 and
Annex 1.

The Court then examines Article 3 of the 1955 Treaty, together with
the Annex to whichthat Article refers, in order to decide whether or not
that Treaty resulted in a conventional boundary between the territories
of the Parties. It observes that if the 1955 Treaty did result in a

boundary, this furnishes the answerto the issues raised by the Parties:
it would be a response at oneand the same time to the Libyan request todetermine the limits of the respective territories of the Parties and to
the request of Chad to determine the course of the frontier.

Article 3 of the Treaty begins as follows:

"The two High Contracting Partiesrecognize thatthe
frontiers betweenthe territoriesof Tunisia, Algeria, French

West Africa and French Equatorial Africa onthe one hand, and
the territory of Libya on the other, are those that result from
the international instrumentsin force on the date of the
constitution of the United Kingdom of Libya as listed in the

attached Exchange of Letters (Ann. 1).la

Annex 1 to the Treaty comprisesan exchange of letters which, after
quoting Article 3, begins as follows:

"The reference is to [U slaait &] the following texts:

- the Franco-BritishConvention of 14 June 1898;

- the Declaration completing thesame, of 21 March 1899;

- the Franco-ItalianAgreements of 1 November 1902;

- the Convention between the French Republic and the Sublime
Porte, of 12 May 1910;

- the Franco-BritishConvention of 8 September 1919;

- the Franco-ItalianArrangement of 12 September 1919."

The Court recalls that, in accordance with therules of general
internationallaw, reflected in Article 31 of the 1969 Vienna Convention

on the Law of Treaties, a treaty must be interpreted in good faith in
accordance with the ordinary meaning tobe given to its terms in their
context and in the light of its object and purpose. Interpretationmust
be based above al1 upon the text of the treaty. As a supplementary

measure recourse may be had to means of interpretationsuch as the
preparatory work of the treaty and the circumstancesof its conclusion.

According to Article 3 of the 1955 Treaty, the parties w-
ireconnaisçentl that the frontiers ... are those that result" from

certain international instruments. Theword wrecognize"used in the
Treaty indicates that a legal obligation isundertaken. To recognize a
frontier is essentially to "acceptWthat frontier, that is, to draw legal
consequences from its existence, to respect it and to renounce the right

to contest it in future.

In the view of the Court, the terms of the Treaty signified that the
parties thereby recognized complete frontier between their respective
territories as resulting from the combined effect ofal1 the instruments

listed in Annex 1; no relevant frontierwas to be left undefinedand noinstrument listed inAnnex 1 was superfluous. It would be incompatible
with a recognitioncouched in such terms to contend, as Libya has done,

that only some of the specified instruments contributed to the definition
of the frontier, or that a particular frontier remained unsettled. So to
contend would be to deprive Article 3 of the Treaty and Annex 1, of their
ordinary meaning. By ent:eringinto the Treaty, the parties recognized
the frontiers towhich the text of the Treaty referred; the task of the

Court is thus to determirlethe exact content of the undertaking entered
into.

The fixing of a frontier depends on the will of the sovereignStates
directly concerned. There is nothing to preventthe parties from

deciding by mutual agreement toconsider a certain line as a frontier,
whatever the previousstatus of that line. If it was already a
territorialboundary, it is confirmed purelyand simply. If it was not
previously a territorialboundary, the agreementof the parties to
"recognize"it as such invests it with a legal force which it had

previously lacked. Internationalconventionsand case-lawevidence a
variety of ways in which such recognitioncan be expressed. The fact
that Article 3 of the Treaty specifiesthat the frontiers recognized are
"those that result from the international instrumentsI1 defined in Annex 1
means that al1 of the frontiers result fromthose instruments. Any other

construction would becointraryto the actual terms of Article 3 and would
render completely ineffectivethe reference toone or other of those
instrumentsin Annex 1. Article 3 of the 1955 Treaty refers to the
internationalinstrumentis "en viu~eur~~(in force) on the dateof the
. . II
constitutionof the United Kingdom of Libya, late sl au1ilçt definis
(as listed) in the attachedexchange of letters; Libya contends that the
instruments mentionedin Annex 1 and relied on by Chad were no longer in
force at the relevantda,te. The Court is unable to accept these
contentions. Article 3 does not refer merely to the international

instruments "en via- (in force) on the date of the constitutionof
the United Kingdom of Libya, but to the internationalinstruments "en
vigueur" on that date au & . sont definiç" (as listed) in Annex 1.
To draw up a list of governing instruments while leaving to subsequent

scrutiny the question whether theywere in force would havebeen
pointless. It is clear to the Court that the parties agreed to consider
the instruments listedas being in force for thepurposes of Article 3,
since otherwise they would not have referredto them in the Annex. The
text of Article 3 clearly conveys the intention of the parties to reach a

definitive settlementof the question of their common frontiers. Article
3 and Annex 1 are intended to define frontiers by reference to legal
instruments which wouldyield the course of such frontiers. Any other
constructionwould be contrary toone of the fundamental principlesof
interpretationof treaties, consistently upheld by international

jurisprudence, namelythat of effectiveness.

The object and purpisseof the Treaty as stated inthe Preamble
confirm the interpretation of the Treaty given above, inasmuch as that

object and purpose led naturally to the definition of the territory of
Libya, and thus the definition of its boundaries. The conclusionswhich the Court has reachedare further reinforced

by an examination of the context of the Treaty, and, in particular, of
the Convention of Good Neighbourlinessbetween Franceand Libya,
concluded between the Parties at the same time as the Treaty, as well as
by the voir-.

The (paras.57-65)

Having concludedthat the contractingparties wished, by the 1955
Treaty, and particularlyby its Article 3, to define their common

frontier, the Court examines what is the frontier between Libya and Chad
which results from the international instruments listed in Anne x.

(a) Ts the mst of U e of 16O lonsitude (paras 58-60)

The Franco-BritishDeclaration of 1899, which complementsthe
Convention of 1898, defines a line limiting the French zone (or sphereof
influence) to the north-east in the direction of Egypt and the Nile W
Valley, already under British control. It provides in paragraph 3 as

follows :

"It is understood, in principle, that to thenorth of the
15th parallel the French zone shall be limited to the north-
east and east by a line which shallstart £rom the point of

intersectionof the Tropic of Cancer with the 16th degree of
longitude east of Greenwich (130401east of Paris), shall run
thence to the south-eastuntil it meets the 24th degreeof
longitude east of Greenwich (21°40'east of Paris), and shall

then follow the 24th degree untilit meets, to the north of the
15th parallel of latitude, the frontier of Darfour as it shall
eventually be fixed."

Different interpretationsof this text were possible, since the

point of intersectionof the line with the 24th degree of longitude east
was not specified, and the original text of the Declaration was not
accompanied by a map showingthe course of the lineagreed. However, a
few days after the adoption of that Declaration, the French authorities
published itstext in a hvre inirneincluding a map. That map showed the

line as running not directly south-east,but rather inan east-south-east
direction, so as to terminate at approximatelythe intersectionof the
24O meridian east with the parallel 19O of latitude north.

For the purposes of the present Judgment, the question of the
position of the limit of the French zone may be regarded as resolvedby
the convention of 8 September 1919 signed at Paris between GreatBritain
and France, supplementaryto the 1899 Declaration.

Its concluding paragraph provided:

"It is understoodthat nothing in this Convention
prejudices the interpretationof the Declaration of the
21st March, 1899, according to which the wordsin Article 3

l... shall run thence to the south east until it meets the 24th degree of longitude east of Greenwich (21°40'east of
Paris)' are accepted as meaning l... shall run thence in a
south-easterlydirection until it meets the 24th degree of
longitudeeast of Greenwich at the intersectionof that degree
of longitude with pa,rallel1g030' degrees of latitude'."

The 1919 Convention presentsthis line as an interpretationof the
Declarationof 1899; in the view of the Court, for the purposes of the
present Judgment, there Is no reason to categorize iteither as a
confirmationor as a modificationof the Declaration. Inasmuch as the

two States parties to the Conventionare those that concluded the
Declarationof 1899, thexe can be no doubt that the "interpretation"in
question constituted,from 1919 onwards, and as between them, the correct
and binding interpretationof the Declarationof 1899. It is opposable
to Libya by virtue of the 1955 Treaty. For these reasons, the Court
concludes that the line described in the 1919 Convention representsthe

frontier betweenChad and Libya to the east ofthe line of 16O longitude.
. .
(b) 0 (paras.61-62)

The Franco-ItalianAgreements (Exchangeof Letters) of 1 November

1902 state that

"the limit to French expansion inNorth Africa, as referred to in
the above mentioned letter ...dated 14 December 1900, is to be
taken as corresponding tothe frontier of Tripolitania as shown on
the map annexed tothe Declaration of 21 March 1899".

The map referred to could onlybe the map in the J,ivrejaune, which
showed a pecked line indicating the frontierof Tripolitania. That line
must therefore be examined by the Court.

(c) The cornete line (paras.63-65)

It is clear that the eastern end-point of the frontier will lie on
the rneridian24O east, which is here the boundaryof the Sudan. To the
West, the Court is not asked to determine the tripoint Libya-Niger-Chad;
Chad in its submissions merelyasks the Court todeclare the course of

the frontier "as far as the fifteenth degree east of Greenwichu. In any
event the Court's decision in this respect,as in the
case, "will ... not be opposable to Niger as regards the course of that
country's frontiers" (1.C.J.ReDorts 1986, p. 580, para. 50). Between
24O and 16O east of Greenwich, the line is determined bythe Anglo-French

Convention of 8 September 1919: i.e., the boundary is a straight line
£rom the point of intersectionof the meridian 24O east with the parallel
19O30' north to the point of intersectionof the meridian 16O east with
the Tropic of Cancer. From the latter point, the line is determined by
the Franco-Italian exchange of letters of 1 November 1902, by reference

to the Livre jaune map: i.e., this line, as shown on that map, runs
towards a point immediately to the south of Toummo; before it reaches
that point, however, it crosses the meridian 15O east, at some point on
which £rom 1930 onward, was situatedthe commencementof the boundary
between French West Africa and French Equatorial Africa. This line isconfirmed by references in the ParticularConvention annexed to the 1955

Treaty to a place called Muri Idie.

Chad, which in its submissionsasks the Court to define the frontier
as far West as the lSO meridian, has not defined the pointat which in
its contention the frontierintersects that meridian. Nor have the

Parties indicated to the Court the exactCO-ordinatesof Toummo in Libya.
However, on the basis of the informationavailable, and inparticular the
maps produced by the Parties, the Court has come to the conclusionthat
the line of the Livre iaune map crosses the lSO meridian east at the

point of intersectionof that meridian with the parallel 23O of north
latitude. In this sector, the frontieris thus constitutedby a straight
line from the latterpoint to the point of intersectionof the meridian
16O east with the Tropic of Cancer.

t attitudesofthe Partjsg (paras. 66-71)

Having concludedthat a frontier resulted from the 1955 Treaty, and

having establishedwhere that frontierlay, the Court considersthe
subsequent attitudes of the Parties to the question of frontiers. It
finds that no subsequent agreement, eitherbetween France and Libya, or
between Chad and Libya, has called in question the frontier in this

region deriving from the 1955 Treaty. On the contrary, if one considers
treaties subsequent to the entry into forceof the 1955 Treaty, there is
support for the proposition that after 1955, the existenceof a
determined frontierwas accepted and acted upon by the Parties.

The Court then examines the attitudes of the Parties, subsequent to
the 1955 Treaty, on occasions when matters pertinent tothe frontiers
came up before international fora,and notes the consistency of Chad's
conduct in relationto the location of its boundary.

t Bo-y established (paras. 72-73)

The Court finally states that, in its view, the 1955 Treaty,

notwithstandingthe provisions in Article 11 to the effect that"The
present Treaty is concluded for a period of 20 yearsw, and for unilateral
terminationof the Treaty, must be taken to have determineda permanent
frontier. There is nothing in the 1955 Treaty to indicatethat the

boundary agreedwas to be provisionalor temporary; on the contrary it
bears al1 the hallmarks of finality. The establishmentof this boundary
is a fact which, from the outset, has had a legal lifeof its own,
independentlyof the fate of the 1955 Treaty. Once agreed,the boundary
stands, for any other approachwould vitiate the fundamental principleof

the stability of boundaries.A boundary establishedby treaty thus
achieves a permanence which the treaty itselfdoes not necessarilyenjoy.
When a boundary has beenthe subjectof agreement, the continued
existence of that boundary is not dependent upon the continuinglife of
the treaty under which the boundary is agreed.9' 1O'E 15' 16' 2O' 24' 25'

SKETCH-MAP No.4
Boundary Line

determinedby the
Court'sJudgment
NB:Internationalboundaries indicated
bypeckedlinesareshownfor
illustrativepurposesonly. . .
to Press C-e No. 94/4

My own view is still the conviction that, at the time of the independenceof
the new State of Libya, the southern frontier of that country with the French
possessionsof West Africa and EquatorialAfrica, between Toummo and the frontier of
the Anglo-EgyptianSudan, had not yet been the subject of a treaty delimitation
between theparties then directl-yconcerned. 1 recognize however that by concluding

the Treaty of 10 August 1955 with France, the Government of Libya, which was
primarily interested in other aspects of the body of questions to be settled,
implicitlyrecognized,with regard to that southern frontier, the conclusionswhich
the French Government deduced from the instruments mentione in Annex 1 to that
'Treaty.

It is for that reason that 1 have decided to addmy vote to those of my
colleagueswho have pronouncedIn favour of the Judgrnent.

ate QQLUQD of Jibdse Shahabuddeen

In his separate opinion, Judge Shahabuddeenobserved thatthe case involved a
number of important issues relatingto the state of the internationalcommunity a
century ago. Those issues were, however, foreclosed by the answer which the Court
had returned towhat both Parties agreed was the thresholdquestion, that is to Say,

whether theboundary claimed byChad was supported by the 1955 Franco-LibyanTreaty.
The answer given by the Court resulted inevitably from tha epplication of the normal
principlesof interpretationto the provisions of the Treaty. He did not consider
that it was either relevantor necessary to invoke theprinciple of stabilityof
boundaries insupport of that ailswer. The issue before the Court was whether there

was any treaty in existencedeflning the boundary. In his opinion, the principle of
stabilityof boundaries did not assist in answering thatquestion.

of Judse A-.. .

In his separate opinion Judge Ajibola generally supports the view taken by the
Court in its Judgment that theTreaty of Friendship andGood Neighbourlinessbetween
the French Republic andLibya O:€10 August 1955 in effect determines the boundary
dispute betweenthe latter and Chad.

He further deals withsome aspects of the mode of interpretationof the
1955 Treaty, concentrating inparticular uponsuch questions as the object and
purpose of the Treaty, good faith andthe subsequentacts of the Parties.

Judge Ajibola also examines theclaims and submissionsof the Parties and

particularlythose of Libya in relation to what is termed "litigationand strategyu
on the issue of the "borderlandsu.

Finaily, he advances two ot:herextrinsic but supplementary groundsof support
for the Judgment of the Court, the first being based on estoppel, acquiescence,

preclusion andrecognition,and the second based on the principle of uti possidetis.

of Judqc-ad hoc Sette-Camg~â

In his dissentingopinion Judge Sette-Camaraobserves that the borderlands were

never a terra nullius open to occupation according to international law. Theland
was occupiedby local indigenoustribes, confederationsof tribes, often organized
under the Senoussi Order. Furthermore,it was under the distant and laxly exercisedsovereigntyof the Ottoman Empire, which marked its presence by delegatioo nf
authority to the local people.

The great European Powerswere engrossed with the task of carving up Africa but
they did notgo beyond the distributionof spheres of influence.

French presence in the borderlands didnot occur before 1913, after the Treaty
of Ouchy, which put an end to the war between Italy and the Ottoman Empire. Historic
title over the region belonged first to the indigenouspeoples, and eventuallypassed
to the Ottoman Empire, and later to Italy.

The frictions between thecolonial Powers' ambitionsled to the Fashoda
incident, which triggeredthe negotiations leading to the 1899 Declaration,which

establisheda division of spheres of influence and limits to the French expansion
northward and eastward.

In fact, in the present case there were two key questions: 1) 1s there, or has
there ever been, a conventionalboundary between Libya and Chad east of Toummo? 2)
Are the Conventions listedin Arinex 1 of the 1955 Franco-LibyanTreaty of Amity and
Good Neighbourliness actuallyboundary treaties?
*

As to the first question, Judge Sette Camara is convinced that there is not now
nor has there ever been a boundary line, short of the line of the 1935 Laval-
Mussolini Treaty which was notratified.

As to the secondquestion, Judge Sette Camara believesthat none of the treaties
listed in Annex 1 qualifies as a boundary treaty: the 1899 Declaration divided
spheres of influence only. The 1902 Barrère-PrinettiTreaty, a secret exchange of

letters concludedby France and Italy, dealt with reciprocal respect for interest of
France in Morocco and Italianambitions in Tripolitaniaand Cyrenaica and intruded
into territory under the sovereigntyof the Ottoman Empire. The1919 Convention also
divided spheresof influence and dealt mainly with thW eadai-Darfourfrontier. As to
the 1955 Treaty, the rock of the Chadian argument,its Article 11 establishedan
agreed duration of twenty years. The Chadian Counter-Memorialitself recognized that
it lapsed in 1975.

The question of effectivités is to be disregarded,since there is no evidenceon
the point provided by the Parties.
-
In a series of treaties concludedsince 1972 by the two countries thereis no
reference to theexistence of a further dispute.

Judge Sette Camara believesthat the titles to the territory asserteb dy Libya
are valid. Neither France nor Chad presented soundertitles.

In the opinion of Judge Sette Camara it is regrettablethat neither the Court
nor the Parties explored the compromise solution that would have been the line of
United Nations map No. 241, which is close to the 1935 line but not identicalto it,
or reverted to the 1899 strict southeast line, which was at the origin of the dispute
and which continues to appear on very recent maps, for instance the 1988 OAU map
attached to itsSub-Cornmittee's report on the Libya-Chaddispute.

Both lines would have offered the advantageof dividing the Tibestimassif
between the two countries, which both clairnto be essential fortheir defence.