Frontier Dispute (Benin/Niger) - The Chamber of the Court determines the course of the whole boundary between the two States - The Chamber determines, on the basis of the course of the boundary, which

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Press Release

Unofficial

No. 2005/16
12 July 2005

Frontier Dispute
(Benin/Niger)

The Chamber of the Court determines the course of the whole boundary
between the two States

The Chamber determines, on the basis of the course of the boundary, which of the
islands located in the River Niger belong to Benin and which to Niger; it finds
that the island of LétéGoungou belongs to Niger

THE HAGUE, 12July 2005. The Chamber formed by the International Court of
Justice (ICJ) to hear the Frontier Dispute (Benin/Niger) today gave Judgment in the case.

In its Judgment, which is final, not subject to appeal and binding on the Parties, the Chamber

"(1)By four votes to one,

Finds that the boundary between the Republic of Benin and the Republic of Niger in the
River Niger sector takes the following course:

the line of deepest soundings of the main navigable channel of that river, from the intersection
of the said line with the median line of the River Mekrou until the point situated at co-ordinates
11o52'29" latitude North and 3° 25'34" longitude East;

from that point, the line of deepest soundings of the left navigable channel until the point
located at co-ordinates o151'55" latitude North and 3° 27'41" longitude East, where the
boundary deviates from this channel and passes to the left of the island of Kata Goungou,
subsequently rejoining the main navigable channel at the point located at co-ordinates
Ilo51'41" latitude North ando328'53" longitude East;

from this latter point, the line of deepest soundings of the main navigable channel of the river

as far as the boundary of the Parties with Nigeria;

and that the boundary line, proceeding downstream, passes through the points numbered from 1to
154, the co-ordinates of which are indicated in paragraph 115 of [the Judgment];

(2) By four votes to one,

Finds that the islands situated in the River Niger therefore belong to the Republic of Benin or

to the Republic of Niger as indicated in paragraph 117 of [the Judgment]; - 2-

(3) By four votes to one,

Finds that the boundary between the Republic of Benin and the Republic of Niger on the
bridges between Gaya and Malanville follows the course of the boundary in the river;

(4) Unanimously,

Finds that the boundary between the Republic of Benin and the Republic of Niger in the
River Mekrou sector follows the median line of that river, from the intersection of the said line with
the line of deepest soundings of the main navigable channel of the River Niger as far as the
boundary of the Parties with Burkina Faso."

This is the second time a Chamber of the Court has been called upon to decide a dispute

between African States brought before it by special agreement: in 1986 a Chamber of the Court
settled the Frontier Dispute (Burkina Faso/Republic of Mali).

Reasoning of the Chamber

History of the proceedings, geographical and historical background, applicable law

In its Judgment the Chamber begins by setting out the procedural history of this case, which
was submitted jointly by the Republic of Benin (formerly called Dahomey) and the Republic of
Niger on 3 May 2002. The Chamber recalls that "the task assigned to [it] in the present case .. .is
to determine the course of the whole boundary between Benin and Niger and to specify which State

owns each of the islands in the River Niger sector, and in particular the island of Lété",which is
the largest of those islands. The Chamber then outlines the geographical context and historical
background to the dispute between these two former colonies, which were part of French West
Africa (AOF) until their accession to independence in August 1960.

Going on to address the law applicable to the dispute, the Chamber states that it includes the

principle of the intangibility of the boundaries inherited from colonization or the principle of uti
possidetis juris, whose "primary aim is ... securing respect for the territorial boundaries at the
moment when independence is achieved". "On the basis of the principle of uti possidetis juris,
the ... Chamber must thus seek to determine, in [this] case, the boundary that was inherited from
the French administration. The Parties agree that the date to be taken into account for this purpose

are those of their respective independence namely 1and 3 August 1960".

Course of the boundary in the River Niger sector and the question of to which Party the islands in
the river belong

In their Special Agreement, the Parties divided the disputed boundary into two sectors: the

River Mekrou in the West and the River Niger in the East.

The Chamber begins by considering the course of the boundary in the River Niger sector.
According to Benin, the boundary follows the left bank of the river, and bence ali of the islands
belong to it. Niger, on the other hand, contends that the boundary is constituted by the line of
deepest soundings in the river and that the question ofto which Party the islands belong depends on

whether they are situated to the left or right of that line.

The Chamber first examines the various regulative or administrative acts invoked by the
Parties in support of their respective daims and concludes that "neither of the Parties has
succeeded in providing evidence of title on the basis of [those] acts during the colonial period". In
accordance with the principle that, where no legal title exists, the effectivité"must invariably be

taken into consideration", the Chamber then considers the evidence presented by the Parties
regarding the effective exercise of authority on the ground during the colonial period, in order to - 3 -

determine the course of the boundary in the River Niger sector and to indicate to which of the

two States each of the islands in the river belongs, and in particular the island of Lété.

On the basis of this evidence in respect of the period 1914-1954, the Chamber concludes that
there was a modus vivendi between the local authorities of Dahomey and Niger in the region
concerned, whereby both parties regarded the main navigable channel of the river as constituting

the intercolonial boundary. That modus vivendi was in particular based on a letter of 3 July 1914
from the commandant of the secteur of Gaya (Niger), administrateur adjoint Sadoux, to the
commandant of the cercle of Moyen-Niger (Dahomey), to which was appended a list of the islands
of the river with an indication of the colony to which each island belonged according to its position
with respect to the main navigable channel. In that letter Sadoux explained that he had prepared
this list for the purpose of "clearly determining when grazing permits [should] be issued to the

Peuhls from both banks and delimiting the territorial jurisdiction of the indigenous tribunals in the
two colonies". The Chamber observes that, pursuant to this modus vivendi, Niger exercised its
administrative authority over the islands located to the left of the main navigable channel
(including the island of Lété)and Dahomey over those located to the right of that channel. The
Chamber notes that "the entitlement of Niger to administer the island of Létéwas sporadically

called into question for practical reasons but was neither legally nor factually contested".

With respect to the islands located opposite the town of Gaya (Niger), the Chamber notes
that, on the basis of the modus vivendi established by the 1914 Sadoux letter, these islands were
considered to fall under the jurisdiction of Dahomey. lt therefore follows, in the view of the
Chamber, that in this sector of the river the boundary was regarded as passing to the left of these

three islands.

The Chamber finds that "the situation is less clear in the period between 1954 and 1960". lt
adds, however, that, on the basis of the evidence submitted by the Parties, it "cannat conclude that
the administration of the island of Lété,which before 1954 was undoubtedly carried out by Niger,

was effectively transferred to or taken over by Dahomey".

The Chamber concludes from the foregoing that the boundary between Benin and Niger in
this sector follows the main navigable channel of the River Niger as it existed at the dates of
independence, it being understood that, in the vicinity of the three islands opposite Gaya, the
boundary passes to the left of these islands. Consequently, Benin has title to the islands situated

between the boundary thus defined and the right bank of the river and Niger has title to the islands
between that boundary and the left bank of the river.

In order to determine the precise location of the boundary line in the main navigable channel,
namely the line of deepest soundings, as it existed at the dates of independence, the Chamber bases
itself on a report prepared in 1970, at the request of the Governments of Dahomey, Mali, Niger and

Nigeria, by the firm, Netherlands Engineering Consultants (NEDECO). The Chamber considers
that this report "provides the most useful information on the situation at the critical date". Except
in the case of the islands opposite Gaya, the boundary between the Parties therefore follows the line
of deepest soundings of the main navigable channel of the River Niger as it appears in the 1970
NEDECO report, from the intersection of this line with the median line of the River Mekrou until

its intersection with the boundary of the Parties with Nigeria. In the Judgment the Chamber
specifies the coordinates of 154 points through which the boundary between Benin and Niger
passes in this sector; the boundary line is also indicated on a sketch map appended to the Judgment
for illustrative purposes.

In paragraph 117 of the Judgment the Chamber determines to which Party each of the

25 islands of the river belongs, on the basis of the boundary line as described above. lt states
inter alia that Lété Goungou belongs to Niger. The Chamber further observes that this
determination is without prejudice to any private law rights in respect of those islands. - 4-

Finally, the Chamber concludes that the Special Agreement also conferred it with

jurisdiction to determine the line of the boundary on the bridges between Gaya and Malanville. lt
finds that the boundary on those structures follows the course ofthe boundary in the river.

Course of the boundary in the River Mekrou sector

In the second part of its Judgment, the Chamber deals with the western section of the

boundary between Benin and Niger. According to Benin, the boundary in this sector commences
from the left bank of the River Niger, then follows the median line of the River Mekrou as far as
the Parties' boundary with Burkina Faso, whereas Niger daims that the boundary consists of a
straight line in two parts, which starts from the confluence of the River Mekrou with the Niger, but
then leaves the river and runs in a south-westerly direction until it reaches a differently defined

point on the Parties' boundary with Burkina Faso.

The Chamber examines the various documents relied on by the Parties in support of their
respective daims. ltconcludes that, notwithstanding the existence of a legal title of 1907 relied on
by Niger in support of the boundary which it daims, it is clear that, "at least from 1927 onwards,
the competent administrative authorities regarded the course of the Mekrou as the intercolonial

boundary separating Dahomey from Niger, that those authorities reflected that boundary in the
successive instruments promulgated by them after 1927, sorne of which expressly indicated that
boundary, whilst others necessarily implied it, and that this was the state of the law at the dates of
independence in August 1960". The Chamber concludes that in the River Mekrou sector the
boundary between Benin and Niger is constituted by the median lne of that river.

Composition of the Chamber

The Chamber was composed as follows: Judge Ranjeva, Vice-President of the Court,

President of the Chamber; Judges Kooijmans, Abraham; Judges ad hoc Bedjaoui, Bennouna;
Registrar Couvreur.

Judge ad hoc Bennouna appends a dissenting opinion to the Judgment.

This Chamber is one of six Chambers formed by the Court pursuant to Article 26,

paragraph 2, of the Statute and Article 17 of the Rules of Court. Benin and Niger agreed that their
written pleadings and oral argument would be presented in the French language (Article 5 of the
Special Agreement).

A summary of the Judgment appears in the document entitled "Summary No. 2005/2", to
which a summary of the dissenting opinion appended to the Judgment is annexed. The present
press release, the summary and the full text of the Judgment also appear on the Court's website
(www.icj-cij.org) under the headings "What's new" and "Decisions".

Information Department:

Mr. Arthur Witteveen, First Secretary of the Court (+31 70 302 23 36)

Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers (+31 70 302 23 37)
Email address: [email protected]