INTERNATIONALCOUROFJUSTICE
TERRITORIADISPUTE
(LIBYANARABJAMAHIRIYNCHAD)
REPLY
SUBMITTEDBYTHE
GREATSOCLALIST PEOPLE'S
LIBYANARABJAMAHIRIYA
VOLUME1
14SEPTEMBER1992 TABLE OF CONTENTS
PART 1 INTRODUCTION ...........................................1................
...........
CHAPTER 1. THE ESSENTIALSOF THE LIBYAN CASE
AND THE DISTORTIONS OF THAT CASE
IN CHAD'SCOUNTER-MEMORIAL ............................
SEC~~O 1. The Essentials ofthe LibyanCase......................1..................
SECTIO2 N. The Distortions of Libya'sCase in
Chad'sCounter-Memorial .................................................
CHAPTER II. DIVIDE THE PARTIESNTINU.............................12.......................
CHAPTER III. THE TASKOF THE COURT .......................................
SEC~ON 1. Interpretation of the Compromis:
Ordinary Meaning, Contextand
TravauxPréparatoires .................................................
(a) The Ordinary Meaningof the Accord-Cadre .......
The "Context"ofthe Accord-Cadreand the
(b) Importance ofthe PositionsAdopted by
the Parties in their Written Pleadings..................
(c) Factors EstablishingChad'sRecognition
of the Court'sCompétencetoExamine
the Merits of Libya3sClaim......................................
The Lack of Purpose of Embarking on
(d) an "Historical"Interpretation of
the Accord-Cadre .................................................
SECTIO2 N. The Nature ofthe Dispute and the
Task ofthe Court ...................................28...............................
(a) The Alleged"PoliticalNature"
of the Dispute as Presented byLibya..................
?le Nature of the Dispute:
(b) Territorial"orBoundary"? ..................................
(c) The CompétenceRatione Materiae
of the Court...........................................................
(d) The Extent of the Court'sPowers...............30............
(e) The Applicable Law ...........................31......................
The Order ofQuestionsSubmitted
(f) to the Court..................................32.............................. THE ISSUE OF THETREATY BASIS
OF THE BOUNDARY .................................5.................
CHAPTER IV . CONCËRN~NRING POTGHE EXISTENCEOF AIE...p. ~ p ~
CONVENTIONAL BOUNDARY ....................................
The Two PositionsCompared ..........................5..............
Deceptive Points ofAgreement and
Disagreement Conceming the 1955Treaty .............36.........
of 15December 1950bly..................................8....................
CHAPTER V . THE MEANING OF ARTICLE 3 OF THE 1955
TREATY ............................................4..............
........
Introduction...........................................6..................
....
The Treaty'sObject and Purpose ......................49.................
OrdinaryMeaning ofthe Terms
of Article ...........................................5.................
......
Context ofArticle 3...................................66.......................
(a) The 1956Agreement ............................6.............
(b) The 1955Convention ...........................7............
(c) Other Elements Withinthe
Context ofthe 1955Treaty .......................................
(i) U.N. Maps ..............................72......................
(ii) LibyanPetroleum
Regulation No .1
14August 19551o..........................72....................
(iii) Statement of Prime
Minister Ben Halim
on 14October 1955 ......................74................
(iv) Failure to Register the 1955Treaty Under
Article 102ofthe U.N. Charter...........75......
(v) The 1955Treaty's20-YearTerm ..........7....
(d) 1966Libya-ChadAccord ........................7.......
TravauxPré~aratoires ................................7......................
(a) PreliminaryComments .........................79................. (iii)
(b) The as Incorrect and
Inadequate Treatment of the Travaux ...........8.....
(c) Additional Travaux fromthe
French DiplomaticArchives .....................0...........
CHAPTER VI. THE BOUNDARY STATUSQUO ON THE CRITICAL
DATE ASRECOGNISED INACCORDANCE WïïH
THE CRITERIA OF ARTICLE 3 OF THE 1955
TREATY ................................................................
......
SECTIO1 N. Introduction..........................................2.....................
..
SECTIO2 N. 1899Declaration .....................................5.......................
SECTIO N. The 1900-1902Accords .............................1................
SECTIO4 N. 1902Anglo-ItalianAccord ...........................1..............
SECTIO 5. Treaty of Ouchy(1912);
1912Franco-Italian Agreement ......................2...........
(a) Introduction ...................................0...................
(b) The Role of the 1912Treaty ofOuchy
in the Settlement ofthe Present Dispute........22
(c) 1912Fr.anc.-Italian Agreement
(Tittoni-Poincaré)..............................5..............
(i) Ordinary Meaning .......................5.........
(ii) Object and Purpose -Context ............7..
(iii) TravauxPréparatoires ...................1.......
(iv) Subsequent Conduct .....................4.........
(A) Conduct ofFrance and Italy:
OfiïciallyPublishedMaps .........6
(B) Impending Negotiations
Between
Empire and,tthen,toman
France and Ital..................40.......
(C) Franco-Italian Delimitation
Negotiations......................2......
(D) Govemment tom t8.btain Italian
Recognition of the1899
Declaration (as modified
in 1919)and ofthe 1900-1902
Accords .........................44..........
SEC~ON 6. 1915SecretTreaty ofLondon .......................14...........SECTIO 7. 1919 Anglo-French Convention (8September) ........4.6
(a) Context and in the Light of the Object
and Purpose .................................14..............
(i) Text and Context .....................................
(ii) Object and Purpose ....................1...........
Non-opposability of the 1919Convention
(b) to Ital.......................................15................
(c) The 1919Line in the Light of Article3
of the 1955Treaty ............................15.............
(d) The Unaccounted For Segment of
the Conventional Boundary Claimed
(and 16"E)to the Border with Nigerc...........15.....
SECTIO8 N. 1919Franco-Italian Accord (12September) ................
(a) The 1919Franco-Italian Accord
Fixed the Westem Boundary of
Toummo forthe First Timend ...................1.........
(b) The Accord'sRelationship to
Article 13of the 1915
Treaty of London ............................16..............
(c) Libya'sRight to Invoke France's
Southem Boundaiyesp...........................1.............
SECTIO9 . 1924 Anglo-French Protocol and Declaration ........1..4
SECITO1 N0. Period of Italian Protests, Anglo-French
Replies and Franco-Italian Proposals and
Negotiations: 1919-1935 ............................1.................
(a) Introduction ....................................9...........
(b) The Diametrically O posed Viewsof the
British and French & overnments Over
the Meaningand Effect of the 1919
Convention .........................................................
(c) to Protest the 1919ConventionN..................76.......
(d) The "MockWar" Between the Italian
Ministryof Foreign Affairs and
Ministryof Colonies .............................7.........
(e) 1930Italian School Map Atlas Incident.........1... (f) The Consistency of Italian Conduct in
Protesting and Rejecting the 1919
Convention and in Protesting French
Southeast Linei.................................81..............
(g) French Conduct During the Period
Revealing the French Govemment's
Awareness that there WasNo
Conventional Libyan Boundary East
of Toummo ....................................2...................
SECTIO1 N1. The 1935Franco-Italian Settlement ...................83.......
(a) Introduction ...................................83................
(b) Reco nition of the Absence of
Any 8 onventional Boundary ...................84.......
Recognition of Italy'sTitle to
(c) the Temtoriesto the North
of the 1935Line ...............................1.................
(d) The Influence on the Settlement
of the Present Dispute of France's
of the 1915Treaty of Londonrt...................8........
(e) Conclusion ....................................190...................
SECTIO1 N2. Post-1935Agreements and Events .....................1.........
(a) 1941Italian ArmisticeCommission ............1......
1947Italian Peace Treaty .....................1.6..........
(b)
(i) The 1947Treaty and Article 13of
the 1915Treaty of London .............1......
(ii) French proposals to modifyLibya's
and Annex XI ofthe 1947Treatyle 2...........
(iii) France's Failure to NotifyCertain
Agreements under Article 44of
the 1947Treaty ........................19.............
(c) 1949Four Power Commission Report .........1...
Article 4 of the 1951Constitution
(d) of the United Kingdom of Libya ................0.......PARTIII TITLE TO THEBORDERLANDS
INDEPENDENTLY OFTREATIES ...............2.......
CHAPTER VI1 . TITLE TO THE TERRITORY PRIOR TO THE
ARRIVAL OF THE FRENCH ...................2..........
SECTION1. The Borderlands Were NotTerr Nuallius
at the End of the 19thCentu.................................
SECTIO2 . The Relevance ofthe Western Sahara Cas.............
(a) Did the Court Intend toState
aPrincipleofGeneral Application................
(b) 1sthe Court's Opinion Consistentwith
Doctrine inthe Relevant Penod 1899-1914)
showthat the Borderlands Wereroperly
Regarded byFrance asTer r allius.............
SECTIO3 . The LinksBetween the Tnbes suchas the
Toubou and the AwladSulaimanand the Senoussi....16
SECTIO4 . The Identityofthe indigenous inhabitants
of the Borderlands withLibya..........................
SECTIO5 . The Basisof the EarlyClaims
bythe Ottoman Empire .............................................
SECTIO6 . The Nature of "SharedSovereignty"inthis Regi....23
SECTIO7 . The Effect of the Treaty ofOuc...................5........
CHAPTER VI1. THE FRENCH CLAiMSOF TITLE ......................
SECTIO1 . Chad'sMisuseofthe Notion of
"Inter-temporal"aw ..............................7..................
SECTIO2 . The Nature and Extent ofFrench Occupation
(Effectivités)of the Borderlands.................8...........
SECTIO3 . The InvalidityofAcquisitionofTitle
toTemtory byConquest Post-1919 ..................2.........
PART IV CONSISTENCYOF CONDUCT AND
THEISSUEOFACQUIESCENCE .......................3..........
CHAPTER IX. CONDUCT OF THE OïTOMAN EMPIRE.
THE SENOUSSI.FRANCE. BRITAIN.
AND ITALY PRE-1945 .........................2.7................
SECTIO1 . Introductio....................................2.7....................
SECTIO2 N. Ottoman Conduct ...............................24...................
SECTIO N. SenoussiConduct ...............................2.3..................... (vii)
SECIIO4N. BritishConduct.................................245..............................
SECTIO 5. French Conduct.................................250.............................
SECTIO 6. ItalianConduc..................................2.....................
CHAPTERX . SUBSEQUENTCONDUCTOF INTERESTED
PARTIES UNTIL 1951 ..........................25..........
SECTIO 1. French ConductinFezzan and
the Libya/ChadBorderlands......................257...................
SECTIO 2. SenoussiConductDuringWorldWar II .............57.....
SECTIO 3. TreatyofPeacewithItalyand
FourPowerDiscussionsonLibya ...................58..........
SECTIO 4. Libya'sBoundaneso..............................260...........................
CHAPTER XI CONDUCTOF LIBYAANDCHADPOST-1951 ...266
SECTIO 1. Introductio....................................26.................
SECIIO2N. ConductofLibyaand Chadinthe
ContextofTheirMutualRelations ..................67.........
SECTIO 3. The PositionsTakenbyLibyaand Chad
Beforethe O.A.U. ..............................277............................
SECTIO 4. BehaviourofLibyaand ChadBeforethe U.N ..............
SECIIO5N. Conclusions.....................................85....................
SUBMISSIONS ...................................................293...
..............................
VOLUME2 SupplementaryAnnexes
VOLUME3 Exhibits
Part A....xhibitsLR 1-6
Part B....xhibitsLR 7-15 (viii)
MAPINDEX
Appearing
Mau Number at Para.
LR 1 Comparisonbetween: .........................................................
1911aVilayetofTripoliproposa1
1929 Italian claim
LR 2 Comparisonbetween: ............................................................
U.N. Map No. 241
Map No.by1Petroleum Regulation
LR 3 Temtonal coverageofthe ..................................2.................
1955 Treaty
LR 4 Libya-Algenaboundaiy rectification1956...........................
LR 5 Vanous boundary scenarios .................................9..................
between Point 1010and Toumrno
LR 6A The 1955 Convention .......................................3......................
"Régime frontalier"
LR 6B The 1966Libya-ChadAccord ...............................72.................
"Régime frontalier"
LR 7 Mourie Idie -PisteNo.5.....................................5.....................
LR 8 Companson between: ......................................8......................
Libvan National Atlas1978
1953 LibyaPetro1eum'~e~ulation
Map No. 1
. .
LR 9 1899Anglo-FrenchDeclaration............................6.1............
LR 10A French Army Map:1896 ..................................6.18..................
LR 10B Justus Perthes Map:1892...................................8...................
Geographical setting ofth................................4..................
LR 11 1900Franco-Italian Accord
LR 12A "Extract"ofthe Livreiaune................................5...............
map appearingat CJ& page 162
Reproduction of theLiv r................................5...............
LR 12B iau n ep (fold-out)LR 13 Justus Perthes map, 1892,showing: ..........................................
Tripolitanian notional boundary .........................................
Strict southeast line,Article 3,
1899 Declaration
LR 14 Pre-1919 gap between the .................................................
1910Franco-Ottoman Treaty boundary
and the 1899Anglo-French
Declaration east-southeast line
LR 15A Map annexed to A.E.F. Annuaire ............................1.............
of 1912
LR 15A-1 Same withexplanatory ......................S.....A.n.... No. 2
legend5 Para. 8
LR 15B 1912French Ministryof Coloniesmap .......................1..0........
LR 16A-1 1906Italian Ministryof Foreign .............................1..2...........
Affairs rnap
LR 16A-2 Detail of 1906rnap ..............................................................
LR 16B 1912Italian MinistryofForeign .............................1..2.............
Affairs rnap
LR 16C 1917Italian Ministry ofColoniesmap ........................1.............
LR 16D 1941Italian MinistryofForeign .............................1.1............
Affairsrnap
LR 16E 1930Italian schoolatlas map ...................................................
..............................................p...n..ex.N..........
..
LR 17 Ottoman occupation of the Libya-Chad ...................................
borderlands:
1908-1913
LR 18 Cornparison between: ..............................................................
1911Recommendation ofthe Vilayetby
Tripoli
LR 19 The Anglo-French Conventionof ..........................6..3.......
8September 1919
LR 20A Temtory encompassed bya strictsoutheast ....................41.......
line and 1919Anglo-French line
LR 20B Territory encompassed bya strictsoutheast
line and the Livreiaune line...................................41.............
Temtory encompassed bythe Livreiaune ......................41.......
LR 20C lineand the 1919Anglo-French line
LR 21 Reproduction of the Livreiaune map .......................6.15..........
(reduced) Justus Perthes map, 1892,showing .........................6.1..0............
Tripolitanian notional boundary
3,1899sDeclarationne, Article
Comparison: French MilitaryPresence: .....................6....0.....
1914,1917-1929; ..............................................0...............
.....
Strictsoutheast line;
1919 Anglo-FrenchConventionline
French militarybattles in the Libya-Chad...................6........
borderlands: 1914-1927
Sarra Triangle.............................................6.1..3................
Franco-Italian negotiationsfollowing.......................6.1..7...........
the 1919 Declaration
1930 Italian schoolatlas map ................................................
Frontiers ofLibya: 1948 boundary proposals ....................1.
ofEgypt andFrance
French Boundary Proposal: 1953 ...........................6...1...........
French BoundaryProposal: 1954 ...............................1...........
French Boundary Proposal: 1955 ...........................................
LR 28 Pro essionde l'OccupationFrancaise - 1900-1914 ..............5..
(LR 22) (& p. 254):contrasted withthe facts and .
the tme picture (LR 22)
1908-1912resence inthe Libya-ChadBorderlands ...............2
"Zone àSurveiller"..........................................9.32.....................
implemented bythe French militaiy: 1930
U.N. Map No. 241..........................................10.1...................
.
Libya'sClaim ................................................on..
1987 O.A.U. Map ............................Su..p....n...N.o.2;
para. 6
Map No. 41 from Chad'sMap Atlas ..........Su....Annexpara.215
Map No. 43 from Chad'sMap Atlas ..........S..... Annex No. 2;
para.15
Cha ac'sMap Atlasos. 33,68 and 98 from ...Supp.AnnexNopara.23
World BankMap 1960.......................S.u.....n...x..o. 2;
para.32LR 38 World BankMap 1960 .......................u.p...n....No. 2;
para. 32
LR 39 OilCompanyMap ..........................upp...nn...N.o. 2;
para. 32
LR 40 Oil CompanyMap ..........................upp...nn...N.o.2;
para. 32
LR 41 OilCompanyMap ..........................u.p.A.n.e..N.o.2;
para. 32
LR 42 1926Italian Map withstric...................pp...nn.exNo. 5.5
southeast line
LR 43 The General Setting........................S.....A..nexNo. 7
LR 44 Map withFrench boundary proposals .....upp.Annex No.6.3(1)
of 1946,1953 PART1
INTRODUCTION
1.01 This Reply is fïled by Libya in accordance with the Court's
Order of 14 Apnl 1992 fixing 14 September 1992 as the time-limit for the
submjssion of Replies by the parties1. Libya'sReply issubmitted in four volumes:
Volume 1 -the text of the Reply (Parts 1-IV)and Libya'sSubmissions;Volume 2 -
Supplementary Annexes; Volume 3,Parts A and B - Exhibits.
CHAPTER1. THEESSENTUS OF THELiBYANCASEANDTHE
DISTORTIONSOFTEATCASEIN CHAD'SCOUNTER-
MEMORiAL
SECTIO 1N. TheEssentialsof theLibvanCase
1.02 The proposition which is fundamental to Libya'scase is that
there is not, and never has been, an established conventional boundary in the
borderlands between Libya and Chad. It follows from this that the Court is
required by the Accord-Cadre to resolve the "temtonai dispute" referred to the
Court as, in the first place, an issue of tit loethe territory. It is a classic
illustration of the "attribution" of territory between two rival claimants on the
basis of which claimant establishes the better claim of title. The determination of
a precise line of delimitation, dividingthe areas over which the two Parties have
the better claim, is essentially a second phase of the judicial task. But neither the
task of "attribution" nor that of "delimitation" is outside the proper scope of the
judicial function.
1.03 It is equally fundamental to Libya's case that it does not
invoke any "new"legal theories or pnnciples , but relies on principles and critena
- whether relating to attribution or to delimitatio- which are well-established in
the law. Thus, there is nothing novel in Libya'sreliance on pre-existing legal titles
to the temtory. lnsofar as Libya is the successor-in-title, such reliance is entirely
normal. There is nothing novel or extraordinary in Libya'sdetailed and ngorous
-~~ - -
1 Termssuch as "Libya"and "Chad"as definedin Libya'sMemorialwillcontinue Iohe used
in the same sense in the present pleading. ReferIOcthe Memorial and Counter-
Memorial of Libyaand of Chad willoften be made hy theofthe acronymsLM, LC-
hl, and respectively.Abbreviated references will ofien be made to
international agreementsand linesproducedhythem. For example,the "1935line"refers
to the boundary agreed between Italyand France in the 1935Treaty of Rome (the "1935
Treaty"), ratifications of which were not exch&,geSuii~lementamAnnex, No.1,
hereto, foran explanationof other similarabbreviatedreferences.analysis of the complex treaty history affecting Libyan temtory, for only by such
means can the fallacies of the Chadian thesis be exposed. And, insofar as Libya
demonstrates that the borderlands were not terra nulliuswhen invaded by French
military forces, that demonstration is based upon the Court's own Opinion in the
Western Sahara Case2, and involvesonly such deductions from the pnnciples of
that case as arelogicallyinherent in the Opinion.
1.04 Nothing in Libya's case invites States generally, whether in
Africa or elsewhere, to challenge established boundaries. By the accidents of
history, Libya has been left with an undefined, undelimited boundary which
requires determination byjudicial means. The Court has assumed such a task in
other cases - in the Burkina FasolMali case3, and more recently in the a
Salvador/Honduras Case 4, for example - and it is unacceptable to treat an
application to this Court to determine an unresolved boundaiy as if it were an
invitation to world-wide anarchy.
1.05 Libya has succeeded to certain established boundanes in the
Westand the east and, whilstthe circumstances leading to their establishment may
be a matter of regret, Libya fullyaccepts that, tothe extent these boundanes have
been established, they must be respected. But Libya's"boundaiy" in the south isa
veiy different matter. There is no doubt that, as a matter of indisputable
historical record, the borderlands were held and inhabited by tribes closelylinked
to what is now Libya, were claimed by the Ottoman Empire, but were gradually
and systematicallyinvaded by the French. That invasionwas strenuously resisted
by the indigenous peoples, organised and led by the Senoussi. Ultimately,
however, that resistance was mthlessly suppressed by France in a campaign of
undisguised, colonial expansion.
1.06 Certainly it is true that France sought international
recognition for its expansionist ahs. Bya series of agreements with Great Britain
and Italy, as will presently be shown, France sought agreement as to the precise
limits of the temtory it intended to acquire by conquest. The agreement sought
was from States also engaged in colonial conquest and expansion. But in fact,
2 Western Sahara, dvisorvOuinion.LC.1.Reports1975p.12.
3 FrontierDisuute.Judement.I.C.J.Reports198p.554.
4 Land,IslandandMaritimeFronticrDisuute (El SalvadorMonduras).ArhitralAwardof
31 Julv1989.ProvisionalMeasures,Orderof2 March1990,I.C.J.Reports199p.64.that agreement was never reached between France and other States ca~abie of
agreeinp on a boundaw in the borderlands. Italy alone had that capacity after the
1912Treaty of Ouchy, holding sovereignty between 1912 and 1947,but its 1935
treaty with France was never implemented.
1.07 Libya thus faces a claim by Chad in which Chad essentially
relies on French claims based upon military conquest of the tribal peoples of the
borderlands, and, moreover, conquest at a time when France had solemnly
renounced the right to acquire territory by conquest.
1.08 Not surprisingly, Chad is reticent about placing its claim on
so defective, and unattractive, a basis. Thus, Chad presents before the Court a
somewhat abstract claim of title, as deriving from this series of international
agreements in which France attempted to secure recognition of its expansionist
aims. The treaty history is somewhat complex but it can be summarised as
follows.
1.09 For practical purposes, one can begin with the year 1890
when the ottoman Empire first articulated its Tripolitanian hinterland claim,
which was neither accepted, nor specificallyrejected, by Britain and France. The
Anglo-French Additional Declaration of 1899is the next big "international act".
At that time, French military forces had not yet reached Lake Chad. There was
no British civilor military presence in tem'tories immediately to the north or east
of the famous southeast line described in Article 3 of the Declaration. From the
British point of view, the Declaration did not truly divide "spheres of influence"
between Britain and France and did not affect the territorial claims or
prospective claims of other Powers. It merely posited a line to the north and east
of which France would not seek to extend its pretensions. This was the
explanation given at the time, or shortly thereafter, to the Ottoman and Italian
representatives.
1.10 The Franco-Italian Accords of 1900 and 1902 were not
concerned at al1with the southeast line described in Article 3 of the Declaration.
They were primarily directed towards reassunng Italy (as the European Power
hoping to succeed in due course tothe rights and titles of the Ottoman Empire in
and in relation to Tripolitania) that France's territorial ambitions in North Anica,
where it was at the time in possession of Tunisia and Algena, did not extend to anencroachment from the West on the territory of Tnpolitania as it was then
generally understood ta be.
1.11 The Anglo-French Convention of 8 September 1919 is not
directly relevant to the determination of Libya's southern boundaiy east of
Toummo. That Convention may have established, as between Britain and
France, and subject ta further delimitation in the area betwee11" and 1S0N, a
north-south boundary dividingwhat the parties considered to be French or British
territones on its east and Westup to a point a19"3û'N latitude. But that point
was not opposable to Italy which protested strongly against t1919 Convention
on the grounds that its purported effect was to deprive Italy of territories to which
it was legaliyentitled on the grounds of Italy'ssuccession to Ottoman rights and
titles. The prolonged negotiations between France and Italy between 1920 and
1934testifyto the absence of any agreed southern boundary of Libya at that time.
1.12 The Treaty of Rome of 1935 for the first time established
such an agreed boundary, but, for reasons unconnected with that boundary, it
failed to enter into force.
1.13 U.N. General Assembly Resolution 392(V) acknowledged
that there was a portion of Libya'sboundanes with French temtones which had
not been delimited by previous international agreements; the circumstances
surrounding the adoption of that Resolution clearlydemonstrate thatthat portion
was Libya'ssouthern boundary with French territones east of Toummo. Article 3
of the Franco-Libyan Treaty of 1955 did not, directly or indirectly, establish
Libya's southem boundary with French temtones east of Toummo for reasons
made abundantly clear in Libya'sprevious written pleadings. These reasons will
again be set out in ParIIof this Reply.
1.14 These are the bare bones of Libya'scontention that there is
not now, and never has been, any conventional boundary separating the
terntories of Libya and Chad. This contention is amply sustained and evidenced
by the voluminous materials which Libya has presented to the Court, including
materials that demonstrate that France itself recognised1935,in a most formal
fashion, the absence of any conventional boundary with Italy (then exercising
sovereignty over Libya) east of Toummo. 1.15 AsFrance has never acquired title on the basis of treaty law,
other modes of acquisition of title necessarily must come into play. In the viewof
Chad, France has indeed established a title on the basis of conquest and
occupation. Turning, first, to occupation, these French and Chadian arguments
must be wrong because they assume that the borderlands were terra nullius.
However, they were not, as the Western Sahara Opinion of the Court clearly
shows. For the Senoussi peoples were organised in a political, military, economic
and cultural manner which, according to this Opinion, excludes acquisition of title
on the basis of occupation. Presumably aware of this situation, Chad additionally
seems to rely on title by conquest. However, by the time French forces moved in
any strength into the borderlands, conquest had become illegalon the basis of the
Covenant of the League of Nations in 1919and the Kellogg-Briand Pact in 1928.
Moreover, rnilitary occupation in itself will not satisfy the requirements for
acquisition of title, and this is conceded explicitlyby Chad. And France never
established a civilianorganisation in the borderlands. In consequence, the modes
of acquisition discussed and claimed byChad willnot lead to a title to which Chad
could succeed.
1.16 Thus, in the absence of a conventionalboundary, and of any
title based on occupation or conquest, the Court will be forced to rely on other
rules to govem both attribution and delimitation. These are the accepted rules of
attribution of temtory which serve to delimit the territones of sovereign States. It
is regrettable that Chad, in al1her pleadings, has entirely failed to assist the Court
in the task of identifymg and applying these niles. It has rested with Libya in its
Counter-Memorial to spell out these rules of attribution, to apply them to the
facts of the case and to indicate the frontier whichresults.
1.17 It is necessary to approach this task in anhistorical manner,
as Courts have done in previous cases, establishing step-by-step the evolution of
the factual and legal situation in the borderlands. And the central lesson of
history relevant to this case showsthat the Senoussi Order had established itself in
the region by 1890 and had governed the territory comprising the borderlands
under a system of power-sharing with the Ottomans until the end of 1912. The
Senoussi peoples defended their territory against the French colonialist forces al1
along, and they continued to do so in spite of the French military advance into the
borderlands after 1913. And when Libya gained independence in 1951, Libya
inherited the borderland temtory which the Senoussi peoples, together with the
Ottoman Empire and Italy, held from the mid-19th Century to 1947-1951. Thus,the Libyan case rests on the recognition that the indigenous peoples, organised
and led by the Senoussi, who had fought the colonial Powers for decades, had
held title and never lost it. It was the legal nghts of the indigenous peoples,
coupled with the assertion of sovereignty on the international plane by the
Ottoman Empire and Italy successively,and the specific rights which Italy had as
against France, which Libyaacquired in 1951upon independence.
1.18 After 1951, this legal situation never changed even though
Libya was not in a position to assert her temtonal nghts by military means. Nor
did Libya acquiesce, at any point after 1951, in claims by France or Chad which
were incompatible with the temtonal nghts inherited by Libya. The intemal
stnfe within Chad after independence in 1961 precluded any settlement of the
boundary issue until, in 1989,the Parties agreed to submit their dispute to the
Court.
1.19 The Court has, in Libya's subrnission, the necessary facts
and evidence to determine both title and a precise boundary. On the basis of the
maps and documentary evidence provided in the Libyan pleadings, it is possible
to identify the limits of Ottoman occupation as well as of legallyeffective French
penetration prior to the Covenant of the League outlawing further acquisition of
temtory. And the location of tnbes, their affiliations and links, whether cultural,
religious or economic, together with the geography of the terrain, are al1matters
sufficientlywithin the knowledge of the Court to permit a boundary to be drawn
whichwillconform to the law and to equity.
1.20 This, then, is the essence of Libya's case. It is immediately
apparent that the portrayal of Libya's case in Chad's Counter-Memonal defies
recognition. In the Section that followsthe major distortions of Libya'scase are
identitied.
SECTION^. The Distortions of Libva's Case in Chad's Counter-
Memorial
1.21 At a stage in the written pleadings when the Parties are
expected to identify the essential issues that dividethem, so asto assist the Court,
itis to be regretted that Chad has sought to distort and misrepresent Libya's
arguments. Whether done byway of a senes of wildaccusations against Libya,or
byway ofa re-formulation of Libya'sarguments sothat they become a travesty of
what Libya has actually said, the result is the same: the issues before the Court-which need to be clarified and identified -become increasingly blurred and
obscured by rhetoric.
1.22 Thus Libya is accused of seeking to promote anarchy. Why
else should Chad's Counter-Memonal begin by comparisons with Iraq's invasion
of Kuwait, and with the confused situation in Yugoslavia and the Soviet unionS?
What other purpose is sewed by the repeated accusation that the Libyan claims
will have a politically-destabilisieffect in Africa as a whole6? How can the
7
continued accusation that Libya does not respect its treaty obligations a?sist
1.23 It is a fact of international life that boundary disputes and
unsettled frontiers do exist, not only in Africa but elsewhere in the world.
Whatever the causes may be, they are not of Libya'screation, and it is little short
of absurd to cite this fact of international life as "proof' of Libya's intention to
promote international anarchy. Indeed, given that Libya has voluntarily
submitted this dispute for settlement by the International Court, it is an
extraordinary concept of anarchy that would viewsuch a submission of a dispute,
for settlement by law,as promoting "anarchy".
1.24 There is a portrayal of Libya as "revisionist", as a State
seeking to revise the existing boundary and promote the "secession"of northern
Chad 8. But, clearly, this merely begs the question. Chad simplyassumes that the
frontier& fixed by treaty, and thus characterises Libya'saim as seeking to revise
the relevant treaties. Yet this net Libya'sargument. It should be apparent to
even the most casual reader of Libya's Memonal that Libya denies that this
frontier has ever been established by treaty. And, far from being a novel thesis,
surprising Chad, it is a thesis which emerges with absolute clarity from the
diplomatic record. The Ottoman Empire protested the Anglo-French
5 See,9C-M para1. .01.
6 See, CC-M.paras.1.08and12.20.
7 See, CC-M.paras.3.23-3.25, whereChad suggeststhat Libyaseeks to invalidatethe
boundarytreatiesof 1899,1919and 1955retroactivelybyinvokinglus weens. This isa
travestyof Libya'sargument. Libya'sargumentdoes not go to the validityof those
treaties;its pissimplythatthose treatiesdidno1establisha boundaryopposableto
Libya.
8 a especiallu. paras.4.20-4.21andthe cornparisonwith Ruanda-Unindi.
alsoCC-M .aras.12.08,12.16and12.19. 9
pretensions over what the Porte regarded as its hinterland from the 1890's ,and
specificallyrejected any claim that the line established in the 1899Anglo-French
Declaration was a boundarylO. Italy, in turn, rejected the 1919 Anglo-French
Convention line as a boundary1', and claimed territory roughly equal in overall
extent to the present Libyan claim. Thus, if there is any "novelty" about the
present Libyan claim it can only be so regarded by someone who has totally
ignored the whole diplomatic record. So either the claim of "novelty"betrays a
quite exceptional degree of incompetence, or it isin fact a quite specious claim.
1.25 In much the same vein Libya is portrayed as "expansionist",
as a State with "un appétit territorial féroce"12. But the historical record shows
unmistakably who the expansionist Power was: it was, without question, France,
and in effect Chad now seeks to derive full benefit from the voracious appetite of
that Colonial Power. Sofar as Libyais concerned, thetemtory it claims isLibyan,
and Libya has at no stage transgressed an established international frontier or
occupied "foreign"territory. The Tombalbaye letter of 197213 recognised the so-
called "Aouzou Strip" as being Libyan territory -and hence the lack of protest by
Chad when Libya established its administration there shortly thereafter. Even the
later involvement of Libyan forces in the interna1 conflict in Chad was at the
specific request of the Government of chad14.
1.26 An accusation of a different kind, but nevertheless untrue, is
that Libya belittles Chad, portraying it as an artificial creation by a Colonial
power15. Libya in its Memonal had merely cited a respected authority who had
commented on the very special circumstances under which Chad achieved its
independence16. That being said, it is a matter of record that, on independence,
9 See,LM.paras.5.49-5.55.
10 S& especially,thedispatchof 19May1899,LM,FrenchArchivesAnnex,p.61.
11 See.LM. paras5..188-5.191.
12 CC-M. para.1.03.
13 See, LC-M, paras..119-5.120.
14 Libyan forces were promptly withdrawn when so requested, although Libyan
governmental authority remainein the northern borderlands here it was lawfully
present.
15 See,CC-M, para1..09.
16 See. LM. para. .532.Libyawelcomed Chad intomembership of the United Nations, concluded treaties
with Chad on a basis of full equality, and extended aid and assistance to Chad on
a scalematched onlyby France. So it isnot that Libya seeks to "belittle"Chad but
rather, on a basis of sovereign equality, Libya seeks to resoive a genuine dispute
over title to territory. Libya does not see itself as "dominant" in this relationship.
Even accepting the present disparity in wealth, Libya isvery conscious that its oil
reserves will not last forever, and that the day may come when Chad - with its
larger population and broader economic base - sees itself as the more
"d~minant"'~.
1.27 There is, finally, the rather serious accusation18 that Libya
argues a case based on facts rather than law, a case politically motivated and
entirely "strategic-by which it is implied that Libya makes large claims simply
hoping the Court willhave to give it something.
1.28 Libya makes no apology for its attempt in both its Memonal
and Counter-Memonal to set out the facts, carefully and thoroughly. It will by
now be evident to the Court that the facts are complex, but of the highest
importance. Chad may wellhave an interest in glossingover the facts, for it is the
facts which givethe lie to so many of the propositions at the heart of Chad's case.
To give but a few examples: the proposition that the 1899lie and the 1919line
are the same; the proposition that France had completed effective occupation of
the entire borderlands by 1919 (or even by 1914, as the CC-M appears to
contend); the proposition that the borderlands wereterra nullius; the proposition
that the southem boundary of Libya was clear to the United Nations in 1950-
1951;the proposition that in the 1955Treaty the Libyan side accepted that the
southem frontier of Libya had been previously delimited by treaty- a11these are
propositions thatcan be shown to be false on the facts. There seems little point in
engaging in lengthy, and somewhat abstract, expositions of legal principle when
what is needed is a close analysisof the facts to see whether such legal principles
have any relevance.
17 Thisis notto givecredenceto the suggestionbyChadm.t para.1.36) that Libya
sees itself threabynChad. However, the possibirhatotherPowersmightpose a
threatto Libyafrom Chadianterritorycannotbe excluded,so that Libyamust remain
wncernedabout thedefensibilityof itssouthern frontier.
18 Se. CC-M,paras.1.19and2.06. 1.29 As to the suggestion that Libya makes a "strategic", or
"opportunistic" claim, askingfor much in the hope that the Court willaward itjust
a little19, it need only be stated that the Ottoman Empire and Italy were fully
prepared to negotiate with France on the basis of claims of roughly comparable
temtorial extent, as Mau LR 1 illustrates20. Neither the Ottoman Empire nor
Italy contemplated claims before this or any Court. They had no ')udicial
strategy" of any kind. The claims they advanced were regarded as bona fide
claims, based on the best available evidence, as are Libya's present claims.
Chad's suggestion that these are novel, opportunistic claims concocted with the
Court in mind suggeststhat Chad simplyhas not read, or else wishesto forget, the
historical record.
1.30 Libyawould have liked to have kept this Reply down to one,
relatively short, volume, but circumstances have made this impossible. as
mentioned in paragraphs 5.99-5.102below, Libya has only recently been granted
access to certain French archives containing important documentsbearing on the
case. These documents are placed in evidence in Volume 3 as Exhibits to this
Reply. This new evidence has, in turn, made it necessary to supplement the
documents already provided from other files. Second, Chad's Counter-Memonal
contains a large number of assertions that are incorrect and require rebuttal. This
has made it necessary to present certain additional evidence.
1.31 In order to assist the Court in its examination of this new
evidence as well as to understand why some of Chad's assertions are so totally
wrong in certain instances, Libya has prepared eleven Supplementary Annexes,
which comprise Volume 2. References in the text of the Reply to this
documentary evidence will, in the first instance, be to Volume 2, where the
19 .-e CC-M, para.12.25.
20 &, also, the mapsillustratingthe successiveTurkishand Italianclaimsandproposals
reproducedin thLM: MapNos.521B,54-57and68-73.meaning and relevance of the evidence is summarized. Then, in Volume 3, the
new evidence itself maybe found and examined in detail.
1.32 To take an example, Su~~lementan, Annex, No 6 is divided
into 10 sub-annexes (6.1-6.10) in which particular documents or groups of
documents are commented on. The evidence itself appears in Volume 3,
Exhibit 6, under the same sub-annex numbers as in the Suuplementaw Annex,
that is,R Exhibits 6.1-6.10.Ifwithin a sub-annex there are several documents,
the particular document being referred to is set forth in parenthesis:
Su~~lementan, Annex, No. 6.4(6) or 6.4(Document 6).
1.33 In some cases, where documents have heretofore been
placed in evidence by either Libya or Chad, the documents themselves have been
appended to the Volume 2 commentary rather than placed in Volume 3, so as to
make it easier to examine the evidence directly in weighing the respective merits
of the differing positions of the Parties.
1.34 Finally, since there are so many assertions in Chad's
pleadings with whichLibya takes issue, it has not been possible to deal with each
and every one of them. As a result, Libya informs the Court that its failure to
address an argument or an assertion concerning a question of fact or law does not
imply Libya'sagreement or acceptance thereof; such arguments or assertions not
addressed must be deemed to have been denied byLibya.CHAPTERII. THE ISSUES THAT CONTINUE TO DMDE THE
PARTIES
2.01 The Counter-Memorials of the Parties reveal only a very
marginal area of agreement: this includes the propositions that, in this case, the
critical date is 24 December 1951 (the date of Libya's independence); that the
1955Treaty would be expected to be the starting-point for the Court's task,since
it either did (Chad's view) or did not (Libya'sview) establish the boundary; and
that a valid title totemtory cannot be acquired by force.
2.02 Beyond this, however, the Parties remain fundarnentally at
odds; and in this Reply, Libya has tried to concentrate on the essential points of
difference. It may assist the Court to have these essential questions listed with
references to where, in this ~e~l~l, these points have been addressed.
2.03 m, does the Court's com~étenceextend to deciding on a
delimitation which involvesattribution of temtory, based on evidence as to which
of the Parties has the better claim to title; or is it limited to delimitation in the
narrow sense of deciding between the 1899-1919 "line" and the 1935 line?
(Chapter III of this Reply).
..
2.04 Second, did the 1955Treaty establish a bounddirec (itlv
the sense that it identified and established a line) and was constitutive of the
boundary, or indirectly (&by reference to international acts which established
the line) and hence was only declaratow of whatever boundary existed on the
cntical date? Chad argues both possibilities,whilst Libya rejects both. (Chapters
IV, V and VI of this Reply).
2.05 m, in the event that no treaty delimitation of the
boundary can be established, whichParty has thebetter claim of title? 1sit:
- 1had based on successionto France, byvirtue of:
- Occupation of the territory as terra w?
(Chapter VI1 on the nature of the territory; and
Chapter VI11 on the evidence of French
"occupation".)
1 Therelevantsectionsof the Replycontainfurtherreferencesto theearlierpleadings.boundary, in which the sole question to be answered iswhether the boundary line
separating Libya from Chad lies along the northern edge or along the southern
edge of the so-called "Aouzou Strip". As a result, Chad contends that the Court
has not been, and could not be, seized with the task of resolving a "territorial"
dispute concerning the attribution of territory to one or the other Party. Libya, on
the other hand, considers that the compétence of the Court is subject to no
limitation of this kind.
3.05 Regarding the second theme, Chad contends that the sole
task conferred on the Court is precisely to decide which of two possible boundary
lines is the line binding in law: the 1899-1919line or the 1935line? In contrast,
Libya considers (i) that nothing stands in the way of the Court deciding that no
conventional boundaiy has ever been fixed in the region, (ii) that therefore the
boundaiy is to be determined now for the first time by the Court itself in the light
of international law, taking into consideration the respective Iegal titles of the
Parties over the territory in dispute, and (iii) that it cannot be mled out a pnon
that the ultimate boundary mav not correspond to either of the lines posed by
Chad as alternativesfor the Court to choose between.
3.06 As to the thi hedme, Chad contends that the Court can
discharge this task essentially by applying pertinent international treaties and, in
particular, by not allowingequitable principles to play any role at all. In contrast,
Libya considers that, although a number of international agreements may prove
useful to the Court, none alone or in combination decides the question.
Accordingly, the Accord-Cadre does not in any way limit recourse to other
sources of international law; and whatever sources of law are relied on, whether
conventional or othenvise, equity will have an important role to play within the
jurisdictional framework of the resolution of the dispute secundub.
3.07 Notwithstanding the differing points of view of the Parties
on these three themes, the Parties are in agreement that the reconciliation of
these differences must be drawn from an interpretation of the Accord-Cadre of
1
31 August 1989, which without any doubt constitutes a comoromis . Where a
compromis existsit constitutes "labase mêmede la compétencede la cour2", for
1 See, the Court'sOrderof26 October1990,settthipoint.
2 Guyomar, G.:Commentairedu r&elementde la Cour Internationalede Justice, Paris,
Pedone, 1983p.253."...celle-ci est déterminée dans les affaires contentieuses par l'étendue du
consentement des Parties de se soumettre à la juridiction de la cour3". In other
words, unquestionably the principle extra comuromissum arbiter nihil facere
isvalid for theCourt as well.
3.08 Hence, it is appropnate to begin, once again, by taking a
close look at the Accord-Cadre of 1989in order to determine the extent to which
a serious lack of agreement continues to exist between the Parties, after having
exchanged Memorials and Counter-Memorials, concerning the scope of the
comuétence granted to the Court by this comuromis. This will be taken up in
Section 1. This analysiswillthen make it possible - in Section 2- to consider the
three themes on which the Parties differ in the light of the pleadings of the
Parties.
Smo~ 1. Interuretatinn of the Com~romis: Ordinarv Meaning,
CnntextandTravaux Pré~aratnires
3.09 Aswith any international agreement, the Accord-Cadre isto
be interpreted in the light of the pertinent criteria and principles. The Parties
have expressly agreed that these criteria and principles are those set out in Article
31, aa., of the 1969 Vienna Convention on the Law of ~reaties~. Both the
jurisprudence and the doctrine are unanimous in the viewthat these articles are a
codification of general international law concerning the interpretation of treaties.
They are entirely appropnate for application here even though neither Libya nor
Chad has ratified the Vienna Convention.
3.10 The ordinary meanine,of the Accord-Cadre willbe taken up
first (para. (a)), analysed within the framework of its context (paras. (b) and (c)).
Asfor the travaux préuaratoires of the compromis and "the circumstances of its
conclusion" (Article 32 of the Convention), these certainly must be considered,
bearing in mind that their role is only that of "supplementary means of
interpretation" and cannot be used to modify the clear result pointed to by the
ordinary meaning of the text in its context (para. (d)).
3 Abi-Saab, G.: Les exceptions prkliminaires dans la proddure de la Cour internationale,
Paris, Pedone, 1967.
4 % U.N. Doc. AICONF.39/27,adopted 22 May 1969;reprinted in, ILee.Mat, Vol.
VIII, 196p.679,atp.691. TheOrdinaw MeaningoftheAccorà-Cadre
(a)
3.11 In their written pleadings, the Parties have set out the
elements to consider in order to discem the ordinary meaning of the com~romis.
To begin with, the words "territorial dispute" appear formally in this instrument's
title.Then, after stating in its Preamble the intention of the Parties to "régler
pacifiquement leur différend territorial", the Accord-Cadre repeats the terms
"différendterritorial" two more tjmes (Article 1 and Article 2, first phrase) to
indicate at what point the "différend"itself (this time without any adjective) will
be submitted to the Court (Article 2(a)): in the event a "réglement politique"
would not appear feasible. Further on, in (b) of the same article, the instrument
refers to "la régionlitigieuse", without any geographical definition. Finally, the
Parties undertook certain accompanying measures pending the Court's rendering
of "unarrêtdéfinitifsur le litigeterritorial"'.
3.12 There is no question that the Accord-Cadre omits most of
the details identifymg with any precision the dispute or what the Parties expect
the Court to do. But the essential elements are therefir hat the dispute
submitted to the Court is "temtorial"second that the dispute concerns the
ownership of a "région"by one or the other of the Partm,s; that the Parties
request the Court to resolve this dispute definitively; anfourt tat,the
settlement is to be juridical not political in character.
3.13 With regard to the fir element, one cannot help but be
impressed by theclarity, consistency and clearly expressed purpose that emerges
from this textAs just shown, the sole qualifyingword used to identify the nature
of the dispute is "temtorial", and this -oto avoid any misunderstanding-is
repeated five times. To support Chad's contention that the Accord-Cadre deals
not with a territorial disputebut with a boundary dispute would require proof that
the same error was made fivetimes over in the text and even in the official title to
this case: 'Territorial Dispute (Libyan Arab JamahiriyaJChad)". In short, Chad
must demonstrate here that the "ordinas, meaning" of the treaty's terms is to be
disregarded, contrary to what is prescribed in Article 31, para. 1, of the Vienna
Convention. Such a result cannot be envisaged unless supported by clear and
precise evidence establishing, on the basis of an historical and contexual
interpretation,that the intention of the Parties was other than that resulting from
the ordinary meaning of the text.
5 Amrd-Cadre, Art2(d). 3.14 Asfor thesecond element, the fact that the compromis talks
of a"région litigieuse"fullyconfirms the correctness of the preceding analysis: it
means that there is a temtory that belongs to one or the other Party. In other
words, to resolve the territorial dispute, it is evident that the Court must focus on
the legal titles establishing the attribution of the "région"in question, whose
geographical extent must, of course, be identified.
3.15 With regard to the thir eldment, as reflected in the very
title of the compromis, the Parties expect the Court to deal with the dispute so as
to arrive at a decision definitively resolving the dispute. This implies that the
Court must be seized with the case in al1its aspects so as to be able to reach a
solution disposing of the case. A definitive decision is clearly not possible if the
Court is not considered to have the compétenceto allow it to deal with al1of the
Parties' arguments and allegations in al1their aspects. It must be stressed that the
Accord-Cadre imposes no restrictions of any kind on the Court in amving at a
solution. Nowhere in the Accord-Cadre is it suggested, as Chad contends, that
the Court is limited to a choice between two predetermined solutions. It follows,
therefore, that the Court must be able to consider and decide with the fullest
compétence how under the principles and rules of international law the dispute
should be decided definitively.
3.16 Finally, thfour elhment is that, without any doubt, the
Court must resolve the territorial dispute secundum jThis is clearly implied in
the Accord-Cadre by the fact that the Parties agreed therein ta submit their
dispute for decision by the Court "à défaut d'un réglernent politique". In any
event, no other conclusion could be reached. Under the Statute of the Court, the
Court is called on to adjudicate the cases submitted to it in conformity with
international law (Article 38, para. l), unless the parties have agreed to request
the Court to decide a case ex aequo et bono (Article 38,para. 2). Asthe Accord-
Cadre contained no mention of a ruling ex aequo et bono, neither Libya nor Chad
contends that the Court could resolve the present dispute other than by applying
the law.
3.17 In this regard, the Accord-Cadre makes no mention of the
law to be applied. This would indicate that the Parties did not want to limit the
power of the Court to consider freely the principles and rules of international law
applicable tothe case. In other words, the compromisnds no support to Chad's
thesis that the Court should limit itself, in resolving the dispute, to internationaltreaties. The compromis contains no indication that the Court should only seek
to find the applicable law to apply in international instruments as the sole source
of law. Such treaties must, of course, be applied; but if they do not settle the
question, then other sources of law have to be consulted bythe Court. It must not
be forgotten that the Accord-Cadre entrusted the Court with the task of
definitively resolving the dispute between the Parties; the Court would betray its
mission if, in the absence of a solution provided under treaty, the Court should
refuse to find a legal solution relyingon other sources of law.
(b) The "Context" of the Accord-Cadreand the Importance of
the Positions Adopted bv the Parties in their Written
Pleadings
3.18 The need to have recourse to a "contextual" interpretation
of the Accord-Cadre isstressed in the where it is stated:
"(L)'accord-cadre de 1989n'existepas dans un V~CUUFI l;, oit être
compris dans son contexte historique et diplomatique .
Libya fullyshares this point of view:it is true that the Accord-Cadre fumishes few
details concerning the task of the Court and, thus, it is indispensable to consider
the instrument in the light of its context in order to venfy the conclusions reached
from an examination of its ordinary meaning 7.
3.19 Libya is astonished, however, that Chad completely mixes
together the "context"and the travaux préparatoires. All of Chad's arguments are
aimed at amving at the meaning of the Accord-Cadre through an analysis of the
debates before the O.A.U. and the U.N. as well as from certain statements of
Libya's representatives - statements that are anything but precise - made in the
course of debates or of diplomatic exchanges that occurred before the Accord-
Cadre was concluded.
3.20 It must be said straight off that these debates and exchanges
- as willbe demonstrated shortly -do not have the probative character that Chad
would attribute to them. Furthermore, they have only a faint relevance to the
interpretation of the Accord-Cadre. They do not concern the negotiations
leading up to the Accord-Cadre, and they do not contain reliable information
6 CC-M, para2.82.
7 % Vienna Convention on the LawoTreaties9. &., Art.31.allowing the intention of the Parties to be established at the moment they
adopted the Accord-Cadre's text.
3.21
But the essential point is that these elements relied on by
Chad have absolutely nothing to do with the "context"of the Accord-Cadre. On
the contrary they are part of the "circumstances of (the compromis') conclusion"
and, thus, part of the travaux pré~aratoires, as described in Article 32 of the
Vienna Convention. They are simplya "supplementary means of interpretation"
for use onlyto confirm the validityof the interpretation resulting from the cnteria
stipulated in Article 31 (the ordinary meaning of the treaty) or to determine the
meaning if the plain meaning leads to an interpretation that is "ambiguous or
obscure" or to a result that is "manifestlyabsurd or unreasonable" (Article 32).
3.22 The meaning and application of Articles 31 and 32 are so
well known that this inter-mixture by Chad of elements of "context"and elements
of travaux is perplexing and points up the difficulties Chad must have had in
supporting its incorrectly narrow reading of the Accord-Cadre. But setting this
aside, one of the privileged elements of interpretation, fallingunder Article 31(b),
concerns any agreements and practices subsequent to a treaty that establish the
agreement of the parties as to its interpretation. It is useful, therefore, to
consider now how the Parties themselves have interpreted the compromis in
papers produced bythem. This willshow that the Parties have not alwaysbeen so
far apart regarding the Court's com~étenceand powers under the Accord-Cadre.
3.23 Proceeding in this fashion isespecially appropriate when the
treaty in question isa com~romis. For it is established tha-
"...the jurisdiction of the Court to deal wi8hP?d to decide a case on
the merits depends on the willof the Parties .
As a consequence -
"...a State may not be cogyelled to submit its disputes to
arbitration without its consen.
8 Anelo-IranianOiCo. .udgment. I.C.R.eoorts1952,ap.103.
9 Ambatielos,Merits.Judement.I.C.J.R~Do~ 1953,ap.19.Moreover, it is clear that "consent may be given ante hocadhoc. or post hoc10.98
In particular, post hoc consent either replaces ante hoc consent and ad hoc
consent (giving rise to the phenomenon of forum ororo~atum) or supplements
them. In other words, even in the event of a compromis (ad consent) it is
possible that:
"...les demandes, les arguments ou les faits invoquéspar
l'une des Parties dépas t les limites de la compétence
établiepar lecompromis \T!.
According to this hypothesis (which Chad considers to be the situation in the
present dispute, and Libya does not), the conduct of a party opponent during
judicial proceedings may constitute a type of post hoc consent, placing beyond
contest the question of the Court's compétence. This is the result when the
interested party neglects to raise an issue as to the Court's compétence or
expressly accepts that the Court examine on the merits an alleged exorbitant
claim of the opposing party.
Factors Establishing Chad's Recognition of the Court's
(c)
Com~etence to Examine the Ments of Libva'sClaim
3.24 Turning now, in the light of the above comments, to the
Parties' positions before the Court, an examination of them permits a
determination whether, notwithstanding what Chad says now, in its written
pleadings Chad did, indeed, accept Libya's interpretation of the Accord-Cadre,
thus rendering incontestable the Court's compétence - even if Chad's narrow
interpretation of the Accord-Cadre is correct (and Libya'sis wrong) that at the
outset of the case Libya'sclaimwent beyond the scope of the com~romis.
3.25 It willbe recalled that the first two documents of the Parties
initiating these broceedings before the Court were formulated differently. Libya's
Notification, dated31 August 1990,requested the Court:
territories in accordance with the rules of international...w."
10 Fitzmaurice,G.: ThLaw and Procedureof the InternationalCourtof Justice,Vol. II,
1986,p.496.
11 Abi-Saab,G,9. a. ,.20.
12 See,LM, International AccoandAgreementsAnnex,No. 39.The request was based on the line of reasoning that while the Court has available
to it a series of international instruments to take into consideration in resolving
the dispute:
"...one of those agreements finallyfixedthe boundary between the
Parties which, accordingly,remains to bestablis95d in accordance
with the applicable principles of international l."
3.26 Chad, on the other hand, in its Application filed on 3
September 1990,asked the Court to "déterminerle tracéde la frontière"between
the Parties, and in so doing to adjudge and declare that the boundary line had
been fixed and defined by a senes of Anglo-French and Franco-Italian
international agreements binding on Libya and Chad, as confirmed by the 1955
Treaty. Therefore, it was evident from the start of the proceedings that a major
difference existed between the positions of the Parties concerning the very
essence of the dispute.
3.27 It is clear that when Chad presented its Application to the
Registrar, Chad was unaware of the precise request set out in Libya'sNotification
formallypresented on that day. Chad may be presumed to have been unaware, in
particular, that Libya's request was based on a thesis that no international
agreement had ever definitively fïxed this boundary and that, as a conséquence,
the boundary was to be determined hic et nunc by the Court under international
law. However, Chad was no longer unaware of Libya'srequest on 28 September
1990,when Chad's Agent sent the Court a letter acknowledging (i) that the two
introductory documents concemed the same dispute and (ii) that the Court's
com~étence to resolve the dispute was granted by the Accord-Cadre, which
constituted a com~romis. In this same letter, Chad'sAgent added:
"..quoique la République du Tchad reconnaisse sans restriction la
compétence de la Cour pour trancher le réglement territorial qui
formellement l'affirmation de la Jamahiriya arabe libyenne selon
laquelle la frontière entre les deux Etats n'aurait pas fait l'objet
d'une délimitationnégociée. Celle-cr iésulted'une séried'accords
....La Républiquedu Tchad se réservela possibi éde rétablirles
faits..dans les phases ultérieures de la procédure."
13 Ibid.
14 Emphasis added.For Chad, therefore, Libya'srequest was not inadmissible, it was unfounded. Far
from taking exception, as a preliminary matter, to the Court's compétence to
consider a claim based on the absence of any conventional boundary, Chad
acknowledged emressis verbisthe com~étenceof the Court and called upon the
15
Court to examine Libya's claimon the ments and to reject it .
3.28 Chad's Memorial takes the identical position, raising no
question as to the Court's compétence to consider Libya's request.
On the
contrary, Chad itself envisaged the possibility of no conventional boundary ever
having existed between Libya and Chad - in putting forward its third alternative
theory under which the boundary line presently proposed by Chad would result
from colonial effectivités. Bythis fact alone, Chad recognised that the Court was
fullycompétent ta resolve the dispute even if its resolution might not result from
the application of any international agreement.
3.29 It is, of course, true that when Chad filed its Memorial, it
was unaware of the geographical extent of Libya'sclaim, as set forth in the LM,
for the two pleadings were simultaneously filed. It was in the CC-M that Chad
could have questioned the Court's com~étence to examine Libya's claim
concerning territones located south of the 1935line. But Chad has chosen not to
do so, even going so far as to expressly recognise that the Court's compétence
included al1that might be required to review Libya'sclairn,to adjudicate it on the
merits and to decide whether or not it should be rejected.
3.30 It is true that, in certain parts of the W. Chad has
maintained that Libya's version of the dispute does not fall within the Court's
compétence as set out in the compromis16, givinga vanety of reasons. But it is
In these first two documents submitted to the Coun, Chad also mentioned, as an
15
alternativeais of jurisdiction, Article 8 of the 1955 Treaty, which provided for
settlement hy the Coun of disputes over the interpretation and application of that
Treaty, opening up questions that went far beyond the confines of the Accord-Cadre
under Chad'snarrow interpretation of the latter instrument.
16 See, CC-M, paras. 1.17,2.09and 2.82. For example, in a confused section of the -,
Chad seems Io contend that Libya's claim as presented in the would serve Io
"transformer unilateralement la nature juridique du diffkrend que les panies ont soumis
à la Cour en vertu de l'Accord-..bywhich the Court is requested to "statuer sur les
limites de leurs territoires respectifs"(para. 2.09).
At the same lime, Chad commits the cur&ous of describingthe scope of&Q&
Cadre in words taken directly from Libya'sNotif.cIt is futile for Chad Io contend
that a contradiction as to the "nature juridique du diffkrend" exists between how theimportant to point out that, despite its allegations to the contrary, Chad has never
made any formal objection to the Court's com~étence, and has even explicitly
recognised the Court's com~étence.
3.31 It suffices simplyto read Chad's conclusions in theCC-M to
see that Chad repeats the claim it presented in the CM, requesting the Court to
reject Libya'sclairn on the merits. Chad fails to contend that the Court rnay not
consider any particular aspect of Libya'sclaim.
3.32 Asto Chad'sexplicit recognition of the Court's com~étence,
the followingpassage in the CC-M is revealing:
"L'accord-cadre de 1989n'ajamais eu pour objet de demander à la
Cour de trancher un différend temtorial pré-existant qui aurait
porté sur plus de la moitié du territoire du Tchad. En termes
simples, la Cour a compétence sur le différendfrontalier dans la
bande d'Aozou. Aucun compromis ne demande à la Cour de
connaître d'une revendication différente, formulée pour la
première fois dans le Mémoire de la Libye. ... Ces demandes
extravagantes sont assurémen\~acceptables, tant d'un point de
vue procédural,quesur le fond ."
3.33 1s Chad trying to raise an objection to the Court's
com~étencethat it unfortunately neglected to set out in its Submissions? At first
glance, it would so appear, especially if the above-cited passage is considered in
isolation from the rest of the pleading. In fact, this passage has no real meaning;
and its highly coloured and totally out-of-place verbiage regarding the
dispute is expressed in Libya'sNotification of the Accord-Cadre of 31 August 1990 and
how it isexpressed inLM:etheyare perfectly in accord.
Chad appears to forget that Libya'sinitial document in these proceedings had
carefullystipulated that the Coun should:
"statuer sur leslimites de leurs territoires";
and wasbased onthe contention that no treaty definitivelyiked the boundary and that:
".accordingly (it) rematabe established in accordance with the applicable
principles of international law."
17 m. paras. 2.82and 2.83. Similar comments are made in para. 2.95: "...lediffkrendque
les deux parties ontnvenu de soumettre à la Cour,porte sur la localisation exacte de
lafrontikre dans la bande d'Ao...aucun diffkrend plus etendu n'a kt6 sAulas
Cour.""extravagance" of the claims of Libya or the "démesurequi frise le grotesque18"
(not to mention Libya's"appétittemtorial féroce19")are merely a certain styleof
advocacy aimed at tarnishing in the eyes of the Court the image of an adversary
party and presenting that party in the most unfavorable light possible. So far as
they bear on the Court's compétence, these prejudicial remarks turn out to be
entirely gratuitous as a result of Chad's express declarations CC-Mhe that it
recognises the Court's comuétence to examine Libya's claim on the merits,
notwithstanding "l'ambitionexagérée"that it supposedly reveals:
"Le gouvernement de la République du Tchad considère cet ensemble
d'arguments comme irrecevable sur le fond comme en procédure. Il
la Cour internationale de Justice si profondément denaturée par devant
l'extravagance des demandes libyennes. 11se gardera cependant de
céder à ce qu'il considère comme une provocation politique. Le
gouvernement du Tchad fait confiance à la justice internationaleàet
l'application impartiale de&$es du droit international public. Il
demande justice, rien de plus.
The same line of reasoning, similarly expressed, crops up in another passage of
the -:
"Le Gouvernement tchadien qui serait en droit de mettre fin à la
procédure que la Libye tente de détournerde son objet, a néanmoins,
par respect pour la Cour etpar souci de voir enfin rdéfirutivement
le litige de la bande d'Aozou-forgéde toutes pièces par la Libye-,
décidé de la poursuivre jusqu'à son terme, sans répondre aux
provocations de la partie libyenne ...la République du Tchad se
placera donc exclusivement sur le terrain juridique et montrera ci-
après, que ses droits sur la bande de Aozou ne sont nY mvnt remis
en question par l'argumentation développéepar la Libye .
If bythis careless, wild language Chad means to say to the
3.34
Court that it renounces its "droit d'exigerntérruptionde la procédure"since it
has "confianceà la justice internationale", then Chad accepts that Libya'sclaimbe
examined on the merits by the Court, without any procedural rese~ations,
counting on the Court's finding that Libya's claim is without merit, and in the
"souci de voir enfin réglédéfinitivementle litige". Inother words, Chad accepts
18 a, para2.06 (i).
19 para.1.03.
20 CC-M, para1.17.
21 u, paras1.69-1.70.that the Accord-Cadre can be interpreted to cover Libya's claim, and
consequently, toestablish the Court's comvétence to adjudicate Libya's claimin
al1 its aspects. In these circumstances, any future objection to the Court's
compétence would not merely be unfounded; it would be inadmissible. Any
further discussion as tothe extent of the Court's compétenceas established in the
comvromis, therefore, would serve no purpose.
(d) The Lack of Purpose in Embarkine on an "Historical"
InterpretationoftheAccord-Cadre
3.35 The literal and contextual interpretation of the Accord-
Cadre leads to clear, precise and consistent conclusions. Even if its "histoncal"
meaning suggested by Chad were correct, it could not in any way prevail over the
instrument's authentic interpretation confirmed by the positions taken by the
Parties inthese very proceedings.
3.36 Hence, it would be a superfiuous exercise for the Court to
consider Chad's allegations attempting to demonstrate that, when the Accord-
Cadre was concluded, Libya acknowledged that its dispute with Chad was strictly
a boundary dispute and that it dealt exclusivelywith title tothe so-called "Aouzou
Strip". Nevertheless, Libya-out of a concem for re-establishing the truththat the
Chadian pleadings attempt to distort- feels it appropnate to present a few short
observations on the subject as it relates to the jurisdiction and of the Court.
In Chapter XI below, the matter will be dealt with again in the context of the
conduct of the Parties.
3.37 The first observation is that Chad'scontentions do not relate
to the travaux ~révaratoires of the Accord-Cadre, the relevant documents of
which have not been produced by either Chad or Libya. With the exception of
the text of the Accord-Cadre itself, no document or declaration of the
representatives of the Parties has been produced to date to clarify the intentio
partium at the time of concluding the comvromis.
3.38 Chad can hardly contend that the Parties' intentions can be
proved by relying on statements by third party States or by committees composed
of representatives of third party tat tes^ F^.r the most part, these types of
statements indicate how certain third party States perceived the nature and extent
See,CC-M, para.1.4g, m.,andpara.2.23,e!seq.
22of the dispute; nothing of significance can be inferred from these statements asto
the specificintent of the Parties themselves.
3.39 In reality, the kinds of documents on which Chad tries to
base its arguments are far more penpheral and less relevant than travaux
préparatoires; they only concern the circumstances in which the Accord-Cadre
23
was concluded .
3.40 It is clear that no meaning can be ascribed to a random
selection of miscellaneous statements of Libya'srepresentatives or other persons
as members of intemational organisations, having no precise or direct connection
with the Accord-Cadre and which refer to one phase or another of a dispute that
has existed for 100 years and concerns such aspects as, for example, accusations
of one State's interference in the interna1affairs of another State.As Chapter XI
willshow, the most that can be deduced from the miscellaneous statements made
by representatives of Libya is that they were convinced that (i) neither the
international instruments cited in Annex 1 of the 1955 Treaty, nor the Treaty
itself, had resolved the dispute, and (ii) the territones located north of the1935
line were indisputably in Libyan territory.
3.41 Libya never expressly or impliedly excluded the possibility
that the legal titles working in Libya'sfavor concemed other temtories located
south of the 1935 line. Quite the opposite: Libya had invoked these titles by
24
emphasising its position as successor State to theOttomanEmpire via Italy .
3.42 Once the Parties finally agreed to submit to the Court the
task of definitively resolving their dispute, without imposing any restrictions, it
became necessary for Libya in preparing for these proceedings to conduct a most
thorough research into every relevant aspect of the case. The results of this
research persuaded Libya of the validity and strength of its legal titles not only to
regions north of the 1935 line but also to regions located south of the 1935 line.
As a result, Libya submitted its claims to the Court in the knowledge that the
Court enjoyed the full com~étenceand power to decide the dispute in its entirety,
leaving "no stone untumed. In contrast to Chad, which casts doubt on the extent
of the Court's compétence and would like to see its com~étenceexercised in a
p ~ -- -
23 &, Vienna Conventiononthe Law ofTreaties9. d., Art. 32.
24 Sec para.11.39,g-g., below.limited fashion, Libya expresses no such reservations. Libya verymuch hopes the
Court will examine al1 of the Parties' allegations and arguments so that the
territorial dispute may be brought to an end, leaving not the slightest obstacle to
sincerely amicable relations between Libyaand Chad in the future.
SECTIO 2.N The Nature ofthe Dispute andthe Task of theCourt
3.43 On the basis of the Accord-Cadre, interpreted in the light of
the foregoing comments, the various allegations of Chad, aimed at restricting the
reach of the dispute and the mission of the Court, may readily be refuted. These
allegations are discussedbelow under sixheadings.
(a) The Alleged "Political Nature" of the Dispute as Presented
bv Libva
3.44 According to Chad, the "ambition exagérée"of Libya would:
"...sortir le différendde la catégoriedes différendsjuridiques où il
avait étécanto%,,jusqu'alors pour le transformer en différend
politique majeur .
3.45 Chad even declares that it would be "en droit d'exiger
l'interruption de la procédure engagée devantla Cour internationale de Justice"
as a result. But then it goes on to renounce this right "par respect pour la Cour et
par souci de voir définitivement réglé itige26". The total inconsistency of these
propositions leaps from the page, as can be demonstrated by two simple
observations.
3.46 m. if the dispute has really turned into one of a political
nature, the Court would not have junsdiction to resolve it, for under thU.N.
Charter and the Statute of the Court itself the Court is a legal, not a political,
organ of the U.N. The incom~étence of the Court to adjudicate matters of a
political nature can hardly be cured by the particular position taken by one of the
Parties to the dispute. That is to Say,Chad's renunciation of its right to challenge
the Court's compétence could not have the slightest effect on whether the Court
in fact has compétence.
25 CGM. paras1.17.&, para3.30,gtS.,above.
26 CC-M, para.1.69. 3.47 Second, it is clear that the political or legal nature of this
dispute cannot depend on the extent of the temtory claimed by one Party or the
other: it is the grounds on which the claim is based that matter. In the present
case, the two Parties base their claims exclusivelyon the applicable international
law in force. Theu dispute, notwithstanding the extent of thetemtory involved,is
strictlyand indisputably legal in character.
(b) TheNatureof the Dispute: "Temtorial"or "Boundaw"?
3.48 It has been seen above that the "temtorial" nature of the
dispute could not have been more clearly specified than it was in the text of the
Accord-Cadre. The repeated, consistent use of the word "temtorial" in the text is
the result of a careful choice ofwords to describe the dispute. Chad'sobservation
that certain O.A.U. documents used the terms "boundary" dispute and
"territorial" dispute inter~han~eabl~~~,only proves that the terminology used by
the O.A.U. cannot be relied on and that the care exercised in the use of legal
terminology left much to be desired (asthe CC-M itself complains). In contrast,
no looseness in the use of terminology is reflected in the Accord-Cadre. The
dispute is alwayscharacterised (in fivedifferent places) as "territorial".
3.49 Admittedly, if the Court should find - as Chad contends -
that a boundary has already been established in the borderlands by conventional
means, this finding would suffice to resolve the dispute. But if not, the Court will
have to determine the boundary itself in order to accomplish the task that the
Parties have assigned to i- to resolve the dispute definitively. Such a delimitation
of the boundaxy can only be established on the basis of the legal titles of the
Parties over thetemtory in dispute between them.
3.50 As demonstrated above, the Accord-Cadre identifies the
extent of the comuétenceof the Court in a sufficientlybroad manner as to permit
the Court to proceed to an attribution of territory. Chad, moreover, does not
contest this. On the contrary, Chad fully acknowledges the comuétence of the
Court in this respect, even to the extent of askingthe Court to reject on the merits
the Libyan claim which is based, not on a treaty establishina boundary, but on
other legal titles.
27 See,CC-M. para.2.43. 3.51 It will be recalled that, as already mentioned ab~ve~~,
Chad's acknowledgment of the Court's com~étenceis also implicit in its request
to the Court to base the attribution to Chad of the so-called "Aouzou Strip" on
colonial effectivités-Chad's third theory -in the event the Court were to decide
that a conventional boundary has not already been established.
(c) TheCompétence RationeMateriaeof the Court
3.52 Ratione materiae, the compétence of the Court is not
subject to any limitation as tothe geographical extent of the territory that may be
claimed by one Party or the other, contrary to what Chad asserts. Such a
limitation cannot be found in the Accord-Cadre, which entrusted the Court with
the task of definitivelyresolvingthe entire temtonal dispute, without establishing
a restrictive definition ofwhat that was.
3.53 In its written pleadings, moreover, Chad has expressly
recognised the com~étenceof the Court to examine Libya's claimon the ments,
including the extent of its effect on territories situated south of the 1935line. In
any event, even before the conclusion of the Accord-Cadre, Libya had set out, at
least in general terms, its position as to the territorial extent of the dispute. Libya
had clearly indicated that it considered itself as successor State to the Ottoman
Empire (via Italy) and accordingly that Libya had the right in the course of the
resolution of the dispute, to invoke al1pertinent legal titles over the full extent of
the temtories to which these titles attached. This is precisely the scope of the
disputethat the Court has been called upon to decide in the compromis.
(d) TheExtentof theCourt'sPowers
3.54 Since the Accord-Cadre is silent as to the Court's powers, it
follows that the Court is called upon to exercise, without restriction, its judicial
task, including the use of al1powers required to amve at a final resolution of the
disputeon the basis of international law.
3.55 It bears repeating once again that if, as Chad contends, the
Court were to find that the boundary between Libya and Chad had already been
delimited by conventional means, such a findingwould resolve the dispute. But if,
as Libya isconvinced, the Court finds that no conventional boundaiy has yet been
28 -, para.3.28above.statement, "..la notion juridique d'équitéest un principe général directement
applicable en tant que droit3'".
3.59 Itis elementary that equity(infraand secundum legem has
an important, continuing role to play in judicial decisions secundum&. This
obvious point should require no further discussion,but Libya is obliged to return
to it in order to express its astonishment over the extraordinary effort Chad has
madeto try to exclude equitable principles. ObviouslyChad is afraid of equity; it
fears the idea that the Court might find inspiration in equitable principles in
seeking to find a just solution in this case. This can only mean that Chad has
senous doubts astothe equitablecharacter of its claim.
3.60 The CC-M insistson presenting a veritable caricature of the
Libyan position, arguing that Libya'saim isthe use of equity "en tant que substitut
au droit32" and that, in addition, Libya "se trompe d'exercice"because equity has
no role to play in land boundas, delimitations unlike the major role equity plays in
maritime delimitations33.
3.61 These two allegations are completely wrong. The and
the
emphasised that Libya has never sought to refer to aeauitas contra
legem or to aeauitas vraeter Ieaem. But international jurisprudence and doctrine
have made very clear the role aequitas infra legem and secundumlegem may play
in the application of international rules whether conventional or customary. This
applies equally to land boundary delimitations, as a well-known work on the
subject attests to.
TheOrderof QuestionsSubmittedto the Court
(ï)
3.62 In comparing the written pleadings of the Parties, the Court
will not discern any real disagreement as to the modus procedendi or, in
31 Continental ShelfTunisiaLibvan&ab Jarnahiriva, udement,I.C.J.Re~ort.51982,
p.18,para.71.
32 CC-M para.1.52.
Ibid.
33 -
34 Bardonnet,D.: "Equit6et Frontiterrestres, élaneesofferàsPaulReuter,Pans,
Pedone, 1981,atpp.44-45.particular, as to the order in which the Court rnight wish to address the vanous
issues ansing from this dispute.
3.63
Firs itwould be expected that the Court would want to
address at the outset the procedural questions relating to junsdiction and to the
extent of its com~étenceand powers. Without doubt, these issues can be settled
rapidly. In fact, as just stated above, the two Parties have effectively admitted
that the Court has the full com~étenceand power required to resolve the dispute
definitively. The Parties admit that no restrictions are imposed on the Court as
far asthe examination of the merits of the claims presented by Libya and Chad is
concerned.
3.64 Second, turning to the examination of the merits of the
cases, the Court would certainly want to "consider initially whether existing
agreements have identifiedaboundary"between the two Parties, as Libya has put
it5 . Or, to use Chad's words, the Court would "commencer son examen par le
Traitéde 1955pour déterminer ..s'ilajamais établiune ligne frontière";and also
examine if "un tracéfrontalier avait é..établipar les textes internationaux de
référen~e~~".
3.65 In this regard, it should be noted that Libya and Chad have
acknowledged their agreement that the "textes de référence"are not to be taken
into consideration as "actes" establishing a boundary in the event the"..ne
seraient pas ou plus en vigueur le 24 décembre 1951",as Chad has correctly put
it37. Since the positions of the Parties here are identica13*,it followsthat neither
35 See,LC-M,para.2.10.
36 CC-M,paras.2.10and2.12.
37 SeeCC-M.para.11.20. TheLC-M usesmuchthesamelanguage:se, LC-M,para.3.09.
S-, also,para.4g0m., below.
38 The relevantpassageinm:he
"La hontikrene peut &tredkterminkeque parrapportauxactesinternationauxen
vigueur aI'indkpendanee la Libye. On a ici une double limitation:sont exclus,
d'unepartles actes noninternatio,ommeparexemple des actesadministratifs
internesauxpuissancescoloniales et,d'autre partl,es actesinternationaux quine
seraient pas ou plus en vigueur le 24 dkcembre1951, date de I'indkpendence
libyenne.(a, para.11.20-, alsoa, para.11.42.)
TherelevantpassageintheParty can, with any credibility, change its position on this matter in subsequent
phases of the proceedings. In Libya'sview, any such change of position would not
be admissible in the circumstances.
3.66 The Court would be free -followinga review of the relevant
treaties-to find that a conventional boundary does indeed existthat is binding on
Libya and Chad. Libya is convinced that the Court will not so find; Chad has
declared that it is convinced that the Court willdo so. It is clear ifthe Court
does find the existence of such a conventional boundary, the Court will have
resolved the dispute (to the extent the boundary covers the full length of the
Libya-Chad frontier). On the other hand, if the Court's review should produce a
negative result -no conventional boundary - the Court would, it is respectfully
suggested, be obliged to proceed further in its analysis, examining the legal titles
that might form the basis of a delimitation operation. Unquestionably, the Court
has the full compétence to itself determine such a delimitation, as the Parties
have expressly recognised both in the com~romis concluded between them and in
the interpretation they have given it in their pleadings.
3.67 Thir dh. Court would then have to decide which of the
legal titles of the Parties are determinative in the delimitation of the territories
comprising the Libya-Chad borderlands. Having identified these titles and, in the
case of conflictingtitles, having decided which is the better title, the Court would
then be able to decide upon the limitsof the temtories of the Parties.
"..Articl3 expresslyrequired that these agreements be 'enrigueur' on the date of
Libya'sindependencein order to be taken into account in recognizinganyboundary
emerging from them. If the list included 'actes'not 'en vigueur'on that date, tbey
would have to he ignored for not havingfulfilledthat essential condition of Article
3. As an annexmnsisting of an exchangeof letters between the headsof the Libyan
and French negotiating teams, whiwas referred to in Article 3, Annex 1 was
para. 3.09.)ubordinate to Article 3 and had no independent lif(u, itsown." -35-
PARTII
THE ISSUEOFTHE TREATY
BASISOFTHEBOUNDARY
CHAPTERIV. THE DIFFERINGPOSITIONS OF THE PARTIES
CONCERNlNGTHE EXISTENCEOFA
CONVENïïONAL BOUNDARY
4.01 The differences between the cases presented by the Parties,
in broad outline, have been set out in Chaptersand IIabove. Pre-eminent
among these differences are the diametncally opposed vjewsof Libya and Chad
asto whether a conventionalboundary existsbetween them.
SECTIO 1. The ho Positions Cornvared
4.02 Chad'sMemorial suggeststhat the issue posed in this case is
simple: since the 1935Treaty never took effect in respect to the agreed boundary
line for Libya's southern boundary east of Toummo, the 1899-1919line agreed
between Great Britain and France was Libya'ssouthern boundary on the critical
date -when Libya became an independent State. According to Chad, this was
confirmed by the 1955Treaty.
4.03 However, Chad's case does not stop there. It offers the
Court three separate theories to choose among, al1of which are claimed to lead
to the exact same line, the 1899-1919line, supplemented by the relevant portion
of a straight line connecting Toummo and the starting point of the 1899-1919
linel. These three theones were thoroughly analysed in Libya's Counter-
~ernorial2. Aside from the obvious implication to be drawn from the submission
of three separate theone-that Chad did not have sufficient confidence in any
one theory to base its case entirely on that-the result is that Chad'scase is
highlycomplex, as the demonstrated3.
4.04 Whilst it would be misleading to suggest that the present
territorial dispute is a simple matter to resolve, the essential elements of Libya's
case are perfectly straightfonvard:
1 Chad'sthreeseparatetheoriesaresummarizedLC-Mhparas.1.32-1.39,
2 See, LC-M.Parü III,IV andV.
3 See,LC-M. para. 1.37, where Chad'stheories were comparedto an intricatecircus
trapeze act. - On the critical date (the datof Libya's independence),
there was no conventional southern boundary of Libya east
of Toummo;
- The 1955 Treaty did not modify that situation; it recognised
the boundary status- on the critical date, an affinnation
of possidetim;
- Since then, there has been no agreement between Libya and
Franceor Libyaand Chad fixingLibya'ssouthern boundary.
Thus, the Court's task, as explained in the previous Chapter, once it has
detemined that there is no conventional boundary binding on Libya and Chad,
will be to examine the legal titles that might fom the basis of a delimitation
operation, a straightforward task for whichthe Court has full compétence.
4.05 In the following two Chapters, the two principal elements
compnsing the issue over the treaty basis of the Libya-Chad boundary will be
dealt with: (i) the meaning and effect of thereaty; and (ii) the boundary
status quo on the critical date as recognized by Article 3 of the
1955Treaty. Part
II IChapters VI1 and VIII) will then turn to an examination of the legal titles
claimed bythe Parties.
4.06 There are two points to be taken up before going into the
detail of the1955 Treaty and the other international agreements of possible
relevance.m, in Section 2 below, certain deceptive points of agreement and
disagreement between the Parties concerning 1955 Treaty will be discussed.
Second, in Section 3 below, the meaning and effecU.N. General Assembly
Resolution 392(V) o15 December 1950-a matter on which the positions of the
Parties remain wide apa-willbe dealt with in the lightm.f the
SECTION^. DeConcerning the 1955Treaîyeement and Disaereement
4.07 In its Chapt11,devoted to a discussionof 1955Treaty,
the CC-M makes two statements with whichLibya is infull agreement:
"La frontière ne peut êtredéterminéeque par rapport aux actes
internationaux en vigueur à l'indépendancede la Libye. On a ici
une double limitation: sont exclus, d'une part les actes non
internes aux puissances coloniales et, d'autre part, les actes internationaux qui ne seraient pas ou plus en vigueur le 24
décembre 1951,date de l'indépendancelibyenne4."
Under the first criterion, French colonial effectivitésare clearly ruled out, and
thus Chad's third theory is ruled out as well, for it relies wholly on French
effectivitéss. Moreover, Chad's second theory sustains a mortal wound in the
light of this admission in thCC-M .or it relies in part on French effectivitéso.
Under the second criterion, there are ruled out under Article 3 "actes
internationaux" that were not, or were no longer, "envigueur" on the critical date.
4.08 The reason why this apparent agreement between the
Parties is deceptive is that Chad actually has failed to apply its own critena.
French colonial effectivitéscontinues to be the mainstay of Chad's third theory.
And it remains, as well, an indispensable part of its second theory, for it is only
through resort to alleged French colonial effectivitésin the borderlands that the
1919line became transformed into a boundary opposable to Italy, according to
this theory7.As tothe second criterion, a number of the "actesinternationaux" on
which Chad's case depends -both under its fust and second theories- were not
"en vigueur" on the critical date, including general "actes" that appear on the
Annex 1list. This willbe discussed further in Chapter VI below. The point to be
made here is that the CC-M totally ignores this critical fact, whichCMhe had
specificallyreferred to8.
4.09 Then there is a point of disagreement concerning the 1955
Treaty, the effect of which is less significant than might first appear. This
concerns the question whether the Annex 1list was intended to be exhaustive.
Libya has set out a number of reasons why it seems clearly not to have been
intended to be exhaustive, particularly in the light of French and Chadian
conduct9. However, in the last analysisit is not an issue that really matters much,
for several reasons.
4 m, para.11.20.
5 See,LC-M,para.5.01g -q.
6 See,LC-M, paras.4.02and4.199,gt-q.
7 Ibid.
8 See CM pp.122-123,para.81.
9 See.LC-M.para.3.12,g-q. 4.10 m, in arguing its case, Chad has made extensive use of
agreements not included in the Annex 1list, includingthe foiiowing:
1900Franco-Italian Accord;
- 1902Anglo-Italian Accord;
- 1912Franco-Italian Agreement;
-
1924Anglo-French Protocol and Declaration.
Similarly, Libya has referred to as relevant some 11 agreements that fail to
appear on the Annex 1listlo.
4.11 Second, even were the boundary to be determined solelyon
the basis of the listed agreements, no conventional boundary would emerge that
was agreed to be recognised under Article 3 of the 1955 Treaty. This is
demonstrated below in Chapters V and VI.
SECTIO 3. U.N. General AssemblyResolution 3921V)of 15 December
1950
4.12 Chad seeks to downplay the significance of General
Assembly Resolution 392(V), after an initial attempt to argue that the Resolution
supports Chad's thesis. That initial attempt, as put fonvard inCM,e relies on
the followingpropositions:
- France had repeatedly and publicly presented before the
various U.N. organs the texts applicable to Libya'ssouthern
boundary and her presentation had not been challenged.
Thus, the Member States of the U.N. had acquiesced in the
French positionll.
-
In particular, Italy did not react to the corrective statement
made by the French representative to the Ad Hoc Political
Committee and must therefore be deemed to have
10 See.LC-M. para.4.09.
11 See,CM.p. 222, para.6andCM, p.232para.98,whereit is repeatedthatthe French
positionhadbeen"enon& clairement". acquiesced in the French position as regards Libya's
southern boundaryl2.
- The U.N. Commissioner for Libya also remained silent asto
the southern boundary of Libya inhis Second Report of 30
October 195113.
- The General Assembly,in adopting Resolution 392(V), may
have had in mind the French claim for rectification of the
Libya-Algena boundary in the area of Ghat and Serdeles
rather than Libya'ssouthern boundaryl4.
4.13 Libya responded comprehensively in its Counter-Memorial
to these arguments, both as regards the facts and the inferences to be drawn from
theml5. It is, of course, highly significant that Chad nowhere seeks to explain
what was the portion of Libya's boundary with French temtory not already
delimited by international agreement to which reference is made in Resolution
392(V), if not Libya's southern boundary - only Libya's southern boundary
fulfilledthis critenon.
4.14 In its Counter-Memonal, Chad appears to have jettisoned
its initial attempt to maintain that Resolution 392(V) supported its thesis that a
conventional Libyan southern boundary existed at the time the Resolution was
adopted (15 December 1950).Now, the argument is rather that the 1955Treaty
in fact gave effect to the recommendation in Resolution 392(V). Chad asserts that
the ovemding object and purpose of that Resolution was to ensure that no
dispute arose as to Libya's extemal frontiers, and that the Resolution must be
read in this sense. Two possibilities existed. Either the frontiers were already
delimited by internationalarrangements -in whichcase there would be no dispute
- or, alternatively, the frontiers were not yet delimited, in which case it was
recommended that France and Libya conclude an agreement which would
effectivelydelimit the frontierl6.
12 CM, p.228,para.84.
13 CM, p.231, para.96.
14 Thisseemstobe thimplication bedrawn fromCM, p.227,para.82.
15 See, LC-M. paras.8.34-8.43.
16 SeeC,C-M.para.11.136. 4.15 It is necessary once again to examine the pertinent
provisions of the Resolution:
"That the portion of its boundary with French territory not already
delimited by international agreement be delimited, upon Libya's
achievement of independence, by negotiation between the Libyan
and French Governments, assisted on the request of either party by
a third person to be selected by them or failingtheir agreement, to
be appointed bythe ~ecretary-Ceneral.f7"
Libya'sboundary on the Westas far south as Toummo had in 1950been delimited
by two international agreements: the 1910 Treaty between France and the
Ottoman Empire; and the 1919 Accord between Italy and France. It had not
been delimited to France's satisfaction, however,and France informed the U.N.
that it planned to negotiate directly with Libya certain modifications or
rectifications of Libya'sboundary with Algeria. Those mentioned concerned the
boundary in the area of Ghat; and it was clear that these were not negotiations
that fell within the scope of the Resolution, for during the debate pnor to its
adoption, the United States representative Sponsoring the Resolution stated
explicitly that it did not concern boundary rectifications; and the French
representative made a speech pointing out the need to distinguishclearlybetween
the different operations of delimitation, demarcation and rectificationl8. Thus,
there was no ambiguityon this point when the Resolution was adopted.
4.16 So when the Resolution was tabled and voted on in
December 1950, Libya's boundary on the West as far as Toummo had been
delimited and was intended by France to be rectified in the region of Ghat in
negotiations with Libya; but this rectification did not fall within the scope of the
Resolution. This left the Libyan boundary east of Toummo for consideration;
and it was as to that boundary that the French representative corrected an earlier
"bévue"committed by France in connection with the 1949 Report of the Four
Power Commission, when certain omissions and incorrect references as to the
international agreements considered relevant to that boundary had been made by
the French participants, and these mistakes were reflected in the subsequent
Study of the ~ecretariatlg. There was no question at the time as to where France
thought the boundary line to lie, for the map attached to the Four Power
Commission Report showed both the line east of Toummo espoused by France
17 The Resolutionistakenupagainbelowin ChapterX in the contea of the post-World
War11conductof France.
18 See, LM.paras.5.388-5.389.See,also,Su~plementawAnnex,No.6.1,Vol2hereto.
19 See,LM, paras.5.375-5.385.(the 1919 line as far as 18"E longitude) and what appears to be the 1935 line.
Thus, the only confusion created by France's mistake was over the international
agreements on which France relied, not over the direction of its line. In the event,
the Secretariat's Study concluded that it was "not clear whether and to what
extent this frontier had been delimited or demarcated".
4.17 During the debate on the Resolution and before the vote
was taken, the French representative corrected the earlier "bévue"by referring to
al1the texts on which France relied to support the line it claimed to be Libya's
southem boundary. Had France's position at the time been that Libya'sboundary
east of Toummo had been delimited by the international agreements cited, it
should inal1logic have voted against this portion of the Resolution relating to
Libya, for there wa- boundary that had not been delimited, according to the
French thesis. There was no question that the discussionjust pnor to the vote on
the Resolution was directed at Libya's southern boundary east of Toummo.
Nevertheless, France voted fo~the Resolution. In doing so, it formally acquiesced
in the position that Libya's boundary east of Toummo was to be delimited in
negotiations with Libyawhen it achieved independence. In fact, in the statement
of France's representatiM., Naudy, correcting the earlier "bévue",he ended by
saying: 'The matter was therefore governed at present by al1the texts he had just
mentioned." This was a formulation not unlike the wording of Article 3 of the
1955 Treaty: "les frontières sont telles qui résultent des actes internationaux en
vigueur" at the time Libya achieved independenM..Naudy'sstatement did not
cause the Ad Hoc Committee to reconsider the need for adopting this part of the
Resolution concerning Libya'sboundary. It proceeded to ado~t the Resolution
with the suoport of France.
4.18 The CC-M is incorrect in saying that Libya considers the
1955Treaty to be "sans rapport avec" theesolution20; and theCC-M fails to
come to grips with the specific intent of the Resolution by suggesting, for
example, that it revealed the desire and intent of the Ad Hoc Committee that
Libya'sboundaries be definitivelysettled21.
4.19 The Resolution reflected the uncertainty of the U.N. that
Libya's boundary east of. Toummo had been delimited, in spite of France's
correction of the mistaken references to the texts it felt to be relevant. France's
vote for the Resolution effectivelybarred Francem later claimingthat Libya's
20 See.CC-M,para.11.133.
21 See, CC-M.para11.134,southern boundary had been delimited and hence did not require to be
negotiated with Libya. What the Resolution called for was that France and Libya
should sit down to negotiate the southern boundary, examining the texts of the
international agreements on which France's position relied, or others en vigueur
in 1951, as well as maps of the area, and then to agree that a conventional
boundary existed at the time of Libya'sindependence (and where it lay), or that it
did not, and in the latter case, to negotiate over where that boundary line should
be drawn.
4.20 The Parties are in agreement that no such negotiations
concerning the southern boundary took place22. Thus, Article 3 was only a first
step in thecarrying out of the mandate of the U.N. in Resolution 392(V); Article
3 cannot be construed, as the CC-M suggests, as having itself accomplished the
delimitation by reference to some (but not all) of the texts referred to byM.
Naudy in 1950,just before the vote on the Resolution, a reference which the U.N.
considered not to have resolved the question of Libya'ssouthern boundary -and
which France, by voting for the Resolution, rnust be deemed fomally to have
conceded. The Resolution called for negotiations, not an attempt to impose the
French position in an indirect, ambiguous manner without any effort to seek a
meeting of minds.
4.21 It is appropnate to ask why, then, after the signing of the
1955Treaty, France and Libya did not proceed to negotiate the delimitation of
the southern boundary. Although this question was addressed in the ~23, the
reasons why this did not take place will be summarised here, in the light of
additional evidence 6om the files of the Quai d'Orsay recentlymade available to
Libya.
4.22 The ovemding reason was that, with the Edjéléoil field
discovery (only confirmed in January 1956),rectification of Libya'sboundary with
Algeria became urgent. The oil boycott imposed on France after the 1956Suez
crisismade this oil discoveryal1the more important to France. It willbe recalled
that at this time Algena was part of metropolitan France and thus its boundaries
were of greater importance to France than those of the colonies grouped within
the A.O.F. and the A.E.F. As a result, French ratification of the 1955Treatyand
the evacuation of French troops from Fezzan were explicitlymade subject to the
condition of Libyan acceptance of the rectifications of its boundary with Algeria
22 Seeex.,CC-M. para.11.129,
23 LC-M, paras3.109-3.113.delimited in 1919,so as to ensure that Edjélélay on the French side of the line,
together with other related modifications in France's favour along thee sector
of the boundary. This was achieved through the 1956~ccord24. Most of 1956
was consumed in the difficult negotiations conceming this sector of Libya's
boundary.
4.23 A second reason was that senous border incidents had
broken out along the Algenan frontier, particularly in the Ghat-Toummo area.
Although Annex 1to the 1955Treaty had designated three points through which
this boundary should pass, thus substantially rectifymgthe boundary delimited by
the 1919Accord (even taking into account the vagueness of its provisions), Libya
had balked at proceeding to demarcate the boundary, and the three points did
not at al1resolve the course of the boundary between Ghat and Toummo. Many
questions remained to be dealt with. The contention in the CC-M that, as
allegedly called for by Resolution 392(V), "le Traité de 1955 contient une
délimitationprécise",is refuted bythe facts. The part of the boundary over which
the parties negotiate in 1955 in order to rectifj the 1919 Accord, by
designating three points, that is the sector between Ghat and point 1010 (where
the Algenan and Niger boundanes meet Westof Toummo), remained unresolved.
The course of that linewas not definitivelyfixedat all. Thus, followingthe signing
of the 1955Treaty, the energies of the Libyans and the French were devoted to
this part of the line as well, it being considered by the French that the imprecision
of this boundary was contnbuting to the border incidents. Furthermore, oil
companies were seeking licences to prospect in the area, and it was feared that
conflictingclaimswould anse as a result of the boundary there not being defined.
4.24 The other reasons why negotiations never occurred
pursuant to the Resolution, and followingthe principles agreed in Article 3 of the
1955Treaty, are set out in paragraph 3.113of thm:
- The French Govemment had developed second thoughts
about ratifjmg the 1955 Treaty, and it was not even
presented to the French Parliament until November 1956,
less than a month before the agreed date for the evacuation
of Fezzan. It is reasonable to conclude that had the Edjélé
oil discovery not been made, and had Libya not been willing
24 Demarcationofthe lineagreedhneveroccurred;andLibyahasneverratifiedt1956
Accord. to agree that these fields lay in French territory, the 1955
Treaty would not have been ratified byFrance;
- During the 1956 negotiations to rectify the Algerian
boundary, Libya did propose discussingthe southern sector,
as well,and was rebuffed byrance25;
- The Algerian wax, Libya's recognition of the Algerian
F.L.N., the Suez crisis and the low status of France at the
time throughout the Arab world made boundary
negotiations with France after 1956very difficult for Libya
to undertake without arousing the strong criticism of other
Arab countnes;
- From the French standpoint, the best tactic was "to let
sleeping dogs lie", and to hope that when the question of
Libya'ssouthern boundas, was taken up later with Chad no
difficultieswith Libya wouldbe confronted26.
4.25 Thus, when Chad became independent in 1960,there had as
yet been no negotiations concerning its boundary with Libya. Contrary to what
theCC-M and Chad's M~DAtlas have claimed, U.N. maps until 1963consistently
showed a Libyan southern boundary that did a accord with the 1919 line
claimed by ~rance27. The first U.N. map was dated December 1949,showingthe
1935 line28. U.N. Map No. 241 of January 1950, attached to the Secretariat's
Report, showed a line that was neither the 1919 nor the 1935 line, and it was
accompanied by question marks to illustrate the Study'sconclusion that it was not
clear whether Libya's southem boundary had been delirnited. It was
approximately this line that appeared on Libya's first official map of this
boundary, Map No. 1 attached to Libya's 1955 Petroleum Regulation No. 1,
promulgated a few days after the signingof the 1955Treaty in August 1955
LR 2). U.N. Map No. 256 of May 1950,showing the 1935line, was attached to
Commissioner Pelt's first annual report; U.N. Map No. 256(A), a version of the
same map in Arabic, issued in Novernber 1955,three months after the signing of
25 See,LC-M.para.3.11g 3.
26 See,ex., Su~olernenAnnex,No.6.7(Document10).
27 &, Sup~lementarAnnex,No. 2,paras26-28.
U.N.MapNo.235; e, LM. para.5.396andtheU.N.mapsappeanngthere.
28the 1955Treaty, showed the 1935not the 1919line. U.N. Map No. 256,Rev. 1,of
March 1958,showed no change in the southem boundary, which wasportrayed as
the 1935line despite the 1955Treaty.
4.26 Asa result, at the time of Chad's independence, U.N. maps
consistently showed a boundary line between Libya and Chad that differed from
the 1919line. The assertion in thCC-M that after the signingof the 1955Treaty
U.N. maps were changed to reflect the 1919 line is totally wrong29. No U.N.
maps during the period 1949-1963have been produced that show the 1919line,
and these were maps issued at a time when the Libyan boundaiy was under active
discussion, unlike the handful of U.N. maps issued thereafter ta which Chad
refers, produced in connection withvarious economic and other studies unrelated
ta the boundary question30.
4.27 Certainly, U.N. maps cannot be taken as evidence as to
where Libya's southem boundary lay, and they al1 contained the customary
disclaimer; but they do reflect the uncertainty conceming that boundary. The
generally-held view that Libya's southern boundary required to be delimited by
negotiation, which was reflected in Resolution 392(V), continued to prevail well
after the signing of the 1955Treaty and even after the independence of Chad in
1960,as the U.N. maps showed.
29 k, CC-M.para.10.32.
30 See,Sup~lementawAnnex,No.2,paras26-28.CHAPTERV. THEMEANING OFARTICLE 3 OFTHE1955TREATY
SECTIO 1. Introduction
5.01 The Court may well regard the 1955 Treaty as the logical
starting point in its consideration of how to resolve the territorial dispute in this
case. But contrary to what Chad contends, the provisions of the 1955Treaty will
not, in Libya'sview,lead the Court to a resolution of this dispute. It is in fact the
last, historically, of the international agreements to consider in determining
whether a conventional southern boundary of Libya existed on the critical date.
Entered into almost four years after Libya's independence, the 1955 Treaty
established that date as the critical date in this case and set out the agreed criteria
for the recognition of a boundary.
5.02 Asbrought out in the discussion of good faith in Part VI1of
the m. in Libya'swritten pleadings France's conduct in the 1955negotiations
has not been invoked as a cause of challenge to the 1955 Treaty insofar as the
present case is concerned; and this remains so in spite of evidence recently
uncovered by Libya in the Quai d'Orsay'sarchives that the French Government
engaged in the extraordinary conduct of placing listening devices so as to record
the interna1 discussions of the Libyan delegation during the Janua.. 1955
negotiations in paris1. Nevertheless, Libya regards French conduct during the
negotiations as an important element to be taken into account in interpreting the
1955 ~reaty~, especially since the drafts of the Treaty were prepared by the
French in the French language.
5.03 Thus, almost al1of Section 2, Chapter 11of tu, that
relates to the enforceability of the 1955Treaty requires no response3. Libya is
not, as the final conclusion in the suggests, attempting to avoid "les
exigences claires du principe pacta sunt servanda". Libya accepted and
1 Thisevidencewasfoundinfilesmadeavailableto Libyaat theendof May1992following
Libya'sdkmarcheto the French refto in thLC-M para1.44m. 37, to which a
replywasreceivedon 18March1992. A samplingof the transcriptsmadebythe French
Governmentof these intercepteddiscussionsappearsas ExhibitLR 6.4, hereto,and is
brieflydiscusinSu~plementarAnnex,No.6.4.
2 See,LC-M.para.7.38.
3 There are,however, anumberof assertionsin thatsection oCC-Me requiring
correction;and this willbeammplished inthewurse of thispleading.performed the obligations it undertook under the 1955 Treaty; but this did not
resolve the dispute between Libya and Chad.
5.04 There is no doubt at al1that Article 3 of the 1955Treaty is
directly pertinent to resolving the present dispute: on its face it related, inter alia,
to the southern boundary of Libya. But the Article must be applied in its entirety
-both in respect to what it prescribes and what it forbids. In other words, Article
3 bound the parties to it not just in respect to the positive factors to take into
account in determining a boundary, but also as to the factors that it ruled out in
making such a determination.
5.05 It is not easy to discern with any precision just what Chad's
position is today as to the meaning of the 1955Treaty; and it is evident that this
position has shifted in major respects £rom Chad's case as expressed in Chad's
Application filed on 3 September 1990 with the Court and in Chad's
supplementary letter tothe Court of 28September 1990.
5.06 In its Application, Chad appeared to base its case on the
principle of&i possidetisu, maintaining that the boundary claimed by Chad
was that which existed at the time of the independence of Libya (1951) and Chad
(1960) as inhented £rom their colonial predecessors. The Application adds that
the 1955Treaty did not modify the boundary situation that existed in 1951,at the
time of Libya's independence, but rather confirmed the applicability of &
possidetis and the boundaty line "tel qu'ilrésultedes accords" listed in an earlier
paragraph, namely the agreements of 1898, 1899, 1919 and 1924 (the latter not
appeanng on the Annex 1list), to which Italyis claimed to have acquiesced in the
1902Accord.
5.07 In its subsequent letter of 28 September 1990, Chad
descnbed the alleged conventional boundary as resulting from a whole series of
Anglo-French and Franco-Italian agreementsand stated that the 1955Treaty had
confirmed this boundary. This interpretation of the Treaty was descnbed in the
-M as the "consécrationexplicite de '1- possidetis de 1951"14.
5.08 By the time Chad's Mernorial was submitted, this position
seemed to have shifted, for under Chad's first theory the 1955Treaty mf is said
4 CM,p. 142,para2.to have determined with precision the boundary li.That this was not Chad's
position at the time it presented its case O.A.U. Subcommittee of experts
and jurists is seen from the fact that the Subcommittee's Second Report observed
that the Treaty didnet itself fix the Libyan boundary6. The Subcommittee's
observation seems to indicate that Chad had at that (1988 only set forth its
second theory-that the1955Treaty was the explicit consecratioa opossidetis
1951 -minus the element of French effectivités,which first makes its appearance
in them. This had been the publicly proclaimed French position: that at the
time of Libya's independence in1951 a conventional boundary existed arising
from a series of Anglo-French and Franco-Italian agreements en vieueur at that
time.
5.09 The lack of clarity in Chad's position anses from the fact
that, at least up until the filingof its Counter-Mernonal, Chad avoided certain key
questions concerning the meaning of Articl3 of the1955 Treaty. Was it the
agreement of the parties to th1955Treaty, as expressed in Article 3, to accept
the boundary situation as it existed on the critical -athe date of Libya's
independence, 24 December 1951- as determined by international agreements
then in force? Or does Chad maintain that th1955 Treaty determined Libya's
boundaries with France and French territones regardless of where any of the
conventional boundaries layon the critical date or whether, astothe relevant part
of Libya's frontier, there was any conventional boundary at al1 on the critical
date?
5.10 Libya'sposition is very clear: Arti3lof the1955 Treaty
confirmed the parties' acceptance of the status quo on the critical date based on a
strict application of the pnncipleytjpossidetis in accordance with the
Article'scriteria: "actes internationaux en vigueur" on the date. It was not
intended to modify the status w, so determined, on the critical date; it
recognised it.
5.11 In the light of theD, it is necessary once more to
examine Article3 of the 1955 Treaty in order to bring out where the Parties
differ. Its "object and purpose" willbe discussed first,then the "ordinary meaning"
5 S-, analysofChad'sfirsttheoiyiLC-M para.3.01,g-q.
6 Sm, CM.LivreVIp.351,atp379.to be given to the terms of the Treaty, followed by its "context" and travaux
7
pré~aratoires .
SECTIO 2. TheTreatv's Obiectand Purpose
5.12 The objectives of Libya andFrance in entering into Article 3
of the 1955 Treatywere not the same. Chad wrongly assumes that the parties to
the Treaty must necessarily have had the common objective of £king a definitive
boundary. This overlooks the fact that there may well be circumstances when
parties to a treaty do not have identical views on an issue and yet may wish to
include language in the treaty dealing with the matter, though not resolving it.
This is a perfectly normal course of action, and it was the case here. France may
have had the misplaced confidence that by refemng to certain legal instruments,
using the formula of Article 3, the boundary it sought would be agreed byLibya in
a subsequent phase. Libya, on the other hand, had given the matter of its
southem boundary only a superficial review; and it had not examined the "actes
internationauxn referred to in Article 3 and Annex 1, let alone looked into
whether they were "en vigueur" in1951. The attention of both Libya and France
during the 1955 negotiations had been directed at Libya'sboundary with Algeria
south of Chat; and it is evident that the French negotiating team had been given
instructions to avoid an open discussionof the "actes internationa..-
5.13 The background of the 1955 Treaty is relevant in
considering the objectives of the parties. France initiallyurged Libya shortly after
its independence to enter into a Treaty of Amity that would have constituted an
alliance providing for the long-term military occupation of Fezzan by French
forces. France was spurred on by the fact that the United Kingdom and the
United States were negotiating agreements of this kind with Libya. At the end of
1954, Libya made it clear that continued occupation of Fezzan, and an alliance of
any kind with France,were out of the question.
5.14 France was faced with other problems as well havinga direct
bearing on the terms of a treaty of amity with Libya. These were: (i)the war with
the F.N.L. inAlgena and serious unrest inTunisia and Morocco; (ii) the discovery
of oil at a time when the oil boycott in the wake of the Suez cnsis was in effect
7 % 1969ViennaConventionon thLaw of Treaties,Arts.31and32.
8 % Su~olementawAnnex,No.6.6(Documents3,4,9, 13 and14).against France; (iii) indications of valuable mineral deposits in the north of the
Tibesti massif as well as military pressures to rectify the 1899-1919line in the
Tibesti region so as to encompass the entire massif and to control a strategic road
running through this region; and (iv) to avoid further loss of prestige in North
Afnca and with theArab world.
5.15 As a result, at the outset of the negotiations in 1955,France
sought to rectify al1of its existingand claimed boundaries with Libya but to do so,
at least initially, in an indirect way in the context of appeanng to apply the
international agreements in force on the date of Libya's independence. The
Edjéléoil discovery,however, required France to corne out in the open after the
Treaty was signed and overtlyto insist on rectibng the Ghadamès-Chat sector as
a condition of the evacuation of Fezzan and the ratification of the 1955Treaty.
As tothe Ghat-Toummo sector, when Libya accepted onlytwo of the three points
France wished to have designated in Annex 1 as points through which the
boundary passed, Ambassador Dejean, two days before the planned signature
date, threatened to refuse to sign on behalf of Franceunless the third point was
agreed; and Libya was forced to capitulate. Moreover, the French team entered
the July-August negotiations with authonty to make a boundary proposal -if this
were possible without raising the question as to the validity of the French thesis
concerning Libya's southern boundary - substantially departing from the 1899-
1919line espoused by France, so as to embrace the entire Tibesti massif, while
making what to France was a concession to Libya in the eastern sector of this
boundary 9.
5.16 However, France emphatically did not want to have the
treaty basis of its thesis concerning Libya's southern boundary examined or
questioned. Its aim was to get general agreement to abide by the boundary that
emerged from "actes internationaux en vigueur" in 1951; then it hoped dunng a
later phase to gain acceptance of the 1899-1919line. It believed it had convinced
Libya that the 1935Treaty did not meet the critenon of Article 3. Furthemore,
that Treaty had not been included in the Annex 1list. Thus, the main stumbling
block had been overcome in the mind of the French Government.
5.17 Libya's objectives were entirely different. The overriding
purpose of the 1955Treaty for Libya was to get the French out of Fezzan. The
9 &, Sup~lementarvAnnex,No.6.6 (Document5).Libyan Prime Minister made it clear in the negotiations that he did not want to tie
the question of settling Libya's boundaries to the taking effect of the 1955
~reatyl'. The Libyan Government was not prepared to discuss the boundary
issue; it had not studied the question or examined the relevant international
agreements; and it had not yet engaged outside technical and legal advisers to
prepare the Govemment for boundary negotiations. Mr. Ben Halim's position on
the boundary at that point was quite simple: he believed Libya was obliged by
U.N. Resolution to accept whatever boundary existed on the date of its
independence; and in January he agreed to such a formula. ,411these points will
be taken up again belowwhen the Treaty's travaux~ré~aratoiresare discussed.
5.18 Libya was only partially successful in adhering to this
approach as concerned its boundaries. Although the southem boundary east of
Toummo was never discussed in any kind of detail -a fact that is not in dispute
between the Parties -,Libya was forced to consider the boundary changes France
wanted to make in the Ghat-Toummo sector, and it reluctantly agreed to two
geographical points to be mentioned in Annex 1as lying on this boundary, and
under great pressure just before signature, to a third point. Libya was particularly
wlnerable to such pressure for it was imperative to accomplish the French
evacuation of Fezzan as quicklyas possible.
S~ION3. OrdinarvMeanineofthe TermsofArticle3
5.19 The examination of Article 3 of the 1955Treatyhere in this
Chapter is primarily directed at Chad's first theory: that Article 3 itself delimited
Chad's boundary with Libya and was not, as Libya maintains, the recognition of
the territorial status quo on the critical date.
5.20 Chad appears to assume that the ordinary or literal meaning
of Article 3 of the 1955Treaty supports its thesis that a conventional boundary
existed between Libya and what is now Chad prior to 1955, that this boundary
"resulted" from certain of the international acts listed in Annex 1 (notably, the
1899 Declaration, the 1902 Accord, and the 1919 Convention (8 September)),
and that Article 3 of the 1955Treaty confirmed the existence of this boundary.
Chad also asserts that Libya is seeking to escape from the consequences of her
10 &, Su~r>lementan, nnex,No.6.4(Document6 -the drafi proces-verbtheJanuary
1955meetings),andLM. para.5.459Ga., covenng the July-Augustmeetings.acceptance of this boundary and accordingly is inbreach of the fundamental rule
of the lawof treaties incorporated in the principle pacta sunt servanda.
5.21 Al1 this is patently false, as Libya will now proceed to
demonstrate. First, it is necessary to recall the precise terms of Ar3iof the
1955 Treaty:
"Les deux Hautes Parties Contractantes reconnaissent que les
frontières séparant les temtoires de la Tunisie, de l'Algérie,de
1'Afrique Occidentale Française et de l'Afrique Equatoriaie
Française d'une part, du territoire de la Libye d autre part, sont
celles qui résultentdes actes internationaux en vigueur à la date de
la constitution du Royaume Uni de Libye tels qu'ils sont définis
dans l'échangede lettres ci-jointes (AnnI)."
The initial point to note about this text is that its geographical scope extends well
beyond the issue of whether there exists today, or existed 1955 , "frontière"
(boundary) separating the temtory of Libya from the temtory of what is now
Chad. It was a elob provision purporting ta regulate boundary questions as
between Libya, on the one hand, and the totality of what were in1955 parts of
metropolitan France (Algeria) or French colonies (including Tunisia, a
protectorate) bordenng on Libya, on the other hand. Its geographical reach
extended from the juncture between Tunisia and Libya on the Mediterranean
Coastta the juncture between Libya and Sudan (Map LR 3).
5.22 So, what did Article 3 achieve? One of the most important
and significant words in Article 3 is the word "reconnais~ent"~~. Chad indeed
places a good deal of emphasis on the use of the word12. But Chad invokes the
use of the word "reconnaissent" to attack a false target, namely, the alleged
Libyan thesis according ta which Article 3 did not embody anv definitive
11 It is obvious that the word "reconnaissent" or "recognise"has a broad range of possible
meanings. Chad wrongly assumes that itcalls "l'institution de la reconnaissance"
presumes the intent to arrive ai a definitiveresolution of the boundary (see, CC-M,para.
11.32). What is meant by "rmgnise" depends on the intentions of the parties and must
be determined in that contea, not vice versa. Similarly,citations to other treaties using
what Chad calls the technique of "dklimitation par refkrence"does not determine what in
1955 Libya and France intended by Article 3. Each situation must be examined in
contea. States may choose to refer to other treaties in order definitively to settle a
boundary; or they may makech a reference, as here, to provide an agreed basis for a
possiblesettlemeSec .ara 5.39,afi .4,below.
12 See, CC-M.paras. 11.27-11.32.settlement of the "ùoundary problem"13 nor regulate -y boundary question 14 .
This is not, and never has been, the "Libyanthesis". Article 3 has to be read as a
whole, in its context, and in the light of the object and purpose of the Treaty, as
the general rule of interpretation set out in Article 31 of the Vienna Convention
on the Lawof Treaties makes clear. What the parties were "recognising"byvirtue
of Article 3 of the 1955 Treaty was that the boundaries separating Tunisia,
Algeria, French West Africa and French Equatorial Africa on the one hand, from
Libya on the other hand, were the boundaries that resulted from the international
acts in force as of the date of Libyan independence, an indication ofwhich (but an
inaccurate indication) was given in Annex 1. What both parties were agreed
upon, and what Article 3 achieved, was that pre-existing boundanes binding on
France and Italy that resulted from international acts in force on the date of
Libya'sindependence, were recognised as being the boundaries between Tunisia,
Algeria, French West Africa and French Equatorial Africa, on the one hand, and
Libya, on the otherhand15.
5.23 The lack of respect for the text of Article 3 demonstrated in
the CC-M is startling: no reluctance is shown just to rewrite this provision to
accord with Chad'sinterpretation. Typical examples arethe following:
"..par l'art(...)les Parties 'reconnaissaient' expressément qy%la
frontière résulted'actesinternationaux que l'annexe 1énumère ."
"..les deux partiey 'reconnaissent' que la frontière entre la Libye
et 1'A.E.F- à laquelle le Tchad a succédé-résulte des instruments
énumérés 17 ."
13 CC-M para11.32.
14 See,CC-M, para.11.23.
15 Whethersuchinternationalacs erelimitedto thoselistedinAn1of thTreaty(as
Chadwntends)ornot(asLibyacontends)isofnoconsequence.
16 para.1.58.
17 a. para.8.09.The trick practiced here in Chad's pleading is to delete three key words from the
text of Article 3 - "sont celles qui18"-, as demonstrated below on the text of
Article 3itself by crossingout these three words:
"Les deux Hautes Parties Contractantes reconnaissent gue les
frontières séparant les temtoires de la Tunisie, de I'Algerie, de
l'Afrique Occidentale Française, et de l'Afrique Equatoriale
Française d'une part, du temtoire de la Libye d autre part, sont
eellesqi- résultent des actes internationaux en vigueur àla date de
la constitution du Royaume Uni de Libye tels qu'ils sont définis
dans l'échangede lettres ci-jointes."
From here, it isan easy next stepto arrive at this further deformation of Article 3:
"Les deux Hautes Parties reconnaissent comme frontières séparant
les territoires...les tracés résultant des actes internationaux en
vigueur ..."
But this is self-defeating: if the text of Article 3 has to be rewritten in order to
mean what Chad says it means then, i~so facto, the text does not have the
meaning that Chad wishesit to have.
5.24 Reading Article 3 as a whole, and in conjunction with Annex
1, which depends on Article 3, it is apparent that it achieved only a
settlement of Libya'sboundary problems, and did not, in particular, resolve the
question of Libya's southern boundary east of Toummo. Why is this so? A
careful study of the Franco-Ottoman 1910 Convention shows that it was a true
boundary agreement between Tripolitania and what was then the French
protectorate of Tunisia, concluded directly between the two Powers then
exercising sovereignty over Tripolitania and Tunisia respectively. It is a detailed
agreement expresslydelimiting a boundary between Tripolitania and Tunisia; and
it was subsequently demarcated in 1911with the erection of 333 boundary pillars
along the boundary 19.
5.25 In principle, the same holds true for the boundary between
Libya and Algeria (then part of metropolitan France), though here there are
complications. This boundary (between Ghadamès and Toummo) had been
delimited by virtue of the Franco-Italian Accord of 12 September 1919, again
18 See.LC-M, para.3.05, hi. 3, where it is noted that the Arabictexi of these words in
Anicle 3 reads(translatedinto French):"sontlesfrontikresqui".
19 See,LM,paras.5.111-5.12.concluded directly between the two Powers at the time exercising sovereignty
over Libya and Algeria respectively; but the French demanded a clarification and
rectification of the boundary between Ghat and Toummo (up to the point 1010
where the Algenan boundary ended) during the 1955 negotiations between
France and ~ib~a~O.This accounts for the inclusion in Annex 1of the paragraph
making it clear that, as regards the Franco-Italian 1919 Accord, the boundary
between Ghat and Toummo was to pass through three identified points. As
already mentioned above, the identification of these three points in Annex 1did
not settle the course of the line in this sector for it left open a number of questions
stillto be resolved.
5.26 The rectification of the Ghadamès-Ghat sector of the
boundary between Libya and Algena in the light of the Edjéléoil discovery,
effected by virtue of the 1956Agreement (the conclusion of which was insisted
upon by the French as their pnce for ratifying the 1955Treaty and evacuating
Fezzan),is an even more significant indication that A3tof the 1955Treaty
had not resolveda boundary problems between Libya and France as regards
French territory or possessions bordering upon Libya (Mau LR 4).
5.27 It was indeed preciselyause Article 3 of the 1955Treaty
had the legal effect for which Libya contend- namely, to confirm that, as
between France and Libya, the Libya-Tunisia boundary was the boundary
delimited by virtue of the 1910Convention, as subsequently demarcated in 1911,
and the Libya-Algena boundary was the boundary delimited byvirtue of the 1919
Accord -that France was so insistent that the course of the Libya-Algeria
boundary be clarified and rectified in Annex 1of the 1955Treaty itself (as regards
the Ghat-Toummo sector). The precise course of the boundary between Libya
and Algeria is not at issue in the present case, and the clarifications and
rectifications of that boundary agreed upon in 1955and 1956are relevant for the
purposes of the present dispute only insofar as they shed light on the true
interpretation of Article 3 of the 1955Treaty. There is no doubt that Article 3 of
the 1955 Treaty, read literally, and in conjunction with Annex 1, had the
immediate legal effeO& of confirming or rectifying those boundaries that had
already been delimited by the international acts claimed by France to-be
vigueur in 1951;and that is whyFrance insisted upon, and succeeded in achieving
(in Annex 1to the 1955Treaty and in the 1956Agreement), what she conceived
20 Sec .eneral,yM.paras5.448-5.490.to be essential rectifications and clarifications of the Libya-Algeria boundary as
delimited byvirtue of the 1919Agreement.
5.28 Thus, the text of Article 3 makes it clear that it did not
create, ex novo, boundaries where they did not existby,for example, transforming
into a genuine boundary line a line that served a different purpose. The role of
Article 3 was to render incontestable those boundaries, bindine on Libva and
France on the critical date, which the Colonial Powers had fixed conventionally
(that is. real boundaries) urior to the critical date. It is precisely for that reason
that Article 3 has been cited in the literature as a prototype of a treaty provision
consecrating the principle &i possidetis 21.
5.29 But, surely, it may beargued, if this was the immediate
legal effect of Article 3, that legal effect was extremely limited. This is, however,
to ignore the true significanceof Article 3 of the 1955Treaty. In 1955,Libyawas
a newly independent State in Africa, the forerunner of the many newly
independent States in Africa that were to emerge during the next twenty years or
so. In 1955,there was uncertainty asto what would be the attitude of these newly
emerging States in Afnca towards the boundaries they might inherit as a result of
agreements between Colonial Powers during the colonialist period or, as a result
of administrative arrangements made by a singleColonial Power. It was not until
some eight years later -on 25 May 1964 -that the African Heads of States and of
Government approved the Cairo Declaration declaring that al1 the Member
States (of the O.A.U.) undertook to respect the frontiers existing at the moment
when they achieved independence22.
5.30 But, it maybe contended, whywas reference made in Annex
1of the 1955Treaty to the 1899Declaration, to the Anglo-French Convention of
8 September 1919and to the 1902Accord, if the sole immediate legal effect of
Article 3 of the 1955 Treaty was to confirm the continued applicability, as
between France and Libya, of such boundaries as resulted from those
international acts on the Annex 1 list as were binding on them?
5.31 Here we are in the realm of speculation, since no evidence
has as yet been forthcomingfrom Chadian or French sources asto the genesis of
21 See.CM. p.76,para99.
22 ItwasentirelyconsistethatLibyaregisterednoreservatito the Declaration.the list of agreements set out in Annex 1. Both the CM and the CC-M merely
pose possible answers to the puzzle of why this list was inserted in Annex 1in the
final days of the negotiations in August 1955. The complete absence of any
discussion in the record of the Annex 1list suggests that it was added at the last
minute - in quite a rush it would appear - as a perfunctory listing of the
agreements believed byFrance to be relevant texts to be e~amined~~.
5.32 There is also another possible reason - and here the
significance of the word "reconnaissent" in Article 3 of the 1955Treaty needs to
be considered further 24. The use of this word demonstrates that (leaving aside
the rectification of the Ghat-Toummo sector of the Libya-Algeria boundary
brought about by Annex 1 of the 1955 Treaty itself) Article 3 was purely
declaratory of pre-existing boundaries. It did not purport to fix, to settle or to
delimit boundanes that had not previously been fixed, settled or delimited as
between Powers competent to do so. However, as Article 3 was supposed to
apply globally to al1boundary questions as between Libya and French territory
and possessions bordering on Libya, some mention had to be made of the
unsettled issue of Libya'ssouthem boundary east of Toummo. France was well
aware that this was, and remained, an unsettled issue. A major effort had been
made to resolve it as between France and Italy in 1935,but ratifications of the
1935 Treaty were never exchanged as the Treaty prescribed; and France had
admitted in 1935 in the bosé des motifs presented to the French Parliament
that, prior to the conclusion of the 1935 Treaty, no boundary existed between
Libyan territory and the temtory of French Equatorial Africa to the east of
Toummo.
5.33 How to resolve the dilemma? France did not wish to enter
into substantive negotiations with Libya on the course of the boundary east of
Toummo; the documents in the French diplomatic archives emphasise that the
texts on which the French position relied were not to be taken up and discussed.
This was the viewof the Govenor General of the A.E.F. and of the Ministre de la
France d'Outre-Mer; and it was incorporated in the instructions of the Ministre
des Affaires Etrangères to the French negotiating team as they resumed
25
negotiations in midJuly 1955 .Chad admits yet again in its Counter-Memonal
- - -
23 &, para5.89,g seq.,elow,whereAnnex 1isdiscussedfurther.
24 &, para.5.22and61.10,above.
25 &, fn .above.that the 1955 negotiations bore almost exclusively upon the segment of the
boundary separating Libya from Algeria and ~i~er~~. A convenient solution
appeared to be to include in the Annex 1list references to certain international
acts that mieht be thoueht relevant to the determination of Libya's southern
boundary and to leave the 1935 Treaty off the list. Although France was well
aware that no boundaiy between Libya and French Equatorial Africa had
resulted from the 1899Declaration, the 1902Accord, or the 1919Anglo-French
Convention, the French no doubt had it in mind that they could maintain that
such a boundary had resulted from these acts; and in the course of subsequently
delimiting this boundary they hoped to gain acceptance byLibya of this boundary
espoused byFrance east of Toummo.
5.34 Libya has convincinglydemonstrated in its earlier pleadings
that neither Article 3 of the 1955Treaty itself, nor any one or combination of the
international acts listed in Annex 1,fixed a boundary separating the territory of
Libya from the territory of what is now chad. Whatever kind of lirnit to French
expansion eastwards towards the Nile Valley had been agreed upon between
Britain and France under the 1899 Declaration was certainly not an agreed
boundary between these two Powers, as Chad readily admits; nor did it
subsequently become such a boundary by virtue of the 1919 Anglo-French
Convention. Convention may have established, as between Britain and
France, a northlsouth boundary line, subsequently to be delimited and
demarcated by virtue of the 1924 Anglo-French Protocol and Declaration,
dividing French possessions from the Anglo-Egyptian Sudan 27. But it most
certainly did not establish a boundary along the southeast line indicated in Article
3 of the 1899Declaration (whatever may have been the precise direction of that
line), far less asthat line may have been modified as a result of fixingitsterminal
point at the juncture of 24"E longitude with 1Y30'Nlatitude. Even if this were
not the case, it is clear that Italy (exercising sovereignty over Libya at the time)
vigorously protested and refused to accept the 1919 Anglo-French Convention,
not least because it purported to shift the northlsouth boundary (and hence the
end point of the southeast line) further north by fixingits terminal point on the
24th parallel at9"30'Nlatitude.
26 See, CC-M.para.11.123.
27 Itis thusstrikingthatthese1924instrumewere omittedfromthe Annex1list,strongly
suggestingthatthe AnneI lis1wasnotmeantto be exhaustive.Thisis wnfirmedbythe
factthatthe 1924instmmentswere mentionedinChad'sApplicationfiledwiththeCourt
on3 September1990,before thepreparationof itspleadings. 5.35 Libya has also convincingly demonstrated that the 1902
Accord did not have the legal effect attributed ta it by chad2'. Moreover, the
inclusion in Annex 1 of the 1902 Accord was patently in error, given that this
Accord was not in force on the date of Libya's independence (by reason of
France's failure to notify it to Italy under the terms of Article 44 of the Italian
Peace Treaty of 1947), a condition expressly insisted upon by ~had~~. The
inclusion in Annex 1of this Accord could not retrospectively bring back into force
as between France and Libya an "international act" which, byvirtue of Article 44
of the Italian Peace Treaty, must be considered ta have been abrogated as
between France and Italy by reason of France's failure to notify the Accord to
Italy under the terms of, and within the time-limit specified in, that particular
provision of the Peace Treaty.
5.36 Even were the position otherwise, it has also been
conclusively demonstrated by Libya that the key sentence in the 1902 Franco-
Italian Accord about the "limit of ~rench expansion" referred only to French
expansion to the eas of France's possessionsof Tunisia or Algeria whichadjoined
the western frontier of the of Tripoli, and did not refer at al1to Libya's
undetermined southern boundary to the east of ~oumrno~~. It is manifestly clear
that the 1902Accord did not constitute a boundary treaty, nor did it concern the
régimeof a boundary, if only for the reason that Italy had no capacity at the time
to determine the boundaries of Tripolitania, which was under the undisputed
sovereignty of the Ottoman Empire in 1902. At most, the 1902 Accord can be
construed as a political assurance given to and accepted by Italy, in her capacity
as potential inheritor of Ottoman rights in and over Tripolitania, that French
designs did net extend to encroachment eastwards from Tunisia and Algena over
what were generally regarded at the time as the approximate western limits of the
vivi of Tripoli, as shown notionally on a map referred to in the Accord by a
dashed, wavyline, and not identified on the map's legendas a boundary.
5.37 Chad, after having reproduced the French texts of Article 3
and Annex 1of the 1955Treaty, appears to assume that a simple reading of these
28 See.LC-M.para.4.90,seq.; also,para.6.4gseq. below,
29 See, CC-M.para.11.20.For thesame reason,the inclusionon the list of the Franw-
ltalianAccordof 12 September 19wasalso in error. It,too, hadbeen abrogatedas a
resultof not being notifiedundertheItalianPeaceTreaty.
30 See,LC-M.paras.4.106-4.125,settingtogentreasonsIosupport thiswnclusion.provisions suffices to resolve definitively what it refers to as the "boundary
dispute". Chad specificallyStates:
"Iln'ya donc pas lieu de compliquer inutilement le litige: il suffit de
consacrer un texte conv tionnel parfaitement clair et de lui
donner son sens ordinaire fi."
5.38 It has already been illustrated above how in Chad's
pleadings the text of Article 3 is sought to be m~dified~~. But even as to the
unmodified text, Libya'sconception ofwhat is the ordinary (or literal) meaning of
Article 3 differs radicallyfrom that of Chad, in the followingrespects:
- Article 3 did establish any boundaries where no
boundaries had previously existed, and Annex 1 in no way
modified this result. The use of the word "reconnaissent"
demonstrated that it was designed to be declaratory of
existing boundaries and not constitutive of boundaries
where no boundanes had previously existed. If a boundary
resulted from any of the international acts en vigueur in
1951, notwithstanding that the boundary might have been
determined and delimited by agreements or other
international acts concluded between France and other
Powers at the time entitled to exercise sovereignty over what
is now Libya, that boundary was recognised in the 1955
Treaty as binding between France and Libya if it was
bindine between them on the criticaldate33;
- This reading of Article 3, read in conjunction with Annex
34 -
1 ,1sfurther supported by the absence of any reference in
the preamble tothe 1955Treaty or in the text of the Treaty
31 CC-M,para. 11.12.
32 &, para. 5.23,above.
33 It is paradoxicalthat France either proposed, or succeeded in, recti@ingal1of the actually
delimited boundaries, with the exception of the Tunisian boundaiy; and even that
boundaiywas proposed to be discussedat the outset of the negotiations in Januaiy 1955.
When the July-August 1955 negotiations started, the French team had authIoity even
seek a major change in the course of what France had maintained, before then, to be
Libya'ssouthem boundaiy in the Tibesti
34 Which depends on,and issubject Io the provisions of,Anicle 3. itself, to G.A. Resolution 392(V). Chad appears to attach
no significance to this striking omission35. Yet it is clear
that this omission is crucial. What the General Assembly
had recommended in Resolution 392(V) as already
discussed above, was that:
"..the portion of [Libya's]boundary with French temtory
not alreadv delimited bv international aereement be
delimited, upon Libya's achievement of independence, by
negotiation between the Libyan and French Governments
..."(Emphasis added).
- It is clear from the debates in the General Assembly
preceding the adoption of C.A. Resolution 392(V) that the
General Assembly had concluded that there was a portion
of Libya's boundary with French temtory which had not
already been delimited by international agreement, and that
this portion included the boundary with what was later to
become Chad. And yet, notwithstanding this specific
mandate from the General Assembly, negotiation took
place between France and Libya in 1955 to delimit any
boundary between Libya and French territory east of
Toummo, and there was virtually no discusson at al1of that
36
boundary . All that resulted was the general formula in
Article 3 whereby the boundaries of Libya with French
territory were to be "those which result from international
acts in force at the date of Libya's independence".
Comrnenting on the significanceof Article 3, Chad States:
"Ils'agiten quelque sorte de la réaffirmY?n sous une autre
forme des termes de la résolution392(V) ."
- If Article 3 of the 1955Treaty was designed to be simply a
"reaffirmation" in another form of the terms of Resolution
392(V), then it is clear that the parties to the 1955Treaty
did not, by that Treaty, discharge the specific mandate
35 See.CC-M,para.11.138.
36 ïhisisconcedebyChad;se,CC-M,paras11.123-11.129.
37 CC-M. para.11.137. conferred on them by the Resolution to "negotiate" the
delimitation of the Libyan boundary with French territory
east of Toummo. This is particularly the case where, as
Libya has established in its written pleadings, the
"international acts" that might be relevant to the
delimitation of the boundary east of Toummo (whether or
not listed in Annex 1) do not disclose the existence of any
"boundary" between Libya and what is now Chad that was
binding on Libya and France on the critical date.
- The "ordinary meaning" of Article 3 of the1955 Treaty is not
the abstract ordinary meaning of the words used, resulting
from a purely grammatical analysis:
"Ilne s'agitdonc pas d'un sens ordinaire abstrait, mais d'un
sens ordinaire concret qui ne peut êtrediscerné que par
l'examendu terme en question dans le contexte de ce terme
et à la lumière du but et de l'objet du traité. C'est ce sens
qui p2lt êtreretenu dans le processus de l'interprétation du
traité ."
So, one has to begin by looking at the specific meaning of
the text calling for interpretatio- in this case, Article 3,
read in conjunction with Annex 1,in its application to the
question of whether a "boundary" between Libyan and
French territory east of Toummo "resulted"from any of the
"international acts" in force at the date of Libya's
independence to which an incomplete and partly erroneous
reference is made in Annex 1. No such "boundary"had ever
been delirnited between France and Libya, nor indeed
between France and Italy in respect of Libya (save in the
1935 Settlement). Nor indeed, for that matter, had a
"boundary" ever been delimited between France and Great
Bntain along the southeast line descnbed in the 1899
Declaration, as "interpreted in1919.
- This is net to deprive Article 3 of the 1955 Treaty of al1
practical meaning. It was clearly operative to confirm, as
38 Yasseen,"Interprbtatides traitésd'aprèsla Conventionde Vienne sur le Droit des
Trait&", ecueildesCours,Vol151,1976-111,26. between France and Libya, Libya'swestern boundary with
Tunisia and (subject to the rectifications and clarifications
embodied in Annex 1) Libya's western frontier with
~l~ena~~. But these frontiers are not in issue in the present
case. The only conclusion that can properly be drawn from
a consideration of the text of Article 3 of the 1955Treaty,
including Annex 1,and in the light of the circumstances of
the conclusion of that Treaty, is thate provisions neither
delimited a boundary between Libyan and French temtones
east of Toummo, nor did they confirm a pre-existing
"boundary"in that sector.
5.39 As was noted in Section 1of this Chapter, Chad's position as
to the meaning of Article 3 of the 1955Treaty has not only changed since it set
forth its thesis to the O.A.U., and since its Notification to the Court filed on 3
September 1990,but is also unclear. oexample, in discussingArticle 3, CC-
- states that:
"Par ces dispositions, les deux Parties reconnt que la frontière
doit êtredéterminéeàl'aidede certainsactes... .
This suggests that Article 3 set the ground rules for a subsequent delimitation
based on (with the aid of) the "actes internationaux en vigueur" in 1951and, thus,
was purely declaratow. But this seems to be in contradiction with what is said a
few pages further on, where the suggests that the Article 3 formula
represented:
"..une technique de délimitati articulière: la référencedes
textes internationauxantérieurs..P
What these words appear to suggest is that the reference to the earlier texts
accomplished the delimitation, and that Article 3 was constitutive. TCC-M
goes on to say that the exact delimitation is easy to amve at: from the texts a line
39 However,before the ink wasdry on the 1955Treaty,France had insisted that the
Algerian boundary between Ghadamèsand Ghat, so wnfirmed, be rectified.
Funhermore,the Ghat-Toummo sectorwas not suficiently delimited to be able to
demarcate it.
40 CC-M para.11.20.Emphasisadded.
41 CC-M,para.11.34.may be deduced or "results"from the texts; and no map is needed, thus avoiding
problems of interpretation and compatibility between map and text. The
"recognition" operates directly to make opposable a line emerging from these
texts, and hence:
"..la valeur ou l'opposabilité auxEtats partieà la Convention des
textes inteB ationaux auxquels il est fait référence est sans
importance ."
Such an interpretation suggests that Article 3 established a boundary by mere
reference to agreements listed in Annex 1, regardless of their validity or
opposability to Libya (and presumably whether or not they were en vieueur in
1951). The precedents cited - to show that this technique of delimitation by
reference to international texts is well-known and wide-spread -show nothing of
the The terms used in these other treaties were entirely different from
Article 3: they referred to "frontière établie","frontières définies",or "frontières
définieset tracées",or "boundaries establi'shedd4.
5.40 In describing this interpretation of Article 3, the CC-M
makes this candid admission: "Cette formulation n'est pas innocente45!' But how
can this statement be squared with Chad's repeated assertion that Article 3 is
simple and clear and its meaning can be discerned from the text without the aid of
travaux? Chad's remark certainly suggests that France's intention was to lead
42 u. para.11.35.
43 -3e -C-M,para. 11.36g,sol
44 Chad seemsto assume that the exactmeaningand preciseeffectsof Article1955f the
Treaty may he determined by way of analogy,relyingon international agreements that
concemed other States and different regions. EvidentlyChad chooses not to followthe
admonition of CharlesDe Vischer that, on the one hanasa general ni-e)
"..la prédominancenaturelle dans les rapports internationaux de situations
fortement individualisees sur les situations g6nkrale.sreduit notablement le
champd'applicationde l'analogie.";
and on theother hand, in respectmore specificallyto treaties .
"(c)elle-ci n'a manifestement qu'une pla1113 restreinte dans le droit
conventionnel et de façon plusgenhale dans le droit pa....On ne la
conçoit gukre ici comme Iegitimant un elargissement des dispositions amet&
par les Parties". De Visscher,C.: Problkmesd'intemretation iudiciaire en droit
international oublic,P1963,,40.
45 CC-M .ara11.27.Libya on to ultimately accept the "opposability"of a situation that was not in fact
well-defined or well-known, and as to which Libya was in total ignorance, since
there had been no negotiations on this subject and the Annex 1list had appeared
at the last minute without explanation or discussion.
5.41 Of course, this apparent inconsistency in Chad's case is
reflected in the conflict between Chad's first and second theories, in reality two
alternative cases, supplemented by a third case - French effectivitésalone, which
had no relation at al1to the text of Article 3. Chad maintains that Article 3 (and
Annex 1)of the 1955Treaty resolved the question of the land boundary between
Libya and Chad. It is not acceptable, therefore, for Chad to offer two alternative
theones as to the meaning of this pivota1agreement, and a third that ignores it. It
is not acceptable for Chad to argue that it is not necessary to choose among the
three theories, for thcy lead to the exact same line. It is not acceptable for Chad
to dodge the question as to what Article 3 means if, in fact, under "actes
internationaux en vigueur" in 1951the international boundary between Libya and
Chad either did not exist - as Libya has demonstrated - or was a line different
from that claimed by Chad. It would be an extraordinary coincidence if three
such radicallydifferent theories should lead to the same precise line.
5.42 The CC-M has suggested that the pnnciple of &i possidetis
has virtually gained the status of a nile of jus co~ens~~. Such a view is clearly
wrong, since it would result in the nullification of any treaty that modified a
boundary resulting from the application of the principle of &i possidetis. But if
Chad'sviewwere correct, it would lead to the conclusion that for Article 3to have
modified the boundary between Libya and Chad as it existed on the critical date
in 1951,applying the cntena of Article 3 -a strict application o&i possidetis-
-would be in contravention of a rule ofjus coeens, and hence invalid.
In this case, Chad is put to the proof of establishing where
5.43
the boundary, if any, lay in application of the principle of possidetis &, as
defined in Article 3. For this can be the only meaning emerging from a literal
meaning of the text of that Article. In the next Chapter, it will be demonstrated
that this is an impossible task, for no conventional boundary in conformity with
,.
the cntena of Article 3 existed on the cntical date.
46 See.CC-M. para3.33. SECTIO 4. Context ofArticle 3
5.44 The object and purpose of Article 3, as well as the ordinary
meaning of its text, have been examined above. It is now necessary to consider its
context before turning to supplementary means of interpretation.
(a) The 1956Amment
5.45 No doubt the vanous companion agreements and annexes
of the 1955Treaty are part of its context. But beforeking up these provisions,
there is another agreement that had an overriding importance as part of the
context of Article 3 of the 1955Treaty. This was the 1956Agreement conceming
rectification of the Algerian boundary, for reaching agreement onse boundary
changes, whose primary aim was to ensure that the Edjéléoil fields belonged to
France, was imposed by specific amendment to the French law authorizing
ratification of the 1955 Treaty (the Isomi amendment) as a prior condition to
ratification. The 1956 Agreement made it apparent that Article 3 of the 1955
Treaty was intended by France to resolve the delimitation of Libya's
boundaries, for in the sector of Libya'sboundaries of greatest interest by far both
to Libya and France, it required a subsequent agreement in 1956to attempt to fi
the course of the boundary, which had not even been discussed in the 1955
negotiations.
5.46 Hence, it is incorrect to assert, as theCC-M does, that
Article3 was intended to resolve al1uncettainties over Libya'sboundanes, asthe
followingextract wronglysuggests:
"Elle marque la volontéde ses auteurs de me.&refinàune situation
encoremarquée par le doute ou l'incertitude ."
When the 1955Treaty was signed on 10 August 1955, the French Government
knew full well that it had not resolved the doubts or uncertainties along the
Algerian boundary with Libya, for the 1919 Accord did not produce a line
acceptable to France. However, rather than face up to the issue in the 1955
negotiations, France postponed it until the matter of ratification came up; then
Libya's agreement to this rectification of the boundary was imposed as a
condition of ratification. In similar fashion, the three points designated in Annex
1 of the 1955 Treaty brought about a change in the sector of the Algerian
47 a. para.11.27.boundary south of Ghat; but they did not resolve the delimitation of this boundav
as modified, as has been shown above.
5.47 The situation as to what the French regarded as Libya's
southern boundary was similar. The French came tothe July-August negotiations
armed with a proposal of the French military to rectify in the Tibesti area the
1919 line (which France claimed to be the boundary) to meet military objectives,
and because of the results of recent explorations in this region, that had given rise
to expectations of important mineral deposits 48. Apparently, the French
negotiators did not find an opportunity to table this new boundary proposal
without opening up the whole French thesis as to a southern boundary to scrutiny.
Their instructions were not to allow this to happen and only to advance the
rectification proposais ifthe occasion arose without nskto France's thesis.
(b) The1955Convention
5.48 Tuming to the other agreements and annexes accompanying
the 1955 Treaty, theCC-M focusses on the followingprovisions:
- Article5 of the Treaty(para. 11.53);
-
Article 1 of the Convention de bon voisinage (paras. 11.55-
11.57);
- Articles 9, 10 and 11of the same Convention (paras. 11.59
and 11.65);and
ArticleII of Annex IIIof the Convention particulière (para.
11.66).
The first provision, Article 5, was part of the Treaty itself; it concerned
arrangements for consultation over mutual defence in the event of a military
attack against North Africa. For this Durnose,France's territones were defined in
Article5 -not as those over which it had sovereimtv, but as those for which it had
48 -, para6.241,below,andMao 27C.
49 See,SupplementarvAnnex,No.6.6 (Document9).assumed res~onsibilitv for their defenceS0. This included at the time the Libya-
Chad borderlands, but no longer Fezzan.
5.49 The last sentence of Article5 refers to Libyan territory in
this way:
"En ce qui concerne la Libye, il s'agit du territoire libyen, tel qu'il
est définiàl'article3 du présenttraité."
The CC-M contends that the last phrase of this sentence:
"... arque bien la convictiondes Parties que le temtoire libyen est,
dans cet article (that is, Article 3), délimité avecl'ensemble des
territoires limitrophes."
But the phrase is no more than a reference back to Article 3 and is entirely
consistent with theinterpretation that the boundary was expected to be delimited
soon, in accordance with the cntena established in Article 3. The Algerian
boundary south to Ghat and between Ghat and Toummo had in fact not been
definitively delimited in 1955,for the northem sector was modified in 1956,and
south of Ghat the points designated in Annex 1still left unresolved a number of
open questions as to the course of that boundary. Beyond the third agreed point
in Annex 1 (point 1010) and Toummo, there were vanous widely differing
scenarios as to how to draw the bounda2' (Mar, LR 5). The Algerian boundary
in both sectors was of much greater concem to France in the event of hostilities
than Libya'ssouthem boundary.
5.50 The other provisions listed above in paragraph 5.48
52
concemed not the boundas, but the "régime frontalier" . The French
diplomatic records show that details of this "régime"had been formulated several
years before in'proposals made by the Govemor General of the A.E.F. and the
Ministre de la France d'Outre-Mer. Some, it appears, had already been put into
effect. This was at a time wellbefore Article 3 allegedlyfixed Libya'sboundanes.
50 Article5definedFrench andLibyanterritoriesinthisway:
"En ce quiconcernelaFrance,il s'agitdesterritoiresdontelle assumeladefense
etquisontLimitrophese laLibye.En cequiconcernelaLibye,ils'agitdu
territoireLibyentelquiestdefiniàl'article3 dupt raite."
51 Sec S.upplementamAnnex,No.6.9(7).
52 SupplementamAnnex,No.6.6(3). LR 5
l -24..
VARIOUS BOUNDARY SCENARIOSBETWEEN
POINT 1010 AND TOUMMO
Lamber, Conforma1 Conic Projeclion
Scale accurate ai 23-N
Kilomeierr
1 Maximum FrenchClaim
2 Triil paritobe markcd
3 VariaXion proposcd by PETROPAII
4 louihcrborder oIhcMingucni Plateau
Iboundiry daimcd b" Lib"., CHAD 1
1!Y .- jT ,,. ---T--T---T-~.-
Splinllpr.p"dIh .rMIallOID the intarniavrlioiJuSiiCi S0"rCB:auai d'ors.Archiver:
-69.In fact, the French authorities made a clear distinction between the question of
boundaries and the "régimefronta~ier"~~.
5.51 Considering, in turn, each of the other provisions said by
Chad to form part of the context of Article 3 of the 1955Treaty, Article 1of the
Convention refers back to Article 3 of the 1955Treaty, using thesame words as
Article 5 of the Treaty itself: "sur les frontières telles que définiesà l'...",le 3
and does not presume the existence of a finallydelimited Libyan boundary for the
reasons just set out above. Moreover, in Article 1 of the Convention, French
territories are again defined in terms of territories for which France had assumed
the defence, not over which it asserted sovereigntyThe boundaries referred to
were between Libyan and French temtories so defined, which as already noted
covered the borderlands, so that no precision as to these boundaries east of
Toummo was necessary. Whatever the sovereign rights to the borderlands might
be, France had at the time assumed responsibility for their defence.
5.52 There are then Articles 9, 10 and 11 of the Convention to
consider54. Once again, the boundary referred to was one separating the
temtory of Libya from French territory, already defined in the Convention in
terms of responsibility for defence, not sovereignty, which no longer included
Fezzan (at least after French evacuation, which was to take place at the end of
November 1956) but which did include the borderlands, whatever their status as
Libyan or French territory might have been at the time. As the explained,
this was a practical arrangement based on the situation on the ground; it had
nothing to dowith sovereign rights. Moreover, it formalized a "régimefrontalier"
that had been operating informally.
5.53 The zone created under Article 10 illustrated that the
parties to the Convention did not rely on precisely delimited Libyan
boundaries5'. M~D LR 6A shows this zone, formed by a line between certain
designated points said to lie in "temtoire français", and other points in "territoire
libyen". It was within this zone (shaded red) that the nomadic peoples circulated.
It is necessary to repeat once more that "temtoire français" was defined in the
Convention to mean temtory for which France had assumed the defence, not
53 Ibid.
54 Inthiregard,, LM, paras.5.542-5.545.
55 SeeLC-M, paras.5.543-5.a5ndMaoLC-M 99appeanngthere.over which it had sovereignty. What isstriking about the zone shown on the map
is that it left a great deal of leeway for the delimitation of a boundary.1935
line and a strict southeast line under Artic3eof the1899 declaration have been
drawn in red on this map. Both lines fit comfortably within this zone. Almost al1
of the regions of Tibesti, al1of Ounianga and Erdi, and half of Ennedi fell within
the zone, for these were the regions of the nomadic peoples. It is evident that the
existence of a delimited southern boundary was of little consequence to the
definition of and operationswithin the "régime frontalier";in fact, these peoples
had been circulatingwithin this zone for centunes.
5.54 In this regard, there is no basis at al1for the statement in the
CC-M. refemng tothe Convention, that:
56 II
"..sa mise en oeuvre supposait que les frontièressoient définies.
Chad produces no evidence to support such a conclusion; and it is wrong, as the
French diplomatic records establish and as shown by the fact that such a régime
conceming cross-boundary movements and commerce had informally been in
effect long before Article 3 of the1955 Treaty took effect - which it should be
borne in mind was not until12 February 1957.
5.55 This leaves Article II of Annex III of the Convention
particulière to be discussed, conceming Piste No. 5. This route is descnbed as
passing through a number of points starting in Tunisia and descending south to
Chad. The CC-M underlines this part of the description:
"..et pénètreentemtoire du Tchad dans la régiondeMun Idie."
It is to be noted that it is not "temtoire français"but "temtoiredu Tchad" which is
mentioned. But this could not have referred to temtory in terms of sovereignty,
for Chad was a French colonythat was, intum, a part of the A.E.F, and "temtoire
du Tchad was a militas, term. Furthermore, the description in this Article "inthe
region of Mouri Idie" is not at al1precise, as the map shows (MauLR 7). 1sthe
reference to the "Col. de Moun Idie" or to "Moun Idie" itself, far to the south
west? There is no indication at al1what part of this immense area lay in the
"temtoire du Tchad". Whether or not it layin Libyan temtory was not relevant to
the fact that, being near the Algerian frontier, it was an area over which France
56 CC-M para11.64.had a special interest in retaining the defence responsibility in 1955, aitfell
within the area of responsibility of the military commander of Chad, - in this
sense, therefore, "territoire du Tchad". So this brings out again the fact that the
"régimefrontalier" formalized in the agreements accompanying the 1955Treaty
was a matter quite apart from the question of whether there was a southern
boundary and, if so,where it lay.
(c) Other Elements Within the Context of the 1955
Treatv
5.56 The CC-M does not mention a number of other elements of
conduct that might be considered as further "context"in interpreting Article 3 of
the Treaty. These include the following:
- U.N. maps at the time theTreaty was negotiated and after it
was signed;
- Issuance of Libya's Petroleum Regulation No. 1 and Map
No. 1annexed thereto, on 14August 1955;
- Prime Minister Ben Halim's statement on 14 October 1955
that:
"Le traité franco-libyen est un accord d'wa"ion
pur et simple quin'engage en rien la Libye.
and the French reaction to it;
- The conduct of France in regard to registration of the 1955
and 1956Treaties under Article 102of the U.N. Charter:
-
The 20-year term of the 1955Treaty.
57 LM, Exhibi7t,p.5023. (i) U.N. Mavs
5.57 The U.N. maps have already been discussed ab~ve~~,so
onlythe remaining elements of thebroader "context"willbe taken up below.
(ii) Libvan Petroleum Regulation No. 1 and Map
No. 1of 14 August 1955
5.58 Libya's 1955 map is evidence that bears directly on the
meaning of Article 3 of the 1955Treaty, for it was issued only four days after the
Treaty was signed. It was an official Libyan map, signed by a Libyan Minister,
59
and it contained no disclaimer as to the international boundanes portrayed .
When, in 1978, the Libyan Atlas was issued, it contained a disclaimer as to
international boundaries shown; and Libya's southern boundary, shown on the
maps in this Atlas, was fairly close to that portrayed in 1955on Libyan Map No. 1
(Map LR 8).
5.59 In both its Memorial and Counter-Memorial, Libya states
that itknew of no evidence to indicate any French protest against Libyan Map
No. 1. The CC-M dodges the issue and refers instead to a 1962 geological map
prepared by the U.S. Geological Survey showingthe position of the United States
Govemment as to the location of Libya's boundaries, which accorded with the
French position. The map portrayed "miscellaneous geological investigations"
and did not purport to indicate Libya'sposition asto the international boundanes
shown, as the disclaimer at the bottom of the map in bold red type states:
"International boundanes as illustrated herein are neither final nor binding on the
Libyan Government." No such disclaimer had been placed on Map No. 1,which
was the official Libyan map and was so regarded by the international oil
companies and other international organisations. However, having examined the
files recently made available to Libya by the Quai d'Orsay, Libya has uncovered
evidence that France did indeed vromr>tlvvrotest Libya'sMap No. 1. It is to be
regretted that Chad'sCounter-Memorial did not so inform the Court.
5.60 On 25 August 1955, Ambassador Dumarçay sent a note
verbale to the Libyan Foreign Ministxyprotesting Map No. 1,issued eleven days
58 Sec .ara.4.25,g-q.,above. Sec,also,SuoplementarAnne& No. 2,in whichChad's
MaoAtlasisanalysed.
59 See.LM.para.5.524,S seq.earlier, because the boundary of Libya shown on the Map did not accord, he
wrote, with the "textes en vigueur" as defined in Annex 1of the 1955Treaty 60.
On several subsequent occasions when inquiries were made about Map No. 1 by
oil companies, M. Dumarçay referred to this protest. Whilst protesting this
official Libyan map that made clear, four days after the signing of the 1950
Treaty, that Libya did not agree with France as to the location of its western and
southern boundaries, France only took steps to deal with Libya'sboundary on the
Westwith Algena. Thus, France maybe considered to have acquiesced in the fact
that the southern boundary ofLibya had not been resolved by the 1955~reaty~l.
5.61 The line shown on Map No. 1 was the 1935 line. As
Mao LR 2 referred to in paragraph 4.25 above shows,it was almost the same line
as appeared on U.N. Map No. 241 of January 1950, attached to the U.N.
Secretanat's Study, the main difference being that the U.N. map had question
marks interposed on the line running across southern Libya east of Toummo.
Unlike U.N. maps and other maps relating to petroleum concessions, Libya's
Map No. 1contained no disclaimer.
5.62 It is important to explain why such a conclusion concerning
France's conduct iswarranted. The bearing of this map on the meaning of Article
3 is that it made clear that Libya did not regard Article 3 as having fied Libya's
southern boundary or that there was such a conventional boundary as then
espoused by France and now by Chad. France's prompt protest revealed that the
two States were not in agreement on the course of Libya'sboundary, only a few
days after the signing of the 1955Treaty. The French note verbale, however, did
not base its protest against Map No. 1 on the grounds that the boundary it
portrayed differed from a boundary allegedly established by Article 3 and Annex
60 Sec .uvvlementarvAnnex,No. 6.10(5).
61 Libya does not givethe principles of acquiescenceand estoppel the major emphasisthat
Chad does. Nevertheless, Libyadoes maintain that at several critical moments at least,
France's wnduct should have prevented France, and should now prevent Chad from
arguing that there wasa conventional boundary at the time of Libya'sindependence:for
example, (i) when France signed the 1915 Treaty of London and expressed no
resewations in respect to the recognition of Italy as successor to Ottoman righü over
Libya in its Article 10 (a para. 6.131, helow); (ii) when, in 1935, the French
Government in the &osé des motifs accompanyingthe lawto authorize ratification of
the 1935Treaty informed the French Parliament that there was no such boundary (a
-7 para. 5.33gt seq; LC-M, para.6.28); and (iii) when, in December, 1950,France
voted in favour of Resolution 392(V), calling for negofany undelimited Libyan
boundaries - in the circumstances an unmistakable reference to Libya's southern
boundaryeast ofToummo (s-,para. 4.16,above).1. It protested because the line on the map departed from a boundary that
allegedly emerged from the "textes en vigueur" as defined in Annex 1. It may be
presumed that M. Dumarçay, who had been intimately involved in the July-
August 1955 negotiations in Tripoli where he was Ambassador at the time (but
not the head of the French negotiating team), had cleared the text of thinote
verbale with the French Ministry of Foreign Affairs before presenting it to the
Libyan Government. Thus, in this not eerbale, the French Government officially
endorsed the interpretation of Article 3 as declaratory of the boundary situation
as it existed on the critical date (d possidetisu) rather than as itself
constitutive of Libya'sboundanes.
5.63 A finalword on Map No. 1is appropnate to understand why
Libya selected the particular boundary line shown on this map to the east of
Toummo. When a State issues a map showingits boundaries, it is incongruous for
it to leave certain sectors blank- without any boundas, shown. Normally, a
choice has to be made, particularly ifthe map concerns oil concessions (as distinct
£rom Italy's maps issued in 1916, 1926, 1939 and 1941 in the context of
negotiations with France). Libya issued Map No. 1 as part of the Petroleum
Regulation it promulgated on 14 August 1955. Oil had yet to be discovered in
Libya other than in the area of Edjélé onthe Libya-Algeria frontier. Libya's1955
Petroleum Law was issued to provide the ground rules and framework within
which concessions to oil companies would be issued. Thus, a consemative line
based on the U.N. map that illustrated the uncertainty attached to this boundary
62
was a safe line to pick as a guide to foreign oilcompani.s
Statement of Prime Minister Ben Halim on
(iii) 14October1955
5.64 Next to be considered, along with the context of the 1955
Treaty and subsequent conduct of the parties, is the reported remark of Prime
Minister Ben Halim on 14 October 1955,when he asserted that the Treaty was
-
62 ln LM, para.5.552,Libya discussed the dilemma that a State faces in issuing oil
concession mapswhen it cornes to indicating boundaries, resulting in the tendency that
the boundaries shown err on the side of conservatism, usually coupled with a disclaimer,
so as to avoid incidentswhen concessionsextend beyond boundaries.brushes
this aside with thii impetuous "Lalaborieuse explication de la partie libyennesur
la prudence des cartes géologiquesn'est gukre convaincante" (para. 10.36). It tries to
dismissthe fact that Map No. 1was issuedfour daysafter the 1955Treaty was signed with
the irrelevant observation that its preparation had occurred befAsfarasnature.
Libyawas wncerned, the principles to govern delimitation of its boundaries were agreed
in January 1955and the Article 3 formulation was onlya restatement of that agreement.simply an agreement to evacuate Fezzan "qui n'engage en rien la Libye63 ."This
provoked a sharp reaction from such astute critics of the 1955 Treaty as M.
Soustelle, Governor General of Algeria; and it was suggested during the French
Parliamentary debates that perhaps there was no use considering ratification in
the light of the Libyan Prime Minister's statement, taken by these French critics
to mean that the Treaty had already been violated. If Mr. Ben Halim had
believed that Article 3 had fixed Libya's boundaries, it seems implausible he
would have made such a statement. M. Soustelle's remarks during the French
Parliamentary debates also made it very clear that he did not regard Article 3 as
having adequately fixed Libya'sboundary with Algeria by a mere reference to the
Accord of 12September 1919~~.
(iv) Failure to Reeister the 1955 Treatv Under
Article102of the U.N. Charter
5.65 The next item appropriately considered along with the
context of the 1955Treaty concems the failure to register it under Article 102of
the U.N. There are a number of documents in the archives of the
Quai d'Orsay recentlymade available to Libya that complete this story .In fact,
the story differs from what Libya hadpreviously understood on the basis of only
fragmentary information. The CM and make no attempt to set out the full
facts. The full and accurate story recounted by the French diplomatic fileshas an
important beanng on the meaning of Article 3 of the 1955Treaty.
5.66 The matter of registration of the 1955Treaty under Article
102 was not raised within the French Govenunent until October 1961 - over six
years after signature and four and one-half years after the Treaty was ratified. In
contrast, the 1956 Agreement signed in December 1956 was registered under
Article 102 on 19 May 1958 even though the 1956 Agreement had not been
presented bythe Libyan Govemment to itsParliament for ratification.
5.67 It was the French Foreign Ministry'sService Juridique that
asked in October 1961whether any reasons of a political nature stood in the way
63 See,LM. para. 5.4LC-M para.3.74et=.
64 See,LM, para. 5.494.
65 See.LM,para. 5.50g,sea.;LC-M,para.3.12eV=.
66 Sec .upplementaw Annex,No.6.8.of proceeding with registration. Apparently none were perceived, for on 20 June
1962instructions were sent £rom the Quai d'Orsay to the French Mission at the
U.N. to take the necessary steps, which occurred on 3 July 1962. On 20 July, the
U.N. Secretariat pointed out that a required document was missing:a declaration
that thetexts submitted included any existing reservations to the treaty. It was at
this point that a problem arose: there had been two secret letters accompanying
the Treaty, and the French Govemment felt it had to consult Libya before going
any further with registration.
5.68 At the end of the day, Libya sent France a QO& verbale
dated 18February 1963tothe effect that it had no objection to registration in the
circumstances. There are, however, two French dispatches of special interest in
this file to be noted: fir date, 29 November 1962,reporting a conversation
with Libya'sFirst Secretary in Paris (Mr. Elatrash); the second, a dispatch dated
20 February 1963 from Paris to Tripoli just after Libya's note agreeing to
registration had been received. The f& document reports that Mr. Elatrash,
expressing his persona1 opinion, did not see why registration was appropriate
because certain provisions were "caduc" and a new treaty appeared to him to be
preferable. This was, of course, two years after Chad had achieved
independence. The second dispatch, the Quai d'Orsay'sdispatch of 20 February
1963, expressed surprise over Libya's consent to registration and suggested it
might be inopportune then to so proceed:
"Au moment où la négociation que nous menons avec le
droit, certaines des obligations que nous avons souscrites dans le
Traité, sans contrepartie véritablede la part de ce Gouvernement
....
5.69 The file does not reveal why, finally, the French
Government took no further action to register the 1955 Treaty. But it is not
plausible to believe thatuch a step would have been so delayed (and ultimately
not taken) if France believed that the 1955Treatv itself had fixed any of Libya's
boundaries. On the other hand, if the French Government believed the Treaty
only to be declaratory of the boundary status quo on the critical date, it is
understandable that it might regard its registration under Article 102as of no real
consequence, unlike the 1956 Agreement which itself specifically rectified the
boundary between Libya and Algeria. This is consistent with France's
indifference in not followingup its protest against Libya'smap No.1 in respect to
Libya'ssouthern boundary. Moreover, the question of registering the 1955Treatyfirst came up only in 1961,after Chad had achieved independence. Libya's
southern boundary was no longer a problem for France to resolve; it was a
problem to be resolved between Libya and ~had~~.
(v) The1955Treatv's20-YearTerm
5.70 It is also a significant element of the 1955Treaty's context
that its Article 11 provided that the Treaty had a duration of only 20 years. It is
far more likely that Article 3 was intended to be declaratory in such a situation;
for the ultimate boundary would not anse from the 1955Treaty itself, but from
other "actes internationaux en vigueur" on thecritical date.Thus, once the
ground rules for determining the boundary were agreed, the Treaty itself had no
further rote to play.
(d) 1966Libva-ChadAccord
5.71 The CC-M includes the 1966Libya-Chad Accord as part of
the context of Article 3 of the 1955Treaty. This is clearly not correct under the
cnteria of Article 31(2) of the 1969Vienna Convention on the Law of Treaties;
nor was it a "subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions", or "subsequent
practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation", to quote from Article 31(3) of the same
Convention. The parties to the two agreementswere not the same. Furthermore,
the 1966Accord, which waspart of a packageof economic agreements, al1signed
by the respective Economic Ministers of Libya and Chad, replaced (so far as
Chad was concemed) the provisions of the 1955Convention, not the 1955Treaty,
and thus concerned the "régimefrontalier",not the Libya-Chad boundary.
5.72 This difference between the "régime frontalier" and the
boundary itself appears clearlyin documents in the French diplomatic archives, as
has already been discussed above in connection with the 19on vent io The^^.
excerpts from the 1966 Treaty quoted in the CC-M al1 relate to the "régime
frontalier". Of course, in the 1966Accord the references in the 1955Convention
to French temtory (defined as temtory over which France had assured the
defence, not in terms of sovereignty) had been replaced byreferences to Chadian
67 S. SupplementawAnnex,No.6.7(10).
68 para.5.4g,a., above.territory or simply to Chad. But the geographical zone described in the 1966
Treaty remained the same as that described in the 1955Convention, excluding of
course Niger and Algena, as Mar, LR 6B shows. This left the same flexibilityin
terms of delimitation of the boundav between Libya and Chad as already noted
above in connection with the 1955 onv vent ion^^.
5.73 Thus, the 1966 Accord simply replaced the provisions
concerning the "régime frontalier"contained in the 1955Convention. It was not
relevant atal1to Article 3 of the 1955Treaty. Itis incorrect to say, as tCC-M
does. that Articles 2and 3of the 1966Accord:
de 1955Yp,.nt d'ailleurs lafrontière établiepar l'article 3 du Traité
The 1966Accord did not indicate, any more than had the 1955Convention, where
the Libya-Chad boundary lay; and it defined the exact same geographical zone as
descnbed in the 1955Convention, within the Libya-Chad borderlands, leaving a
good deal of leewayfor delimitation ofthe boundary within thiszone.
5.74 The argument that Chad does not advance is that the 1966
Accord established the boundary or limits to the boundaiy by mutual agreement
between Libya and Chad. Such an argument, if it had any basis in fact or law -
which it does not -would be more to the point, than trying to fit the 1966Accord
within the "context" of the 1955Treaty. However, such an interpretation would
clearly be inconsistent with the subsequent Treaties between Libya and Chad of
1972and 1974,with the famous letter of President Tombalbaye of 28 November
1972, and with the subsequent assumption of administration of parts of the
borderlands by Libya starting at the end of 1972, provoking no formal protest
from Chad for almost five years. The 1972 Treaty made no mention of
boundaries even though it was entered into at a time when Libya'sactivitiesin the
borderlands had begun. The 1974 Protocole d'Accord in effect replaced the
"régimefrontalier" of the 1966Accord substituting a more general approach to
cross-frontier circulation and policing in what it called the "border areas",
implying that the Libya-Chad boundary had not been delimited. These
agreements are again taken up in Chapter XI in the context of the post-1951
conduct of Libya and Chad.
69 See,para.5.53above,and MaoLR 6k
70 CC-M,para. 11.87. SECTI O.N Travaux Préparatoires
(a) Preliminarv Comments
5.75 The CC-M starts off its discussion of the travaux
préuaratoires with an obvious misreading of Libya's Memorial, refemng to a
passage where Libya suggested that Article 3 of the 1955Treaty was a "reflection
of France's confidence in its 'thesis'that a conventional boundary already existed
in 1951"~'. Saysthe -:
"Cet extrait du Mémoirelibyen est fondamental. En effet, la Libye
semble y reconnaître la portée réelle du Traité de 1955 qui
refléteraitla 'positionfrançaise' selon laquelle le tracéfrontalier est
celui résultantdes accords de l'époquecoloniale."
Article 3 did not reflect France's thesis; it reflected France's confidence in its
thesis- misplaced as it may have been -,and this isbrought out bythe travaux.
5.76 In January 1955,before the long hiatus in the negotiations,
Libya and France agreed to the following,as shown in the French draft record:
"Les deux Gouvernements conviennent de s'en tenir, en ce qui
concerne le tracédes frontières ...aux stipulations g8 '**les des
textes en vigueur àla date de la créationde 1'Etatlibyen .
This was the agreed basis for taking up the boundary question again when
negotiations resumed in July 1955. The January formula was redrafted by the
French in July to read:
"Les deux Hautes Parties Contractantes reconnaissent que les
frontières séparant les territoires de la Tunisie, de l'Algérie,de
l'Afrique Occidentale Française et de i'Afrique Equatoriale
Française d'une part, du temtoire de la Libye d autre part, sont
celles qui résultentdes actes internationaux en vigueuà la date de
la constitution du Royaume Uni de Libye, tels qu'ils sont définis
dans l'échangede lettres ci-jointes (AnnexI)."
This is the text of Artic3; the words are different but the sense is the same as in
the agreed formula of January 1955. This is apparent from the plain meaning of
Article 3 discussed earlier; and it isconfirmed bythe travaux.
71 CC-M .ara.11.101.
72 See,LM,paras.5.457and5.472. A wpy of thedraftminuteoftheJanuarymeetinghas
beenfoundintheQuaid'Orsay'sarchives&, Suv~lernentarAnnex,No.6.4(6). 5.77 France was confident that the application of this for-ala
strict application of possideti& 1951, based on "actes internationaux en
vigueur" on the critical date, the date of Libya'sindependen-would produce
the boundary whichis now the boundary submitted by Chad to the Court. France
waç also confident that its thesis (which is now Chad's thesis) as to where the
boundary lay, applying these cntena, would be accepted by Libya when it came
time to agree the actual line. The travaux and a number of French documents
followingthe signature of the 1955Treaty demonstrate this.
5.78 Contrary to what isaid in the rather convoluted passages of
the CC-M based on the above misreading of the LM, Libya's method of
interpretation of Article 3 of the 1955Treaty is in strict accordance with classical
rules of treaty interpretation codified in the 1969 Vienna Convention. Earlier
paragraphs of this Chapter have summarized what has already been set out in the
LM and the LC-M as to the "ordinary meaning to be given the terms of (Article 3
and Annex 1)in its context and in the light of its object and purpose". Libya now
turns here to the "preparatory work of the treaty, including the circumstances of
its conclusion" and other "supplementary means of interpretation", already
extensively dealt with in earlier pleadings, but now enriched by documents
recently made available by the French Foreign Ministry, to confirm the plain
meaning of Article 3.
5.79 Chad appears to believe that the meaning of Article 3 is so
clear that recourse to supplementarymeans of interpretation is unnecessary3.
Nevertheless, it devotes a number of pages of its CC-M to the travaux
préparatoires. Whilst Libya believes that the plain meaning of Article 3 leads to
the reading Libya gives to that Articl- what the CM. in fact, described as a
"consécrationd'&i possidetis 1951"-,at the same time, it believes it appropriate
to consult the travauinthis case74. This is so for several ream.ns.Article 3
is a most unusual delimitation provision. Both the CM and the CC-M have
devoted considerable space to an attempt to demonstrate that delimitation by
reference to other treaties is a common, well-proven method of delimitation.
73 See,CC-M,paras.11.102-11.110.
74 Professor Bastid,citing recent jurispmdence, suggests that the travaux
prkparatoirmaynowplaya more prominenrtole in the interpreof treatiesthan
it didin the pSee..astid,S.:"Efde Trait6 entlesParties"iLesTrait6 dans
la Vie Internatio, aris,Economica,1985,pp.115-141.None of the examples cited by Chad resemble in the least Article 375. Libya
knows of no other treaty containing a delimitation formula such as this. If, as the
CM suggests, Article 3 is a "classical" type of delimitation provision, it is so
because it is in a classbyitself.
5.80 Second, it is difficult to understand why such a round-about
formula was chosen if the intention of the parties could have been expressed so
much more clearly and simply had they intended to agree upon a specific
boundary line: the 1935iine could have been specificallyrejected; and the 1899-
1919 line and the Toummo-Tropic of Cancer segment of the claimed boundary
could have been specificallyidentified and even drawn on an annexed map. This
would have been entirely normal practice. The indirect approach of Article 3 is
one of the strongest reasons for rejectingd's contention that the 1955Treaty
fixed a line. Nevertheless, such an unusual approach as that of Article 3warrants
consulting supplementary means of interpretation.
5.81 Thir An.nex 1of the 1955Treaty, referred to in Article 3, in
and of itself,s unclear in terms of what purpose it was intended to serve. Was
this list of agreements set out in Annex 1intended to be exhaustive? If so, why
were such agreements, so cntical to the French thesis, as the 1900Accord, the
1912Franco-Italian Agreement and the 1924Protocol and Declaration omitted?
Furthermore, it appears that two of the agreements on the -ithe 1902Accord
and the Accord of 12September 1919 -were not "envigueur" on the cntical date.
So an investigation of the travaux seems mented to discem the purpose of Annex
1.
(b) The CC-M'sIncorrect andInadequateTreatmentof
the Travaux
5.82 In the summary discussion of travaux that follows, certain
remarks set out in the CC-M will be considered first. Then each category of
travaux willbe dealt with, summanzing the conclusionsthat emerge from them.
75 Secpara5.22,andfn.11andpara5.39and fn.44,above. 5.83 The CC-M contrasts Libya's vigilance in getting French
troops to leave Fezzan with Libya'scomplacency over continued French military
occupation and administration ofthe border~ands~~,considering that:
"Cette attitude serait incom réhensiblesi le gouvernement libyen
n'avit pas étéconvaincu de l existence de la souveraineté française
surle Tibesti."
This conclusion iswrong for it fails to take account of the situation that existed in
1955and the predicament in whichLibyawas placed. Libyawas then a very weak
and poor State. Substantial British and Arnerican forces continued to remain in
Libya in 1955, and the U.K. had undertaken the responsibility for its defence.
(They were not to leave until after 1969.)
5.84 Immediately following the January 1955 negotiations, the
Mendès-France Government fell, and the new French Government had serious
doubts about continuing the negotiations and agreeing to evacuate Fezzan. The
second round of negotiations did not resume until 18 July, and then only after
Libya had threatened to take the matter of French occupation of Fezzan to the
Secunty Council. French reluctance to evacuate Fezzan did not end with the
signing of the 1955 Treaty on 10 August. While Libya proceeded promptly to
submit the Treaty to its Parliament and to ratify it (20 March 1956),the French
Government once more had serious second thoughts about the Treaty, even to
the point of considering not submitting the Treaty to the French Parliament for
ratification, which, in the end, did not occur until early November 1956,less than
30 days before the date set for evacuation of Fezzan under the ~reaty~~. As the
pnce for allowing the 1955 Treaty to go into force by ratibng it (and as a
consequence having to withdraw from Fezzan), France exacted additional
consideration from Libya: the agreement that the Edjéléoil fields would belong
to France78.
76 Sa, CC-M.paras.11.114-11.118.
77 -ee,Su~vlementarAnnex,No.6.7.
78 It may be said in passingthat such condisa perfectillustrationof the kind of
behaviourcondemnedin the1969Declaration, adoptal the sametime as the Vienna
Conventionon thLaw of Treaties(andannexedto the Convention): the Declanntioo
the Prohibitionof Military,Political or Economic Coercion in the Conclusionof
Treaties. InthatDeclaration,the Confe-ence
"Deploringthe fact thatin the pas1States have sometimes beenforced to
conclude treatiesunder pressureexerted in variousfoms by other S...es 5.85 In these circumstances, it is not imaginable that the Libyan
Government would have insisted that French troops had to evacuate the
borderlands as well. In any event, as brought out above in discussingthe "régime
frontalier" provided for in the 1955 Convention, these were areas for which
France had undertaken to guarantee the defence. These military occupations at
the time were not manifestations of sovereignty, unless such sovereign rights had
already been established. Certainly, while France occupied Fezzan, its
occupation was not a manifestation of French sovereigntyover Fezzan.
5.86 There is a second point that comes up again in the u.
Instead of producing additional travaux from the French archives to fil1 the
conspicuous evidentiary gap that existed-for example, to explain the reasons for
the last-minute appearance of the Annex 1list, which Chad continues merely to
speculate over despite the fact that its case largely depends on i-, theCC-M
again harks back to the so-called "Aouzou Incident", as a sort of surrogate
travaux7'. This episode has been dealt with so fullyin the that only a few
additional comments need to be made here:
- Chad's account continues to be inaccurate: there were no
"excuses" presented by the Libyan Government; the
"excuses" of the U.N. were routine and certainly no
acknowledgement of French sovereignty; and a
contemporaneous account of this episode by the Quai
d'Orsay makes no suggestion that any acknowlegement by
80
Libya of French sovereigntywas involved .
- Chad still fails to note that this was not a military but a
civilian mission, - an attempted act of assertion of
sovereignty by Libya, repulsed by French military forceg1;
Solemnlvcondemns thethreator use of pressurein anyfom, whethermilitary,
political,or economic,byanyStatein orderto coerceanother Stateto perform
anyact relatingto the conclusionof a treatyinviolationof the principlesof the
sovereignequalityofStatesandfreedomof con...."
79 See.CC-M,paras.11.119-11.121.
80 -9e SupplementarvAnnexN, o.7.9.
81 The qenaican authorities organised the mission in tefouzouwasnot occupied
bythe French,a reasonableassumptionin thecircumstances.See.LC-M.paras.g.113,
S.; E, also,SuoolementarvAnnex,No.7.9. the withdrawal of the Libyan mission was not the
acknowledgment of anything except that there were guns
pointed in their faces;
- Chad fails to explain why, if this incident was of such
significance, it has introduced no evidence to show that it
was mentioned during the July negotiations; Libya has seen
no evidence of any kind the French brought up the incident
at these meetings;
New documentary evidence found in the French files shows
that this episode was one of a number of similar events
during 1954and 1955, and that the French authorities were
anxious that these events not prejudice France's position in
the forthcoming negotiationsg2; now Chad tries to convert
the so-called "Aouzou incident" into a major event in which
Libya allegedlyrecognised France's sovereignty overTibesti.
Thus, Libya finds the CC-M's attempt to fit this episode within the Temple of
Préah-Vihear case very contrivedg3. Furthermore, it is evident that in February
1955Libya was not at al1anxious to enter into another dispute with the French
Government, particularly when the latter had shown that it was very uncertain
over whether to resume the 1955Treaty negotiations.
5.87 The CC-M concedes that the negotiations leading to the
1955Treaty dealt almost exclusivelywith the Algerian boundary:
"Il ne fait pas de dout...que les négociations relativeà la [sic]
frontières ont porté principalement sur le segment séparant la
Libye de l'Algérieet du Niger. La France cherchait en effet des
garanties pour cette partie de la frontière, comme le qqntre
notamment l'examende la procédurede ratification du traité ."
This statement is most disingenuous. As the French travaux shows, during the
ratification process the French goal was to secure Libyan agreement that the
82 B. Su~plementarvAnnexNo.6.5.
83 Sec,CC-M.para.11.120g -q.
84 CC-M para.11.123.Edjéléoil fields fell within Algerian (that is French) territory; ratification was
specificallytied to achieving that goa-that was the "guarantee"they sought. The
1955 Treaty negotiations concerned, almost exclusively, the attempt to reach
agreement on three points through which the Algenan part of the Ghat-Toumrno
sector would pass, thus rectifying the boundary delimited by the 12 September
1919 Accord, notwithstanding its vagueness. What Chad, in the passage cited
above, calls "guarantees" concerned changes in the delimited line, but a clearly
defined boundary line did not result from these points being designated in Annex
1. A number of questions remained to be resolved before this sector could be
definitivelyfied. It is misleading to say that the effect of Annex 1was to "préciser
85 .
le sens de la convention de 1919", as the CC-M states : it modified that
agreement but without sufficient precision to indicate exactlywhere the boundary
86
was to be located between Ghat andToummo .
5.88 It is not convincing to argue that, although the sector of
Libya's boundary that was almost the sole subject of the negotiations was not
settled by Article 3 of the 1955 Treaty, nevertheless the boundary east of
Toumrno was definitively resolved by a mere reference to "actes internationaux
en vigueur" in 1951. Possibly,France assurned that subsequent negotiations on a
line would be a pure formality; but that is not at al1 the same as reaching
agreement on Libya'ssouthern bounday.
5.89 Perhaps the most conspicuous gap in the travaux produced
by Chad concerns Annex 1of the 1955Treaty. It is clear from the travaux -as
Chad has admitteds7 - that the Annex 1list of agreements made its appearance at
the very end of the negotiations in August. But what was its purpose? Here isthe
answer which the CC-M comes up with:
"En revanche, les négociateursestimèrent insuffisante la référence
Etait-ce l'incident d'Aozou du 28 février 1958 lsicl aui leseur'.
conduisirent à changer de méthode? Etait-ce le cours de la
négociation? Etait-ce l'inquiétude des services administratifs
fra%çais,révélée entre autres par la lettre du Gouverneur général
de 1'A.E.F.qu'analyse largement le Mémoire libyen? ..Toujours
est-il que le texte définitivementretenu, loin d'esquiverla difficulté
de la définition de la frontière entre la Libye et l'Afrique
Ibid.
85 -
86 s, para.5.49,above,andMapLR5.
87 See,CM,p. 136,para.119;E, alsom, para.3.23g -q. équatoriale française, la rwt en précisant leprojet initial par
I'enumérationde l'annexe1 .
Faced with one of the critical questions concerning the meaning of Article 3 and
Annex 1,the merely speculates, advancing no proof at all. What proof is
there that the negotiators in August 1955 considered the January formula
("conviennent de s'en tenir..aux obligations généralesdes textes en vigueurà la
date de la création de 1'Etat libyen") to be insufficient? Insufficient in what
sense? What proof is there that the negotiators were led to change the method of
delimitation("à changer de méthode")89? It is astounding that such an important
question could be treated in such an off-hand way.
5.90 This question concerning Annex 1 has been discussed
above90. There it is suggested that it was intended to be no more than a haidy,
though defective, list to which to refer when the actual delimitation of Libya's
southern boundary was undertaken in accordance with the agreed criteria set out
in Article 3 of the 1955 Treaty. The very fact that Chad has not produced
evidence concerning either the appearance or purpose of Annex 1confirms the
conclusion that it could not have been intended to play a substantive role. There
is not a shred of evidence to suggest that Annex 1was intended to change the
ground rules agreed in January and to substitute an entirely new method, as Chad
now suggestsfor the first time in tD.
5.91 In its Memorial, Libya produced a document that bears
directly on this question: the letter of 2 May 1955from the Governor General of
the A.E.F. tothe Ministre de la France d'Outre ~er~l. It willbe recalled that in
this letter, sent to Paris between the two sets of negotiations, the Governor
88 , u. para.11.126.
89 Inthe sameparagraph,referenceis madeto tCM. pp. 109-110,whichconcemedthe
criticismsof theGovemorGeneralof Algeria,M.Soustelle,aswellasof theMinistersof
InteriorandDefence. Thesecriticismsweremadaft ehrTreatywassigned,notwhile
the negotiationsweregoingon, unlike theletterof the Governor l f thA.E.F.
dated2 May1955.
90 &,paras 5.30-5.33,above.
91 See, LM. para.5.437, a.; &&i. paras.3.42-3.43. The Governor Generalof the
A.E.F.wasonlyconcernedwiththepartof theboundaryto the eastof Toummo (or more
preciselyeast of point 1010justWestof Toummo),in otherwordswithLibya'ssouthem
houndaty.General urged that the boundary question be handled "avec la plus grande
prudence" and that any discussionof the boundary linesbe avoided:
"Ilsemble que cette question ne devrait êtreévoquée dansles
accords que pour poser le principe d'une délimitationsurle terrain
àentreprendre dans l'avenir, maisen prenant pour seules bases les
traitésen vigueur àla date de la créationde 1'EtatLibyen."
5.92 The seeks to minimize the importance of this
document92: it wasjust the point of viewof a "chefde service","un fonctionnaire
francais"; "un instrument somme toute mineure"; other "services français" had
equally strong viewsthat were different; the A.E.F.'s advice was not followed, etc.
The French travaux, only recently made available to Libya, confirms the fact that
the A.E.F.'s advice ws followed, and that it represented the thinking of the
French Government when negotiations resumed in July as reflected, inter alia, in
instructionsiven to the French team93. The views of the other French services
referred to by Chad, expressing dismay that France had not rectified that
boundary more in the 1955Treaty, not only were expressed afte the signing of
the ~reaty~~, but also concerned only the Libya-Algeria boundary. These
"virulent"criticismsmade their mark and led tothe 1956Agreement rectifyingthe
Algerian boundary between Ghadamès and Ghat. But they did not concem
Libya'ssouthern boundary and had nothing to do with the advice of the Govemor
General of the A.E.F..
5.93 Contrary to the impression given by the u, the
Govemor General was not a low-levelofficia1out in the field sending in messages
to Paris that were ignored; he was among the most knowledgeable persons
conceming the boundary between Libya and the A.E.F., and his offices in
Brazzaville were the acknowledged centers of practical experience and informed
study on this matter. His advice was extremely influential and indeed it was
followed in this case by the Ministre de la France d'Outre Mer. The Quai
d'Orsay's archives contain an interesting exchange between the Ministre de la
France d'Outre Mer and the Ministre des Affaires Etrangères of 20 and 23 July
92 See,CC-M.paras.11.126and11.130.
93 See,Su~~lementarvAnnex,No. 6.&, alsoSupplementarv No. 6.5(2) fora
summaryof theA.E.F.dispatchof 10February1955.
94 Seefn .9,above.1955just after the July negotiations had started9'. A meeting of the interested
Ministries had been held in Paris shortly before to assemble maps and other data
in preparation for the negotiations. The Ministre de la France d'Outre Mer had
not been invited to attend,and his letter reveals that he was not happy over this as
well as concerned that perhaps French policy had been changed without his
knowledge. His 20 July letter expressed in strong terms his hope that the ground
rules concerning the boundary negotiations had not been modified, and he set
forth what he believed them to beg6. The Ministre des Affaires Etrangères
(Direction Générale des Affaires Politiques) promptly replied, assuring his
colleague that the guidelines the latter had set out in his letter of 20 July were to
be carefully followed and that they accorded with the instructions given to the
French team, which he described in thisway:
,J ai l'honneur de vous confirmer ..que les instructions donnéesà
notre Délégationlui prescrivent de baser son attitude, dans la
discussion de la délimitationdes frontières franco-libyennes, sur les
textes internationaux en vigueur au moment où a étéproclamée
l'indépendance libyenne (24 Décembre 1951), c'est-à-dire la
déclarationfranco-britannique du 21 mars 1899,admise par l'Italie
le ler novembre 1902 (échange de lettres Barrère-Prinetti) et
interprétée par la Convention franco-britannique du 8 septembre
1919,ainsi que les accords franco-italiens du 12septembre 1919."
This was essentially the formula agreed in January, with the addition of a list of
agreements said to have been in force on the critical date. In fact, this list was to
become the Annex 1list,to whichthe 1898and the 1910Conventions were added.
5.94 There was also reflected in thisexchange the fact that it was
intended that representatives of the A.E.F. and A.O.F. be sent to Tripoli to be on
hand to advise the French negotiating team. It is clear from this exchange and
from other documents, both during and after the negotiations, that the January
formula, which was essentially what the A.E.F. had urged, was being strictly
followed and that there was to be no discussion of a southern boundary line,
which would be left to a later phase. The 23 July letter also made a clear
distinction between boundary questions and the "régimefrontalier".
95 Sec .u~vlementar~Annex,No. 6.6(13and14).
96 "J'entendsm'en tenir aux dispositions des accords franco-italiensde 1919 et de la
dkclarationfranco-britanniqde 1899,et ne saurais admettreque la definitionde la
frontikrefranco-libyennepuis&treremiseendiscussion." 5.95 The CC-M misses the point when it suggests that Libya's
thesis is that thtrava shxw that a clear distinction was intended to be made
between Libya'sboundary with the Libya-Aigeria boundary and Libya's southern
boundary: the former to be delimited immediately, the latter to be left to future
negotiations. This is not Libya'sthesis; and the evidence shows something quite
different: the Aigerian boundary between Ghadamès and Ghat, as delimited by
the Accord of 12September 1919,was not touched by the 1955Treaty; it was left
for rectification in 1956as a condition of ratifymg the 1955Treaty. The fixingof
that boundary was thus postponed. The Algerian boundary between Ghat and
Toummo -over which virtually al1of the negotiations in July-August 1955were
concerned - was not definitively fixed, but by designating three points through
which that sector of the boundary should pass, France secured Libya'sagreement
to a rectification of the 1919delimitation. Its final delimitation was also left for
future negotiations. As to Libya's southern boundary east of Toummo, it was
recognised to be whatever boundary resulted from "actes internationaux en
vigueur" on the critical date. Agreement on a line was left to the future. This is
precisely what the A.E.F. letterof 2 May 1955proposed and what the travaux
(the 23 July letter just discussed) show to have been the instructions given to the
French team.
5.96 The cites the Gorse Report to the Assemblée
Nationale of March 1955 as representing the approach followed by the French
Government in the negotiations97. M. Gorse was a member of the French
Parliament not the French Government. His strong recommendation that Libya's
southern boundary should be settled definitively once and for al-an approach
callingfor France to put al1of its cards on the table dunng the negotiati-was
not followed;these were not the instructions of the French Government, as just
shown.
5.97 Thus, the parties to the 1955 Treaty, for different reasons,
reached the same conclusion concerning the delimitation of Libya'sboundary east
of Toummo. They both wanted to postpone the fixingof the line.
5.98 The absence in the travaux of any explanation for the reason
why Annex 1 made its appearance, can only be taken to mean that it was not
intended to change the basic ground rules already agreed on in January, and
- -~
97 nie exactsamecitationfromtheGorseReportmaybefoundinm, para.5.435.expressed in different words in Article 3. For any change of such importance
would certainly have been the subject of discussion, and the record of the
meetings would have revealed this.
Additional Travaux from the French Diplornatic
(c) Archives
5.99 The LC-M pointed out that the travaux relating to the July-
August negotiations produced by Chad were very sparse and that Libya had not
been given equal access to the French archives, prompting the sendingnotea
98
verbale to the French Government . To fil1the gap, Libya supplied documents
from the British Foreign Office files that are of considerable value in
understanding what took place as well as concerning the intentions of the parties.
Libya also produced a considerable amount of material consisting of its own
unilateral record of the negotiations.
5.100 The French Foreign Ministry has been most cooperative
and courteous in responding to Libya'srequest for access to the files relating to
the 1955 Treaty. A substantial number of relevant travaux and similar
documentary evidence providing a supplementary means of interpretation have
been found in the French files and are annexed here, broken down into 11
annexes according to subject matter. A summary description of these documents
and theirsignificanceis found at Supplementam Annex, No. 6.
5.101 It is surprising that theCC-M cnticises Libya for not
producing Libyan travaux, when Libya in fact produced considerably more
documentary evidence than Chad regarding the July-August negotiations,
supplemented by important British "travaux",which if anything may have more
value than what could be seen, in some cases, as self-sening documents prepared
by the parties to the negotiations. Libya wastaken aback that CC-M could
make the statement set out below, when it can hardly be doubted that counsel
prepanng Chad's pleadings were fullyaware of Libynot eerbale to the French
~overnment~~:
"II(Chad) note par ailleurs que la partie libyenne n'a pas utiliséles
archives importantes du ministère français des Affaires étrangères,
98 See,LC-M.p. 19,fn.E,; generalm., paras.3.19-3.87.
99 In fact,the statementiüelf revealsChad'sawarenessof Libya'srequestto the French
Government. dont les élémentsessentiels -aux yeuxde la Républiquedu Tchad -
ont étéfournis en annexe au Mémoire tchadien. 11ne doute pas
que la partie libyenne réviserason argumentation à la lumière de
ces informations complémentaires mises à la disposition des deux
parties et se réservede diabuter l'argumentation libyenne contenue
dans le Contre-Mémoire ."
5.102 Chad suggests here that the French travaux that Chad
produced and the travaux that Libya would come upon in the Quai d'Orsay's
archives would cause Libya to modify the line of argument of its case. Quite to
the contrary, this documentary evidence has strengthened Libya'scase. However,
Chad seems to be playing a waiting game, holding back information until it sees
what Libya discovers. These files have been open to Chad from the very
beginning; its failure to produce important documents and relevant travaux that
were in the files apparently was deliberate. Libya would like to make it perfectly
clear that it will vigorously oppose any attempt of Chad to introduce additional
documentary evidence after the submission of the Replies in this case. Chad had
a duty, just like Libya, to supply the Court with al1 relevant documentary
information having a significantbearing on this case in its written pleadings, and it
has had every opportunity to do so.
100 CC-M . ara11.113.CHAPTERVI. THE BOUNDARY STATUS QUO ON THE CRITICAL
DATEAS RECOGNISEDIN ACCORDANCEWITHTHE
CRITERIAOF ARTICLE 3 OFTHE1955TREATY
SECTIO 1. Introduction
6.01 Asjust demonstrated in Chapter V above, Article 3 of the
1955Treaty expressed the agreement of Libya andFrance to recognise and abide
by the boundary situation as it existed on the cntical date, the date of Libya's
independence, that is to say to recognise the boundanes separating their
respective territones that were binding on them on that date and that resulted
from "actes internationaux''then "en vigueur". It is necessary, therefore, to
examine the vanous international acts and agreements that might have produced
a boundary binding on Libya and France in the part of Libya'sfrontier that now
lies between Libya andChad. Although for purposes of interpreting Article 3 in
the previous Chapter, al1of the Libyan boundanes were relevant -for Article 3
was not just restricted to the frontier now lying between Libya and Chad but
covered al1of Libya'sfrontiers with France or French colonial possessi-once
Article 3 has been interpreted as not intended to change the boundary status quo
as it existed on the cntical d-except for the three points designated in Annex
1,which do not concern the Libya-Chad boundary -the other boundanes can be
set aside. They are not at issue in the present case.
6.02 Chad claims that the situation as to the boundary on the
critical date was that two boundary lines between Libya and Chad were binding
under conventional international law on Libya and France as a result of "actes
internationaux en vigueur" on that date: a straight line connecting Toummo and
the intersection of16"E and the Tropic of Cancer; and another straight line
connecting that intersection point with the intersection of4"E and 1Y30'N.
Article 3 specificallyrequired that the international agreements establishing such
boundaries be "en vigueur" on the critical date. Thus, in order to support its
claims to these two lines, Chad must establish that they were boundaries that
bound both Italy and France as a result of "actes internationaux en vigueur" on
the date of Libya'sindependence, when Libya inherited from Italy the boundaries
relating to its temtories.
6.03 Paragraph 11.20of the CC-M is directly relevant here. For
Chad admitsthere, in the course of examiningthe text of Article 3,that:
"La frontière ne peut êtredéterminéeque par rapport aux actes
internationaux en vigueuràl'indépendancede la Libye."Chad finds in the Article's text adouble limifirst:;
"..sont exclus, d'une part les actes non internationaux, comme par
exa01.e des actes administratifs internes aux puissances coloniales
...,
and a:
"..d'autre art, les actes internationaux ui ne seraient pas ou plus
en vigueurre 24décembre 1951,datede 1indépendancelibyenne."
Libya agrees with both these statements of Chad, which have already been
discussed above1.
6.04 The fir imtitation imposed by Article 3 excludes
tabulas the possibility that the boundaries could result from colonial effectivités
(which might, for example, consist of "actes administratifs internes"), whether
Italian or French. In Articlethe parties agreed to recognise a boundaw, not a
line, that emerged from "actes internationaux en vi-ua boundary binding on
Libya and France resulting only from such "actes", without reference to colonial
effectivités2. The "actes" had to produce a boundary; and they had to be
opposable to Libya andFrance on the cntical date.
6.05 The second limitation excludes boundanes resulting from
"actes"that were not "envigueur" on the critical date.
The CC-M then suggests that there was thir liditation
6.06
imposed by Article 3 as a result of Annex 1 and the "actes internationaux"
appearing on the list. For Chad contends thatthe lianwexhaustive one:
"Sont donc exclus tous les actes internationaux en vigueu3 le 24
décembre 1951mais non repris dans la liste annexéeàl'artic."3
2 As discussediLC-M .ara.5.112,Francewaspanicularlywncernedto mle out the
possibilitythat ltalian militaryoperations at thestan of World War II migbt be
consideredas relevanteffectirités.ewasa wnfirmariono&i possidetiuns
1951,and~led out&ipossidet&facto CenainlyChad'sthirdtheofy,basedas il is
entirelyon Frencheffectsroducintheboundary rathhan"actesinternationaux",
isentirelyinwmpatiblewithAr3.cle
3 CC-M .ara.11.20.Libya has shown that the list could not have been intended to be exhaustive and
that the conduct of both France and Chad reveal that it was not so intended 4.
And there is the further problem that at least two of the "actes"on the Annex 1list
were not "en vigueur" on the critical da-the 1902Accord and the Accord of 12
September 1919both between Italy and France -as Chad has admitted and has
established by evidence produced by it5. For al1the reasons given earlier in this
Reply, the Annex 1list must be regarded as havingbeen no more than a tentative,
incomplete and incorrect listing of the agreements that the parties to the Treaty
should consult to determine what, if any, boundary binding on Libya and France
was produced by them. Thus, the thir ldmitation suggested by Chad must be
6
rejected .
6.07 However, this point of difference does not affect the
question whether a conventional boundav between what is now Libya and Chad
existed on the critical date. In its Memorial and Counter-Mernorial, Libya
scrutinized al1 the international agreements of any possible relevance to this
territorial dispute, whether or not on the Annex 1 list or "en vigueur" on the
critical date. What this comprehensive review shows is that even if the "en
vigueur" limitation of Article 3 were ignore-which of course cannot be done -
and even if the "actes" examined were restricted to those on the Annexl list, no
conventional boundary would emerge that was opposable to Italy and France and,
hence, inherited by Libya on the critical date (and in 1960,by Chad, as successor
to France).
6.08 Libya continues here the same approach of examining al1
possibly relevant "actes internationaux" below; however, since these various
agreements were extensivelydealt with in Libya'stwo prior pleadings, the analysis
that follows will be relatively conclusory, aimed principally at bringing out
differences between the Parties that thCC-M makes apparent.
See,LM, para.5.474g M.; and m. para.3.1a, m., and4.09 (where11 possibly
4
the agreements noton the list,becauseof Chad'sheavyrelianceon them,nevertheless,to
establish theboundaryit claims,arethe 1900Accordandthe 1912 Agreement between
Italyand France,asweasthe 1924ProtocolandDeclaration between Gt ritainand
France.
5 See, CM.pp. 122-123,para.81.
6 It is incongruou that the four principalagreements betweenltaly and France, which
would he expectedto be the most relevant,the 1900-1902 Accords,the Accordof 12
September 1919andthe 1935 Treaty, weal1~ied out byArticle3,for nonewere"en
vigueur"on thecriticaldate. SECTIO N. 1899Declaration
6.09 The Annex 1 list included the 1898 Anglo-French
Convention, to which the 1899Declaration was added, both having been signed
and ratified together; but the 1898Convention produced no boundary relevant to
Libya'sboundaries with France or French territones on the critical da.e
6.10 The 1899 Declaration is one of the critical links in Chad's
case. Libya'sfirst two pleadings have established two related factsconcerning this
agreement that Chad seems not to comprehend:
- North of 15"Nlatitude, the Declaration did not produce a
boundary of any kind, nor was it any sort of delimitation,
even of British and French zones of influence8;
- The southeast line described in Article 3 of the Declaration
was no more than a limit to French expansion ("in the
negative sense",as Lord Salisburywrote)9.
It is important to grasp these two points because Chad, by assuming (wrongly)
that the 1899 Declaration involved a delimitation of the areas north of 15"N
latitude-albeit admitting that it was not then a boundary delimitation but one of
spheres of influence (British and French) -then tries to upgrade this alleged
delimitation, by virtue of the 1902Accord and French colonial effectivités,into a
boundary delimitation. A basic flaw in Chad's argument is that the starting
premise is wrong: the 1899Declaration north of 1S"Ndid not delim anything.
Great Britain, as the 1899 travaux show so clearly, deliberately avoided any
recognition of a French zone, contrary to what Chad maintains, and it did not
7 The inclusion of the 1898 Convention shom that each of the "actes"on the Annex 1üst
did not necessarily produce a boundary in the area of the Libya-Chad borderlands or
between Libyaand French territoryor colonies.
8 & e.&LM. para. 5.5g,sw.: LC-M. paras. 4.72 and 4.211. In para. 8CC-M the
wronglyasserts that Libyadoes not contest that the "actes"listed in Annex 1were treaties
of delimitation. This is absolutely incorrect. The 1899 wasnot a treaty of
delimitation as to tenitories north of 1SoN,dealt with in Article 3 of-the Declaration
the only territories covered bythe Declaration that are ofcase.Aswillbehis
seen further on, the 1902 Accord had nothing to do with any kind of delimitation; it
referred to no boundary, other than the notional Tnpolitanian boundary;and the parties
to the Accord hadno standing toyboundaries of relevance to this case.
9 Se, LM. para. 5.60.seek or receive recognition of any British zone. So no delimitation between
French and British zones could even have been contemplated10 .
6.11 Then there is the critically important point for Chad's case
as to the direction of the line intended by Article 3 of the 1899 ~eclaration'l.
The CC-M continues to advance the patently wrong proposition, first advanced in
the CM, that three quite different lines-the 1899 line (a true southeast line
intersecting 24"Eat approximately 15'35'N),the line shown on the map- the 1899
Livre iaune map - the map referred to in the 1902 Accord (east-southeast
intersecting 24"E at IYN), and the 1899line as "interpreted" in the Convention of
8 September 1919(east-southeast intersecting 24"E at 19"30'N) - are in fact the
same line:
"..il ressort tant des travaux préparatoires à la Déclarationde 1899
que de sessuites que la limite décidée alors aétéconsacréeen 1919
et correspond à celle figurant sur la clTe à laquelle se réfère
l'échangede lettres franco-italien de 1902."
The LC-M has illustrated the differencebetween the various lines on a number of
maps13; these maps, which are reproduced again in this Reply at paragraph 6.141
(Maps LR 20A, 20B and 20C), show that the choice of line could affect the
allocation ofthousands of square kilometres ofthe borderlands.
6.12 Article 3 of the 1899Declaration describes a line that starts
from the intersection of 16"Ewith the Tropic of Cancer and runs "thence to the
south-east" until it "meets, tothe north of the 15th parailel of latitude, the frontier
of Darfur as it shall eventually be fixed". Libya sees no ambiguity or obscunty in
this description; certainly thedinary meaning of "to the south-east" is not to the
east-southeast. Nor does the interpretation that a true southeast line was
intended lead to an absurd or urneasonable result. In fact, such a line canied out
10 The entire line of argument setm.ut iparas. 8.11-8.22,is thus misdirected. Great
Britain wantedIOagree on a line with France to limit France's expansionist aims
eastwardtowardthe Nile,aimsthat shortlybefore hadled to the Fachoda crisis.
11 In discussingthistter, thCC-M once again mis-states what Libya said!&n the
The Parties are in accord that the 1899linewasa delimitation of zones of influence
north of 15"Nlatitude. a, para. 8.84, Chad distorts paras. 5.26and 5.38 of the
LM; for example, the words delimitation and limitation quite clearly do not mean the
same thing.
12 CC-M .ara.8.83.
13 Sec . .,Maos LC-M19,20,21 and 24.the object and purpose of Article 3, whichwas to limit France's expansion toward
the Nile north of 15"Nbut to leave on the southwest side of the line the regions of
Borkou, Tibesti, Ounianga, Ennedi and Soghaoua. On the maps available at the
tirne that were used by the negotiators, a strict southeast line carried out this
purpose, and an east-southeast line would have fallen several hundred kilometres
too far to the north of such features as the Tibestand, thus, would have
been unreasonable and contrary to the intention of the parties. This was fully
demonstrated in the ml4. These 1890s-vintagemaps were produced by Chad
with theCM. but apparently Chad failed to examine them with care or to grasp
their significance.
6.13 Chad's discussion of the travaux of the 1899Declaration in
theCC-M is as incomplete and defectivinthem. Chad continues to use the
travaux to try refu tteeplain meaning of Article 3 of the 1899Declaration,
contrary to the interpretative rules of Article 32 of the Vienna Convention, under
which travaux may be invoked only to perform a confirmative function. Chad
tries to play down the importance of the line of 15"Nlatitude. For example, it
says that the Parties are in agreement that 15"Nwas first mentioned only during
the negotiations on 19 March 1899, citing paragraph 5.41 m. theNo such
statement appears in that paragraph. Asparagraph 4.33 ofLC-M shows, as
early as 16 Febmary, the line of 15"N latitude appeared in a French draft
submitted by M. Cambon. The line of 15"Nlatitude is a fundamental element in
this case: it marked the northern end of the southem sector of Article 2,which
concem a boundary delimitation, and the southem end of the Article 3 sector,
which did not concern a boundaiy at ail. Lord Salisbury referred specificallyto
areas north of 15"Nlatitude when he reassured the Ottoman Empire aItaly
that the 1899Declaration had not affected their rights or aspirations north of that
lie.
6.14 The CC-M reflects Chad's continued misunderstanding of
what sa clearly appears from the documents conceming the episode of 19March
1899 (what the CC-M calls "cet épisode cmcial"15). It will be recalled that
Ambassador Cambon rejected Lord Salisbuiy'sdraft that day, which would have
had the Article 2 sector end (and the Article 3 sector start) at 18"N,rather than at
15"N(as in M. Cambon's draft of 16 February). The demonstrated that
14 Sw, LC-M.para.4.7os., andMausLC-M22.23 and24.
15 m. para.8.99.Lord Salisbury'sproposal would have deprived France of areas north of Darfour
that it felt should lie on the French sidelo. The correctly gives this as the
reason forM. Cambon's refusal. Where Chad is mistaken is in its interpretation
of what then transpired. This mistake occurs because the Ws analysis is
based on an incomplete set of the documents in the British and French archives.
A detailed analysis of the documents bearing on this question, and of Chad's
mistakes, may be found in Supplementarv Annex, No. 4, hereto. Asthis analysis
shows, theCC-M ignores the 19 and 20 March drafts that revealed that the end
point of the Article 2 sector, ultimately agreed upon, reverted to 15"N.
6.15 It was at that moment in the negotiations thatfireof wo
important changes were made: the direction of the Article 3 southeast line was
reversed in the description given it in that Article. Rather starting at 15"N
and ascending northwest to the intersection point on the Tropic of Cancer, the
line descended southeast from that point. The reason for this reversal in direction
is apparent, asthe has explained17. The onlypoint that could be fixedwas
the intersection of 16"Eand the Tropic of Cancer, which in the earlier drafts prior
to 19 March had been its end point. However, a starting point on the
southeastern end of the line could not be precisely identifiedce the Article 2
sector north of 1l0N had not yet been delimited, although it was intended, of
course, that one sector would end where the other began (Mau LR9).Since, as a
practical matter, it is the starting point of a line that needs to be exactlyidentified,
the direction of its description in Article 3 was reversed on 19March. Instead of
indicating as the starting point of this line the point where it intersecte- 24"E
which could not be precisely identified until the Article 2 sector had been
delimited -Article 3 described it as the end point. The starting point became the
Tropic of Cancer (and 16"E), the line ninning "thence to the south-eas-"and
such a line, that is an approximately strict southeast line, would have intersected
24"Eat approximately 15"35'N.
6.16 At the same tirne, asecond change was made. The line of
longitude which the descending southeast line was to intersect was moved east
from 23"Eto 24"E. This also isshown on Mau LR 9.
16 Sec . ausLC-M 16,31Aand31B.
17 See ,C-M. para4.184. 6.17 It is in connection with the above thatCC-M makes one
of several mistakes in its analysis of the travaux and of the maps being consulted
by the negotiators 1899. It remarks that:
"II est révélateurque la Libye doive préciser qu'il nyz'agit que
d'une orientation 'presque') exactement sud-est ."
The CC-M pounces on this point to argue that Libya found such flexibility
necessary because a strict southeast line would, it says, have intersec24"E
south of the Darfour boundary and hence would be inconsistent with the text of
Article3. But once more, Chad has failed to take a close look at the maps it has
produced, maps which it is evident Lord Salisbury and M. Cambon had
themselves closelyexamined.
6.18 On Maus LR 10A and 10B, reproductions of the French
Army map, 1896, and the Justus Perthes map1892, the frontier of Darfour, as it
was then conceived, runs easthest just north of the Wadi Howa at abo15"20'N
latitude (between 23"E and 24"E longitude). A strict southeast line intersects
24"E at 15"35"Non these maps, that isjust of the Darfour frontier line (not
to its south, as Chad mistakenly suggests). The text of Articl3 of the 1899
Declaration reads, in pertinent part, as follows:
meets, to the north of the 15th parallel of latitude, the frontier of
Darfur as it shall eventually be fixed."
Ascan be seen on these maps, this is exactlywhat a strict southeast line does: as
the line follows24"E southward from the intersection at 1S035'N it meets the
notional Darfour frontier shown on these contemporaneous maps at about
15"20'N hat is to the north o15"N,perfectly matching the text and confirming
that an almost strict southeast line was intended. The reason "almost" had to be
inserted in Libya's description of the direction of the Art3cline is that the
Darfour boundary had yet to be fixed in a delimitation of the Ar2sector that
had been left undone -so the precise end point of the Article 3 line was not
known. If it had been, it could have been designated.
18 CC-M p.ara8.109. Thus, thea, once again, iswrong whenideclares:
6.19
"Non seulement l'interprétation avancéepar la Libye est contraire
aux intentions claires des parties, mais encore, elle aboutit à priver
la mention du 24ème degré - que la ligne doit suivre 'jusquij)sa
rencontre (...)avec la frontière du Darf-de tout effet util."
Such an incorrect conclusion could only be reached as a result of not having
examined al1of the evidence and not havingstudied carefullythe relevant maps.
6.20 In examining the subsequent conduct of the parties to the
1899Declaration, theCC-M commits what are two unpardonable offenses. One
concerns the reaction of Lord Sanderson to the Non-Annexed Map in a note to
Lord salisbury20; the other relates to the subsequently-issued official British
21
maps .
6.21 The note of Lord Sanderson isagain reproduced below:
19 m, para.8.112.
20 Se,LC-M.para.4.60g m.
21 Se, LM,para.5.182andMapNo.63;m. para.4.18andMansLC-M14Aand 14B.It is a conclusive piece of evidence, for it establishes that when the British
negotiatiors saw the map annexed to the Livre iaune text of the 1899Declaration
they immediately perceived that the direction of the Article 3 line was incorrectly
drawn: it followed an east-southeast, instead of a southeast, direction. In thepart
of the where Chad attempts to establish that the Livre iaune map (the
Non-Annexed Mau) confirmed the line descnbed in Article 3 of the 1899
Declaration, Chad refers to this handwritten note of Lord Sanderson and brushes
it aside. Describing Lord Salisbury as the pnnciple negotiator ("presque
exclusif'),thCC-M saysthe following:
"Son attention a étéattirée sur ceune ersonne qui n'avait pas
suiviles négociations,comme Lor1 AND gRSON, pouvait trouver
étrange dans l'orientation de la ligne tracée sur la carte par
comparaison avec le texte mêm de la Déclaration., Malgrécela,
Lord SALISBURY n'a pas réagi'2tt.
6.32 The shocking aspect of Chad's reaction to this evidence is
the off-hand way in whichtheCC-M falsifies the fa-facts that appear from a
mere glance at the travaux of the 1899 negotiations and that a modicum of
research would have made evident to those who prepared Chad's Counter-
Memorial.
6.33 Asthe Fachoda crisiswas being resolved in the fall of 1898,
M. Cambon had been named to succeed the Baron de Courcel as Ambassador in
London; Lord Salisbury was Foreign Secretary; and Lord Sanderson was
Permanent Under-Secretary of State for Foreign Affairs, in other words the
senior civil servant at the head of the Foreigh Shortly after the crisis
subsided, the negotiations over the 1899Declaration began. Lord Sanderson had
worked as Lord Salisbury's nght hand man dunng the Fachoda cnsis, and he
continued to do soduring the 1899negotiations. The travaux reflect his detailed
involvement: drafts are addressed to him rather than to Lord Salisbury; M.
Cambon reports to M. Delcassé of meetings with Lord Sanderson. Lord
Sanderson was nght in the middle of things dunng the negotiations leading up to
the 1899Declaration.
22 made. The next paragraphafter para. 6.21 is para. 6.32. Cross-references are not
affected.
23 Sec. Histoire de I'AdministrationFranwise, Tome II, 1870-1980, Paris, Editions du
CentreNational de la Recherche Scientifique, 19Sec.pxhibitsLR 3 and 4,
Foreign OfficeListsfor1899and1901. 6.34 What the Sanderson-Salisbury note shows is that Lord
Sanderson, "cette personne", as Chad casually says, spotted a mistake in the
intended direction of the Article 3 line on the Livre iaune rnap and called it to
Lord Salisbu~y'sattention. No one was more qualified to know it was a mistake
than Lord Sanderson. Contrary to what the says,Lord Salisburya react:
he placed his initial ("Su)on the message, which under the practice of the British
Foreign Office at the time meant that he had read the note and had no comment
to make. Under the same practice, had he disagreed, he would have commented,
particularly asto the direction of a line over which a goodl of time had been
expended during the negotiations just ended. So it can be taken as certain that he
shared the same view as Lord Sanderson: the line shown on the French
iaun rnap did not follow the direction intended by Article 3- it was an east-
southeast rather than a southeast line.
6.35 The CC-M tries to build an argument out of the alleged
absence of any reaction from Lord Salisbury. It is argued that if he had agreed
with Lord Sanderson -as his initial at the bottom of the note shows that, in fact,
he did -he would have made a fuss. But even Lord Sanderson in his note did not
take the error in the French rnap seriously: "1do not know that it matters much.
Why not? It is evident that they correctly assessed the Livre iaune rnap attached
unilaterally by the French as of no legal significance. It was not an agreed map;
and in the face of British attemps to annex a rnap to the Declaration, France had
strongly opposed annexing a map; so the French themselves could not have
considered this rnap as having any significance.In fact, when Foreign Minister
Delcassé passedon to M. Cambon in London the Livre iaune version of the 1899
Declaration together with map, he referred to the rnap as "indi~ative"~~. No
doubt, M. Cambon's failure to react was for much the same reasons asthe British.
6.36 There is also the fact that in the aftermath of the Fachoda
cnsis, Great Britain had so humiliated France (already in the throes of the
Dreyfus Affair) that Queen Victoria had to intercede with Lord Salisbury,
according to officialFrench sources, "d'aider lesFrançais àsortir de cette horrible
impasse25". This was hardly the moment to create another new incident over a
trivial, illustrative map.
alsoLC-M p,ara4.59.
24 SeeCM, pp.161and 163para.75,andAnnex57;
25 HistoiredeI'Administratnrancais,J.&.,p.238. 6.37 The second unpardonable offense cornmitted by the CC-M
here concerns how Great Britain interpreted the Article 3 line on its own officia1
maps. The LM contains a reproduction of the officia1British War Office map of
1916, a larger colour version of which was furnished to the The line
shown is a strict southeast line. Since that time, Libyahas found the 1906(revised
to August 1913) and 1914 Officia1British War Office maps to which reference
had been made in the documents covering the Italian protests to the 1919
"interpretation" of the 1899line. These were attached to LC-M~~ Y.et in the
collection of 162 maps in the Ws Mau Atlas, none of these British maps
appear28. If such important maps as these were omitted from the what
purpose was the intended to serve?
6.38 The reaction of Lord Sanderson and Lord Salisbury is thus
confirmed by maps subsequently issued by the British Government. There is no
doubt that the intended direction of the Article 3 line was, as the text stated,
southeast so asto intersect 24"E close to where the Article 2 boundary, still to be
delimited, was likelyto end2'. Such a line carried out the aim and purpose of the
parties in the light of their knowledge of the geography of the region as portrayed
on the maps which theyhad before them.
6.39 One final point about the 1899 Declaration is that it
mentioned neither Tripolitania nor its boundaries. The Declaration provided no
basis at al1 for the Toummo-Tropic of Cancer segment of the boundary now
claimed by Chad. It is pure fantasy for Chad to suggest the followingconcerning
the 1899Declaration, tying to draw a parallel with the Burkina FasoNali case:
26 SeeLM,Map No. 63.
27 Maps LC-M 14Aand 14B.
28 Similarly,none of the important Italian maps appear in Chad's s,a Atlas.
Maps LC-M,52.53 and 54 and M~DLR 16A-1S. alsoSupDlementaiy No. 2,
hereto, containinga critique byLibym.f this
29 In the 19March draîi of Salisbuiyproposing that the line start at 18"N,the direction of
the line (heforwastreversed) was expressed "dans la dàrpeu pr& du nord-
ouest",not "tothe northwest",reflectingtheiwasapproaching north-northwest
rather than northwest. The Lime iaune was even lessa northwesthoutheast line
since itsend point wasat 19"Nnot 18"N. ".les Etats parties à l'accord1899 ont constatéque la frontière
du Vilayet de Tripoli s'étendait#?u'ce point (the intersection of
16"Ewith theTropic of Cancer) .
There is no support at al1in t1899 Declaration for any segment of a boundary
tothe Westof the starting point of the southeast line.
6.40 The following conclusions may, therefore, be drawn
conceming the 1899Declaration and whether it produced a boundary binding on
Italy and France (and thus on Libya and Chad) which Libya and France would
have recognised under Article 3 of t1955~reat~~l:
-
The 1899 Declaration concemed no delimitation at all, even
of zones of influence, north of 15"N, and, a fortiori,
produced no boundary there;
- The direction of the Article 3 iine was intended to be strict
southeast, subject, possibly, to a slight variation depending
on the Article 2 delimitation not yet accomplished;
No map was annexed to the Declaration; and the map
annexed to its text as pubiished by the French in Livre
iaun showed the Article 3 line incorrectly; but, in any event,
this map was not intended to be more than illustrative;
- The British Govemment officiallydeclared its view that the
direction of the Article 3 line was strict southeast in maps
published byit dated1906(revised to1913),1914 and 1916;
- The 1899 Declaration provided no basis for a boundary
between Toummo and theTropic of Cancer.
6.41 The CC-M skips over the Ottoman Empire's protests to the
1899 Declaration and the British Govemment's responses. Similarly,it gives no
attention to the British explanation to It1899ias to the meaning of th1899
Declaration. Great Bntain made it very clear to both the Ottoman Empireand
30 CC-M, para8.166.
31 Chadha. producedno evidenceto showthatt1899Declaratiowas"enrigueuron
thecriticaldate.Italy that no delimitation was involved,that no boundary of any kind resulted and
that, in any event, the agreement expressed in the Declaration was between Great
Britain and France and, thus, in accordance with the principle res inter alios acta.
did not and could not affect Ottoman rights or potential Italian interests. This
point was stressed by the German notes verbales of3 May and 16July 1899, as
paragraphs 5.56 and 5.57of the bring out.
Smo~ 3. The 1900-1902 Accords
6.42 The CC-M contends that the 1900-1902 Accords resulted in
making opposable to Italy the alleged delimitation between the Tropic of Cancer
and 24"E, said to have been fixed in 1899 - and to have undergone no
modification since - and to have been recognised by Great Britain as a
delimitation of zones of influence, a delimitation which, by virtue of French
effectivités,became transformed into "une véritable frontière internationale".
This is so, Chad contends, because in these Accords Italy recognised a French
zone of influence up to the Tripolitanian boundaryhown on the map referred to
in the1902 Accord (the Non-Annexed Mau).
6.43 The 1902 Accord also determined the sectDi of the
boundary between Toummoand the Tropic of Cancer, according to Chad:
"..du mêmecoup, s'esttrouvédéterminéle secteur de la frontière
allant de Toummo au Tropique de Cancer, qui lui aussifigure sur la
carte accepf? par l'Italie comme fixant les frontières de la
Tripolitaine ".
Thus, magically, these Accords had two critical results: the southeast line,
allegedly transformed into a boundary well aït1902, became opposable to Italy;
and the Toummo-Tropic of Cancer segment became fixed as a boundary
accepted by Italy.
6.44 The importance to France's claim (and now to Chad's case)
of the1900-1902 Accords, and the map referred to in the latter, as annexed to the
32 para.8.170.
33 m. Note the unsupponableallegaiionthatItaly atthe timeacce~tedthe mapas fixing
Tripolitania'sboundari. hemapwasreferredto in the 1902Accordin orderto make
more precise thelimitsof Frenchexpansionvis-Tripolitania-Cyrenaaet out in
the 1900 Accord;the wavy,dashedline encircling"Tripoliton the map is not
identifiasaboundaryinthemap'slegend.Sec .ara.6.54,below.1899Declaration, can hardly be overstated. Hence, the fact that the 1900Accord
was carelessly ornitted from the Annex 1 and the fact that neither it nor the
1902Accord were en vigueur on the critical date, deal a mortal blow to Chad's
case entirely aside from other weaknesses and defects.
6.45 In discussing the 1900~ccord~~, the CC-M reveals Chad's
sensitivity to the fact that the Accord consisted of two unilateral declarations,
neither statement confirming the other. The declaration of relevance here was
that of French Ambassador Barrère. If it is accepted for purposes of discussion
that this Accord fitswithin the Article 3 category of "actes internationa-xby no
means a foregone conclusion - then the ordinary meaning of this French
declaration must first be considered. In his letter M. Barrère assured Signor
Visconti-Venosta that the 1899Declaration:
"..en laissant en dehors du partage d'influence qu'ellesanctionne
le vilayet de Tripoli, marque pour la sphère d'influence française,
par rapport à la Tripolitaine-Cyrénaïque, une limite que le
Gouvernement de la République na pas l'intention de
dépasser ...."
He added to this an assurance conceming the caravan routes rom Tripoli:
communicationsn'ecarqnièresansde Tripoli vers les régions viséepar
la susdite convention ."
6.46 Ashas been brought out earlier, to describe the effect of the
1899 Declaration north of 15"N latitude as a "partage d'influence" was an
exaggeration, which the British made clear at the time they were not in agreement
with. The ordinary meaning of the firstextract of the Accord quoted above isthat
(i) the 1899Declaration had excluded and not dealt with the of Tripoli; (ii)
but that its exclu--on meant that France considered thevi&ggt as a limit it did not
intend to e~ceed~~. The purpose and intent of this part of the Accord was to
34 nie two Accordshavealwaysbeen considered togetberf,or one modifiedandclarified
the other. The Ann1xlistmentions "accordsfranw-italiensdu ler novembre1902".
theuseof the plural "accoruggeststhatthe 1900 Accordwascarelesslyomittedfor
embarrasseattemptto explainawaythismistake.. See, CM. p. 166, para. 88, for an
35 The 1900AccordisdiscussediLM, para.5.67, m., and para.4.73gtm.
See,LM,French ArchivesAnnex,p.91.
36
37 sançti~nne",included at the request of Signor Visconti-Venosta,wnstituted Italy'sassure Italy that France had no designs on Tripolitania-CyreAsithe passage
conceming caravan routes shows -for it dealt only with the caravan routes from
Tripoli, and not with the important eastem routesnning south from Benghazi
(Mar, LR 11)- the focus of the 1900Accord was entirely on the western side of
Tripolitania where it bordered French temtories; and this was precisely what
Signor Pnnettisaid in his veiled reference to the secret 1900 Accord during a
speech to the Italian Parliament in 1901,the text of which had laboriously been
coordinated word-for-word with the French.
6.47 It is evident, bearing in mind the criteria of Article 3 of the
1955Treaty, that the 1900Accord resulted in no boundar-it did not even refer
to a boundary. If, indeed, it could be fitted within the description of "actes
internationaux", it did not appear on the Annex 1 list; and not having been
notified by Francender Article44of the 1947Italian Peace Treaty it was -ot
vigueur on the critical date. So it is not clear on what basis Chad believes it is
relevant tothe resolution of the present temtorial dis.ute
6.48 The 1902Accord was the result of two other factors4'. In
Signor Visconti-Venosta's unilateral statement in his letter that was a part of the
1900Accord, he dealt with French interests in Morocco and Italian interests in
Tripolitania. It was an unequal arrangement, however: France was to have a free
hand to pursue its interest in Morocco, and if (but only if) the existingMoroccan
situation should be altered, Italy would then have the right to develop its
influence in respect of Tnpolitania-Cyrenaica. Italy sought to correct this
imbalance in a more reciprocal arrangement. Tsecon dactor concerned Italy's
membership in the Triple Alliance. France sought certain assurances in regard to
the alliance between Italy, Germany and AustriAs a rather subsidiary matter,
the Italians wanted to make more specific the unilateral undertaking oM.
recognition of the object of the 1899Declaration and thus waimeinterfense of
alios acta in respect of the Declaration so far as Italywas wncemed. Among the many
holes in this argument, it mut be asked bywhat extraordinary feat of magican alleged
interpretation, rejected by Great Britain,but contained in a unilateral French statement
could be turned into the adherence byltalyto the 1899Declaration?
38 Sec .iscussionof Prineiti Decl-1,tpara. 5.gta.; LC-M para. 4.8gta.,
and Map LC-M 27. Signor Prinetti had just succeeded Signor Visconti-Venosta as
Italian Foreign Minister.
39 See. LC-M, p. 1fn109,where it ispointed out CM.tp.168,paras. 94-95,Chad
concedesthat the 1900Accordwasa boundarydelimitationiy.
40 The 1902AccordisdiscusseLM. para. 5.83a., andm, para. 4.gta.Barrère in 1900,for, as Libya has explained and illustrated in detail, the frontier
of Tripolitania had never been defined, which left France's declaration
concerning the limitsto its expansion too vaguelyworded for the Italians.
6.49 Turning to the form of the 1902 Accord and the ordinary
meaning of its text, it was clearly bilateral and incontestably fell within the ambit
of "actesinternationaux" referred to in Article 3of the 1955Treaty. It was also on
the Annex 1list. But for the same reason set out above as to the 1900Accord, it
was not en vieueur on the critical date. The remaining questions required to be
answered by Article 3 are, did the 1902Accord produce or result in a boundary,
and was any suchboundary opposable to Libyaon the criticaldate?
6.50 It is the first two paragraphs of this Accord that are
pertinent here. The first paragraph, whose text appears in the footnote below2 ,
refers to earlier conversations between the two Powers concerning their
reciprocal rights in the Mediterranean: Italy as to Tripolitania-Cyrenaica; France
as to Morocco. From these conversations, it says, it was concluded to be
opportune "de préciserles engagements" resulting from the exchange of lettirs
constituting the 1900Accord. This precision was aimed at the following:
"..en ce sens que chacune des deux puissances pourra librement
développer sa sphère d'influence dans les régionssusmentionnées
..." (Ëmphasisadded).
The words underlined in this passage were underlined in the w, where Chad
proceeds to cnticise Libya for having ignored this part of the 1902Accord. The
reaches the followingconclusion as to this passage:
41 See, LM,paras5.70and 5.93-5. 9ndMapNo. 49.
42
The firstparagraph, inpertinent partasEollows:
"A la suite des conversations que nous avons eues touchant la situation
réciproquede I'ltalieet de la France dans le bassin méditerranéen,et touchant
plus specialement les int6181srespectifs des deux nations en Tripolitaine-
Cyrknaïqueet au Maroc, il nous a paru opponun de preciser les engagements
qui résultent deslettres kchangeeceIsujet entre Votre Excellence et le
Marquis VISCONTI VENOSTA, les 14 at 16 décembre1900, en ce sens que
chacune des deux Puissancespourra Librementdévelo~versa sDh*red'influence
dans lesrkeionssusmentionné...Emphasis addedinCC-M ,ara.8.37. "Cela signifie que la France reconnaît à l'Italie une sphère
d'influence en Tr olitaine, dans les limites qui sont précisàela
phrase suivante.4411
The reference byChad to "laphrase suivante"was tothe second paragraph of the
Accord. The CC-M reflects a misreading of the last word of the first paragraph to
be "sousmentionées"(mentioned below) instead of "-mentionées" (mentioned
above).
6.51 Chad's interpretation is completely wrong. The quoted text
merely redressed the imbalance of the 1900Accord by no longer making Italy's
nght to "développer éventuellementson influence par rapport à la Tripolitaine
~~rénaï~ue"~~ dependent on a change in the situation in Morocco. In other
words, the only part of the text that merits underlining is "librement". Moreover,
Chad ignores the fact that Tripolitania in 1902was under Ottoman sovereignty.
France could have recognised no more than a potential Italian influence over this
Ottoman terntory.
6.52 Returning again to the 1902Accord, its second paragraph is
set out below:
"Il a étéexpliquéà cette occasion que par la limite de l'expansion
française en Afrique septentrionale, viséedans ma lettre précitée
de Votre Excellence du 14 décembre 1900, on entend bien la
frontière de la Tripolitaine indiquée par la carte annexée (to the
1899Declaration).'
The CC-M contends that this paragraph defined the sphere of influence of Italy
recognised by France in the first paragraph; and it emphasises the word
"frontière"contained in the text:
"Le mot 'frontière' est important: la Tripolitaine, intégrée à
l'Empire Ottoman a une frontière; la France accepte, par avance,
bien précisesqui sont, auxossesdes parties, celles, existantes, de la
frontière figurant sur la carte
43 m, para.8.37.
44 Takenfromthe textof the 19ûûAccord(Visconti-Venostaletter)
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d'apr6' deronreoi.onr aril6r:eurei 6.53 This is wrong for several reasons. Turning ta the text of the
second paragraph quoted above, it is evident that it was intended to clarify the
meaning of M.Barrère'sunilateral Declaration in 1900:it specificallyrefers to his
letter. What the text says is that by the reference in 1900 to the "limite de
l'expansion française" in North Africa was meant "la frontière de la Tripolitaine
indiquéepar la carte annexée"to the 1899Declaration. Thus, this paragraph -
which was added at Signor Prinetti's request-did no more than clarifywhat was
meant in the 1900Accord. This was done by reference to a map, misrepresented
as havingbeen annexed to the 1899Declaration.
6.54 It is appropriate to examine again the full-scale colour
reproduction made by Libya of this famous rnap annexed to the Livre iaune
version of the 1899Declaration. The original rnap is not difficultto find in Paris:
Libya located an excellent copy in the library of the Ecole Libre des Sciences
Politiques in Nowhere has Chad annexed a full-scale,colour copy of the
actual map. However, the colours are important in order to understand the
application of the legend on the map47. The demonstrated with the use of
Maus LC-M 25 and 26 (referred to at paragraph 4.53 thereof) the distortion of
the Livre iaune rnap made in the extract of this rnap appearing at page 162of the
m. This demonstration is made once again here: Ma~s LR 12Aand 12B. The
legend on the extract of the rnap appearing on the left-hand page identifies the
wavy, dashed line encircling 'Tripolitaine" as a conventional boundary: "Limites
des possessions françaises d'après des conventions antérieures". The fold-out
rnap on the right-hand page, an authentic copy of the original map, makes no
such identification of the wavy,dashed line-only such a line underlined in may
would fit the description in the legend of a conventional boundary. The line
encircling Tnpolitania on the rnapis neither defined nor identified as a boundary
in the legend or elsewhere.
46 Knownas "SciencePo".
47 Amongthe 162mapsinthe-s MauAtlas,therearesevenversionsof thismap.such
assmallreproductionsof it inBCAF .nProf.RouardDe Card'sstudies,andin !&
m. Oneof the most bizarreentriesin the is a copyof thismapreproducedby
the ItalianGovernmentandattachedto a 1925Italian study.The MapAtlasincorrectly
callitan Italianmap(Map No. 32). Interalia, thismaprevealsthateven in 1925 the
Italian Governmentwas unaware thatno such map had been annexed to the 1899
Declaration. 6.55 As mentioned above, a Tripolitanian boundary had never
been defined by agreement. A notional boundary existed, however; and this can
be detected on the colour version of the 1892Justus Perthes map found in Chad's
Mau Atlas (Map 2), where it appears as a faint broken yellow line (Mau LR
13)~~. This was the origin of that line placed on the livre iaune map. It was to
this notional boundary that the second paragraph of the 1902 Accord referred,
indicating that it was explained to the ltalian Foreign Minister that this wavy,
dashed line was what M. Barrère meant when he referred to the limits of French
expansion.
6.56 Thus, to summarize, the map referred to in 1902showed no
boundary for Tripolitania, only a wavy, dashed line, not identified in the map's
legend, but representing its notional boundary at the time, which had never been
defined by convention. The use of the word "frontière" in the second paragraph
of the 1902Accord refers to that line as shown on that map. Whether M. Barrère
showed such a map to Signor Visconti-Venosta in 1900, when he made the
explanation to him referred to in the 1902 Accord, is not known from the
evidence. Nor is it clear whether a map was shown to Signor Prinetti in 1902,
although it seems unlikely because, as the shows, he subsequently had to
request Italy'sParis Embassy to send him a copy of the Livre iaune mai ifter the
Accord had been ~i~ned~~.
6.57 There is not the slightest hint in the text of either Acc-rd
or in any other evidence- that either Italy or France regarded this limit to French
expansion to be a boundary -thus upgrading it from the notional boundary shown
on the map. Even if they had, neither had standing to reach such an agreement
conceming temtory under Ottoman sovereignty. Moreover, at the time, French
military forces had not occupied temtories adjoining the notional boundary of
Tripolitania, on the West, anywhere near as far south as Toummo; and in the
south, the French were stillonlyin the region of Lake Chad.
6.58 It is clear, therefore, that the 1902Accord did not produce
or result in any kind of boundary. The southeast line under Artic3eof the 1899
Declaration, which appeared on the Livre iaune map, was of no relevance to the
subject of this Accord or of the 1900Accord, and is not referred to in either of
48 Map 13appearsagainatpara6.160(lastcomment,p.160below.
49 See,LM,para.5.93.them. There is no acknowledgment by Italy of anything in either Accord
concerning the 1899 Declaration; the 1902 Accord only clarified the unilateral
French Declaration of 1900 by reference to the notional boundary of Tripolitania
shown on a map. There is, thus, no basis for this statement that appears in the
m:
"...l'échange de lettres de 1902 confirme celui de 1900. Leur
combinaison constitue une reconnaissance par 1'Italiede la zone
d'influe e française prévuepar la Déclaration franco-britannique
de 189936 ."
Italy recognised nothing in these Accords conceming an alleged French zone of
influence; it received assurances that France's temtonal ambitions would not
transgress Tripolitania as shown notionally on a map. That is all.
6.59 The plain textual meaning of the 1900 and 1902 Accords,
which produced and resulted in no boundary of any kind, exposes the fact that the
only, and very fragile, basis Chad has for the Toummo-Tropic of Cancer segment
of the line Chad claims totally vanishes. For it was founded on the supposition
that the wavy, dashed line was a boundary, indeed a boundary accepted by
ltalgl. Neither proposition iscorrect.
6.60 It is here that thCC-M makes several additional mistakes
about the 1902 Accord, sayingthat it had a double effect:
- -irst, tha-
"..la France et l'Italie, par cet échange de lettres, se
reconnaiss mutuellement des zones
d'influenceI..,
- Second t.at the limits of the Italian zone of influence were
indicated by the wavy,dashed line on the map (the notional
boundary of Tripolitania).
- - -
50 a, para8.38.
51 See,CC-M. para.8.142.
52 CC-M .ara.8.144.The fir cs ttention totally misses the meaning of the 1902Accord. The mutual
recognition of its first paragraph concerned giving France a free hand,
Tripolitania. but in Morocco; and as pointed out above, no Italian zone of
influence over Tripolitania was or could have been agreed in 1902rance^^.
Thus the point falls,as well.
6.61 The discussion of the Livre iaune rnap appearing at
paragraphs 8.145 to 8.160 of thea is quite beside the pointThe rnap
showed no Tripolitanian boundary, only a notional one. So whether Italy might
have protested that it had been misled about the rnapsince it had not been
annexed to the 1899Declaration- is of no real importance: there was nothing to
protest against, for the rnap showed no Tnpolitanian boundary, merely a notional
one that was adequate for the specificpurpose of illustrating the limits of French
expansion contained in French Ambassador Barrère's unilateral statement in
1900. The discusses what it claims was the effect of the reference to this
rnap in the 1902 Accord by quoting from the Court's Judgment in the 1986
Burkina Faso/Mali case:
"De ce fait, elle a acquis, pour la France et l'Italie, 'une valeur
juridique i36,,sèque aux fins de l'établissement des droits
temtoriaux .
This is al1wrong; but it does suggest how dependent Chad'scase ison this map.
6.62 The plain meaning of the text of the 1902Accord showsthat
the Accord had nothing to do with establishing territorial rights; and the parties to
the Accord had no standing to do so at the time. It is apparent why Chad has
avoided producing a faithful reproduction of the actual mapannexed tLivre
iaune w hich is so easilyobtainable in Paris, and instead has placed inanhe &l
extract that distorts the rnap and has included some seven extracts iMar,s
that either distort or obscure the meaning of the wavy,dashed line. For the
rnap itself shows no boundary for Tnpolitania; and the reference in the 1902
Accord to the Tripolitanian boundary shown on the map, could not have had the
effect of transforming that line into a boundary asow seeks to do, for the
53 Sec .lso, para.8.170(vwhereChadwongly contendsthat in th1900-1902
Accordsltalyrecngniseda Frenchzoneof influenceup to the Triboundaryan
shownon the map. Italyonly recognisedFrance's to pursueiü ambitions
Morom.
54 CC-M p,ara8.157.map did not show the wavy,dashed line encircling Tripolitania as a boundary. It
was only a notional boundary that had never been fixed by agreement in 1900or
in 1902.
6.63 The saysthat:
"Le segment allant de au Tropique du Cancer n'ajamais
étémodifiédepuis 1902 .
It would have been more accurate to say that this segment never was a boundary
either before or after 1902;and that remains true t~da~~~.The m, in fact,
seems to go part way in acknowledging the weakness of its case concerning this
segment of the boundary when it admits thatChad:
"..ne prétend pas qu'ily ait là une présomption irréfragableen soi.
Mais elle constaf7,jue la Libye n'a pas apporté le début d'une
preuve contraire .
The plain meaning of the 1900-1902Accords is al1the proof needed to refute
Chad's case conceming the claimed boundary along the line between Toummo
and the Tropic of Cancer.
6.64 There are two pieces of negative evidence of special
significance regarding the intended meaning of the 1900-1902Accords. These
consist of the two summanes prepared by Ambassador Barrère in 1902and then
in 1912(when the French Govemment was considering whether to abrogate the
1902Accord). In neither report is any mention made of the interpretations Chad
now attempts to draw from these Accords. It is unthinkable that such detailed
analyses by such a qualified person as M. Barrère would have overlooked
important matters of this kind had there been any thought that such was the
meaning of these Accords. The line of argument put fornard by France, and
55 u, para.8.160.
56 The statementinCC-M .ara.8.166, that in the 1899 Declar, reat Britain and
Francehadestablishedthatthe Tripolitboundaryextendedupto thestartingpoint
of the Article3 southeast line at the Tropicof Cancer,is pure fantasy. The 1899
Declarationhadnothingto dowith Tripolitaniaandmadeno referenceto it; itwasthis
silence that provokedthe French assuin the 1900-1902Accordswncernine.the
limitsof itsexpansion.since then adopted by Chad, was not developed until after 1914, when these
secret Accords first became known58 .
6.65 In Chapter 7 of the CC-M. which takes up the subject of
Libya's succession to the nghts of the Ottoman Empire, Chad makes certain
additional remarks concerning the effect of the 1902 Franco-Italian Accord in
discussingthe 1912Franco-Italian Agreement. It wronglyStatesthat the purpose
of the 1902Accord was to:
"..délimiter les zones respectives d'influence et d'établirla limite
au-delà de laquelle chacune des n'aurait pu aller, dans son
action politique et militaire future
This is totally incorrect, as show above; in the 1902 Accord, Italy recognised
France's interest in developing its sphere of influence in Morocco, and France
recognised Italy'spotential interest in Tripolitania-Cyrenaica. There isno basis at
al1 for contending that the engagements undertaken by Italy and France
concerned "la limite spatiale de leur action réciproque au sud de la Libye et au
nord du ch ad"^'.
6.66 From these incorrect contentions, Chad goes on to claim
that. as a result:
"..le tracéde 1899,acceptépar l'Italie en 1902,fut tgynsforméen
frontière réciproquement reconnue par lesdeux Etats ."
What a remarkable shift! In the 1902Accord, Chad argues, Italy recognised the
notional boundary shown on the map referred to as the boundary of Tripolitania.
It has been shown whythis is not so. Now the CC-M shifts to the 1899southeast
line, to which the 1902Accord made no reference at ail. Through a negligent
misreading of the first paragraph of the Accord ("-mentionnéesu not
-ousmentionnées)62,Chad claimsthat Italyrecognised France's zone of influence
58 -ec,RouardDe Card,E.:Le diffkrendfranco-italienconcernantla frontièremeridionale
delaLibve,Pans,PedoneIGamber,1929,pp.7-9.
59 m. para.7.30.
60 -bid.
61 CC-M. para.7.31.
62 See,para.6.50,above.outside the confines of the Tripolitania boundary shown on the map. The CC-M
then asserts that, as a result of the 1902Accord with Great Britain, Italy regarded
itself as virtually a party to the 1899Declaration, from which Chad concludes that
Italy accepted the southeast line. This then leads Chad to the foiiowing
conclusion concerning the effect of the 1912Agreement (which willbe taken up
below following a brief discussion of the 1902Anglo-Italian Accord), because of
its reaffirmation of the 1902Accord:
"En souscrivant à l'Accord de 1912, l'Italie s'engageait donc
explicitement à considérer le tracé de 1899 comme la frontière
mendionale de la Libye. Par voie de conséquence, l'Italie
s'engageait à ne pas avancer de @tentions fondéessur ses droits
de succession àl'Empire ottoman ."
This is an important shift in Chad's case. Instead of basing Italy's alleged
renunciation on the 1902 Accord, Chad now contends that the renunciation
occurred in 1912,after the Treaty of Ouchy, when Italy had attained sovereignty
over Tripolitania64.
SECIION 4. 1902Anelo-ItalianAccord
6.67 The 1902Accord between Italy and Great Bntain consisted
of the simultaneous exchange of several documents. It qualifies, Libya believes,
as fallingwithin the category "actes internationaux", but it does not appear on the
Annex 1list. It clearly produced no boundary; and Libya understands that it was
not en vigueur on the critical date, not having been notified by the United
Kingdom under Article 44 of the 1947Italian Peace Treaty. Its importance lies in
the light it sheds on the meaning of the 1899Declaration. For in the exchanged
documents, Great Bntain made clear to Italy its interpretation of the 1899
~eclaration". These documents, cornbined with the Lansdowne-Cume
dispatch of 3 February 1902, establish beyond any doubt that, as to temtories
north of 15"Nlatitude, the 1899Declaration had been carefully drafted, in Article
3, to define a line "beyond which the French Government would not at any time
advance its pretensions"66. The 1899Declaration was intended to avoid "bringing
63 CC-M .ara.7.35.
64 The complexitof Chad'sargumentsconcerning the1902Accordis dauling. And yet
Chad'spleadingsmaintainthatChadadvancesasimplcase!
65 ThisAccordwas signedshonlbeforethe 1902Franw-ItalianAccord.
66 -ee,-M, para.5.105.into question the eisting rights of other Powers or any prospective claim they
might hereafter put fonvard".
6.68 The Ws discussion of the relevant documents is highly
selective, leading to the followingremarkable conclusions
- The 1902 Anglo-Italian Accord matched the 1900 Franco-
Italian Accord, being based on the same idea;
-
This idea was that, in the 1900 Accord, Italy's sphere of
influence was recognised and that, as a result of the 1902
Accords with France and Great Britain, Italy recognised the
British and French spheres resulting from the 1899
Declaration;
Accordingly,Italy in fact became a party (at least in respect
to the French zone) to that Declaration, which thereafter
wasopposable to Italy.
This, of course, does not reflect at al1 the British view as expressed in the
documents exchanged with Italy that constituted their 1902 ~ccord~~. It is
contrary to the ordinary meaning of this Accord in the lightof its aim and purpose
and its context, none of whichthCC-M properly examines.
6.69 In reviewingthe background of this Accord, thCC-M takes
completely out of context a conversation with Signor Prinetti reported by Lord
Currie, the British Ambassador in Rome, to Lord Lansdowne, the Foreign
Minister, in a dispatch of 13 January 1902~~. There were in fact five such
dispatches in January 1902~', but the context of this Accord goes back to 1899
when Admiral Canevaro, the Italian Foreign Minister, sought a three-party
agreement in which Italy's special status in Tripolitania would be explicitly
recognised. Both Great Britain and France promptly rejected this proposal,
67 a, para.8.29.
68 See,LM, para.5.103,-q.
69 See, CC-M.para.8.28.
70 SeeLM, para.5.103.givingas their reason the commitments they had made to respect the integrity of
the Ottoman Empire. Asthe stated:
"The Quai d'Orsay ... feared the repercussions of such a
declaration, which would be tantamount to the recogniticy, of or
acquiescence in Italy'sambitions with regard to Tripolitania"
It was shortly thereafter that the Porte vigorouslyprotested 1899 Declaration.
6.70 The relevant 1902 documents forming part of the
background of the 1902 Anglo-Italian Accord bring out the fact that Italy sought
more from Great Britain and France in the way of recognition of its potential
interests in Tripolitania than either was prepared to accord to Italy. The passage
quoted in the CC-M from Lord Currie's dispatch of13 January 1902 set out what
Italy wanted but was refused: recognition of an Italian sphere of influence, thus
making Italy virtually a party to t1899 ~eclaration~~. Chad tries to construct
out of Italy'sproposal, which had been rejected by Great Britain and France in
1899 and again in 1902,a theory that the 1900 and 1902 Accords accomplished
Italy'spurpose. This makes no sense; both Great Britain and France refused to
recognise an Italian zone of influence. There isalso nothing in Italy'sAccord with
Great Britain that recognises a British sphere, and t1899 ~eclaration does not
mention anything at al1about a British zone or sphere of influence. Thus, Chad's
contention that the1899 Declaration, combined with the 1900 and 1902 Accords,
resulted in the three Powers recognising each other's zones of influence is totally
wrong. Italy's aim to have Tripolitania recognised as falling within its zone of
influence was rejected. For its part, Italy never recognised any British or French
zone of influence. Great Britainexplicitlystated that th1899 Declaration north
of 15"N latitude only created a limit to French expansion and was not a
delimitation of zones of influence; and Great Britain itself asked for no zone of
influence, and none was recognised73.
71 B. para.5.51.
72 -3e -C-M, para.8.28.
73 Great Britain'ssituation was complicatedby the fact thatils influence overregions
adjoiningCyrenaicwas indirect, forany soverign nghu over regions Io the east of
Cyrenaicawere heldbytheKhediveoEgypt. Smo~ 5. Treatvof Ouchv(1912):1912Franco-ItalianAgreement
(a) Introduction
6.71 The CC-M takes up these two "actes internationaux",
neither of which appear on the Annex 1 list, in the course of examining the
question of Libya's inheritance of territorial rights and titles in the borderlands
from the Ottoman ~m~ire~~. Chad offers three arguments to establish that
Libya's claim based on its Ottoman heritage (via Italy) is "radicalement mal
fondée"75. The fir asgtment - that the Ottoman Empire never acquired any
sovereign rights in the areaill be dealt with in Chapter VII, Sect5.nThe
second argument, however, is directly relevant to both the Treaty of Ouchy and
the 1912 Agreement. Chad argues that, even if the Ottoman Empire had held
sovereign temtorial rightsCjointlywith the Senoussi peoples), Italy did not
succeed to them in respect to Libya'ssouthern boundary:
"..car l'Italie réitérapar l'accord POINCARE-TIïTONI de 1912
sa reconnaissance de la frontière méridionale de la Libye telle
qu'elle avaitétéétabliepar l'accord franco-anglaisde 1899reconnu
par I'accord franco-italiende 1902. Donc, mêmeàsupposer que la
Turquie ait eu des droits souverains sur la région,ou des droits
concernant la délimitationde la frontière méridionalede la Libye,
l'Italierenonça à ces droits du f%it conclut avec la France un
accord portant sur la frontière de 1."9
6.72
In spite of Libya's careful legal analysis of the Treaty of
Ouchy in its Memorial, the CC-M finds a failure there to discuss the general
pnnciples involved. Then, followinga discussion of the pnnciples of international
law concerning State successio-as to which the Court requires no lect-the
CC-M concludes that the generalpnnciples are superfluous as a result of the 1912
Agreement. In this way, Chad would dispose of the relevance of the Treaty of
Ouchy.
74 See, CC-M.Chapter7. It should be mentionedagainthatcertathat failedto
appearon the Annexistare,nevertheless,extensivelydiscussedinChad'spleadingsand
aregivenanimportantrolebyChadinseekingIoestablisha conventionalboundary.
75 CC-M .ara.7.02.
76 CC-M,para.7.02. Chathi argumentis that,after1912,ltalyneverinvokedOttoman
rights andtitles, relyinginsteadon the 1902 Accord and,later,on Article13 of the 1915
Treatyof London. Thisargumentis also unfoasdwelas misleading(sec.para.
6.198es., below). 6.73 The Treaty is not avoided this easily, for on 20 October
1912, only five days after the Treaty was signed, France recognised Italy's
inheritance of sovereign rights thereunder £romthe Ottoman Empire; as reported
byFrench Foreign Minister Poincaréto Ambassador Barrère in Rome:
"Je viens de déclarer à M. Tittoni que 'le Gouvernement de la
République reco ?9a9! la souverainetéde l'Italie sur la Tripolitaine
et la Cyrenaïque .
M. Poincaréthen set out the text of the agreement proposed to be entered into a
few days later as a quite separate matter in order to avoid any linkage (whichItaly
had strongly opposed). The text of the Agreement itself was settled in only eight
days of negotiations. So recognition of Italy'ssovereignty and agreement on the
text of the Agreement, expressing the ouid DroQUO to be received by France for
according such recognition, were accomplished within the very short time period
of 13 days after the Treaty of Ouchy was signed (15 October 1912). In 1912,
Italy'sinheritance of Ottoman rights was clearlynot in issue.
6.74 Neither France nor Great Britain (which at the time also
had recognised that Italy had acquired sovereignty over Tripolitania-Cyrenaica by
virtue of the Treaty of Ouchy) expressed any reservations concerning the effect of
the Treaty of Ouchy in transfemng sovereignty over Libya to Italy. In Article 10
of the secret 1915 Treaty of London they reaffirmed this recognition of the
transfer of Ottoman rights to Italy,again without any reservations:
"Al1nghts and privilegesinLibya at present belonging to t% Sultan
byvirtue of theTreaty of Lausanne are transferred to Ital."
If, in 1915,France had believed that an exception existed, by virtue of the 1900-
1902 Accords and the 1912 Agreement, with respect to Italy's inheritance of
Ottoman rights and titles over terntories lyingwithin the Libyan hinterland, the
French Government would have been bound to have registered some form of
reservation. But just as in the case of the Treaty of Ouchy and in the case of
France's recognition of Italian sovereignty in 1912, Article 10 contains no
reservation of any kind.
77 Dispatch,Poincare-Barrere2,0October 1912,LR Exhibit5.
78 See.LM,para.5.150g m. 6.75 Thus, Article 10 of the 1915 Treaty of London refutes
Chad's contentions that the 1900-1902Accords and the 1912Agreement were a
formal repudiation by Italy of its inhentance from the Ottoman Empire of
territorial rights and titles over temtories lying to theouth of Tripolitania-
Cyrenaica. France's agreement, without resemation, to Article 10 of the 1915
Treaty of London barred France from thereafter claiming that in 1902 or 1912
Italy renounced its Ottoman heritage; and Chad is, as a result, barred from
making that argument today. This is so quite aside from the fact that the 1900-
1902Accords and the 1912Agreement did not have the effect of a repudiation by
Italy of any rights and titles inhented from the Ottoman Empire, in the first
79
place .
(b) The Role of the 1912Treatvof Ouchv inthe Settlement of
the PresentDispute
6.76 The analysis of the Treaty of Ouchy presented by Chad is
preceded bya peculiar dissertation to the effect that Libyahad not contnbuted "le
moindre début de démonstration juridique" to justifj the affirmation that Italy
succeeded to the Ottoman Empire under the terms of the Treaty of 0uchyS0. As
just mentioned above, Chad blames Libya for not discussing the general legal
principles governing this subject. However, at the end of this lecture, Chad
discovers,with the help of a rich variety of doctrinal quotations, that the principle
to be retained is precisely what Libya had indicated in its Memorial; namely, that
in that era, in the event of annexation of the temtory of one sovereign State by
another -
"..la succession d'Etat ne t or tait atteintauxifrontières ni aux
droits-81 ,obligations se 'rapportant au régime du temtoire
annexe .
6.77 It is in fact in applying this principle that the correct
interpretation of the Treaty of Ouchy is arrived at. The Treaty consecrated
legallythe succession between the Ottoman Empire and Italy conceming Libya's
territory. The territory in question was thus transmitted to Italy in its entirety and
under exactly the same conditions as had applied when the territory was part of
79 This has ben demonstratedabovewith regardIo the 1900-1902Accordsisshown
belowas to the 1912Agreement.
80 See,CC-M. para.7.04,m.
81 a. para.7.06.the Ottoman Empire: &, with such boundaries as had been previouslyfixed or, if
none had been so fixed, without precise boundariesg2. Of course, in the latter
case (whichwas the situation tothe south of Tripolitania and Cyrenaica, where no
boundary had previously been fixed), Italy inhented al1the Ottoman rights, titles
and claims on the basis of which such a boundary would in the future be
established.
6.78 Certainly, the Treaty of Ouchy says nothing at al1 about
Libya'sboundaries. But this fact does not render the Treaty irrelevant, as Chad
appears to believeS3. Chad wronglyunderstates the importance of the Treaty of
Ouchy. This Treaty transmitted to Italyalong with Libya'sterritory the entirety of
the territorial demands and claims that the Ottoman Empire could have put
forward in its negotiations with France or with any other country in an attempt to
determine Libya's boundariesS4. Ln other words, the Treaty of Ouchy has a
central role to play in the present dispute since it represents the essential legal
foundation of the temtorial nghts of Italy towards France from 1912 onwards,
and thus is one of the legal bases of the temtorial nghts of Libya vis-à-visChad
today.
6.79 Asa result of the Treaty of Ouchy, Italy found itself in the
shoes of the Ottoman Empire not merely in respect to the geographical extent of
Libyan territory. There was a "personal" dimension to the succession as well. The
Ottoman inhentance, in fact, entailed, according to the terms of the Treaty, that
Italy exercise its powers towards al1 the "habitants de la Tripolitaine et de la
Cyrénaïque", whoseautonomy Italy undertook to respect. It goes without saying
82 See,in this respect, the highly pertinent observation of the U.S. Government on the
Report of the International Law Commission on the succession of States in respect of
treaties, NCN.4BER N1974lAdd. l(Part l), pp. 80-81.
"A successor State can only aquiras its territorial domain the territory and
territorial rights of the predecessor. If the territory as held by the State had
boundaries firmly fixe..the successor State inherits al1t..On the other
hand, if the territory as held by the predecessor State had a poorly-defined
boundary ..the sucessor State aquires what the predecessor had, territory with
badlydefined boundanes ...."
83 See. CC-M.para. 7.10g-q.
84 &, on this subject, WaldoH.: Premier ramon sur la succession d'bats en matièrede
m, AC.D.1.. 1974,Vol. II, 1st part, "..I'Etatsuccesseurne peut aqukrir que les
droits que I'Etat prédkcesseuravait le pouvoir de lui donner". See,also, in particular,
Mochi Onory, AG.: La succession d'ktat aux trait&, Milan, 1968, p."..le nouvel
Etatsude aussi aux 'claims',c'est-à-dire aux revendications possibles sur ceterritoirethat these Libyan peoples could only have been the same peoples who were
legally subject to the authority of the Ottoman Empire before the Italo-Turkish
war 85.
6.80 From this it followsthat if before 1912the Ottoman Empire
had enjoyed legal titles over regions within the Libya-Chaù borderlands that can
be identified on the basis of both territorial criteria (the occupation of the
territory in question by the Porte) and persona1 critena (the allegiance of the
populations to the Ottoman authority), these titles were transmitted to Italy,
which had the right to assert them against France in amving at a conventional
delimitation of the southern boundary of Libya. In the absence of a delimitation
established in the colonial penod,the same titles were transmitted to Libya,which
in turn has the right to invoke them now against Chad.
6.81 The CC-M objects that, in any event, the Treaty of Ouchy
was res inter alios acta for France, and could not thus have had any legal effect on
86
France . But, Chad disregards the fact that France, like the other major
European Powers, recognised explicitly the acquisition by Italy of sovereignty
over Libya as a result of the Treaty ofchyg7. Furthermore, France recognised
the Treaty of Ouchy itself in a number of multilateral treaties accepting that the
above-mentioned Treaty be interpreted in the sense of abolishing al1the rights
and privileges which remained in favour of the Ottoman ~m~ire". The Treaty
of Ouchy was clearly not res inter alios acta for France; to the contrary, France
formally recognised the Treaty.
6.82 Certainly, the Treaty of Ouchy had its share of ambiguities,
as Chad rightlyobserves89. This resulted from the unusual separation of powers
under the Treaty between Italy and the Ottoman Empire (which retained certain
rights over Libyan territory) and particularly in the way in which the Treaty
seemingly entrusted Italy with the exercise of sovereignty over Libya, whilst the
sovereign & seemed to have been retained by the Ottoman Empire. Such
85 See,LM,paras.5.134-5.138.
86 See, CC-M,para.7.09.
87 See .ara.6.73,above.
88 Article10of the Treatyof Londonof 1915;Article121of theTreatyof Sèvresof 1920;
Article 27of theTreatyof Lausanneof 1923.
89 See.CC-M,para.7.12,g -q.ambiguities were entirely removed subsequently, in favour of Italy, through the
series of international agreements binding on France footnoted in the previous
paragraph.
6.83 In conclusion, as a result of this succession, fullyrecognised
by France, Italy received from the Ottoman Empire, together with Libya's
terntory, al1the legal rights and titles relating to it that the OttomanEmpire could
have invoked in the negotiations for the delimitation of the southern boundary.
Prior to 15October 1912,Italycould not have waived these rights with dispositive
effect (nemo dat auod non habet). Obviously, such a waiver could only have
intervened after 15 October 1912. This is the hypothesis which, according to
Chad, occurred under the terms of the Tittoni-PoincaréAgreement of 28October
1912,to which the discussionnow turns90.
(c) 1912 Franco-ItalianAgreement(Tittoni-Poincaré)
6.84 The Treaty of Ouchy and Italy's desire for immediate
recognition from the major Powers of its sovereignty over Libya form the
background of the 1912Agreement. The Agreement and France's recognitionof
Italian sovereignty were separate acts. The purpose of the Agreement was to set
out France's guid Dro auo for prompt recognition. In its discussion of this
background, the CC-M largely repeats and requotes what had already been set
out in them.
(i) OrdinarvMeaning
6.85
It is appropnate to turn now to an examination of the
ordinas, meaning of the text of the Agreement and to test it under the cnteria of
90 There is one element of Ottoman and French mnduct that has an important bearing
here. It willbe recalled that both the French and theOttomans mnsidered that it wasthe
Treaty of Ouchy that required the withdrawal of Ottoman civil and military
administration, not just from Tripol-tqenaica, but from the borderlands as well,
starting at the en1912. This isrecognisedby Chad in the CM (see, CM180,paras.
137-138). It was so perceived by the French militaiy at the time, as described in the
officia1histoofthe A.E.F.:
"Par le trait6 de Lausanne, si18octobre 1912les Tura abandonn*rent aux
Italiens leur souverainet6 sur la Tripolitaine et la Cyrknaïque.ssiya
restait seule maîtresse au Borkou et l'attitude assez froide d'Abdallah
Toueur ne tarda paA devenir hostile." Emphasis added. (Histoire militaire de
I'AfriaueEauatoriale Francaise, Paris, Imprimerie Nat1931,p.424. Sec.
u, Exhibi13.)Article 3 of the 1955 Treaty. The Agreement itself comprised these two
sentences:
royal d'Italie, désireux d'executerdans l'esprit le plus amical leurs
accords de 1902,confirment leur mutuelle intention de n'apporter
réciproquement aucun obstacle à la réalisation de toutes les
mesures qu'ilsjugeront opportun d'édicter,la France au Maroc et
l'Italieen Libye.
Ils conviennent de mêmeque le traitement de la nation la plus
favoriséesera réciproquement assuré à la France en Libye et à
l'Italie au Maroc: ledit traitement devant s'appliquer de la manière
la plus large aux nationaux, aux produits, aux établissementset aux
entreprises de l'unet l'autre Etats sans exception."
6.86 According to Chad, in entering into the Agreement, Italy:
- "...renonça à toute prétention ou revendication qu'elle
aurait pu éventuellement avancer ..en vertu des principes
...concernant la successionentre ~tats~'";
-
Arranged things in such a waythat a line allegedly delimiting
mere spheres of influence (as of 1899) "fut transformé en
9211.
frontière ,
- "...réaffirma d'une manière claire et indiscutable" this
boundary, & "s'engageait..explicitement à considérer le
tracé de 1899 comme la frontière méridionale de la
93 00
Libye ,
6.87 What an array of spectacular legal effects the Agreement
produced! Almost to the extent of itself settling the present dispute! What a
shame it does not appear among the "actes internationaux" to which Article 3
(and Annex 1) of the 1955 Franco-Libyan Treaty refer and thus, according to
Chad, cannot be taken into account in determining the b~undary~~! What a pity
it was not en vieueur in 1951 because France had omitted to notify it to Italy
91 a, para.7.18.
92 a. para.7.30,gt-q.
93 a, paras.7.18and7.35.
94 See,CC-M, para.11.20.under Article 44 of the 1947Peace Treaty! An unbridled imagination is required
to read al1these remarkable achievements into the meaning of the two sentences
of the Agreement just quoted. In fact, Chad even overlooked these remarkable
attnbutes of the 1912Agreement in its Memorial.
6.88 An examination of the ordinary meaning of the Agreement's
text reveals the following:
- It was intended to carry out, in the most amicable fashion,
the 1902Accord between Italy and France;
- In this regard, the parties confirmed their intention, on a
reciprocal basis, not to place any obstacle in the way of
carrying out any measures they considered opportune:
France asto Morocco; Italy as to Libya;
- Each party would extend to the other most favoured nation
treatment: France in Libya; Italy in Morocco - in the
broadest possible fashion.
There isnot a word, not a hint, about boundaries or aboutlines of any kind!
(ii) Obiect and Purpose -Context
6.89 Though the ordinary meaning of the text of the Agreement
excludes any interpretation that it produced a boundary, the next question is
whether there is anything in its context or its obiect and vuruose that would lead
to the conclusion that a boundary did result £romthe 1912Agreement?
6.90 In considenng the historical context of the 1912Agreement,
it should be remembered that the French military campaigns had only just
brought the French to the periphery of the borderlands. At the time, these
regions were, in France's mind at least, vast, unknown and dangerous desert
regions of no economic value. There was no question of installing there a real
French colonial administration - and there never was thereafter; the borderlands
were merely the site of sporadicFrench military operations whose purpose was to
protect the regions lying south of the borderlands (well below 15"Nlatitude).
There was, thus, no practical reason to fixprecise boundaries there. But this wasnot at al1the case as to Libya'sboundaries on the Westwith French Algeria and
Tunisia.
6.91 The travaux ~ré~aratoires of the 1912 Agreement
demonstrate this clearly, as Libya has pointed out in its prior pleadings. Now,
however, the CC-M has given this demonstration its unqualified support, for
Chad there indicates that al1the pertinent documents unambiguously show that
France's sole preoccupation at the time was over the Tripolitania-Algeria
frontier, not Libya's southern frontier. It was in respect to this French
preoccupation that the reference in the 1902Accord had been made in the 1912
Agreement, according to Chad. Chad does not hesitate to admit ore rotundo
that, throughout the 1912negotiatio-s
"..(1)a France ne songea jamais à soulever la question de la
frontière méridionalede la Libye."
And so faras Italywas concerned, she
"..non plugfe crut bon de soulever la question de la frontière
méridionale ."
6.92 One has to reread these passages of thCC-M to be sure
they are not just a dream. For Chad here expressly recognizes that neither party
to the 1912Agreement raised the question of Libya'ssouthern boundary during
the negotiations and that the matter was never discussed; accordingly,not a word
concerning the boundary appears in the Agreement'stext. How then can Chad
maintain that by the 1912 Agreement Italy renounced any Ottoman nghts to
territories lying south of Tripolitania-Cyrenaica and that Italy and France could
have agreed such a boundary by reference to the 1902Accord? How can such a
far-fetched, contradictory argument be seriouslyadvanced?
6.93 The CC-M suggests there was special meaning in the
negotiations leading up to this agreement, and breaks these negotiations down
into three phases. It also emphasises that the reference to the 1902Accord was
inserted at the request oflian Foreign Minister ~rinetti~~.
95 CC-M. para.7.25.
96 See,CC-M,paras7.18-7.36. 6.94 What is revealed by the evidence concerning the object and
purpose of the Agreement is that it constituted the French auid vro auo for
forma1recognition of Italian sovereignty over ~ri~olitania-Cyrenafollowing
the Treaty of Ouchy.
6.95 At the outset,M. Poincaré had suggested to Italy that
French recognition of Italy'ssovereignty should be subordinated, inter alia, to:
"...ne réserveportant sur la fixatio48dRartie de notre frontière
communequi n est pas encore délimitée .
This suggestion, on the face of it, reflected M. Poincaré'sview that a part of
Libya's boundaries with France or French possessions had not been delimited.
French Ambassador Barrère discouraged this linkage, setting out his reasons in
this equally revealing statement:
"Cette délimitation pourrait d'ailleurs à mon sens devenir le
prétexte de la remise au point de nos accords [antérieurs] avec
l'Italie, comme la partie fixéepar la convention franco-anglaise de
1899fut le motif des accordsfranco-italiens de 1900et 1902."
Englkhtranslation
"Besides, that delimitation could in myviewbecome the pretext for
having to reclarify our prior accords with Italy, just as the
reason for the (1900-1902 ranco Italian Accords)."on) was the
In other wordsM. Barrère advised against stirring up questions asto the meaning
of the 1900-1902Accords (whichwere then stillsecret)99.
6.96 Initially, Foreign Minister Poincaré took issue with his
Ambassador in Rome on this point100. He emphasised that France was in a
different position from the other Powers vis-à-vis Italy: France had common
97 At the time,whatterbecameFemn wassubsumedwithinthesetwoprovinces.OfteII,
theywerereferredto togasthenvi of Tripolior,simply,Tripolitania.
98 BarreretoPoincark,17October191LM, French ArchivAnnex, p.142;repeatedin
a, Annex30,No. 188andquotedat para.7.23.
99 M.Barrete'spositissimilarto thattakenbytheFrenchGovernmentduringthe 1955
negotiations: to avoid upquestions as to the mgf prioragreements.
1ûû &, Poincarkto Barrkre,18October m.12FrenchArchivesAnnex,p. 145.boundaries with Italy in North Africa, and this was a good occasion to safeguard
French interests:
"(The 1899Declaration) part du tropique du Cancer et laisse par
conséquent indéterminée la frontière sur plus de douze cents
kilomètres. Il dépend du Gouvernement italien de formuler sa
demande de reconnaissance dans des termes qui réservent
entièrement nos droits."
The record does not establish why M. Poincaré, shortly after sending this
dispatch, abandoned the idea of linking this boundary delimitation with
recognition of Italian sovereignty and agreed to an arrangement in which the
matter of boundaries was not taken up at all. The CC-M speculates that this was
because there was no need to take up the matter of Libya'ssouthem boundary
since the 1902Accord, by its reference to the Livre iaune map, had established
"d'une manière claire" this boundaryl0l. This is not plausible: a person as
meticulous and informed as M. Poincaré,would not have mistakenly referred to
Libya's undetermined boundaries with French temtories if they had al1 been
settled in 1902;and M. Barrère, the French negotiator of the 1902Accord, would
have advised M. Poincaré at once that Libya's boundanes had been settled in
1902,if he had thought that wassolo2.
6.97 Chad does, on the other hand, correctly conclude that the
boundary M. Poincaré was referring to as "indéterminée"was the "frontière
algéro-tripolitainef'103As just discussed, this was an admission by Chad that the
1902 Accord, referred to in the Agreement in an insertion requested by Italy,
concemed only the part of the boundary to the w- of ~oummolO~. It is also a
clear indication that M. Poincaré did not believe that the Tnpolitania-Algeria
boundary between Ghadamès and the Tropic of Cancer had been agreed as a
result of the reference in the 1902 Accord to the Livre iaune map, on which
Tripolitania'snotional boundary was shown as a wavy,dashed line.
101 See, CC-M,para.7.25.Chaddoes not seemto haveentirelymade upits mindwhether
the 1902Accord orthe 1912 Agreement establisheLibya'ssouthernboundary- an
understandablconfusionsinceit is clearthatneither agrhadanythingto dowith
the establishmofboundaries,eastof al1Libya'ssouthemboundary.
102 Itill be recalledagainthat in his detailedreportson the 1902A-in 1902and
againin 1912-M.Barrére nevermentionedthatit hadthe effectof fixing anyof Libya's
boundaries.See,para.6.64,ahove.
103 See,CC-M,para.7.22.
104 ThisiswnfirmedbytheMarinreportsof 1914and1915. See,LC-M.para4.247g -q. 6.98 As just mentioned, the CC-M suggests that, unlike the
Tripolitania-Algeria boundary, which was M. Poincaré'sconcem, the southern
boundary of Libya required no discussion, for it had been established "d'une
manière claire" by the 1902Accord and its reference to the 1899maplo5. The
even goes so far as to suggest that Italy itself raised no questions as to
Libya's southern boundary at the time for the reason that Italy also considered
that the matter had been resolved by the 1902~ccordlO~. So with complete self-
assurance the - contends that the total absence of anv reference to a
boundaw in the 1912 Agreement served to confirm the boundary allegedly
established in the 1902 ~ccordlO~ - not the Libya-Algerian boundary, the
southem boundary of Libya. It is the reference in the 1912 Agreement to the
1902Accord -inserted at Italy'srequ-sthat is the anchor to Chad'sargument; it
is an argument conceived in desperation, for if the Chadian thesis conceming the
effect of the 1902Accord and map referred to there (the Non-Annexed Mau) is
rejected, as it must be, Chad'scase for a conventional boundary collapses.
(iii) TravauxPréparatoires
6.99 Chad has fumished a document as part of the travaux of the
1912 Agreement whose significance it apparently has failed to grasp. This is a
dispatch to M. Poincaré from the French Ambassador at the Porte dated 19
October 19121°8. In this dispatchM. Bompard expressed the same thought as
M. Poincaréhad the previous day in hismessage to M. Barrère:
"La France en est limitrophe (to Libya) sur des milliers de
kilomètres; il importe donc que tout d'abord l'Italie accepte les
limites fixéespar la convention franco-anglaise du 21 mars 1899et
par la convention franco-turque du 19 mai 1910 ...puis que des
dispositions soient convenues en vue de la délimitation entre les
points extrês des lignes de démarcation tracées par ces deux
conventions ."
105 This argumentis a forerunnerof a similar argument nbey Chadregardingthe
1955Treaî-that the failtohavenegotiated overLibya'ssouthernboundaiywasa
reflectionof theithadbeen settled.
106 See.CC-M,para.7.2(ii).
107 Perhapsinspiredbythesaying,"Absencemakesthehean growfonder".
108 S-, Bompardto Poincare,19October19CC-M, Annex32.
109 Also quotedinfulla. p.281fn3,As the CC-M notes, the text as published in the bears the following
annotation of M. Poincaré,followingthe reference to the 1899Declaration: "M.
Bompard ignore-t-il les accords de 1902?" The CC-M suggests that this
annotation confirms that the 1902 Accord clearly established Libya's boundary
(and an editonalfootnote added by the archivists at the French Foreign Ministry
when thisDDF series was published many years later suggeststhe same)'''.
6.100 The CC-M misunderstands this note of the French Foreign
Minister. The note also contradicts the later annotation of the French archivists.
M. Bompard had suggested that this was an opportune moment to secure Italy's
acceptance of "leslimites fixées"bytwo treaties not opposable to Italy: the Anglo-
French 1899Declaration and the Franco-Ottoman Treaty of 1910. (M. Poincaré
did not question this conclusion.) But this left a gap between the 1910boundary
ending at Ghadamès and the starting point of the 1899 Declaration line ("les
points extrêmesdes lignes de démarcation tracéespar ces deux conventions")
(Mar, LR 14). This gap only partly concemed Libya'ssouthern boundary -for it
concerned the frontier between the end point of the 1910Treaty and the starting
point of the 1899 Declaration - only some of which might be described as
"méridionale"to Libya (between Toummo and the intersection of the T..pic of
Cancer and 16"E).
6.101 Thus, M. Poincaré'snote could only have been referring to
the Libyan boundary between Ghadamès and the Tropic of Cancer (and 16"E)
for he was commenting on M. Bompard's concem that there was no agreement to
cover this sector and his suggestion that Italy'sacceptance might be sought of a
boundary here. As to this part of the boundary, M. Bompard recommended that
"des dispositions soient convenues" to fil1the gap between the "limitesfixées"by
the 1910Treaty and the 1899Declaration. M. Poincaréthen asked the question -
is M. Bompard not aware of the 1902Accord? What he meant by this could only
have been that the 1902 Accord should be added as a third agreement whose
"limites fiées" should be accepted by Italy. This must have been a reference to
the "limite de l'expansion française" mentioned in the 1900 Accord and more
precisely identified in the 1902 Accord as the wavy, dashed line on the map
110 Documents DiplomatiqueFrançais.
Theeditor'snotereads:
111
"Suivanla lettre adressélee 10juillet 1902,parM.Prinetti2 M.Barrkre,l'Italie
acceptaitcettelimite."referred to there - the notional boundary of Tnpolitania. Such a conclusion is
reflected in the earlier Poincaré-Barrèreexchange in whichthe Foreign Minister
referred to this sector of the Libyan boundary as "indéterminée".From this, three
conclusions emerge: firs Mt,Poincaré'snote was refemng to the boundary west
of the intersection of 16"Eand the Tropic of Cancer only; second h, clearly did
not believe that the 1902Accord had established that sector of the boundary; and
-9ird M. Poincaréshared the view of his Arnbassador in Constantinople that the
line descnbed in Article 3 of the 1899Declaration was not opposable to Italy.
6.102 At the end of the day, M. Barrère'scounsel prevailed: not to
stir things up concerning the 1902 Accord. The 1912 Agreement contained
nothing at al1 about Libya's frontiers, whether on the West or the south. The
reference tothe 1902Accord related onlyto that part of the Accord having to do
with the reciprocal arrangements between Italy and France concerning Morocco
and Tnpolitania; but in any event, the concedes that, if it were related to a
boundary, it was onlyto Libya'swestern, not southern, boundary112. The
conjures up "un échange intense de notes diplomatiques sur l'importance de
l'accordde 1902". But aii this took place in the space of two days and reflected no
more than the dealing with the usual last-minute detailsjust pnor tothe signingof
an international agreement.
6.103 There is not an iota of evidence to support Chad's
conclusion that:
"En souscrivant à l'Accord de 1912, l'Italie s'engageait donc
explicitement à considérer le tracé de 1899 comme la frontière
meridionale de la Libye. Par voie de conséquence, l'Italie
s'engageait à ne pas avancer de qiéjtentionsfondéessur ses droits
de succession àl'Empire ottoman ."
It is clear from the diplomatic dispatches at the time that Messrs. Poincaré,
Barrère and Bompard did not believe that the 1902 Accord had settled any
boundary question114. They toyed with the idea of trying to get Italy to agree
that the wavy, dashed line portrayed on the map referred to in the 1902Accord
112 &, paras.6.91-6.92and6.97,above.
113 CC-M .ara.7.35.
114 Onceagain,Chadshowshowcriticalto icasethe 1902Accordis (andthe reference
thereto the Non-AnnexedMaa. InamajorshiftinChad'scase,the= now places
heavyrelianceon thesupposedconfirmationin the 1912Agreementof the 1902Accord,
ata timewhenItalyhadjustbecome sovereignoverLibya.was the Libyan boundary between the end point of the 1910 Treaty and the
starting point of the 1899Declaration, as wellas to accept the 1910and 1899lines
as boundaries opposed to Italy. But they dropped the whole idea, leaving out of
the 1912 Agreement any reference whatsoever to boundaries. Therefore, the
1912Agreement stands for almost the very opposite of what Chad contends: it
confirmed the fact that Libya's boundary beyond Ghadamès al1the way to the
Sudan frontier was not covered by any international convention opposable to
Italy.
(iv) SubseauentConduct
6.104 Chad has discussed what it descnbes asthe conduct of Italy
and France subsequent to the 1912 Agreement that it finds relevant to its
interpretation. The examples cited are nothing of the kind, at least in the sense
contemplated by the 1969Vienna Convention. What Chad attempts to do isto fit
the conduct relating specificallyto the two 1919ameements subseauentlv entered
int o the 8 September Anglo-French agreement "interpreting" the 1899
Declaration and the 12September Franco-Italian Accord -within the framework
of conduct bearing on the meaning of the 1912Agreement.
6.105 The elements of subsequent conduct cited by Chad are
these: Italy'sprotests against th; Anglo-French Convention of 8 September 1919;
and the so-called "déclaration"of Italian Foreign Minister Tittoni to the Italian
Chamber of Deputies on 27 September 1919. The Italian protests to the 1919
Anglo-French Convention will be taken up below in the discussion of that
agreement. Although the statement of Signor Tittoni was made in the course of
discussing the other 1919 agreement - between France and Italy concerning
Ljbya'swestern boundaiy - jt does have a certain beanng on the meaning of the
1902Accord as well as on what Chad has to say conceming the 1912Agreement,
so it willbe dealt with here.
6.106 It is not necessary to repeat what has already been said in
Libya's earlier pleadings about the choice of words used by Signor Tittoni
concerning the 1902Accord in the context ofa speech to the Italian Parliament
explaining the recently concluded Franco-Italian Accord of 8 September 1919,
which concerned Libya'swestern boundary. His words were subsequently blown
up out of al1proportion by the French colonialists writing in w115 and
115 The French wlonialists' periodical,le Bulletin Colonialde l'AfriqueFrancaise.elsewhere, in an attempt to interpret the 1902Accord as a renunciation by Italyof
the Tripolitanian hinterland claimed by the Ottoman ~m~irell~. The CC-M
itself illustrates the fragilityof this argument built around SignorTittoni's words.
6.107 m, theCC-M mistakenly refers to it as a "Déclaration"of
Signor Tittoni, and adds that it would be difficult not to regard these words
"comme la confirmation formelle d'une reconnaissance antérieure
indis~utable"~~~. But there was no declaration at al1 involved. In a side
comment, pointing out the sometimes fickle attitude of the Italian public, Signor
Tittoni had mentioned, as an example, the outcry that resulted when the Italian
public first learned (around 1914) that, in the 1902Accord (prior to then kept
secret), "nous avions reconnu la frontière" of the 1898Anglo-French Convention
(seemingly a mistaken reference intended to be to the 1899 Declaration) "qui
avait assignéà la France le Tibesti et le Borkou". It was this perception of the
Italian public to which Signor Tittoni was refe-nthey had just learned of the
1902~ccordll~.
6.108 Second, to try to make the passage from this speech appear
to have been a formal declaration, the has deleted a few words from its
quoted text. Instead of refemng to what the Italian public learned, the ms
rendition simply begins the passage this way: "déjà (inthe 1902 Accordnous
avions reconnu la frontière"l19, thus givingthe impressionM.hTittoni, rather
than the Italian public, had drawn such a conclusion. This is seriously misleading
and can onlyreflect the weakness of the argument. If it is necessary to modify the
text of the speech in this way in order to sustain Chad's argument, the speech
evidently failed to have the meaning and importance ascribed to it. After a flurry
of articles by Frenchcolonialists appeared drawing extreme conclusions from
these few words, Signor Tittoni made very clear (in a 1927article repinthed
w) what he meant and did not mean to say120. However, in the meantime,
the French had told the British that Foreign Minister Tittoni had made such a
"declaration", which led the British to believe that, in the 1902Accord, Italy had
116 SeeCC-M. headingofparB.atp.289;andpara.8.52.
117 CC-M para.8.52.
118 TheTombalbaye letter,on the otherhand,is anexamaformaldeclarationclearly
intended tobindthe State.See, para.5.119,et-q., andfn.191303..
119 m, para.8.52. Emphasisadded.
120 See,LM, para.5.171.abandoned any Ottoman territorial rights inherited from the Ottoman Empire by
theTreaty of ~uch~l~~.
6.109 There is, however, subsequent conduct of both France and
Italy that does have an important bearing on the meaning of the 1900-1902
Accords and the 1912Agreement. This conduct fallsinto three categories:
- Maps issued bythe French and Italian Governments;
- The negotiations scheduled to take place, first, between the
Ottoman Empire and France, and then, after the Treaty of
Ouchy,between Italy and France;
- France's attempt to secure Italy's recognition of the 1899
Declaration and the 1900-1902Accords in connection with
its offer in 1928 to modify Libya's western boundary
delimited by the Franco-Italian Accord of 12 September
1919in Italy'sfavour, involvinga salient of territory south of
Toummo to include the Djado oasis122.
Conduct of France and Italv: Oficiallv Published Ma~s
(A)
6.110 In 1911-1912,the French Government published two maps,
both of which have been introduced into evidence in this case. LC-M Map 28A is
discussed in Libya's Counter-Memorial in connection with the 1912
~greementl~~. Chad's Map Atlas contains the other map (No. 16)'~~. Both
maps are reproduced here again (Maps LR 15A and 15B). They appear to be
based on the same map prepared by the French Ministry of Colonies. According
toChad's description of its Map No. 16,that map was prepared for the A.E.F. in
1911,annexed to the A.E.F. Annuaire of 1912,and used in connection with the
1911Franco-German delimitation. So it was unquestionably an officia1French
121 &,para.6.189,get.,below.
122 See,LM,para.5.260,g a., andMapsNos.74and75AandB.
123 Se, LC-M.para.4.150,eta. mis map wasfoundintheBritishPublicRecordsOffice.
124 Chad'sMapAtlasisanalyseindetailinVol.2,Sup~lementarAnnex,No.2. 6.111 Both maps incorrectly show the southeast line of Article 3 of
the 1899Declaration as an existingboundary; and the line followsthe direction of
the east-southeast line on the Livre jaune rnap on both maps. From 15"Nlatitude
south to 1l0N, the boundary is correctly shown (in a different way on each map)
as not delimited. The interesting sector, for purposes of the present discussion
concerning the 1912 Agreement, is to the west of the Tropic of Cancer
intersection point (at the very top of the map). Chad maintains that this sector of
Libya'sfrontier -more fullydepicted on Chad's ownrnap (Mau LR 15A)between
Ghat and the Tropic of Cancer - was agreed between Italy and France as the
boundary of Tripolitania in the 1902 Accord by virtue of the reference to the
famous Non-Annexed Mau; and in any event, by the reaffirmation of the 1902
Accord in the 1912 Agreement (after Italy's sovereignty over Tripolitania had
been established and formally recognised), the line shown on the non-Annexed
min this sector became a boundary binding on Italy. Ithas been demonstrated
above that the ordinary meaning of the 1902and 1912texts lends no support at al1
to such a proposition. The 1911-1912official maps of the French Government
reveal that at the time this was not, in fact, the view of the French
~ov~rnmentl~~ - and as the diplomatic record discussed above shows, it was
clearly not the Mew of Messrs. Poincaré, Barrère and ~om~ardl~~. France's
conduct in issuing these officia1maps refutes Chad's contention that, at least by
the end of 1912,there was a conventional boundary between Ghat-Toummo and
the Tropic of Cancer point of intersection. These two maps show no boundary
there.
6.112 Maps published by the Italian Government in 1906, 1912,
1916and 1917reveal Italy'sunderstanding of the effect of the 1899Declaration,
the 1900-1902Accords and, except for the earlier 1906map, the 1912Agreement.
The 1906, 1912 and 1917 maps, not previously introduced in evidence, appear
here as Maus LR 16A-1,16A-2,16B and 16C.
6.113 The 1906 Italian rnap deserves special comment (Maps LR
16A-1and 16A-2). It was published bythe Italian Ministry of Foreign Affairs, not
the Ministry of Colonies. Although maps published by both Ministnes were
125 On neithermap isthe sectorWestof the Tropicof Cancerintersection pointshow asa
boundary.On M~DLR 15B,itisshownas a dashedorange line,in contras1to thesolid
orange linerunningeast-southeast fromthe Tropicof Cancer. On MLR 15.4,the
demonstrationisevenclearer:inmuchof thissectorno lineofanykindappears.
126 Sec .ara.6.99a S., above.equally official,this fact about the 1906map is important because Chad has tried
to dismiss Ministry of Colonies maps on the basis of Chad's invalid "mock war"
thesis: that there was a basic, even bitter, difference of view between the two
Ministries and that the Ministry of Colonies in the end was overru~edl~~. This is
pure nonsense, as Libya demonstates in Volume 2 of this ~e~l~~~~B .ut, in any
event, Chad cannot disparage Italy'sofficial 1906map on this theory for it was a
Ministry of Foreign Affairs map129.
6.114 This map, issued four years after the 1902 Accord,
establishes several very interesting points:
-
No Tripolitanian boundary is shown, notional or othenvise,
corresponding to the wavy, dashed line on the Livre iaune
map to which the 1902 Accord referred; and the shaded
area, generally representing Tnpolitania and Fezzan,
extends wellWestand south of that wavy,dashed line;
- The line of Article 3 of the 1899 Declaration is shown as
almost a true southeast line (intersecting 24"E longitude at
16"N latitude - a true southeast line would intersect at
15"35'N);
-
The Ottoman claim made in 1890is portrayed, as well as an
area of overlap of temtory claimed by both France and the
Ottoman Empire;
- North of 15"latitude, no boundary of any kind is shown, and
the sector of the Anglo-French boundary falling under
Article 2 of the 1899 Declaration is marked on the map as
"Confine da definirsi"(boundary to be defined).
127 See,CC-M,paras. 7.49-7.60and para. 10.29.
128 In Su~ulernentan, Annex, No. 5,this thesis is examined, together with the relevant
documentary evidence; it is demonstrated there that Chad's"mock war"has no bais in
fact:the hvo Ministrieswere in basicagreement as to the negotiating tactic to adopt with
the French. nie subject of Italian maps is taken up in Suuplementan, Annex, No. 2,in
whichChad'sMao Atlas is analysed. There it is shown howçompletelyChad's162-page
Mau Atlas has ignored theimportant officialItalian maps.
129 The Colonial Officef the Ministryof Foreign Affai,which issuedthe map, reported
tothe Minister ofForeign Affain. MINIW~~ 1)Eü1,1.4FFAill<l S'I'EPI
MINl~~~y O~ FORE^^^ AFFAIR~ -. --.-
COLONIAL OFFICE LR 168
CONFINI POLITICI DEL iRIPOLITANIA E CIRENAICA
...-.-
(>__._.
,. , -, .. .- --
-*Wh* gr-Lln='ll.L-J -- bhrm
Cirta6imaiira:ira ~rorsimsiiz1:4.000000. N .':id.
- . . .. - - 6.115 On the basis of this official Italian map it may be concluded
that Italy in 1906 did not consider that any boundanes conceming Tripolitania
had been agreed in the 1902Accord. The map also demonstrates Italy'sreliance
on the claimed rights and titles of the Ottoman Empire, and it emphasises the
area of overlap between Ottoman and French claims to the Tripolitanian
hinterland as far south as Lake Chad. Although in 1906Italy had no sovereign
rights in the area, it had expectations of succeeding to those of the Ottoman
Empire. The map can be taken as a recognition by Italy (i) of the Ottoman claim
and (ii) of the unresolved status of the Tripolitanian hinterland.It refutes any
notion that, in the 1902 Accord, Italy in some fashion renounced any future
Ottoman inhentance; the map reveals a high degree of Italian interest in the
Ottoman claim.
6.116 The 1912 and 1917 Italian maps show as an actual
Tripolitanian boundary onlythe boundary delimited in 1910between Tripolitania
and Tunisia in the Franco-Ottoman Treaty. Both maps also show the parts of the
borderlands occupied by the Ottoman Empire in 1912,and the 1912Italian map
shows the extent of the hinterland claim made by the Porte in 1890. Once again,
these maps refute any notion that Italy had renounced the Ottoman rights and
titles either in 1902or in 1912,after the Treaty of Ouchy.
6.117 This French and Italian map evidence establishes that
neither France nor Italy at the time considered that an agreed boundary existed
between Ghadamès and theTropic of Cancer intersection. This was precisely the
view of Messrs. Poincaré, Barrère and Bompard as show by the diplomatic
record referred to earlier.
6.118 The official Italian maps issued in 1916130, 1926131,
1939'~~ and again in 1941 (after the demise of the 1935 Treaty) uniformly
showed no boundary east of Toummo (except that the 1916map, which preceded
the Accord of 12 September 1919,showed no boundary beyond Ghadamès). A
130 See, LM. Maps Nos.54,55, 56, and 57 the officiallypublishedItalianmaps,on which
Italy'salternativeprogramsweredepicted.
131 MapLC-M52.
132 Mar>LC-M54.reproduction of the 1941official Italian map, not previously introduced, appears
here (Map LR 16D) - no boundary isshown east of ~oummol~~.
6.119 One of the most legally signifiant events concerning maps
occurred in 1930,and is briefly referred to in the under the heading "Italian
School Map ~ncident"~~~.It is discussed, together with the relevant documents,
in Su~~lementaw Annex, No. 5.10, hereto. Contrary to the incorrect assertion in
the CC-M that during this period there was no "contestation cartographique"
between Italy and ~rance'~~, that is exactly what this incident -aand at the
highest diplomatic level: a formal protest byFrance's Ambassador in Rome tothe
Italian Ministry of Foreign Affairs. Following the protest, the Italian school map,
which had shown a southern Libyan boundary area running south of Tibesti -a
colour version of this map recently found in the Italian archives is reproduced as
Mau LR 16E and may be found at paragraph 6.202 below -reverted to showing
no boundary east of Toummo, and France raised no objection to these revised
maps. The School Map incident also shows how absurd is the notion of a "mock
war" between the Italian Ministry of Colonies and the Ministry of Foreign Affairs
invented in thm, bywhich Chad seeks to brush aside the officially-published
Italian maps. The School Map Incident concerned the Italian Ministry of Foreign
Affairs directly, not supposed colonial extremists in the Ministry of Colonies. It
was the Italian Foreign Minister who instructed that Italian maps conform to the
consistently followed policy of the Italian Government of showing no boundary
east of Toummo.
(B) Impendine Neeotiations (1912-1914):Behveen France and
the Ottoman Em~ire and. then. France and Italy
6.120 There is no clearer evidence in the conduct of France that
Libya's boundary beyond the end point of the 1910 boundary at Ghadamès
required to be delimited, than the plans made for delimitation negotiations for
136
this very purpose, first with theOttoman Empire and, then, with Italy
A larger-sizecopyof thismaphasbeenfurnishedIotheRegistry.
133
134 See. LM, paras.5.278-5.279and Maps Nos. 78 and 79.lso, para.6.2g2a.,
below.
135 See,CC-M,para.10.29.The=simply ignores the SchoolMapIncident.
136 See, LM. par. .11g,m., for afulleraccountof theseplans. Sec,also,Suvvlementary
Anne Nx.s.9.6and9.8. 6.121 The Franco-Ottoman discussions were the natural
outgrowth of the 1910 Treaty between France and the Ottoman Empire
delimiting the Libya-Tunisia boundary as far south as Ghadamès, the
demarcation of which was completed in 1911. The salient points about them are
the following:
- Negotiations were scheduled against a background of
Ottoman occupation of the borderlands starting in 1908,
with the support of the local tribes and the Senoussi Order,
involvingthe installation of civilian govemmental authority,
starting in northwest Tibesti and continuing progressively
southeast across Borkou and Ounianga into Ennedi (Mar,
-R 17)'~~;
- On instructions from the French Foreign Ministry in Paris,
French forces remained below 15"Nlatitude-which became
a de facto line- pending the outcome of the forthcoming
delimitation negotiations8,
- The Ottoman Empire had vigorously and repeatedly
protested the 1890 and 1899 Anglo-French agreements as
transgressing the Tripolitanian hinterland to which they
explicitlylaid claim in 1890;and the Porte had been assured
by Great Britain that these agreements did not affect any
temtorial rights or claimsof third States;
- The French Govemment stated that it was not prepared to
consider the recent Ottoman occupation of the borderlands
(i. Oe.tman effectivités)as an appropriate factor to be
taken into account in the forthcoming negotiations to
delimit the boundary39.,
137 A similarmapappearedin tLC-M asMapLC-M 28.-, Su~olementawAnnex,Nos.
10.2, 10.3,10.4,9and10.10.
138 See,LMMapNo.34,referredtothereat par. .120.
139 Se, LM.paras5.114-5.115andcitations. - The of Tripoli proposed a reduction in the 1890
Ottoman hinterland claim as the opening negotiating
position of the Porte (Ma? LR 18)140; this proposal clearly
reflected the fact of Ottoman occupation in the borderlands
and France's obseivance of a de facto line along roughly
15"N latitude.
6.122 These plans of France and the Ottoman Govemment to
negotiate to delimit the Libyan boundas, south of Ghademès establish that no
conventional Libyan boundas, was considered to eGst by either Government
beyond that point in 1911-1912. As seen earlier, this was the view of Messrs.
Poincaré,Barrère and Bompard in 1912, as well. France's opening position was
to base its case on th1899 Declaration and to reject Ottoman effectivités.In the
light of the British assurance to the Porte, t1899 Declaration would certainly
have been a slender reed on which to hang France's claim, for it clearly was not
opposable to the Ottoman Empire, which had strongly protested against the
Declaration. With the Treaty of Ouchy, the Ottoman Empire was replaced by
Italy at the negotiating table.
(C) Franco-IîalianDelimitationNegotistions
6.123 It will be recalled that M. Poincaré rather quickly
abandoned an idea he had first had when Italy approached France after the
Treaty of Ouchy for recognition of Italian sovereignty. This had been to link
agreement on the boundas, not yet fixed with the recognition of Italian
sovereignty. Thus, afier France's recognition of Italian sovereignty over
Tripolitania-Cyrenaica shortly after the Treaty of Ouchy and the entenng into of
the 1912 Franco-Italian Agreement, the boundas, question remained open. Asa
result, the two Govemments agreed to resolve this question by negotiations
between them, and scheduled the initial meeting to take place in Bern on20 July
1914'~'.
6.124 It was at about that time that th1900-1902 secret Accords
between France and Italy became known in ~rancel~~. Prior to then, there had
140 Thisrnapappearedinthe asMapNo.52lB.
141 See,LM.paras.5.120-5.121.
142 Theywere not to beofficiallypublishedby the FrenchGovemrnentuntil 1920,when a
Livreiaunemntainingthesedocumentswasissued.been mounting apprehension in French colonial circles that Italy would take over
the Ottoman claims to the Tripolitanian hinterland, even before the Treaty of
Ouchy. The architect of the French colonialist legal position, Professor Rouard
De Card, shared this concern, as he subsequently reported:
"Moi-mêmejepartageai cette appréhension. Aussi, vers la fin de
1905, j'écrivisles lignes suivantes: 'L'Italie, maîtresse du vilayet
turc, sera portée à s'étendre versle Sud; elle ne tardera pas à
vouloir accaoarer le Tibesti. le Borkou et 1'Enne,i.~ roant de~ ~ ~
sorte la jonction ent os oss ses duio nhsd et nos possessions
de la Mediterranée'f28.
However, when the 1900-1902 Accords became known, the legal theory built
around these Accords by France was developed for the first time. AsProfessor
Rouard De Card (writingin 1927)put it -
"Ayant alors pris connaissance de l'accord du ler novembre 1902,
je fus amené à modifier complètement ma manière de voir.
D'aprèsles stipulations de cet accord,je constatai que l'Italie avait
reconnu la frontière de la Tripolitaine tracée sur la carte de
déclaration du 21 mars 1889 et qu'elle s'étaitain~i~~plicitement
engagée à ne pas s'étendreau delà de cette frontière ."
6.125 Of course, Messrs. Poincaréand Barrère were well aware of
these Accords in 1912'~~;but they had entertained no thought that the Accords
had the result attributed to them in the above quotation. This was a legal position
that evolvedin 1913-1914in the face of the impendingFranco-Italian delimitation
negotiations; and it is reflected in the 1913 report ofM. Louis Mann to the
French Chambre des Deputés on the Ministry of Foreign Affairs' budget for
1914'~~. M. Marin repeated this position in his report the following year,
expressing the view that in the forthcoming negotiations with Italy, scheduled to
start in Bem on 20 July 1914, it was purely a question of demarcation, for the
boundary had already been agreed147. A good negotiating position, but bad
history and bad law!
143 RouardDe Card, E.,OJa, p.8. It is interestingto note the distinctionmade here
between Tibesti,BorkouandnediandChad.
144 m. Even Prof.De Cardqualifiedhisstatement:'implicitement'.
145 &, para.6.99et-q.,above.
146 See,CM,Annex 335.5.
147 See,CM,Annex 336.1. 6.126 The Marin reports are discussed in some detail in t&e
-~~~. These reports discreetly avoided any mention of the still secret 1900-1902
Accords; but they staked out the French negotiating position with Italy based on
these ~ccords'~~. These reports also made it clear that, so far as the French
Govemment was concerned, the object of these impending delimitation
negotiationsonly concemed the sector of the Libyan frontier between Ghadamès
and Toummo, although adding to it the Toummo-Tropic of Cancer segment. The
legal basis for France's position was set oM. Marin, in which he contrasted
Italy's legal position with that of the Ottoman Empire in 1911, when it had
planned to delimit Libya'sboundaries with France:
additionnelle'la convention franco-anglaise du 14juin 1898, qui,9,
par la carte annexée à cet accord, fixe- varietur, mais aussi
théoriquement, les zones d'influence respectives des puissances
europeenes dans l'Afrique du Nord."
This was clearly not the position of the Italian Government on the eve of
negotiations as seen, inter alia. from officia1Italian.maps
(D) The 1928 Attemat of the French Governmentto Obtain
Italian Recoenitionof the 1899 Declaration(as modifiedin
1919)andof the 1900-1902Accords
6.127 This final element of French conduct to be discussed h-re
the 1928proposa1 by the French Government to "cede"the oasis of Djado to Italy
- has been fullydiscussed and illustrated iml5'. With its proposal, France
tabled a draft treaty, under Article 3 of which it was proposed that Italy expressly
recognise as a boundary line east of Toummothe southeast line defined in Article
3 of the 1899 Declaration (as "interpreted" by the 1919 Anglo-French
Convention) and as "reconnue par l'Italie en vertu de l'Accord franco-italien du
ler novembre 1902".
6.128 By 1928, the Ghadamès-Toummo sector of the Libyan
boundary had been delimited by the Franco-Italian 1919Accord. The addition of
148 SeeLC-M.para.4.247g -q.
149 The 1914Mann report directlyties Italy'spositionconcerningLibya'sboundariesto its
inheritance€romtheOttomanEmpire.
150 &, MavsLR 16A-1,16A-and 168referredto inpa6.112above.
151 See.LM,para5.260g -q,this provision in the draft treaty reveals that the French Government were well
aware that east of ~ouhmo there was no conventional boundary, fo1899-
1919 line was not opposable to Italy, and the French argument built around the
1902 Accord required express Italian acceptance to be valid. Thus, the French
Government sought to resolve this problem by securing Italy'sagreement at the
same time as its offer of the Djado salient was agreed. The offer, however, was
refused by Italy.
SECTIO 6. 1915SecretTreatvof London
6.129 This Treaty is covered in LMeand the-ls2, and it
crops up, as well, in several parts of this Reply. So only the main points to be
borne in mind about the Treaty are set out hereThis is another of many
important subjects dealt with inLMheto which Chad has not submitted any
rebuttal.
6.130 m, the 1915 Treaty of London contained two articles
directly relevant to the present case: Articlenizing Italy'sinheritance by
virtue of the Treaty of Ouchy of the Ottoman Empire's sovereign rights in Libya;
and Articl13,under which France and Great Britain undertook to compensate
ltaly in Africa by "the settlement in her favour of the questions relative to the
frontiers o..[Libya] and the neighbouring colonies belonging to France and
Great Britain".
6.131 Second, Articl10refutes Chad's thesis that Italy, either in
the Franco-Italian Accord1902or Agreement of1912 ,enounced its Ottoman
heritage. Article expressly recognized Italy as successor to the Ottoman rights
in respect to Libya, and no reservations were registered by France in respect to
the hinterland of Libya to which the Ottoman Empire had asserted a claim as
early as1890 and, over the hinterland region north of approximate15"N
latitude, over which the Ottoman Empire had exercised sovereign authority
starting i1908 until the1912Treaty of Ouchy brought about the Ottoman
withdrawalfrom Libya and its hinterland.
6.132 Thir Adticle10 had the effect of making the Treaty of
Ouchy opposable to France insofar as Italy's sovereign rights to .Libya and its
LM paras.5.150-5.w,5; paras4.147, 4.g7a., paras.6.16-6.19and
152 -ee, ,-,
paras.6.36-6.46.hinterland were concerned (as had France's recognition of Italian sovereignty in
1912).
6.133 m, the ordinary meaning of the text of Article 13of the
Treaty reveals that the compensation promised did not necessarily involve the
rectification of Libya's boundariIt encompassed, as well, the settlement of
boundary questions in areas where no boundaries exjsted. Such an interpretation
is borne out by the conduct of Italy and France in entering into the Accord of 12
September 1919under which a boundary between Ghadamès and Toummo was
delimited for the first time. Similarly, the 1935 Treaty would have settled the
question concerning Libya's southern boundary by agreement on a boundary
where one had notpreviouslyexisted.
6.134 m, Italy's right to the unfulfilled obligations of France
under Article 13are part of the territorial inheritance of Libya from Italyand may
now be invoked against Chad, which inherited France's territorial obligations.
SECTIO 7. 1919Anglo-FrenchConvention 18Sevtemberl
6.135 The effect of the 1919 Convention can be rather simply
shown on a map (Mar, LR 19)'~~. Since this Convention was given a very full
analysis in both the and the u154, it is only necessary here to recall the
salient points and to rebut the rather cursory treatment of the Convention in the
m.
(a) Ordinarv Meanine of the Text in its Context and in the
Lightofits ObiectandPuruose
6.136 The LC-M subjected the terms of the 1919Convention to a
detailed analysis. It also carefully considered the Convention's context and its
object and purpose, leading to a number of conclusions that are important to this
case.
153 nie samemap appearasLC-M 29.
154 See,LM,para.5.174,g seLC-M,para.4.161-q. (i) TextandContext
6.137 It is the final paragraph of the Convention that is directly
relevant. Yet it seems to have been added as an after-thought. The Treaty itself
was known as the "Ouadaï-Darfour Convention", for it accomplished the
delimitation of that part of the boundary not yet fullydelimited byArticle 2 of the
1899 Declaration. The Exposé des motifs of the 1919Convention prepared by
the French Govemment did not even mention the last paragraph (which dealt
with territory north of 15"Nlatitude, the sector covered by Article 3, and did not
concem a boundary); it discussed only the Ouadaï-Darfour boundary south of
lSON,covered byArticle 2.
6.138 As to the object and purpose of the final paragraph, it
clearly was to modify the line descnbed in Article 3 of the 1899 Declaration.
Unlike Libya's pleadings155, Chad's pleadings make no attempt to analyse in
depth the text of this paragraph in the light of its object and purpose; and what
little analysisis undertaken byChad isincorrect.
6.139 The CC-M sets out the opening phrase of the last
paragraph, underlining certain words:
"It est entendu que la présente Convention ne modifieraen rien
l'interuretation donnéea la Déclarationdu 21mars 1899 ...'->O."
(The paragraph then goes on to describe a line running "in a south-easterly
direction" from the intersection of theTropic of Cancer and 16"E longitude to the
intersection of 24"E longitude and 19'30'N latitude, referred to in Libya's
pleading as the "1919 line".) From this, Chad puts fonvard the following
contentions:
-
That the underlined words of the text made clear that the
last paragraph did not modify Article 3 of the 1899
Declaration;
155 Thetextof the last para.of the 1919 Conventionrehensivelyanalysedin the
M, startingat para.4.163.
156 CC-M .ara.8.120. The Englishtextreads:
"IIis understoodthat nothingin this Conventionpreiudicesthe interpretationof the
11899Declaration...." - That the southeast line described in Article 3, as illustrated
on the Livre iaune map, was confirmed by the 1919
Convention (the difference between the Livre iaune map
line, ending at 19"Nlatitude, and the 1919 line, ending at
19"30'Nb, eing negligible7) .
6.140 Chad has misread the underlined words of the last
paragraph. As the points out158, these words do not say that this
"interpretation" of Article did not modify Article 3; they say that "la présente
Convention ne modifiera en nen l'interprétation" ("nothing in this Convention
prejudices the interpretation"). The ordinary meaning of these words is that the
1919Convention did not modify or prejudice an "interpretation" of the southeast
line described in Article 3 of the 1899Declaration that placed the end point of the
line at the intersection 24"E longitude and 19"30'Nlatitude. But that is quite
different from saying that the "interpretation" did not modify Article 3. The last
paragraph does not say this, as Chad wrongly argues. As is demonstrated in the
-7-M the text of the "interpretation" set out in the last paragraph modified both
the text of Article 3 itself (substituting "shall run thence in a south-easterly
direction" for "shall run thence to the south-east") and the direction of the line
which,as shown earlier and in thu, was intended to be approximately a true
southeast linelS9. The CC-M scolds Libya for ignoring the text of the 1919
Convention; sayingthat -
"...il est très remarquable que la partie libyenne n'attac?%O !:
moindre importance au texte clair de la disposition pertinente.
It is evident that this is not so and that Chad's pleadings reflect its own failure to
have examined with sufficient care the text on which its case so heavilyrelies.
6.141 As is shown in Libya's Counter-Mernorial, lines intersecting
24"E longitude at 1S035'N(a true southeast line), at 19"N(the line drawn on the
Livre !aune map) and at 1Y30'N(the 1919line) cannot be descnbed as the same
line, and to detect the difference between them does not require extraordinarily
157 AsChadputsit: "IIfauà,vraidire,de trèsbonsyeux"to tell the differencebetween the
lines.
158 See,LC-M, para.4.168.
159 S-, para.6.1gt-q.,above.
160 CC-M para.8.116.,
AREACOMPARISONkeen eyesight, as the a suggests. This fact is shown again here (Maps LR
204 20B and 20C). The difference between these lineswas noted on French and
Italian maps issued at the time. In a dispatch to the Quai d'Orsay of 11March
1930,the French Arnbassador in Rome, M. Beaumarchais, obsewed that the 1899
Declaration's southeast line was subject to three different interpretations: (i) "our
interpretation", that is the Livre iaune map intepretation of the line; (ii) the
Italian interpretation of the line - and he might have added the British
interpretation also- a strict southeast line; and (iii) the line resulting from the
1919 conventionl6'. This dispatch reveals that M. Beaumarchais had been
authonzed, in the negotiations with the Italians then in progress, to renounce in
favour of Italy the difference between the line on the Livre iaune map and the
1919line, but had not yet played this card. The just ignores this evidence.
(ii) ObiectandPurpose
6.142 It was clearly the purpose of the last paragraph of the 1919
Convention to modifythe direction of the southeast line descnbed in Article 3,for
it had the effect of pushing northward by 4" of latitude along 24"E longitude the
Article 2 boundary (Map LR 19referred to above at para. 6.135). Both Great
Bntain and France had come to realize that the Article 3 line,which wasbased on
the geography as understood from the maps in 1899,did not follow a course that
would leave on the southwest side of the line al1of the regions intended when
considered in the light of the more accurate maps available in 1919. This is
brought out by the travaux, particularly certain documents introduced by
~hadl~~. Great Bntain was content to make this change both in the end point of
the Article 2 boundary (at 1Y30'N)and the consequent change in direction of the
southeast line because it left the French with the problem of the unruly tnbes in
the area163.
6.143 Why then, it may be asked, was the last paragraph so
curiously framed -as an "interpretation" of Article 3 of the 1899 Declaration,
when it was so obviouslyintended to be a modification of the Article? Although
there is no direct evidence on the point, the answer is apparent: Great Bntain and
France had not discharged their obligations to Italy under Article 13 of the 1915
161 See,LM, para.5.271,andFrenchArchives Annex, p. 391.
162 Sec .nalysisLC-M para.4.178g-q.
163 See,LC-M, paras.4.173and4.188.Treaty of London, as was acknowledged in the 1919 Peace Congress. If the
modifications brought about by the 1919 Convention could be dressed up as an
"interpretation" of the 1899Declaration, then Italy could be disregarded in spite
of Article 13;and should Italy complain later, the parties to the Convention could
pretend that really nothing had been changed, only"interpreted". Four days after
the 1919Convention was signed (8 September), French Foreign Minister Pichon
signed the Accord of 12 September 1919 between Italy and France, which
concemed Libya'sboundary with Algeria between Ghadamès and Toummo. Not
a word was mentioned to Italian Foreign Minister Bonin of the Anglo-French
Convention signed four days earlier by the same M. Pichon.
6.144 Of course, the scheme was a bit naïve; Italy learned of the
Convention in 1921 when its ratification was authorized by French law. The
Italian Government immediately perceived the modification in the 1899
Declaration brought about by the 1919 Convention and protested, refusing to
accept its application to Italy, and continued to protest nght up until the 1935
Treaty was entered intobetween Italy and ~rancel~~.
6.145 The following conclusions may, therefore, be drawn from
the terms of the last paragraph of the Convention, viewed in context, and in the
light of its object and purpose:
- This "interpretation" was intended to modify the direction of
the southeast line of Article 3of the 1899Declaration;
- The 1919line did not correspond at al1to the Article 3 line
on the Livre iaune map line;
- The effect of the "interpretation" was to extend the Article 2
northlsouth boundary, as between Great Bntain and France,
north along 24"Elongitude to 19'3û'latitude;
-
Italian interests were ignored by Great Bntain and France,
in violation of their obligations to Italyder Article 13 of
the 1915Treaty of London.
164 The Italian protests and the British and Frenchresponses thereto are dealt with in
Section 10,below. (b) Non-opposabilitv ofthe 1919Convention to Itale
6.146 It is obvious on the face ofit that a line agreed between
Great Britain and France in 1919,which substantially modified a line established
in 1899,could not be opposable to Ita-yeven if, as Chad wrongly contends, Italy
in 1902 had accepted the 1899 ~ine'~~. Great Britain and France could not
modify the jundical situation of Italy resulting from the 1902 Accord without
Italy'sconsent66 .
6.147 To attempt to get around this difiïculty, Chad advances
several arguments, the first being that the 1899 and 1919 lines were really the
same line. The substantial difference in the direction of the lines has already
been illustrated; and the invalidityofd's attempt to use the Livre iaune map
in order to swing the end point of the 1899southeast line from 1Y45'Nto 19"N
has also been sho~n~~~.
6.148 There is, as well, another aspect tothe 1919li-one which
the 1924Protocol and Declaration formalizedlo8. The 1919Convention had the
effect, not explicitly stated in its final paragraph, of shifting north, from
approximately 1S045'N(the end point of a strict southeast line at its intersection
with 24"E) to 19"30'N,the northem limit of the Article 2 boundary. Thus, the
1919Convention brought about not only a substantial change in the direction of
the 1899southeast line-whichwas net intended by the parties tothe Declaration
to be a boundary -but also a major shift northward of the north/south Article 2
boundary. Not only this, but after 1919,the French contended that even the 1919
southeast line was a boundary - a proposition consistently rejected by Great
Britain as well as Italy.
6.149 This second aspect of the 1919 Convention adds to Chad's
problems .To overcome this hurdle, Chad again relies on the Livre iaune map
which was referred to in the 1902 Franco-Italian Accord. And the CC-M
introduces another argument. Evidently, to rely entirely on this map,
165 -, para.6.42gta. ,bove,andreferencesthereto theandLC-M f.r thereasons
whyChad'sthesisconcerningthe 1902Accordiswrong.
166 SeeLC-M,para.4.198. Chadhastriedto sideatep thiscriticallegalprobcaseiniü
bytryingto findvariouskindsof Italianaquiescence in the 1919line.
167 & para.6.11sa., above,andreferencesthereto the!&au.
168 The 1924instmmentsarediscussedinSection9,below.misrepresented as having been annexed to the 1899 Declaration, must have
seemed too risky. Thissecond argument isexpressed thisway:
"Et, de toutes manières, tant la carte que les accords de 1899et
1919concernaient exclusivement lesrelations franco-britanniques;
l'Italiepour sa part avait par l'échangede letters de 1902reconnu à
la France le droit de développer sasphère d'influencedans toutes
les régions 'tuées au-delà des frontières de la Tripolitaine-
Cyrenaïque 124 .0
As already discussed, this newargument is based on the negligent misreading of
the first paragraph of the 1902 Accord (substituting "sousmentionées"for
"susmentionées") and must be rejected 170.
6.150 Chad's reliance on the Livre laune rnap to attempt to
establish Italy'sacceptance in 1902of the continuation of the Article 2 boundary
north along 24"E to 19"N is based on the fact that the rnap shows the east-
southeast line descending from the Tropic of Cancer "en pointillées", hereas the
north/south line along 24"E ending at 1YN is shown on the rnap "en trait
plein."171.Thus, accordingto Chad, Italyaccepted this lineas a boundary in 1902.
6.151 This is a preposterous argument. The 1902Accordreferred
to the rnap inthese words:
"...par la limite de l'expansion française ...on entend bien la
frontière de la Tripolitaine indiquée par la carte annexée à la
déclaration ..."
The wavy, dashed line on the rnap indicating the notional boundary of
Tripolitania lay hundreds of miles to the northwest - on the other side of the
borderlands -of the solid,north/south line on the rnap running north along24"E
to 19ON (Mau LR 21). The 1902Accord clearlyhad nothingto do withthat line,a
fact brought home by the fact that, whereas the 1900Accord referred to the limit
of French expansion in relation to "Tripolitaine-Cyrénaïque",the 1902 Accord
talked onlyof the Tripolitanian boundary, shownnotionallyon the map. There is
169 m, para.8.140sec,alsoCC-M, para.8.37. Aspointedout in para.6.151,below,the
1902Accord, unlike 19M) Accord,referredonlyto the Tripolitfrontier.
170 Sec paras.6.50and6.66,above.
171 CC-M, para.8.130. Actually, theeast-southeastline is asa dashedline not a
dotted line.See. LM.paras.5.205-5.206,foradiscussionof thissameargumentasset out
inanintemalFrenchnoteof 8 December1992.just no connection at al1 between the wavy, dashed line and the straight
northlsouth line. Moreover, several renditions of the Livre iaune map in Chad's
Mau Atlas show both the northlsouth and southeast lines as solid lines (Maps 10,
13and 14), indicating that there was no significant difference between the two
types of lines, and the legend of the authentic Livre iaune map (see, Mau LR 12B,
referred to in paragraph 6.54 above) makes no distinction between a solid and a
dashed line: both are wrongly descnbed as "limite des possessions françaises,
d'aprèsla Convention du 21 Mars 1899".
6.152 Officialmaps of Italy and Great Britain issued between 1899
and 1919 show the 1899 line as a strict southeast lin- there is only the tiniest
north/south segment on these maps running north of 15"N along 24"E
longitude172. If Italy recognized the 1899 line in the 1902Accord -which it is
clear Italy did n-tthen it was a strict southeast line that it recognized, a line that
indicated the limits of French expansion not a boundary line. This accorded with
the British view.
The1919Linein the Lightof Article3 of the 1955Treaty
(c)
6.153 Chad mentions that none of the above really matters since
the renv n Article 3 of the 1955Treaty i~so facto was a recognition by Libya
and France of the 1919line as the part of the boundary between Libya and what
is now Chad, east and south of the point of intersection of the Tropic of Cancer
and 16"E. However, the CC-M contends that, either by itself or as a result of the
Article 3 renvo tie,1919 Convention established this part of the boundary
between Libya and Chad:
"Telest le tracéde la frontièrIIvaut par lui-même.Il vaut par le
renvoi %fait à cette disposition l'annexe1au Traitéfranco-libyen
de 1955 ."
In other words, under either its first or second theories, Chad contends the 1919
line is opposable to Libya and establishes its southern boundary with Chad,
except for the segment to the west of the intersection of theTropic of Cancer and
16"~'~~.
172 -, paras6.3and 6.112above,andtheBritish and Itanapstherereferredto.
173 CC-M. para8.117.
174 Thisboundarysegmentwilagainbetakenupbelow. 6.154 Chad's first theory, under whichArticle 3 and Annex 1of the
1955 Treaty themselves establish the boundary, has already been dealt with in
Chapter V above, where it is shown that Article 3 cannot be so interpreted -and
Annex 1,of course, did not operate independently of the criteria set out in Article
3. Therefore, it is appropriate to consider the application of Chad's second
theory to the 1919Convention.
6.155 Under the criteria of Article 3,did the parties to the 1955
Treaty recognize the 1919line as the southern boundary of Libya? This requires
the followingquestions to be answered in the affirmative:
- Did the 1919 Convention fa11within the category "actes
internationaux"?
Comment: Unquestionabiyy ,es.
- Was the 1919Convention "envigueur" on the criticaldate?
Comment: Chad has nor established this to have been the
case. Libya has no lcnowledgewhetheror not ifwas inforce
then, but since Chad contendsthat the Conventionestablishes
a largepart of ifs boundaty withLibya, this is afacrfor Chad
toprove.
- Did a boundary result from the 1919 Convention that was
opposable to Itab and, accordingly, opposable to Libya on
the critical date?
Comment: Clearlynot. If Ira@recognized anyline at al1-
whichLibya deniesItaiy did - it was the 1899strictsoutheast
line not the 1919 line, which it vigorous&,consistent@and
continualiy protested in forma1 diplomatic notesfrom the
moment the Convention came io ifs attention in 1921 until
1935, when Ita@ and France reacheda settlement of this
boundaryquestion.
Further Comment: But even if Ita@ recognised the strict
southeast lineof the 1899Declaration ifdid not recomize itas
Itaiy recognizedno line running north of the end point of a
strict southeast line (approximate 15'3S'N) along 24"E
longitudeas aboundaryof anykind,Thus, under the principle a possidetisiur oinst.e cntical date (the date of
Libya'sindependence on 24 December 1951)no boundary resulted from the 1919
Convention that was opposable to Libya.
6.156 Chad's second theory, however, contains an additional
element: French colonial effectivités,which it argues converted a line delimiting
zones of influence into a boundary line by 1919. Chad argues further that Italy
acquiesced in that boundary, and that Chad'sboundary, at least as far north along
24"Eas 19"30'N(said to be a tripoint between the boundaries of Chad, Sudan and
Libya), was officiallyrecognized by Great Britain in 1924. Since these arguments
have been discussed at length and disposed of in Libya'sprior pleadings as wellas
in this Reply, they can be dealt with here in summary form:
French colonial effectivitéswere ruled out by Article 3 as a
criterion in identifyinga boundary recognized by the parties
tothe 1955Treaty 175,
- In any event, pnor to 1919, the French had not effectively
occupied the borderlands up to the 1919line (or anywhere
near it), and, thereafter, any French conquest of the region
byforce was contrary to international law,
- Far from acquiescing in the 1919line, either in terms of its
direction or its purported status as a boundary, Italy
protested the 1919 Convention and rejected its application
to ~tal~'~~; Great Britain concurred that the 1919
Convention (to which it was a party) did not and could not
affect Italian rights and interests in thea,ea
- Accordingly, under Articles 34 and 35 of the 1969 Vienna
Convention, the 1919 Convention could not have had any
legal effect on Italy, for Italy had refused to give its consent
tathat Convention;
175 &, para.4.07g -q.above,andreferenw tbere toLibya'searlierpleadings.
176 S-, para.8.0g,a.,below,andreferenw thereto Libya'searlierpleadings.
177 B. Section 10,below,andreferencesthereIoLibya'searlierpleadings.
178 m. Furthermore, were the 1919Convention construed to affect
Italian interests it would have produced no legal effect on
Italy for another reason: it would have been in violation of
the obligations of Great Britain and France to Italy under
Article 13of the 1915Treaty of London;
- Great Britain did not recognize the north/south line along
24"Eto 1Y30'Nas a boundary opposable to Italy, and in the
Italo-Anglo-Egyptian Accord of 1934,Great Britain made it
clear that it did not recognize any boundary tripoint at
1~30'~~~~.
(d) The Unaccounted For Seement of the Conventional
BoundarvClaimed bv Chad:West of the Tro~icof Cancer
[and 16"E )o the Border6th Nieer
6.157 Aside from the numerous other flaws in Chad's arguments
based on the 1899-1902-1919agreements, there is a gaping hole in Chad's case.
This concems the sector of the claimed boundary to the Westof the starting point
of the 1919 line at the Tropic of Cancer (M~DLR 21 referred to in paragraph
6.151). Chad contends that this sector of its claimed boundary with Libya"résulte
de trois 'actes internationaux' auxquels renvoie égalementl'annexe I (of the 1955
Treaty)": the Franco-Italian 1902Accord, the 1899Declaration and the Franco-
Italian Accord of 12September 1919180.
6.158 In so saying,theCC-M paraphrases some, but not al],of the
criteria set out in Article 3 of the 1955 Treaty. Conspicuiously missing is the
criterion that the "actes internationaux" be "en vigueur" on theal date. Since
neither the 1902nor the 1919Franco-Italian Accords were in fact "en vigueur" on
the critical date, not havingbeen notified by France under Article 44 of the 1947
Italian Peace Treaty, they are excluded from consideration by Article 3 in
determining a boundary to be recognised by Libya and France. The in
Annex 1to these agreements would thus have no effect at al1because the criteria
of Article 3 clearly were controlling over this subordinate instrument, Annex 1.
To construe Article 3 and Annex 1 othekse would be to nullify one of the
essential criteria of Article 3:"envigueur" on the critical date.
&, paras.6.180and9.26a., below.
179
180 See ,C-M.para.8.142. 6.159 But setting aside this point, what about the other criteria of
Article 3? Chad is certainly correct that the three agreements it refers to, from
which this segment of the claimed boundary allegedly results, were "actes
internationaux". But did such a boundary result from them? And was that
boundary opposable to Italy and, hence, ta Libya on the criticaldate?
As to the 1902 Accord, it is clear that no boundaw at al1
resulted from this instrument: Italy had no status in 1902to
agree a boundary, even if in the 1902 Accord it had
attempted to do so - which was clearly not the case; the
wavy, dashed line on the iaun meap encircling
Tripolitania and passing £romToummo, through the starting
point of the899southeast line, and on to the northeast, was
not portrayed as a boundary (despite Chad's presentation in
the CM and CC-M of reproductions of the map changing
the original maps so as ta show this line ta be a boundary
when it was not)81,
- As to the 1899Declaration, it established no boundary north
of 1S0N he southeast line descnbed in Article 3 not only
was not a boundary line but did not relate to anyterritory to
the Westor south of its starting point at the Tropic of Cancer
(MaDLR 21);moreover, neither Tripolitania nor Cyrenaica
are mentioned in the 1899Declaratio-an omission that led
to the 1900-1902 Accords, in which Italy sought (and
received) reassurance that this region was excluded from the
reach of the Declaration;
-
As to the Accord of 12 September 1919between Italy and
France, it delimited Libya'swestern boundary with Algeria
between Ghadamès and Toummo, but not beyond; none of
that boundary lies between Libya and Chad.
6.160 How does Chad attempt to overcome these obstacles? The
CC-M maintains that the 1902 Accord determined "la ligne frontière dans son
ensemble" (&, between Toummo and the Tropic of Cancer) while the other two
181 Sec .ara6.54,above.agreements "confirment l'emplacement du point de départ et du point
d'aboutissement de celle-ci182qq. rieflystated, this isChad'sline of argument:
- In the 1902 Accord, Italy and France recognized mutual
zones of influence; and by the reference to the Livre iaune
map, Italy acknowledged and accepted the Tripolitanian
boundary shown on the map, and in particular the segment
between Toummo and the Tropic of Cancer 183,
Comment: The on&recognitionof a Frenchzone of influence
in the 1902Accord concerned Moroccot ;he complete&
misreah the firstparagraph of the Accord (iy effect
substituting 'bous-mentionées"for ?susmentiont?esU8 )4; the
Livre iaune map did not pomay any Tripolitanianboundaiy,
as itslegendmade clear;itshowedbymeans of a wavy,dashed
traditionally shown on maps ut the timeorre(aondthe Justus
Penhes map of 1892);no agreementof any kind establis
Tripolitanianbounday south of Ghadamèspriorto 1919 $89.a
- The Franco-Italian Accord of 12September 1919delimited
the boundary of Libya as far as Toummo, resulting in two
confirmations by Italy:
"..;confirmant ainsi que c'est à ce point que la
fro@&e fait un coude pour remonter le nord-
est .";
"en décidantque Toummo constitue le point extrême
l'acceptation par l'Italie de la frontière de laonfirme
Tripolitaine indiquée sur la carte annexée
Declarationfranco-britannique du 21 mars 1899 &7!.
182 m. para.8.143.
183 See.CC-M.paras.8.144-8.160.
184 &, paras.6.50and6.66,above.
185 &, para.6.166, below. See,MausLR 12Aand lZB,referredto in para.6.54,above,
showing how Chad in its pleadings has modified the Livre iaune map by false
reproductionsthat ponray the way, dashed line as the conventionalboundaryof
Tripolitania.
186 CC-M .ara.8.161.
CM. p.203,para.236.
187 Comment: Theseargumentsaresimpiybafling; nothingin the
beyond Toummo ormaking a bend to the northeast. And how
possibiy could Itaiy's acceptance in the 1919 Accord of
Toummo asthe terminalpoint of Libya'sboundary thereunder
impiy the acceptanceof the Tnpolitania boundary shown on
the rnap"annexed to the 1899Declaration? No Tnpolitanian
boundary wasshown on the rnap (the Livre jaune rnap -
annexed to the 1899 Declaration) as just discussed above.
What connection is there, in any event, between the 1919
Accord and the Livre iaune map, except that the Accord
modified the notional boundaw shown on the rnap in Itaiy's
favour both as to the course of the line and as to its legal
nature? Finaliy,a close look ut the Livre iaune rnapshows
that the wavy,dashed line does no!pass through Toummo ut
ail,but to thesouth of it (Mat3LR 21).
- The starting point of the southeast line described in Article 3
of the 1899 Declaraton coincides with the point of
intersection of the Tropic of Cancer and the wavy, dashed
line, from whichChad concludes the foiiowing:
"II est très révélateurque la France et la Grande-
Bretagne aient fixéce point à cet endroit: il n'aà
l'évidence,pas étéchoisi au hasard; ceci montre en
effect que ces deux pays avaient la conviction qu'au
delà. ils eussent emoiété surles droits aooartenanà
la porte puisque ce bftt8t est féla frÔ4ière même
du Vilayet de Tripoli ."
Comment: Thereisnot ashredof evidence asto whythispoint
on the ïi-opicof Cancer was selectedas the startingpoint of
the 1899 line. But the rnap tharLord Salisbury and M.
Cambon had before them showing the wavy, dashed line
depictingthe notionalfrontierof îhpolirania wasnot thLivre
rnap - if had not beenpreparedyet. 11was the Justus
Pen@ rnap of 1892, which showed such a line (Mau LR
13) .If the rnapislookedal closely(seethe enlargedarea),
it willbe seen that the wavy,dashed line does not intersectthe
Tropicof Cancer ut 16"-as it does on the Livre iaune rna-,
but south and easrof that point. So the startingpoint of the
1899 line does not coincide wirh a point on this notional
boundary. The 1899Declarationdoesnot referto Tr@olitania
orto a Tripolitanianboundaryut all. Even if it had, as Great
Brirainhad made clear,the 1899Declarationwasnot intended
to, and did not infnnge on any hinterlandrightsthe Ottoman
Empire might have had in the area through which the
southeast lineassed.
188 CC-M_,para.8.165.
189 -, para.6.55,above,andMaoLR 13,which appearsagainhere. Thismapappearsas
Map 2inChad'sMaoAtlas. 6.161 In a rare moment of candor, the CC-M acknowledges that
its thesis concerning the claimed boundary segment between Toummo and the
Tropic of Cancer maybe vulnerable:
"La République du Tchad nt9grétend pas qu'il y ait là une
présomptionirréfragableen soi ."
But it goes on to say that "la Libye n'a pas apporté le début d'une preuve
contraire". It is not Libya's task to prove a negative: the non-existence of a
boundary in this section; it is for Chad to prove its claim to such a boundary.
Libyahas demonstrated that Chad has totallyfailed todo so; and the 1912French
maps demonstrate that France itself did not consider that a boundary existed
191
between Toummo and the Tropic of Cancer .
6.162 However, the asserts that the "caractère irréfragable"
of this sector of the boundary it cla-ms
"..découlede la double acceptation du tracéde la frontière entre
Toummo et le Tropique Cancer, par l'Italie en 1902; par la
Libye elle-même,en 1955 165."
But where is this "tracé"-this lin- to be found? Only on the Livre iaune map.
And the line isnet shown as a boundary on this map. It was a notional boundary.
No boundary was fixed by any agreement behveen Ghadamès and Toummo until
1919. And there never has been an agreement fixing a boundary east of
Toummo.
Smo~ 8. 1919Franco-ItalianAccord(12September)
6.163 After taking up here the other of the two 1919 "actes
internationaux", the Franco-Italian Accord of 12 September 1919 , it will be
appropriate to tum next to the Anglo-French 1924 Protocol and Declaration
demarcating the north/south bundary between Great Britain and France
delimited by the 1919 Convention as far north of 1Y30'N (Section 9). In this
context, the 1934Italo-Anglo-Egyptian Accord of 1934willbe discussed, as well.
- -
190 CGM. para.8.169.
191 &, para.6.110above,andMapsLR 15Aand1SB.
192 CC-M .ara.8.169.Then, in Section 10,the period of protests of Italy against the 1919Convention,
and the extended Franco-Italian negotiations upto 1935,willbe dealt with briefly.
6.164 The Accord of 12 September 1919 has been dealt with in
detail in the and the LC-M~~~. It is one of the "actes internationaux"
appearing on the Annex 1list. Unlike the 1899Declaration and the 1902Accord,
this 1919Accord between Italy and France delimited an international boundary -
between Italian and French colonial territones from Ghadamès to Chat. Thus, to
this extent it meets the cnteria of Article 3 of the 1955Treaty. However, it was
not a treaty reported by France under Article 44 of the 1947Italian Peace Treaty
and, thus, was not en vigueur on the cntical date. It also does not concem
territory of direct concern in the present dispute.
6.165 Nevertheless, this Accord has an indirect relevance here for,
in the light of its context and travaux ~réoaratoires, it reveals how France and
Italy at the time regarded the situation concerning the boundaries between their
colonial territones in the region. There are three points to bring out here in
illustration of the issues dividingthe Parties:
The Accord fixed Libya's western boundary between
GhadamèsandToummo for the first time;
It onlypartially discharged France's obligationto Italy under
Article 13of the 1915Treaty of London;
- Libya has the nght to invoke to its advantage the remainder
of France's unpaid debt to Italy.
(a) The 1919 Franco-Italian Accord Fixed the Western
Boundarvof LibyaBetweenGhadamès and Toummofor the
First Time
6.166 The essential point here is that the French negotiating
position, developed in 1913-1914in preparation for the impending delimitation
negotiations with ~tal~l~~,depended on the incorrect assumption that the map
referred to in the 1902 Accord contained a line identified as the Tripolitanian
193 See,LM,para.5.168gseq.:LC-M, para.4.243g-q.
194 -, para6.123g m., above.boundary. The French thesis was that by referring to the map containing this
alleged boundary line Italy accepted the line as an international boundary. This
has been the spring-board for Chad's further development of the French thesis.
As has been pointed out and illustrated, the wavy, dashed line encircling
Tnpolitania on the Non-Annexed Mau (referred to in 1902)was not a boundary
at all, as a proper colour reproduction of that map so clearly shows 195.
Furthermore, Italy and France had no standing in 1902to agree a boundary; and
the 1912 Franco-Italian Agreement had nothing to do with Libya's
boundaries 196.
6.167 Thus, France's negotiating position in 1913-1914,reflected
in the 1913 and 1914 reports of M. Louis Marin, referred to ab~vel~~, would
have been an easy target for Italy to attack in these negotiati-had they ever
taken place. When Italy and France entered into the 1919 Accord, therefore,
they delimited the boundary between Ghadamès and Toummo for the first time,
"modifymg" what was only a notional boundary shown on a map. This
"modification" may well have been thought of by France as a concession of
territory to Italy, buin fact it was not- for there had been no conventional
boundary between Ghadamès and Ghat. The French Livre iaune map confirms
that fact.
6.168 There are several implications to this conclusionm, the
French argument constructed around the reference to a map in the 1902Accord
makes it evident that the Accord concemed only Libya'swestern frontier, not its
southem frontier. Second, the 1919Accord did not involvea "cession"of territory
or a "rectification" of a boundary pursuant to Article 13 of the 1915Treaty; this
was the settlement in Italy'sfavour of questions relative to the frontier of Libya
and neighbouring colonies of France (to paraphrase the text of Articlem.3).
the 1919Franco-Italian Accord delimited a boundary only as far as Toummo; it
had no bearing on a boundary east of Toummo -and hence provides no support
for either segment of the line claimed by Chad: Toummo to the Tropic of Cancer
(and 16"E);Tropic of Cancer to 24"E(and 19"30'N).Thus, its scope was less than
that contemplated in 1914 according to the Marin report, which would have
195 -, para.6.54ou., aboveandMao LR 12B.
196 See,para.6.88,above.
197 See,para.6.126,above.continued the work of the boundary commission as far as the Tropic of
Cancer 198.
The Accord's Relationship to Article 13 of the 1915 TreaQ
(b) of London
6.169 The Parties are in agreement that, although the 1919
Accord was entered into as a boundary settlement in favour of Italy under Article
13,it was only a partial discharge of France's obligationsto Italyicle 13.
The text of the 1919Accord made this c~ear'~~.ThCC-M readily concedes that
the boundary question that remained open was that concerning Libya'ssouthern
boundary, which was dealt with in the 1935 Treaty but not reso~ved~~~.From
this, two consequences flow.
6.170 Fir sht.1919Accord demonstrates that Article 13 did not
concern merely boundary rectifications; as was the case with the Accord, the
"equitable compensation" for Italy under Article 13 could equally well have
involved a delimitation ex novo in favour of Italy's claims, where no pnor
boundary existed.
6.171 The secon donsequence is that France acquitted only part
of its debt to Italy under the 1919 Accord; and what remained to be paid
concerned the determination of Libya'ssouthern boundary. TheC-M explains
the situation in these words, in refemngto Libya'ssouthern boundary:
"Dans ces conditions, il n'eût évidemment pas étélogique de
procéder à la démarcation surl%lterrain d'une frontière dont la
délimitation devaitêtremodifiée ."
This is a clear shift in position by Chad fCM, where it was denied that the
unfulfilled obligations of France necessarily concerned the southern frontier of
Libya.
199 See.LC-M,para.6.1Su.
200 See, CC-M,para.8.5ThiiadmissionmntrastswithChad'searlierpositionmncerning
Article 13.See.CM. p.202,para.232.
201 -, para.8.51. 6.172 The erratic character of Chad's position is striking. Whilst
waiting for the next volte-face, Libya limits itself to the observation that there
could have been no question of demarcation along Libya's southern frontier in
any event: a demarcation presumes a pnor delimitation, and there had been
none!
(c) Libva's Rieht to InvokeFrance'sUnpaidDebt in respectto
Libva'sSouthemBoundaq
6.173 In order to put an end to a territorial dispute that France
recognised was unresolved before World War II, is it not necessary to take into
account al1 the arguments that were available to France and Italy during the
colonial period, including the unpaid obligation to make equitable compensation
that France had to Italy?
6.174 Libya has set out in the its position: that the
obligation of France to Italy falls squarely within the puMew of Article 11of the
1978 Vienna convention202. Chad is clearly wrong in arguing that the 1947
Italian Peace Treaty eliminated al1remaining obligations under Article 13 of the
1915Treaty of London. Although Italy certainly lost, in 1947,al1the rights
might have had in respect to Libyan territory, this certainly did not mean,
applying the normal rules of State succession,that Libva,asinhentor of Italy, lost
nghts that inhered in the temtory it inhented from Italy on the date of its
independence.
S~ON 9. 1924Anelo-FrenchPmtocolandDeclaration
6.175 These agreements were the formal confirmation by the
British and French Governments of the demarcation of the boundanes delimited,
as between French and British terntories, by the 1919 Anglo-French
convention203. Thus, the demarcated boundary extended from 11"Nlatitude to
the Wadi Howa (15"40'N),and from there effect was given to the last paragraph
of the 1919Convention, and the boundary was demarcated, from the juncture of
Wadi Howa and 24"E north, along this meridian to lY30'N. As a result, the
Article 2 sector of the 1899 Declaration, which (unlike the Article 3 sector)
concemed a territorial boundary, was extended north to 19'30'N. This was a
202 See. LC-M.para.6.30,-q,
nie 1924ProtocolandDeclarationarediscussem.n para.5.215,s seq.;LC-M.para.
203
4.203.0m.northlsouth boundary between French and British territories and, as such, did not
directly affect Italy since it was clearlyresinter alios acta.
6.176 However, by pushing the boundary north by some 4" of
latitude, the1924demarcated boundary had the effect of pushing north the end
point of the southeast line of the 1899 Declaration, as well, which France also
asserted had become a boundary (Map LR 19,at paragraph 6.135,above). This
was regarded by Italy as a direct threat to its tem.torial righitencroached on
areas claimed by the Ottoman Empire, whose nghts Italy had inherited through
the 1912 Treaty of Ouchy. Therefore, Italy protested the 1919 Convention in
1921,when Italy first leamed of it; and Italy renewed its protest in 1924when the
Anglo-French Protocol and Declaration weremade public.
6.177 In itseif, these 1924 instmments did not concern temtory
now lying between Libya and Chad. However, Chad's contentions as to their
meaning and effect have a direct beanng on this case. Ashas been noted above,
these 1924"actes internationaux''were not included in the Annex 1list, although
they were mentioned as among the agreements considered relevant to the matter
of Libya's southern boundary by France's representative to the U.N. when he
corrected the French "bévue",just prior to adoption of the G.A. Resolution
392(V) on 15 December 1950; and they were similarly referred to in Chad's
Application formally filed with the Court on 3 September 1990as amongthe key
agreements to consider 204.
6.178 Chad contends that the 1924demarcation of this line by the
Anglo-French boundary commission (which is illustrated in Chad's Mar>Atlas by
Maps 26 and 27), confirmed by the 1924 Protocol and Declaration, "consacre
2050,
officiellement la reconnaissance anglaise de la limite Nord-Est du Tchad .
The CC-M explains Great Bntain's conduct in agreeing to this demarcation in this
way:
"Puisqu'elleconsidéraitque les protestations italiennes étaientsans
fondement ..elle procède à la démarcation sur le terrain de la
frontière qui sépare le Soudan du Tchad où elle considère que la
204 See,LC-M,para.3.14-3.16.
205 CC-M ..445,commentaiyonMap27. France est le légitime sou~erai~~~~ritorial, conformément aux
accords de délimitationantérieurs .
And the describes the maps issued before and after 1919 showingsouthern
Cyrenaïca and its hinterland in the borderlands, as well as the way in which the
delimitation and demarcation operations proceeded, in this way: (i) Italy'srights
over Kouka were only recognized in 1924~~~~ and the Sarra triangle was only
"ceded" by Great Britain in 1934;thus the area was a sort of "no-man's land"; (ii)
however, after 1919, the east-southeast line between the Tropic of Cancer and
19"30' appeared on al1 the maps (except for Italian maps which should be
ignored208); (iii) the 1919 line became a total boundary for France and only a
partial boundary for Great Bntain; and (iv) only the northlsouth part of the 1919
delimitation (up to 19'30')was demarcated because from there to the Tropic of
Cancer was "un désert pur et simple", and also because, although France was in
effective occupation uptothe east-southeast line, Great Bntain was not.
6.179 This is another analysisthat is full of mistakes, as willshortly
be shown. It is not hard to guess why Chad follows this line of argument. The
1924"actes"confirming the 1919delimitation resulted in a clear distinction being
made between the north/south sector (from roughly 15"N to 19"30'N)and the
sector defined by the east-southeast line between the Tropic of Cancer (and
16"E) and 19"30'N:the northlsouth line was demarcated; the east-southeast was
not. Chad must somehow explain how both lines, nevertheless, became
boundaries as between Great Britain and France, opposable to, or acquiesced in
by, Italy.
6.180 The followingare among the mistakes in Chad'sanalysis:
- Great Bntain did not give officia1recognition to the end
point of the north/south linedemarcated in 1924asfar north
of 1Y30'Nas the "limiteNord-Est du Tchad";
Reason: The Anglo-French1919 delimitation and 1924
demarcation up ro 19'30'were res interalios acta; bofh acts
were vigorously protested by Italy, which rejected their
applicabilifytoItalyor theireffecton Italianrights.Inthe
206 CC-M, para.8.125.
207 Theyearintendedto be referrtobyChad is1925.
208 -, CC-M.para.10.29. 1934 agreement bemeen Italy, Great Bdain and Egypt
conceming the Sarra Triangle, the southem point of the
delimitation wasfned ut 20°N for the express reason of
avoiding any recognitionby either Italy or Britain of
IP30.N as thenonhem limiiof Frenchtenitop.
- GreatBritain'sso-called"rejection"ofItaly'sproteststo the
1919Conventionand1924 instruments (occumngonly after
1924) were nota reflectionof what Chad claims to have
been theBritishviewthatItalyhadno basisforclaimsinthe
areaand thatFrancehadsovereigntitletherederivedfrom
prioragreements;
Reason:GreatBritain'sresponsestoItaly'sprotestswerebased
on the legalgrouna3that any Italian rightsin the area could
not be affected. They were a "rejection"by the Brihsh
Govemment of the Italianprotestsonly in the sense that Italy
was regardedas not having been injured in any way by not
having been consulted in 1919in connection with the Anglo-
French Convenhon then entered into. Whatever views the
Bribh ForeignOfPicemay have had intemally of the strength
of Italy's claimsare of no importance,pam'cularlysince they
were noi the resuli of a careful study. However, the Bribh
Govemment did make clearthat ifconsideredItalianclaimsto
be based on anyprior Ottoman rightsand titles.nd in the
1934 negohationsoverthe Sarram'angle, Italymade clearthk
samepoint. TheBritish Govemment neverrecognizedFrench
sovereigniyto the Westof the northlsouthlinedelimitedin 1919
asfur noah as 1P30: and demarcated up to that point in
1924; nevertheless,il was able to rationalue ifs entirely
differentviewsfrom thoseof the Frenchas tothe Iegaleffectof
the 1919and 1924 inshuments byrefemngto itsunderstanding
-based entire&on French representations- that France and
Italyhad enteredinto aseparateagreement(a referenceto the
1900-1902Accords, whichthe BritishForeignOffice had not
taken the time tostudy.)
-
As to the status ofsouthernCyrenaicaand itshinterland at
the time, Italy'sinterestin Koufrawas recognisedbyGreat
Britainwell before1924;
Reason: Ital'srightsto Koufra were recognisedin 191421O .
As fur as Koufra was concemed, the 1924 agreement was
merelya confirmationin treaiyfonn of thk priorrecognitionof
Italianrightsby GreatBritain.
209 Fora discussion the 1934Exchangof Notes% i& para.5.284,S., andesp.
para.5.29LCM. para.4.230,gtse;.,also,para.9.26,a., below.
210 SeeLM.para.5.218. - The SarraTrianglewasnot "ceded" to ItalybyGreatBritain
in 1934;
Reason: The unfounded nature of this assertionis set out in
sufficient detail in the and the LLM as not to require
further discussionhedF Thismatteris alro taken up again
below i Chapter iX in reference to pre-1945 Brihh
conduc?12.
- The 1919line did not becomea Q@ boundaryfor France
(the northlsouthsegment and the east-southeast line)but
only a Dartial one for Great Britain (the northlsouth
segment).
Reason:As between GreatBritainand France,the nonhlsouth
line asfur north as 19"301Nbecame a boundary interse.It
wasnot opposableto thirdparties(resinteraliosacta);and ils
southeastline) wasprotestedbyltaly. GreatBritain confirmedt
to Italy the Iimitedaleffect of this line. The east-southeast
line betweenthe Tropicof Cancerand 1990' neverbecame a
boundary as between Great Britain and France. The Brihh
Govemment'sexplanationsto Italy made it clearthat this line
had not changed ils characrersince 1899-it remaineda line
on&intendedas alimitationtoFrenchexpansion.As a matter
of law, this east-southeast line could not have been an
internationalboundary ifon& because Great Britaindid
assertsovereignrightsto thenorthand nonheast of the line.
- Chad'sargumentastowhyonlythe northlsouthline (butnot
the east-southeast lin;) was demarcated are easily
disproved.
Reason: Chad advancestwo arguments:(i) France'seffective
occupation up rothis linehad been accomplishedby 1919, but
not Brihh effective occupation;and (ii) the line crossed a
desert"puret simple". The actual reasonfor no demarcation
of the southeast line is that it had not been delimited as a
boundaryin 1919,even as betweenGreatBritainand France.
As to the desert argument, it would be hard to distinguish,
north of WadiHowa, betweenthe areas of desert coveredby
211 See.LM,paras.5.284-5.3u.; paras.4.230-4.242.
212 Staningatpara.9.19,below; esp.,paras.9.26-9.28.
213 Inanyevent,anysovereignnghtstherewouldhavebeenfoEgyptto assert. the nonhlsouthIineand those alongr ast-southeastIine.
Theywerebothdesolateregionsofdese #S.
6.181 Libya considers that the 1924 "actes internationaux" are
relevant to the present case in two respectsfir tht.omission of the 1924
arguments from the list set out in Annex 1of the 1955Treaty reveals that the list
was not intended to be exhaustive and had only the limited effect of setting out a
partial listing of the agreements for Libya and France toider when they sat
down to negotiate Libya'ssouthern boundary, for the 1924"actes"were certainly
highly relevant in the opinion of France (and now of Chad); second he
demarcation of the north/south segment but not the east-southeast segment was
an indication that, even as between Great Britain and France, the east-southeast
segment had not been delimited as a territorial boundary.
Smro~ 10. Period of Italian Protests. Anelo-French Replies and
Franco-ItalianPro~osalsand Neeotiations:1919-1935
(a) Introduction
6.182 The discussion here will, again, be of a summary nature,
directed largely at contentions set out in the CC-M,since the events of this period
have been carefully examined in the and u215. But it must be
emphasised that many of these events have a special importance, for they led
directly to the boundary settlement reached between Italy and France set out in
the 1935Treaty.
6.183 It is interesting that the deals with the Italian protests
starting in 1921 as subsequent conduct in relation to the 1912 Franco-Italian
Agreement when, in fact, they were directed at the 1919 convention216.The
thesis Chad advances is expressed in this way:
"Un examen minutieux de l'attitude que l'Italie adopta au fil des
années au sujet de la frontière meridionale de la Libye montre
214 -, dispatch of Lord Allenbyof 4 December 1919m,otedpara. 8.54(and taken
fromCM. Annex 96):
"To the north of Wadi Howa.) the French sphere is here bounded to the East and
North by sheer desert, and wnsequently the matter (la délimitation envisagée)is
susceptibleof somedelay."
215 See . M,paras. 5.188-5LC-M;p.ras. 4.203-4.229.
216 nie 1912Agreementisdiscussedabove,staning al para. 6.84. The Italian protests are
discussedin tCC-M inboth Chapters 7and 8 (starting at para. 8.57). clairement que- malgré lesefforts des milieux colonalistes italiens,
dont se faisait l'écho leMinistère Italien des Colonies, vàsant
insister sur les droits successoraux de l'Italie à la Tu-,lee
Ministère des Affaires étrangèresitalien demeura ferme dans son
'attachment' aux accords de 1902et de 1912. Autrement dit, quand
l'Italie decida de rotester, entre 1921et 1934, contre l'occupation
effective, par Farance, de la région au sud de la frontière de
189911919,elle fonda ses protestations sur le prétendue violation,
par la France, de ses engagements contractuajfq,t'Italie,et non
pas sur d'éventuelsdroits de successionde l'Italie
Chad finds this supposed attitude of the Italian Government expressed at three
levels: (i) in the officialexchanges between the Italian and French Governments;
(ii) in the 1919Tittoni speech to Parliament, once again totally misdescnbed as
"declarations solennelles devant le Parliament and (iii) innternal
dispatches of the Italian Government.
6.184 There are several comments to be made straight off about
the two sentences quoted above. m, as will become more evident as other
passages of theCC-M are examined, Chad confuses Italy'sprotests against the
1919Convention with its temtoriW. Second, Chad confuses Italy'sprotests
against the 1919 Convention (and the subsequent 1924 demarcation north to
19'30'N)with its protests against France's incursions north of the strict southeast
line described in Article 3 of the 1899Declaration; and these protests were not
against France's effective occuuation, as Chad suggests,but against its incursions
north of a strict southeast line. It was not until after 1930that French troops went
north of a strict southeast line to establish military insta~Thironsdo.e
of the official or internal dispatches, orM.veTittoni's speech, contained a
word about the 1912Agreement. m. these sentences, quoted above, reflect
an attempt in thCC-M to create what willbe called here a "mockwar" between
the Italian Ministry of Foreign Affairs and the Ministry of Colonies, when in fact
the two Ministries were working together in harmony.
6.185 What Chad is attempting to do is to find support for its
contentions built around the 1900-1902Accords and the 1912Agreemen-which
217 a, para.7.37.
218 This isa referenceto a few wordsin a speechbyForeign MinisterTittoni to the Italian
Parliamenton 27 September 1919on the ~Ltf the Franco-ItalianAccord of 12
September 1919,which concernedLibya'swestern,not southernbS.ndpara.
6.105,a., above.
219 See, LC-M,para.5.43andMauLC-M45&, also,para.8.05,below,and 28.are so important to Chad's case - in the conduct of Italy after 1919, when it
protested the 1919 Convention, when it protested French military incursions
north of a strict southeast line and during negotiations with France concerning
Libya's southem boundary in the period up to 1935. It bears repeating that in
none of the records of diplomatic notes and interna1 dispatches is there any
reference to the1912Agreement. This should come as no surprise; at the time, it
was obvious to both the Italian and French Governments that the 1912
Agreement had nothing to do with Libya'sboundaries. At the same time, Chad
appears to be trying to divert attention from the fact that the 1919 Convention
between Great Britain and France was forcefully, consistently and continually
protested by ltaly and rejected as not opposable to Italy.
6.186 The issues on which Libyawillfocus here are the following:
- The fundamental difference between the British and French
Governments as to the interpretation and effect of the 1919
Convention;
- Chad's contention that Italy had no nght to protest the 1919
Convention;
- The absence of any conflictbetween the Italian Ministries as
concocted in the CC-M (the "mock war"), and the true
situation concerning the Italian position during the period of
protest and negotiation, which involved two quite separate
matters: diplomatic protests and negotiating strategy;
- The significance of the officialItalian maps, which Chad has
ignored, particularly as illustrated in a most formal and
officialwayin the 1930Italian School Map Atlas incident;
- The consistency of Italy's conduct in protesting the 1919
Convention and in protesting French incursions north of a
strict southeast line;
-
France's conduct during the penod, revealing the awareness
of the French Govemment that there was no conventional
boundary east ofToummo. (b) The Diametricallv Opposed Viewsof the British and French
G-vernments Over the Meaninz and Eiïect of the 1919
Convention
6.187 The differences dividing Great Britain and France over the
interpretation and application of the 1919 Convention were brought into focus
when the two Govemments tned to coordinatetheir responses to Italy'sprotest in
1921~~'. This has already been examined in considerable detail by ~ib~a~~'.
Chad maintains in the CC-M that there was no contradiction between the British
and French re~~onses~~~.The CC-M Statesthis view inthe followingwords:
"En réalité la position des deux Etats est, fondamentalement,
identiquemême siles raisons invoquéesne le sont pas entièrement,
mais ces divergences apparentes s'expliqy2yt par kur situation
respective, àla foissur le terrain et en dro."
6.188 No one who had examined the evidence produced by Libya
in the could have written these sentences with any sincerity: that the British
and French positions were "fundamentally identical"! Asthe points out, when
Foreign Minister Poincaré received the general lines of the proposed reply of the
British Govemment to Italy in a note from Lord Curzon dated 16May 1922,he
sent the British note on to his Arnbassador in Rome, M. Barrère, still there after
over 22 years and the most experienced of al1the French diplomats as to the
meaning of the 1900-1902 Accords and al1 the supervening events and
agreements224. M. Barrère reacted strongly. Pointing out that the French,
unlike the British, considered as a "véritablefrontière les délimitationsétablies
par les accords de 1899et 1919",M. Barrère warned:
"Ily a donc une différencefondamentale225 entre le point de vue
français et le point de vue anglais quant àl'interprétatàdonner
aux accords de 1899et de 1919. Alors que nous voulons par notre
220 As in theCM, the CC-M again refers to Italy's protest in 1921 against the 1919
Convention as havingbeen made "tardivement". See, CC-M, para.8.57. This is false;it
wasnot until1921 that Italy leamed of the 1919Convention,entered into behind ilsback
in violation of the obligations of Great Britain and France under Article 13of the 1915
Treatyof London. Italythen promptlyprotested.
221 See. LM,para. 5.192,gseq.; LC-M.para. 4g-q.,
222 See, CC-M.para. 8.59.
223 a, para. 8.65.
224 See,LM, para. 5.192,%sol
225 At least Chadand M.Barr&reare in agreement on the word"fondamentale"! réponse fermer la porte à toutes revendications italiennes, les
Anglais, s'ils répondent dans le sens indiqué par Lord Curzon,
autorisent les Italiens à perséverer dans leur demande. La
Consulta aura beau jeu pour nous dire que ce que nous appelons
une ligne-frontière n'a jamais étéconsiderée comme telle par le
Gouvernement Anglais et que notre interprétation des accords de
1899 et 19Bgst en contradiction avec celle de Gouvernement
Britannique ."
It is quite remarkable that tCC-M could quote from M. Barrère's dispatchand
yet omit the essence of his message tM. Poincaré -that the British and French
227
positions were fundamentallydifferent .
6.189 This fundamental difference identified bM. Barrère never
vanished: the cracks were merely papered over. The covering used was the
supposed special situation between France and Italy created by the 1900-1902
Accords (not a word being mentioned about the 1912~greernent~~~). It willbe
recalled that the first reaction of the British Foreign Office to the line of
argument advanced by the French Government as a basis for replying to the
Italian protest was that it was "extraordinary", particularly in its reliance on a map
said to have been annexed to the 1899 Declaration, which the British could not
find annexed to their original copy229. ..
6.190 Chad attempts to reconcile whatM. Barrère regarded as the
fundamentally different positions of Great Britain andFrance in several ways:
- That the British and French were in agreement that Italy's
protest was unfounded 230,
Comment:But for entirelydifferentreasons:for the British,
becauseItaiy'srighiswereno! (and could notbe) affectedby
the 1919 Conventionbetween GreatBritainand Franceand,
therefore,its protest was unfounded; forthe French,Itaiy's
protest was unfoundedbecauseItaiyhad supposediyaccepred
the alleged1919 boundaiy in the 1900-1902 Accords. The
-C-M quotesfrom interna1BritishForeignOfice notes that
226 LM. para.5.195,andFrench ArchivesAnnex,p.353.
227 See.C-M.para.8.71.
228 See.LMJ para. 5.205, where the Frenote reacting to Lord Curzon'sproposed
responseto ltalyisquotedfrom.
229 See,LM. paras.5.205-5.208.
230 See,CC-M.para.8.66. dkparageIfab's tem'toriaclaimsin the region,but thk w
more signifcant than ratheruninfomed, backstairsgossJnO
- That France and Great Britain were in very different
positions, on the ground, in 1919-1921:as to France:
"..elle occupait effectivement l'intégralide la zone
d'influence que lui avait rec e les accords franco-
britanniques de 1899et 1919wo ;
as to Great Britain, its side of the line remained merely a
zone of influence, which the British had no difficulty, in
respect to part of Cyrenaica, "pour s'effacer au profit de
l'ItalieM;sa result:
"Ce qui demeurait pour les Britanniques une simple
zone d'influence étaitdevenu pou>t& Français une
possession coloniale'àpart entière ."
Comment: On the factual plane. the intentionsof the Brihh
and French conceming the tem'tories &ing nonh of
approximarely15"N latitude were certain&different;but the
French werefur from havingeffective&occupiedthe whole of
the areaup to the 1919 line.They had withdrawnfrom Tibesti
in 1916, no1to retum until1929-1930;neitherby 1919nor by
1924had French militaryforces establkhed installationsnorth
of the smmcstoutheast line cribedin Amcle 3 of the 1899
Declaration(MapLR 22)29? Bot to the nonh and south of
that line the Frenchforces wereengagedin a continua1series
of bartleswith the indigenousSenoussipeo between 1914
and the 1930~~as depicted on M~DLR 2$'3, which covers
these evenfs through 1927. So French effectivitks,a prime
requkite of which k peaceful occupation, had not been
establkhed byFrancein any of the borderlandsby 1919-1921,
not evenup to a smct southeastline, let alone up to the 1919
231 These notes are mentioned and quotem.in para.4.190pointing out that sofe
the notes were full of mistakes,such as that there had been no Ottoman protests to the
1899Declaration,when indeedthere hadbee-,LM. para.4.190.
232 -, para.8.71mis isan important admissionbyChad that1919 Convention,just
like th1899 Declaration, did not involvethe recognition of any more than a zone of
influence.
233 a, para.8.71The wordsquoted are taken fromthe Barrèrenote referred to above.
234 A similar mapappeareasMao LC-M 45,referred to inLC-M at par5.43where it
illustrated the situation on the gro1914awrding to the Histoire Militaire de
l'Afrique Eauatoriale Francaise. Mao 22 describes the situation on the ground
between1917 and1929,aswell,so these dates haveheen addedto the map.
235 This map appeareasMaoLC-M48, referred to im, para5.60. line. Thesituationon themoundhas beendescribedindetail
in thLa and LC-M e ëalingthe lackof Frencheffectivitks
now claimedbyChad6" . OntheIeaalulane,Chadmakesno
attemptto explainhowa tem'tooriboundarycan emergefrom
a treay whereonepartydeniesthatthLÎwas thetreacyintent.
6.191 The CC-M suggests that, on the legal plane, the British and
French positions were different vis-à-visItaly because in the 1900-1902Accords
Italy had recognized a French zone of influence up to the Tripolitanian frontier
indicated on the famous map (the wavy, dashed line indicating the notional
kontier of Tripolitania), whereas the 1902Anglo-Italian Accord had not had the
same effect. Of course, such a conclusion is based on the misreading of the first
paragraph of the 1902Franco-Italian Accord (substituting "sous-mentionées"for
"susmentionées") demonstrated ab~ve~~~. Italy never recognised any French
zone of influence in North Africa in 1902 (or in 1912) except in respect to
Morocco.
6.192 As for the comment that Great Britain had exercised care
not to affect French rights in its negotiations in 1934 with Italy concerning the
Sana ~rian~le~~~,the real point is that the British took pains not to affect the
position of either France or Italy in the negotiations that had been going on
between France and Italy for over five years. The French Government's
considerable amiety over these negotiations between Great Britain and Italy
related to two matters: (i) not to put in issue the "interpretation" of the 1899
Declaration contained in the final paragraph of the 1919 Convention - this
concerned the end point of the Article 3 southeast line, which had been shifted
north by4" of latitude to 19030'N,and (ii) to refrain from relying on arguments of
a geographical, economic, political or historical nature that might strengthen
Italian claims in therea. Italy was amious not to acknowledge the 19030'N
latitude end point of the 1899-1919line, since it had consistently maintained in its
diplomatic protests that the 1899 line, as shown on official Italian maps, was a
strict southeast line and that the 1919 Convention modified that line to Italy's
possible disadvantage.
236 SeeLM,para.4.173 g,seq.LC-M. para.5.3g,-q. See .lso para.8.below,and
MauLR 28.
237 Seeparas.6.5and6.66above.
238 SeeCC-M,para.8.74 .eealsoLM, paras.5.294-a 5.d5.8302. 6.193 In the event, the British accommodated both France and
Italy. In respect to Italy, the 1934agreement over the Sarra triangle LRar24)
fixed no southem teminal point for the Libya-Sudan frontier, only refemng
vaguely to "itsjunction with the frontier of French possessions", and omitted any
reference to the1919Convention (Mar, LR 241~~~.France's anxiety over these
Anglo-Italian negotiations, to which it was not a Party, reflected the insecurity of
its position vis-à-vis Italy, which had rejected the 1919 "interpretation", and its
awareness that the British had a ves, different view from the French as to the
meaning and effect of the 1919Convention.
(c) The Contention thatItalv HadNo Rightto Protest the 1919
Convention
6.194 As onginally formulated by the French Govemment in its
responses to the Italianprotests to the 1919 Convention, the quite astonishing
argument that Italy had no nght to protest the Convention was based on the
assurnption that in the 1900-1902Accords Italy had forfeited any nghts, outside
the specificlimits of Tripolitania shown on the famous Livre laune map, based on
its heritage from the Ottoman ~m~ire~~'. The CM follows this line of
argument 241 .
6.195 The CC-M. however, has tumed the argument around,
perhaps realising its weakness. For how could Italy forfeit something it had no
right to in the first place? Chad now argues that, in the first paragraph of the
1902 Accord, Italy recognized France's zone of influence outside the wavy,
dashed line, which Chad claims was shown as the Tnpolitanian boundas, on the
map a recognition reaffirmed in the 1912Agreement, which referred to the 1902
Accord. It has been shown above how completely wrong this line of argument is:
239 See,LM, paras.5.295-5.299and5.302. MaLR 24 appearsin the asMapNo. 82
referre10in para.5.286. On themap,the boundarywithSudanisshown stoppingal its
juncturewith the 1919 lineat 1P 3CPN.Thisis onlybecausethe mapwas preparedto
illustratethe"Satriangle"t;he 1934agreemtpded nosuchend point.
240 See,LM. para.5.209.
241 See,ex., CM.p. 191,para.186. - It isbased on a misreadingofthe first paragraph of the 1902
~ccord~~~;for the onlyFrench zone of influence recognised
there by Italyconcerned Morocco;
-
It is based on a distortion of the Livre iaune map, which did
not define the wavy,dashed line as a conventional boundary
encirclingTnpolitania; it was onlyaotional frontier.
These points have been adequatelyelaborated on elsewhere in this Reply.
(d) The "Mwk War" Between the Italian Minisîrv of Foreign
Affairs and Ministrv of Colonies
6.196 The CC-M has devoted so much attention to inventing this
"mock war" that it calls for some comment in Libya's Reply. Since to do so
requires a close look atthe relevant documents (what theCC-M calls"un examen
minutieux"243), Libya has prepared a detailed analysis of this matter, which
appears in Volume 2 as Suu~lementarv Annex, No. 5, where the Italian
documents (in translation either into English or French) appear alongside the
commentary.
6.197 What this analysisshows isthe following:
-
The initial diplomatic protests of Italy in 1921 and 1922,
prepared by the Ministry of Colonies, had followed a line of
argument based on the strict southeast line described in
Article 3 of the 1899 Declaration and its modification to
Italy'spotential disadvantage bythe 1919Convention;
- These initial diplomatic notes had not relied on Italy's
Ottoman hentage or on the fact that the 1900-1902Accords
were not concerned at al1with this southeast line; as a result
the Minister of Foreign Affairs took the position in 1924that
it was too late to bring in these other arguments (which the
Ministryof Colonies had neglected to rely on earlier);
242 Secp.aras6.50and6.66above;bysubstituti"sousmention~efo"r"susmention6es"
243 m. para7.37. - However, the discussionswere taking place at several, quite
separate levels: diplomatic protests against the 1919
Convention; diplomatic protests against French troops
establishing posts north of a strict southeast line; and the
boundas, negotiations, whichstarted in 1928,beginning with
the French offer to Italy of the Djado salient, followed by
the 1929claimtabled byMussolini;
- The negotiating strategy adopted by Italy -with the full
agreement of the Ministries of Foreign Affairs and Colonies
-was to relyon the agreements entered into between France
and Italy,which France could not dispute, rather than on the
Ottoman claims, which France was certain to contest; this
was a practical decision as to how to get the best results in
the negotiations;
-
The agreements in question were the 1900-1902Accords
(the 1912Agreement was never mentioned) and Article 13
of the 1915Treaty of London;
- Italy'saim was to start with the 1899strict southeast line; to
claim that, in the 1902Accord, France was bound in respect
to Italy not to exceed that line; then, invoking Article 13,to
swing the northeast end of the line southward to 18"Nto
accord with the 1929 claim tabled by Mussolini (M~D LR
25).
6.198 The CC-M is largely correct in its statement at paragraph
7.41 that Italy relied on the 1899and 1902 agreements and on Article 13 of the
1915 Treaty of London. But this was its negotiating strategy - to rely on
agreements which France could not contest rather than to engage in a long
discussion about Ottoman nghts and titles, which was sure to provoke a strong
French reaction.
6.199 Italy neither abandoned nor waived any of these rights; it
simply chose not to put them on the negotiating table. And there could be no
question of Italy (and even less Libya) being estopped at a later stage from
invokingthese claimsbased on succession to the Ottoman Empire. No rule of law
requires a party to negotiations to disclose or invoke al1its legal arguments. And LU 25
10. I5. 20. 25'
...............-----
........... ................... ....................COI
Ifalian stralegy ro swing lioe 1899 Declarafion.line, Anicle 3,
southunderArticle 13.
20'
-20.
11929 Italian claim.
\
FRANCO-ITALIAN NEGOTIATIONS FOLLOWING 15.-
-15.- THE 1919 CONVENTION ,l
10" 15' 20. 25'where those negotiations fail, as they did in this case, there is no prejudice to the
other party that might form the basis of an estoppel argument. Moreover, at the
time of making his 1929 proposal, Mussolini made it perfectly clear to French
Ambassador Beaumarchais that Italy could base its claims on its Ottoman
heritage. In the 1934negotiations with Great Bntain over the Sarra triangle, Italy
again referred to its Ottoman rights. British Foreign Office memoranda
acknowledged that Italian rights in the area derived from Ottoman rights and
titles, to the extent that they could be established. On the basis of rather limited
information, the British Foreign Office may have had rather scepticaliews as to
the merits of those Ottoman rights inhented by Italy,but this is of no relevance to
the present dispute. Finally, officialItalian maps make clear Italy'sreliance on its
Ottoman inheritan~e~~~.But when it came to howto negotiate with France, Italy
decided not to play the Ottoman card, but rather to invoke the various
agreements signed by France, in particular Article 13 of the 1915 Treaty of
London.
6.200 Italy'sdecision as to how to express its diplomatic protests
and how to negotiate its claim tothe hinterland of Tripolitania.with France are of
interest, but not binding on Libya. If Italy made mistakes in its legal analysis,
Libya did not inhent these mistakes any more than Chad has inhented France's
mistakes, although Chad has chosen to adopt most of them. Article 3 of the 1955
Treaty established the standard for the recognition of any southem Libyan
boundary: "actes internationaux en vigueur" on the critical d-tnot the welter of
diplomatic notes and intemal memoranda of the Italian and French
Govemments, knowledge ofwhich neither negotiating team had in 1955.
6.201 It is apparent from the evidence analysed in detail in
Supplementarv Annex, No. 5, that there was no "mock war" between the two
Italian Ministries. If there was any disagreement initially,it was over the waythe
Ministry of Colonies had prepared the diplomatic protests in 1921 and 1922,
havingbeen overlyconservative.
1930Italian SchoolMapAtlas Incident
(e)
6.202 This incident, discussed and illustrated in the &1245, has
been totally ignored in Chad's pleading to date and in Chad's M~DAtlas. The
244 See,MausLR 16A-1and16A-2,referredto atpara.6.112,above.
245 See,a, paras.5.278-5.279andMapsNos.78and79.episode is taken up again in Sup~lementarv Annex, No. 5.10,found in Volume 2
hereto, with reference to English translations of the relevant documents, al1of
which were furnished as Exhibits to m.e The original colour version of the
map that provoked this incident has been located in the Italian archives and
appearshere (MauLR 16E).
6.203 It is interesting to examine this mapThe conventional
boundary of Libya on the West stops at Toummo; east of there to the Sudan
boundary no northlsouth boundary is shown. This conformed to al1other official
Italian maps issued prior thereto: no officialItalian maps. ofwhich Libva isaware,
UP until 1935.showed a southern Libvan boundarv east of Toummo. The Italian
School Atlas Map does not show a boundary in that region, but the area of Libya
coloured yellow-green, identified in the map's legend as an Italian possession,
extends well south of Tibesti, the southeast corner reaching approximately 15"N
latitude, and enveloping most of the Libya-Chad borderlands.In fact, the
southern reach of the yellow-green area bears a close resemblance to Libya's
claim in this case (Mau LR 1 referred to at paragraph 1.29 above). The area
bears an even closer resemblance to the modified Ottoman proposa1 made by the
v&& of Tripoli in 1911(also shown on Mar>LR 1). The area covered extended
well south of a strict southeast line under Article 3 of the 1899Declaration and
could only have been based on Italy's Ottoman heritage. It was this southern
extension of the yellow-green area that the French Embassy in Rome spotted and
protestedin its Aide-Memoire dated 12December 1930:
"Si une ligne très nette de démarcation ne sépare les temtoires
français et italiens que jusqu'à Toummo, i'identitéde couleur entre
la Libye et les temtoires à l'Est et au Sud-Est de Toummo,
qualifiés:Tibesti, tend à ~$6re que "ette dernière région est
comprise dans la zone italienn."
6.204 What then occurred, after the formal French protest was
received by the Italian Foreign Ministry,was the following:
-
The Foreign Ministryinfonned the Ministry of Colonies that
since the frontiers in the area had not been internationally
defined, ituld have been preferable to followthe solution
adopted on other official Italian maps: to leave in white
246 B. Su~plementanAnnex,No5.10. (rather than coloured yellow-green) the area where
sovereignty had not yet been defined;
- The Ministry of Colonies replied, indicating it was in full
agreement;
Instructions were then issued to the Ministry of National
247.
Education to modify the map atlas accordingly ,
-
Libya has seen no evidence of any French protest to the
revised map, which showed no southern Libyan boundas,.
6.205 This incident is of particular significance for it occurred in
the middle of the Franco-Italian boundary negotiations that culminated in the
1935 boundary settlement. The official Italian view was that there was no
conventional southern boundas, of Libya east of Toummo. This is what al1the
Italian maps showed. This is also what the French Government formally advised
the French Parliament in the Exposé des motifs accompanying the law
authorising ratification of the 1935Treaty. The incident reveals, as well, that the
two Ita!ian Ministries were working in complete harmony: there was no war
between them, as Chad attempts to show.
(f) The Consistencv of Italian Conduct in Protesting and
Reiecting the 1919 Convention and in Pn~testina French
Militarv Incursions Northofa Strict Southeast Line
6.206 Chad concedes that Italy repeatedly protested ("at least five
diplomatic notes") over a long period (between 1921 and 1934) the 1919
Convention and the subsequent 1924demar~ation~~'. Chad also concedes that
Italy protested French military incursions north of a strict southeast line 249 .
These protests were first made when French forces moved in to occupy Tibesti in
1930~'~. In 1933,Italy protested France's move northward to occupy for the first
247 Libya has not been able to locate the coloured rnap in the ltalian School Map Atlas as
alteredaccordingto those instructions.
248 See. CC-M,para.7.40.
249 Se, ex., CC-M.para. 7.44.
250 See. LM.para. 5.26oseu,; LC-M.para.5.78.time the key oasis of Tekro on the trade route from Benghazi to Ouadaï. Italy's
conduct in this respect willagain be examined below in ChapteIX.
(g) French Conduct Durine the Period Revealine the French
Government'sAwarenessthat there Was No Conventional
LibvanBoundarvEastof Toummo
6.207 It is only necessary to list here the elements of French
conduct showing that the French Government knew very well that there was no
conventionalboundary east of Toummo:
- The very fact that from 1928 to 1935 negotiations were
actively undenvay between Italy and France to delimit
Libya'ssouthern boundary;
- French studies in 1928(the studies of General Serrigny and
of M. Saint, Resident General in Tunisia) that envisaged
large territorial concessions being made to Italy south of
Fezzan and Cyrenaica, to include al1 of Tibesti and areas
even further south251,
- The terms of the draft treaty accompanying the 1928
proposal offering Italythe Djado salient2.
,
Certain interna1dispatches of Ambassador
Beaumarchais 253.,
French insecurity demonstrated during the Anglo-Italian
negotiations in 193454,
The 1935Exposédes motifs of the French ~overnment~~~.
French conduct pre-1945 is again examined in ChapterIX below.
251 See.LM.para.5.258a -q.
252 See.LM, para.5.26g,a.
253 See. LM. para.5.262-q.
254 Sec .ara.6.193,above.
255 B. para.6.215, below. SECTIO Il. The 1935Franco-ItalianSettlement
(a) Introduction
6.208 The contains some remarkable pages concerning the
1935 Franco-Italian Agreements - even more remarkable for what they do not say
than for what they say! It would appear that Chad prefers to slide past the
essence of the arguments concerning the 1935 Treaty of Rome presented by
Libya in its Memorial (and developed further in its Counter-Memorial) and
instead to linger over certain aspects of distinctlyminor importance.
6.209 Chad is wrong if it believes that by dodging the real issues
they can be made to disappear. It willbe recalled what Libya has pointed out in
its earlier pleadings about the central role played by the 1935 Treaty in the
present dispute -and in spite of the fact that the most important instrument
compnsing the 1935 Agreements, the ".4fricanUTreaty (referred to generally as
the 1935 Treaty), never formally entered into force, as both Parties concede. But
the tactics adopted in Chad's pleadings of burying the head in the sand like an
ostrich, at least reduces the number of pages required for rebuttal.In fact, it is
Libya'sview that the boundary agreed between Italy and France should be the
startine oint of Chad'sclaim,not the 1919 line;
6.210 In view of the failure to exchange ratifications, the 1935
Treaty never achieved the status of a treaty which, in the words of Article26 of
the Vienna Convention on the Law of Treaties, "isbinding upon the parties to it
and must be performed by them in good faith". This is a settled point. Another
point - on which both Libya and Chad are also fully agreed - is that, in spite of
this, the1935 Treaty, as well as the negotiations leading up to it, and the debates
that ensued, are among the essential elements of the conduct of Italy and France
on the international plane. For such conduct reveals: (i) the intention of the
parties to the1935 Treaty; (ii) the problems that they sought to settle; and (iii) the
status of the boundanes between their colonial possessions that existed in 1935,
whichthey sought to modifyor resolve.
6.211 It is on the basis of these premises that Libya has pointed
out three things in itsearlier pleadings:
In 1935,Italy and France had explicitlyrecognised in public,
formal declarations that no conventional boundary had previously been fixed between their respective territories
east of Toummo. Thus, the line provided for in Article 2 of
the 1935 Treaty delirnited for the first time this boundary
and did not constitute the rectification of a pre-existing
boundary. Since the Treaty of Rome never entered into
force, it follows that the pre-existing situation of no
delimitedboundary suwived unmodified;
In 1935, Italy and France explicitly recognised in public,
formal declarations that the Treaty did not concern a
cession of French territories to Italy, but rather the
recognition of the ownership by Italy of the territories
situated to the north of the new boundary;
In 1935, Italy and France explictly recognised in public,
formal declarations that the 1935Treaty, had it entered into
force, would have finally discharged France of the
obligation, set out in Article 13 of the 1915 Treaty of
London, to resolve in Italy's favour the question pending
between the two Powers over the southern boundary of
Libya. It follows, therefore, that since the Treaty never
entered into force, the obligation in question was not
discharged by France. Accordingly, it must be taken into
account today in order to put an end to the present
territorial dispute sub iudice.
Each of these three points willnow be touched on. Itwillbe show at the same
time that Chad's Counter-Memorial presents no challenge to the validity of these
premises.
(b) Recognition of theAbsenceofAnvConventional Boundary
6.212 In the and it was shown that the text of the 1935
Treaty, its context and the travaux oré~aratoires demonstrate beyond any doubt
that no boundary had been established east of Toummo before 1935 and that
France (like Italy) had explicitlyand publiclyso recognised.
6.213 Dealing first with the of the 1935Treaty, it is sufficient
to recall here that Article 2 of the 1935Treaty, relating to Libya, speaks of the"détermination" of the boundary east of Toummo, specifically identified as the
"point terminal de la ligneixée par l'Accord de Paris du 12 septembre 1919
(emphasis added). In other words, thetext.makes clear that the mattin hand
was to determine (or fix) for the very first time the boundary line in a region to
which the linefixe (dr determined) in the 1919 delimitation, also for the first
time, did not extend. The precise legal significance of this choice of terms
becomes even more apparent if Article 2 is compared with Article 4 of the same
Treaty, which talks of the "substitution" of a boundary for the previously
established boundary between other Italian and French colonial 'territories
(Entrea and the Somali Coast).
6.214 As to the context of the 1935Treaty, Libya has emphasised
the very special importance of the officialpress communiquéin which France and
Italy explained intemationally that the Treaty had brought about a "rectification"
of the boundary between Eritrea and the Somali Coast, while in the case of
Article 2 (which concerned Libya) the question was to "déterminer"the boundary
line beyond the "point final"of the course of the boundary fixedin 1919~'~.
6.215 Finally, the French parliamentary travaux furnish the
clearest sort of confirmation that there was no pre-existing boundary. The French
Govemment, in the Emosé des motifs accompanying the draft law to authorise
ratification of the 1935Treaty, assured the Parliament that the Treaty would put
an end to the awkward situation of "absence de frontières"in the region, and even
explained that this absence resulted from the fact that "(1)'arrangement du 12
se~tember 1919laissait l'Italie et la France sansfrontière conventionelle~àl'estde
Tummo ,025.
6.216 How does Chad's Counter-Memorial attempt to deal with
these documents of apparent ovenvhelming probative force? It tries to avoid
them. The CC-M just ignores the several acknowledgements of no pre-existing
boundary contained in the negotiated texts (the Treaty and the press
communiqué), as well as in the unequivocal declaration of the French
Govemment to the Parliament (the Exuosédes motifs). All that can be found in
the CC-M is the peremptory remark that Libya in its assertions concerning the
recognition by France of the absence of a boundary "fausse la réjuridique et
256 SeeLM, para.5.327.
257 LM,para.5.336,seq.factuelle"258. No more than that; except that the CC-M givesthe impression that
the Libyan analysiswas based exclusivelyon some off-hand suggestions contained
in an unsigned "note interne du Quai d'~rsa~"~~~.The formal statement of the
French Government in the Emosé des motifs is simplyignored! There is enough
here to raise the question who is the "faussaire": is it Libya, which cites numerous
officiaidocuments of both a unilateral and bilateral character, or Chad, which
does al1it can to conceal them?
Recognitionof Italv's Titleto the Territoriesto the Northof
(c) the 1935Line
6.217 The text of the 1935 Treaty itself does not provide the
clearest answer to the question whether in the delimitation carried out under
Article 2 the parties felt that a cession of territory was involved or simply the
recognition of ownership of the territories concerned. However, certain specific
factors, appearing both in the context of the Treaty and in the travaux, establish
the second hypothesis.
6.218 Here the decisive proof isthe joint declaration, issued to the
public by the two States, contained in the officialpress communiquéof 7 January
1935. In itthe territones situated north of the line provided for in Article 2 are
carefully described as "territoires ainsi reconnus comme appartenanà la Libye".
This official declaration of the parties to the Treaty constitutes without any doubt
an authentic interpretation of the Treaty,(e& intermetare, Q& condere). It
fitsthe definition of that fundamental element of the context referred to in Article
31(a)(2) of the Vienna Convention: "any agreement relating to the treaty which
was made between al1the parties in connection with the conclusion of the treaty".
6.219 As to the travaux pré~aratoires, it is not necessary to repeat
the analysis already set out in theLM, particularly since Chad has made no
attempt to deal with it in the mZ6O. This analysis shows that the solution
adopted in Article 2 represented an important temtorial sacrifice for Italy. Italy
had accepted to give up its previous anduch more extensive claims in order to
obtain from France "les mains libres" in Italy's planned aggression against
Ethiopia. In other words, for reasons having nothing to do with Libya, Italywas
258 CC-M p.ara.9.48.
259 m. para.9.47.
260 See, LM. para.5.3gseq.;C-CM. para.6.03,Gueq.willing to settle for French recognition of Italian ownership of territory south of
Tripolitania, Cyrenaica and Fezzan that was minuscule in comparison with the
territory to which Italybelieved it had a legitimate claim.
6.220 Thus, under the 1935Treaty, France did not cede to Italy a
portion of French temtory; it recognised that the territory in question belonged to
Italy. The evidence supporting these arguments is indisputable. No doubt this
explains why Chad has failed to find any better way to rebut Libya's arguments
than just to ignore thcm. Chad also ignores how the United Kingdom; very well
informed on, and extremely interested in, the ups and downs of Libya'sterritorial
claims, had interpreted the situation, as the set forth. The documentary
evidence produced by Libya reveals that the United Kingdom also believed that,
by the 1935Treaty, "..France has now definitely recognised as Italian territory
the ownership of which had not been previouslydetermined 2618.
6.221 The CC-M attempts a diversionary tactic in the face of this
evidence. The CC-M spins out a theory around a certain number of Italian and
French documents (most of them internal) in which, in the context of proceeding
to implement Article 2 of the 1935Treaty, references are made to a "cession"of
temtory by France to Italy. According to Chad, this language implied the
recognition by both France and Italy that the Treaty was aimed at transferring to
Italy territory that was French, a transfer that could not ultimately be carried out
since the Treaty never entered into force2.
6.222 The first observation to make about this theory is that in no
event could the documents cited prevail over such a document as the joint
declaration of 7January 1935,a document prepared and signed byboth parties to
the Treaty and expressing their mutual intent. But, in addition, the has
fullyexplained why such documents talk of a "cession". It is because, at the time
of signature of the 1935 Treaty, Italy was well aware that French forces had
established positions-contrary to law in Italy'svi-win certain locations situated
in the area claimed by Italy,both north and south of the boundary line that was to
be set out in Article2 of the Treaty. Moreover, Italy had sent to the French
Govemment a number of very firm notes of protest in this regard, pointing out
the unlawful nature of the presence of French forces in these regions. Thus, had
261 m, para5.341.
262 a, para9.50g -q,the Treaty entered into force, its implementation on the French side would have
involvedthe withdrawal of French troops from the scattered locations where they
had established posts within the territory recognized as belonging to Italy. The
French departure would have meant handing over these locations to the Italian
army.
6.223 It isthus not surpnsingthat both Parties talked of a "cession"
in referring to the arrangements that they envisaged carrying out. It was a handy
term that appropnately described what was going to occur concretely on the
ground. In other words, the fact that both Parties had talked of a "cession"had no
implications for the identification of the legal titles over the tenitory in question;
itrelated to the practical measures required to implement the Italian take-over.
As a result of this so-called "cession", Italy finallycould exert its sovereignty over
this territory, in accordance with the legal titles which it had inherited from the
Ottoman Empire and which France had finally recognised, albeit over only a
small part of the terntory to which Italy and the Ottoman Empire had laid claim
in the past.
The Influence on the Settlement of the Present Dispute of
(d) France's Obligations to ltaly under Article 13 of the 1915
Treatvof London
6.224 Both Libya and Chad have indicated their agreement that
the 1935 Treaty of Rome would have completely released France from the
obligations it had assumed in 1915:to grant Italy "equitable compensation" in the
form of settling questions concerning the boundaries between their colonial
territories in favour of ~tal~~~~S. ince the 1935Treaty did not enter into force,
the obligation in question was never extinguished.
6.225 For Chad, the fact that the 1935Treaty was unquestionably
linked to the 1915 Treaty of London means that the 1935 ~reaty concerned a
"cession" of territory. Chad's reasoning is as follows: if France owed
"compensation" to Italy, and if the Treaty of Rome granted such "compensation",
this necessarily meant that, in the 1935 Treaty, France had ceded French
temtones to Italy.
6.226 Unfortunately, this syllogism,while logicalin appearance, is
fundamentally defective. "Compensation" cannot be assimilated to "cession de
263 Anicle 13ofthe 1915TreaiyofLondon.territoires", as tLM and the u, have fully e~~lained~~~. Given thefact
that, in its Counter-Memorial, Chad has chosen not to comment on Libya's
explanations, let alone criticise them, only a short résuméof the essential
elements of this explanation isnecessary.
6.227 According to the tenor of Article 13,what France had to do
to "compensate" Italy was to settle in Italv's favour "the questions relative to the
frontiers of the Italian colonies" (which included Libya) and the neighbouring
colonies of Great Britain and France. Certainly in doing so a cession of territory
as for example in the boundary substitution provided for in Article 4 of the 1935
Treaty in favour of Entrea- might well be involved. But a cession of territory
might also be involved, as for example where no delimitation had been agreed
upon previously. In such a ,case, France would have been obliged to take into
account Italy'sclaims in order to ar:ive at a settlement in Italy'sfavour. Article 2
of the 1935Treaty was directed at this type of situation,e it fixed for the first
time the southern boundary of Libya in a way that would be in Italy'sfavour, at
least as seen from the French standpoint. Of course, as has been pointed out in
the LM and the u, Italy was short-changed in this settlement of Libya's
southern boundary: in reality the settlement was more in France's favour, but this
was the price Italywas willingto pay in order to achieve its objectives in Ethiopia.
6.228 The 1935Treaty never entered into force. And it must not
be forgotten that Italy, in spite of France's insistence, refused to exchange
ratifications precisely because the Treaty was so unfavourable to it from a
territorial point of view and because Italy had not obtained from France the
counter-part concerning Tunisia and Ethiopia it hadken for granted. Had the
territorial settlements of the Treaty been advantageous to Italy it would have
promptly exchanged ratificationsand received the benefit of these
"compensations"irrespective of the absence of a counter-part. At the end of the
day, Italy did not receive the "compensations" to which it was entitled and the
French debt remained unextinguished. It remains then to be seen to what extent
it may be argued that the right of Italy to "compensation" was inherited by Libya
at the time of its independence, and the corresponding French obligation was
inherited byChad.
6.229 The question cornes down to whether, in the settlement of
the temtorial dispute now before the Court, Article 13 of the 1915 Agreement
264 SeeLM. para5.152g sea.LC-M, para.6.17.should be taken into account. May Libya, as the successor to Italy's territorial
rights, claim as against Chad, as successor to France, the equitable compensation
due to ltaly from France as part of the rights and titles of its inheritance?
6.230 The m has carefully explained why, in Libya'sview, the
Court should answer in the positive this question. For Article 13of the Treaty of
London was for France and for Italy the source of the sort of "obligations and
rights established by a treaty and relating to the regime of a boundary" that are
not affected byState succession,under the relevant principles of international law
as codified in Article 11 of the Vienna Convention on Succession of States in
265
respect of Treaties .
6.231 Chad has not yet had the opportunity to address this
argument, which wasnot fullydeveloped until thm.
(e) Conclusion
6.232 What emerges from the arguments concerning the 1935
Treaty and related Accords set out in the and m. and summarized above,
and what Libya wishes to emphasise once more, is that the Treaty and Accords
have an essential role to play in the settlement of the present disputepite of
the fact that the Treaty did not come into force for failure to exchange
ratifications.
6.233 It is also apparent to Libya, after the exhaustive study
necessary to prepare for these proceedings, that Libya was perfectly justiined
invokingthe 1935Treaty in the past, both during the debates at U.N. and the
O.A.U. and in the several meetings with Chad at which the boundary question
came up, in defending Libya'spresence in part of the borderlands.
6.234 Chad is thus wrong to reproach Libya for what it terms the
"extraordinaire contraste" between the role played by the 1935 Treaty in the
position presently developed by Libyabefore the Court, and that taken before the
O.A.U. 266. Libya remains firmlyconvinced that its presence in the northern part
of the borderlandsis legally indisputable. In its statements to the U.N. and the
O.A.U., Libyawas defending this position, not advancing a temtorial claim. Just
265 See,LC-M. para6.36g -q.
266 See, CC-M,para1.49. as Italy in the 1941 Armistice Commission discussionswith France considered
that the demilitarized zone being designated should be based on the 1935 line
rather than the 1899-1919line proposed by France, regardless of the fact that this
boundaiy never took effe~t~~~s ,o Libya today considers that the starting r>ointof
Chad's claim should be the 1935 line. The 1935 Treaty was not "mort né",as
Chad maintains. For over three years it was expected to be placed in effect.
Italian and French maps were changed to show the 1935 line. It was only in
December 1938 that it became clear that ratifications would not be exchanged.
Furthermore, the Treaty had been overwhelmingly approved by the French and
Italian Parliaments.
SECTIO 1N. Post-1935AgreementsandEvents
6.235 When it became apparent in December 1938 that the
boundaxy settlement reached between Italy and France would fall apart, the
outbreak of World War II was less than a year away. As Libya's Counter-
Memorial points out, between then and the critical date-24 December 1951,the
date of Libya'sindependence -nothing that took place on the ground did or could
have affected the claims to title in the borderlands as they stood in 1935,just prior
to the signing of the 1935 Treaty, and in 1938 when Italy announced that
ratifications would not be exchanged268. It was also demonstrated in the LC-M
that Chad's contentions that Italy had several times recognized France's
sovereigntyover the "bande d'~ouzou"~~~ -a term not invented until the 1970s-,
built around such minor incidents as that occurring at the Jef-Jef Plateau in 1938,
have no substance 270.
6.236 The official Italian view that there was no conventional
boundaxy east of Toummo was clearly set out on the maps issued by the Italian
Ministries. The LC-M included official Italian maps of 1926and 1939showingno
such boundaxy -the area east of Toumrno tothe Sudan border isleft b~ank~~l.In
this Reply, a third Italian map, issued in 1941 by the Ministero Dell' Africa
Italiana,has been included (Ma? LR 16C, referred to at paragraph 6.118 above).
~--- -
267 Se, LM. para. .360,~ sea.;LC-M.para.5.1a-q; andpara.6.238Ga., below
268 See,LC-M,para.5.103, -q,
269 Thisinvalidcontentionis repeatediCC-M a1para.9.73.
270 See,LC-M.para.8.28g -q.
- 271 -, M~DS LC-M52and54,referredIoa1 m, para.8.33.East of Toummo to the Sudan border is left blank -no boundary appears in the
region of the borderlands. This was Italy's official position, as the 1930 Italian
School Map Atlas incident brought out. No evidence of any French protest
against these maps has been uncovered by Libya or submitted as evidence in this
case. So much for Italy'salleged acquiescence in France's sovereignty over the
area.
6.237 Chad has focussed on one incident during this post-1935
period and invented another fanciful scenario not unlike the "mock war" just
discussed. This concerns the 1941French-Italian Armistice Commission, which is
discussed in both of Libya'sprior pleadings272.
(a) 1941French-Italian Armistice Commission
6.238 The CC-M challenges Libya'sconclusion that in the course
of the work of the Commission, Italy'srepresentative General Grossi "left open
the legal status of the 1935line and clearly indicated that the delimitation of this
boundary had yet to be ac~om~lished~~~".Chad maintains that -
"Un examen fouilléde toute la documentation pertinente permet,
au contraire, de démontrer qu'en substance l'affirmation libyenne
est dénuée defondement, car après a)-i4 rejetéla thèse française,
l'Italiefinit par renoncàrla contester ."
6.239 It will be recalled that one task of the Commission was to
create a demilitanzed zone. The French argued that the starting point should be
the 1919 line. The Italians (General Grossi) rejected this view, ohse~ng that
Italywas not a signatory to the 1919Convention, and suggested that the 1935line,
which both Italy and France had once agreed upon, made more sense, even if it
was not technicallya conventional boundary. It would seem that General Grossi's
position was a very sensible one. However, the French were recalcitrant, and at
the end of the day, the Italians said it did not matter much and, in any event, it
was beyond the mandate of the Commission to deal with international boundary
questions. So they put the issue aside.
272 See,CC-M. para.9.75g -q.; sealsoLM. paras.5.360-5.3LC-M, para.5.112.
273 LM. para.5.361.
274 CC-M para.9.76. 6.240 Chad arrives at a very different interpretation of the
documents, which it examines at length in the m. Chad takes the letter of
General Grossi (President of the Italian Armistice Commission) to his French
counterpartdated 12March 1941~~~ and interprets it in this manner:
"Il découle clairement de la teneur de cette lettre que les Italiens
voulaient imposer aux Français, par un acte de force, le tracéprévu
en 1935, tout en re5w:issant que ce tracé ne liait pas
juridiquement la France .
The Court has onlyto read this letter to see what a remarkable interpretation this
is. General Grossi's letter is correct and businesslike; there is not a hint of a
threat of force277. Moreover, in quoting from the letter, tCC-M omits the key
words from its openingparagraph:
"Le tracéde la frontière méridionalede la Lybie n'a effectivement
pas encore étédéterminéde commune entente avec l'Italie et la
France."
Thus, General Grossi, in a mild, circumspect letter, informed his French
counterpart that the Commission considered the 1935 Treaty to be the
appropriate starting point for drawing up the demilitarised zone, for both France
and Italy had agreed on this line, in contrast to the 1919line, to which Italyhad
never agreed. General Grossi added:
"Ceci évidemmentsans préjudicede la délimitationdéfinitivede la
frontière, question qui dépasse le compétence de cette
Commission."
It would be difficult to argue with the logic of this positi-and impossible to
characterize it as a threat of force.
275 See,LM, French ArchivAnnex,p. 164CC-M . nnex85.
276 -, para.9.79.
277 It is a well-knownfactthat top militaryofficersof opposing Staonarmistice
commissionsof thiskindarenormallypunctiliouslycorrectandcourteousto each other.
The documentsproducedbyChadhereconfirmthatthiswasso in 1941. 6.241 The CC-M then takes its almost ludicrous scenario onestep
further:
"IIva sans dire que l'attitude arrogante des autoritésitaliennes non
seulement d$w,~erta les Français, mais provoqua également une
viveréaction .
The documents produced by Chad reveal that between the 12 March letter of
General Grossi and France's official reply on 14 May, there was utter confusion
within the Vichy Government as to just what France's position was, al1of which
seems quite understandable given the circumstances of the war, with the French
Ministries in Vichynot fullyfamiliar with the file or with France's position during
its pre-1935 negotiations with Italy. This al1got straightened out in France's 14
May response.
6.242 In this letter, France adhered to its position fashioned in
1913-1914~~'that the 1919 line should be the basis for the demilitarized zone
because, in the absence of a bilateral treaty, the 1899-1919 Anglo-French
arrangements wrre the onlyacts bearingon the question that had an international
status. The letter went on to Say that the line resulting from these acts was
formally recognised as a valid boundary by Italy in the 1900-1902~ccords~~'. No
doubt the Italians were stunned when they read the French argument that the line
radicallymodified as to itsdirection and nature in 1919could have been accepted
byItaly in 1900-1902! But they were too courteous to Sayso.
6.243 Continuing its scenario, theCC-M then suggests that in the
light of "l'âpretéet l'arrogance de la note italienne du 12mars 1941"one would
have expected "un rejet radical" by the Italian side; but instead the Italians caved
in ("les Italiens préférèrentcapituler"). What the Italian response of 14July 1941
said was simply this:
- The question of Libya'ssouthem boundary was beyond the
competence of the Commission;
278 m, para.9.80.
279 -,para. 6.123et=., above.
280 See. CC-M.para.9.8andAnnex93. - This question would findits place among the problems to be
resolved between Italy and France in thepeace treaty;
- The resolution of the question no longer had any practical
importance and could be left unresolved1.
6.244 From this, theCC-M concludes the following:
"L'Italie, face aux arguments juridiques précis avancés par la
France, renonça àinsister sur le tracéde 1935;
L'Italie ne contesta pas la valeur et le bien-fondé de la thèse
d'après laquelle seule comptait la frontière 1899-
1919%YI.
6.245 The Ws analysis of this episode and of the related
documents is truly laughable. A polite, reasonable letter from General Grossi is
described as arrogant and as a threat to use force to shove down the throat of
France the 1935 line. The period of French furnbling to formulate a reply is
glossed over. Although it is not really relevant, it revcals the intense French
insecurity as to its position concerning a southern boundary of Libya. Italy's
reasonableness in the face of French intransigence is called a capitulation in the
light of the probative force of France'sl arguments.
6.246 Italy's final letter of 14 July made the obvious point: the
Commission was not the place to argue about boundaries. Since the matter had
ceased to have any practical significance, the Italians chose to avoid getting into
an acrimonious exchange with the French. The CC-M descnbes this as a position
"àla Ponce Pilate283~!
6.247 Libya believes that the Armistice Commission episode
illustrates, once again, Italy's official position that no conventional Libyan
southem boundary existed at the time. Presumably, the Vichy Government of
France had chosen to overlook the 1935 French Exposé des motifs, in which
exactlythesame conclusionwas expressed.
a. para.9.88andAnnex95.
281
282 D. para.9.89.
283 CC-M,para.9.89. (b) 1947Italian PeaceTreaty
6.248 There are three subjects of particular relevance concerning
the 1947Treaty that have come up in the pleadings so farm, in the light of the
failure toexchange ratifications of the 1935 Treaty, the 1947 Treaty's effect, if
any, on the remaining obligations of France to Italy under Article 13 of the 1915
Treaty of London, which were only partially discharged in the 1919Franco-Italian
Convention. Second, the French proposals to modify Libya's boundaries under
the provisions of Article 23 and Annex XI of the Italian Peace Treatm, the
failure of France to notifynder Article 44 of the 1947Treaty certain treaties as
remaining in force, and the effect of this failure.
(i) The 1947Treatvand Article 13of the 1915Treatvof
London
6.249 The has modified Chad's earlier position and now not
only concedes that France had remaining obligations to Italy after the débacle of
the 1935 Treaty (as it had in the CM) but also admits that these obligations
concerned Libya's southern b~undary~'~. Chad maintains, however, without
explaining why, that the 1947 Italian Peace Treaty extinguished the remaining
obligations of France to Italyder Article 13~~~.
6.250 That such a conclusion is wrong has already been fully
explained by The fact that Italy in 1947lost its rights in respect to
Libyan territory did not alter theules of State succession under which Libya, as
Italy's successor in title, inherited Italy's rights, which included the unfulfilled
French obligations under Article 13.
(ii) French Proposais to Modifv Libva's Alleeed
Boundaries under Article 23 and Annex XI of the
1947Treaty
6.251 It has been mentioned in Libya's Memorial that in 1948
France made a proposa1 for an extensive revision in what France professed to
regard as Libya'swestern and southern boundarie~~~~. This is illustrated oMar>
LR 26. In fact, the French military had already drawn up a rectification proposal
2û4 -, para6.169g -q.,above.
285 k, CM. p.202,para232;thesamecontentionishintedainm. para8.51.
286 &, para.6.174,above,andu, para.6.36g -q.
287 See,LM, para5.365g -q. FRONTIERS OF LlBYA
-..--.--.*.-..-
---- --4-.,+...-
-................
AFRICA-:
%",ce: R..D.,C" upnmn, 0,IN
BritishForeign Ollicm. 1918of the 1919 line in 1946~~~. France had hoped to accomplish its objective of
extensively modifying Libya'sboundary with French Algeria and of acquiring the
entire Tibesti massif under Annex XI of the 1947 Treaty rather than in direct
negotiations later with an independent Libya. These proposals were reflected in
the subsequent proposals of the French military in 1953, 1954 and 1955 (m
27A, 27B and 27C), proposals not based on any French claim of title, but on
what was hoped would be leverage in France's favour in the negotiations with
Libya.
6.252 France's objectives in 1948 were frustrated by the other
three of the four Powers concerned with setting theate of Italy'sformer colonies,
particularly the Soviet Union.Asa result, France proceeded to play its cardsina
circumspect manner, unlike Egypt which set out the full extent of boundary
changes it wanted, although deferring the issue until Libya became independent.
Evidence produced by Chad with its Memorial reveals that in 1950 the French
Government considered the pre-war boundary treaties relating to Libya as only
"provisoirement en vigueur" and not "déjà fixés par des arrangements
internationaux" within the meaning of C.A. Resolution 289(~)~~~.
6.253 These events lead to the followingconclusions:
At the time of the Italian Peace Treaty in 1947, France did
not regard Libya'sboundaries as either fixed or sacrosanct;
the French Government was anxious to change radically in
its favour the western and southern boundaries 'that had
resulted, according to France, from the two 1919
agreements;
-
This remained the intention of the French Government right
up until December 1956,when itwas able to extract a major
concession from Libya along the Algerian frontier as the
additional price of France proceeding to cary out the 1955
Treatyand evacuate Fezzan;
288 &, also,L&i,paras.5.365-5.366and MapsNos.85and86.
289 See. LC-M,para.3.9g,mol .,dreferencesihereto the documentsintroducedbyChad. France had hoped to gain its objectives by a deal agreed
among the Four Powers rather than in a subsequent
negotiation with a newlyindependent Libya; France's policy
had been, and would continue to be, to attempt to achieve
its objectives by indirect means rather than in face-to-face
negotiations.
(iii) France'sFailure toNotifvCertainAgreementsunder
Article44 of the 194Treatv
6.254 This subject has been extensivelydealt with above and in the
u290. Article 44 of the 1947 Treaty was a provision under which the
signatories to the Treaty were to indicate which of the various treaties with Italy
they considered to remain in force or they wanted to put back into force.
6.255 Chad has produced evidence that several of the "actes
internationaux" on which its case relie- iiotably the 1900-1902Franco-Italian
Accords, the 1912 Franco-Italian Agreement and the 1919 Franco-Italian
Conventionwere not notified under Article 44,which provided that-
"Tous les traitésde cette nature qui n'aur~t,pas fait l'objet d'une
telle notification seront tenus pour abrogés."
Chad has yet to explain how these "actes internationaux", whether or not included
on the Annex 1list,which were not in force as a result of not having been notified
under Article 44, could meet the cnteria of Article 3 of the 1955: "actes
internationaux en vigueur" on the critical date, the day of Libya'sindependence.
(c) 1949FourPowerCommissionReport
6.256 This Report has special relevance to the present territorial
dispute because of the map attached to it, which emphasised the uncertain status
of Libya'ssouthern boundary. It willbe recalled that it was in a note appended to
290 SX, LC-M.para.3.11os.
291 CM, Annex210. Itcannotbe maintainedthatthe FrenchGovernment failed tonotiQ
these "actesinternationbecauseit was wnsidered that theyconoernedboundaries
and henceSUMV~~ WorldWarIIanddid not need to be notifiedto continuein effect.
On the lis1of treaties notifiedbyFrance werethe extremelyimportant1860 boundaiy
treatiesunderwhichNiceand SavoybecameFrenchterritoSee. C-M,para.3.11.the map explaining the French position as to Libya'salleged southern boundary
292
that the French Government committed its famous "bévue" .
6.257 Like a number of other episodes that occurred during the
history of this dispute, this particular one has been exaggerated far beyond its
significance,first by France, and now byChad. It is reminiscent of other episodes
or incidents similarly inflated and distorted in Chad's pleadings: the "Aouzou
incident" (1955); the Jef-Jef incident (1938); the "mock war" between the Italian
Ministries (1921-1934);the absurd Italian Armistice Commission scenaiio.
6.258 The reason the French "bévue"committed in this note
inserted on the map was a relativelyminor matter -although it created problems
for the U.N. Secretariat in preparing its Report concerning the boundaries of the
former Italian colonies, which led to the adoption of Resolution 392(V)-is that
the French position was clearly shown on the map: the 1919line. It was only the
treaty basis for this line claimed byFrance that was botched in the French note.
6.259 The French-Chadian tactic is obvious: the "béwe" led to an
erroneous analysisin the Secretariat's report and, in turn, to U.N. maps showinga
Libyan southern boundary that did not conform to the French view; however, the
mess was al1 sorted out in the 1955 Treaty, and in any event, the French
representative corrected the mistake in December 1950.
6.260 The difficulty with this line of argument isfir shtt,the
confusion was over onlythe minor matter of citingthe proper supportingtreaties,
not over the direction of the line argued for by France, the 1919line. Second, the
"bévue"was corrected by the French representative just prior to adoption of
Resolution 392(V), so the U.N. was acting after the matter had been straightened
out. Nevertheless, the Resolution on its face recognized that there was a problem
concerning the delimitation of Libya'ssouthern boundary to be resolved, so the
problem had nothing to do with the "béwe". Significantly,France voted for the
~esolution~~~.
292 Sec .ara.4.17,above.
293 &, para.4.17,above. (d) Article4 of the 1951Constitution of the United Kinedom of
6.261 Libya'sfirst Constitution was the work ofvarious groups and
councils. It was a task ta which U.N. Commissioner Pelt devoted a great deal of
attention, drawing on the views of the Four Powers, including of course France.
The French Government, therefore, participated fullyin the process of preparing
and approving Libya'sConstitution and must be presumed to have had detailed
knowledge of its provisions294.
6.262 The terms of Libya's 1951Constitution pertaining to its
boundaries are, thus, of great importance to this case. Article 4 of the
Constitution provided, as follows:
"The boundaries of the United Kingdom of Libya are: On the
north, the Mediterranean Sea; On the east, the boundaries of the
Kingdom of Egypt and of the Anglo-Egyptian Sudan; On the south,
the Anglo-Egyptian Sudan, French Equatorial Africa, French West
Africa and the Alq4@ Desert; On the west, the boundaries of
Tunisia and Algeria .
What is striking about the text of this Article is that the word "boundaries" is
omitted as to the north and as to the south but is included as to Libya's
boundaries to the east and west. On the north, the Mediterranean formed a
natural boundary. But the omission of "boundaries" as to Libya'ssouthern flank
reflects the same conclusion as Resolution 392(V), adopted a year earlier: the
undetermined status of Libya'ssouthern boundary.
6.263 Just as France had voted for Resolution 392(V) in
December 1950,so it had participated in and lent its support to the preparation
and approval of the Libyan Constitution of 1951,which contained this provision
concerning Libya'ssouthern boundaries on the critical date.This was at a time
when the Quai d'Orsay was describing the pre-war boundary treaties as only
"provisoirement" in force. Article 4 of Libya'sConstitution said in words what the
Italian maps showed graphically: that no conventionally delimited southern
boundary of Libya existed.
294 &, SupplementawAnnex,No.6.2,whichdiscussestheexteniof Frenchparticipation.
295 a, Exhibit3. 6.264 Unlike Libya, Chad's independence was not introduced with
a Constitution that dealt with its boundaries; and Libya is aware of no protest by
either France or Chad with regard to Article 4 of Libya's 1951Constitution. Up
until now, Chad has simplyignored this subject entirely, like so many other issues. PARTIII
TITLETOTEE BORDERLANDS INDEPENDENTLY OFTREATIES
CHAPTERVII. TITLETO THETERRITORYPRIOR TOTEE ARRIVAL
OFTEE FRENCH
SECTI ON The Borderlands WereNot Terni Nullius at the End of the
19th Century
7.01 Chad's thesis- that France acquired title to the borderlands
by occupation -can only be tenable if the territories were res nullius. Libya
disputes that this was so. In Libya'ssubmission, thisew of the legal nature of
the territories was one commonly adopted by European Powers in the era of
colonisation, for it facilitated the acquisition of a colonial title in situations where
local rulers or tribes were unwillingto accept volunt-rby treaties of cession or
protection -the claim of sovereignty by a European Power. And whereas such a
claim may have been valid in relation to uninhabited territories, when applied to
inhabited territories, the claim rested upon the assumption that, because in terms
of social, political and economic organisation the territories did not conform to a
European "model",the territorieswere bydefinition terra nullius.
7.02 It was the rejection of this assumption by the Court in the
Western Sahara Case that constituted one of the Court's most significant
attempts to move international law awayfrom this Eurocentric bias, and to giveto
territorial title a meaning more consonant with the experience of peoples world-
wide.
7.03 It may be recalled that the Court's test was nit a very
demanding one. The Court found that the territory was not terra nullius on the
basis that the "Western Sahara was inhabited by peoples which, if nomadic, were
socially and politically organised in tribes and under chiefs competent to
represent them'". By this test it is clear that the borderlands were noterra
m, even if that test does not answer the further question as to which State, if
any, was entitled to claim sovereignty on the international plane-a separate
matter dealt with inSection 4below.
7.04 Simply applying the Court's test, it seems undeniable that it
was met in this case. For this reason, Chad has sought to minimise the relevance
1 WesternSaharaAdvisow Opinion,I.C.J.Reports19p.39,para81.of the Court's 'Opinion to the present case. As the following Section will
demonstrate, Chad's view of the Opinion is not sustainable, as a matter of law.
Nor, on the facts, is Chad's view sustainable. As Libya's Memorial
demonstrated2, the Toubou, Bideyat, Zaghawa, Awlad Sulaiman tribes, and the
Tuareg confederation of tribes, were identifiable tribes or tribal confederations
with a traditional socialstructure under acknowledged leaders: the "derde, chief,
or "sultan". That they had a strong sense of title, or ownership, to their
traditional lands is evidenced by the frequency of disputes over their territorial
rights that the Senoussi sought to resolve.
7.05 Chad assumes that the tribes would need to have "une
structure unifiée6. But this isto add a quite extraneous condition. Many areas of
the world are not terra nullius, but equally peopled by ethnic or tribal groups that
lack a unified structure. Examples existin almost al1continents, includingEurope
-asthe present difficultiesin the Balkans bear witness. Yet lack of unity amongst
peoples does not signifythat the territos, they liresnnullius.
Smo~ 2. TheRelevanceof theWesternSaharaCase
7.06 Chad seeks to minimise the effect of the Court's staternent
of the law in its Advisos, Opinion of 1975. Essentially, Chad advances two
propositions:fir hattthe Court there dealt with a specific and special case, so
that the Court's statements were not intended as staternents of general pnnciple;
a, that any general principle to be extracted from State practice and
doctrine existing at that ti&e, the end of the 19th and beginning of the 20th
Centuries, showsthat the temtory in dispute in the present case could properly be
regarded as terra nullius, and therefore open to occupation by France. These two
propositions need to be exarnined separately.
(a) Did the Court Intend to State a Principle of General
Application?
7.07 Chad argues that "les observations" of the International
Court of Justice were not general in character, and were made "dans le contexte
des questions spécifiques (et différentes) auxquelles elle devait répondre".
2 See 3M paras.3.34-3.43.
3 As acknowledgedim, para.5.176.
4 a, para.5.179.Consequently, "..il serait erronéde déduirede l'affaire du Sahara Occidental une
doctrinegénéraledu statut juridique des populations indigènesv5.
7.08 For Chad, this context is provided by the two questions on
which C.A. Resolution 3292 (XXIX) dated 13 December 1974 requested the
Court to givean advisoryopinion, quoted at the end of paragraph 3.08of tCC-
-. Then, it is said in paragraph 3.09that "dans ce contexte, la Cour a i...",é
followed bya quotation of a part of paragraph 80of the 1975AdvisoryOpinion.
7.09 However, the answer of the Court to Question 1 ("was
Western Sahara ..at the time of colonisation bySpain a territory belonging to no
one (terra nullius)?") was given in paragraphs-83 of its Advisory Opinion. It
seems necessary, therefore, to place the Chadian partial quotation of paragraph
80 in the context of the other paragraphs of the Advisory Opinion dealing with
Question 1;and, in so doing, to indicate the elements of this context th&t the
- has deliherately omitted in order to reduce or nullifythe Court's statement on
the law inforce at the time.
7.10 It should be observedfir hattthe CC-M does not refer to
paragraph 79 of the Advisory Opinion, where the expression terra nullius was
considered by the Court in connection with occupation "..one of the accepted
legal methods of acquiring sovereignty over territory". By so doing, Chad
deliberately omits the followingconsequence in law, clearly general in character,
which the Court laid down:
"'Occupation' being legally an original means of peaceably
acquiring sovereignty over territory otherwise than by cession .or
succession,itwas a cardinal condition of a valid 'occupation' that
the territory should be terra nul-a territory belonging no-one
at the time of the act alleged to constitute the 'occu."tion'
7.11 Then, having stated this general rule, the Court went on to
the particular issue contained in Question 1of the Advisory Opinion. But once
more Chad fails to mention that the Court, taking into account the above
"cardinal condition of a valid occupation", stated that:
5 -ee,CC-M. paras.3.11.5.13and5.186.
6 WesternSahara.dvisowOpinion.I.C.Reoorts1975,para.79,p.39. "In the view of the Court, therefore, a determination that Western
Sahara was a 'terra nullius' at the time of colonization by Spain
would be possible only if it were established that at that time the
territory belonged to no-one in the sense that was open to
acquisition through the legalprocess of 'occupation''."
7.12 Secondly, if one turns to the quotation of paragraph 80 of
the Advisory Opinion made in the D, it can be observed that two main points
have been omitted.
7.13 On the one hand, the leaves out the legal rationale
for the Court's statement. In fact, the Court begins paragraph 80 by saying -
"Whatever differences of opinion there may have been amongst jurists, the State
practice of the relevant period indicates that ...." Therefore, in relation to the
sources enumerated in Article 38 of the Statute of the Court, it is clear that the
Court's statement on the lawin force at the time of colonisation was not grounded
on doctrine (a "subsidiarymeans for the determination of rules of law")but on "...
the State practice of the relevant period", that is, on "international custom as
evidence of a general practice accepted as law". Chad seeks to evade this
conclusion by dropping the reference to doctrine and speaking only, in an
imprecise way,of "lapratique".
7.14 In addition, theCC-M has omitted a large part of paragraph
80, namely, that part where "occupation" in its relationship to agreements with
local chiefs is considered by the Court so as to reinforce the previous statement
on the law in force at the time 8. In the part omitted by Chad the Court stated
that:
"On occasion, it is true, the word 'occupation' was used in a non-
technical sense denoting simply acquisition of sovereignty; but that
does not signify that the acquisition of sovereignty through such
agreements with authorities of the country was regarded as
'occupation' of a 'terra nullius'in the proper sense of these terms.
On the contrary, such agreements with local nilers, whether or not
considered as an actual 'cession'of the territory, were regarded as
7 Ibid.
8 3ee Sup~lementawAnnex,Nos 6.3(2) and7.10. Thisis a 1931Frenchstudyinwhichit
isrevealedthatin 1862Francesigneda conventionwith theAjjerTuaregdealingwitha
broad range of subjecU includingtaxation.isno1 apparentthat this tribe differed
significantiyin termsof thecriteriaset out in the ~astem~reenland me fromthe Awlad
Sulaiman,the Toubouandthe otherborderlandstribes. Ceflainlv,territow inhabitedbv
a tribewithwhicha majorPowerhadmntractedin thiswaycouldnot be saidIobeg&
m. derivative roots of title, and not original titles obtained by
occupation of terraenullius9."
7.15 It is absolutely clear, when the whole of paragraph 80 is read
in context, that the Court was stating a general pnnciple, discernible in the
practice of States infrica generally, tothe effect that under the law then in force
there could be no valid occupation of African territones if those territories were
inhabited bv tribes or other sociallv and ~oliticallv ornanised peoples, because
such temtories were not terra nullius.
7.16 The suggestion that the Court was merely giving an
historical account of the particular case of the Western Sahara is unacceptab.e
It isclear that the Court dealt with the questions put toat asquestions:
"The questions subrnitted by the General Assembly have been
framed in terms of law and raise problerns of international law...
These questions are by their very nature susceptible of a reply
based on law; indeed, they are fiarcely susceptible of a reply
otherwise than on the basis of law".
7.17 It is equally clear that the law stated by the Court was the
law as it then existed, that is to say, in the words of the Court "at the period
beginning in 1884"12. Thus, it can safely be assumed that the same principles are
applicable in this case, for Chad asserts that the French "occupation" occurred
between 1899-1914.
1s the Court'sOpinion Consistentwith Chad'sArgument
(b) that State Practke and Doctrine in the Relevant Period
(1899-1914) show that the Borderlands Were Pro~erly
Regarded bv Franceas TerraNullius?
7.18 Obviouslythere is a preliminary question ofac nam,ely did
the peoples in the borderlands exhibit sufficient evidence of "social and political
9 I.C.J.Reports 1975,para. 80,p. 39.
10 See, CC-M, para.09. Chad places itself in a more radical position than Spain in the
Western Sahara Case,giventhat Spain, although notdenyingthe "legal"character of the
questions posed by the General Assembly Resolution, had considered that "in the
particular circumstances of the case" they were, however, "of a pure historical or
academic character". On the answer of the Court rejecting the Spanisg,objection,
Western Sahara, AdvisowOpinion. I.C.J.Reports 1975,pp. 1ett.
11 I.C.J.Re~01ts1975,para. 15,p. 18.
12 I.C.J.ports 1975,para. 78,p. 38.organisation" so as to bring them within the ambit of the Court's statement of
principle? As to this, Libya has no doubt that the answer must be affirmative.
7.19 If this is so, and if one rejects Chad's arguments that the
Court was not laying down any general principle, or not a principle of law, or not
of the law relevant at tht: period critical in this case, then Chad's argument that
the law was different from that maintained by the Court must be rejected. It is an
argument which, on its face, runs directly contrary to what the Court has said.
Not surprisingly, the argument is advanced by Chad by a process of reasoning
which is that used by the Court and which, quite independently of the Court's
Opinion, would be very difficult to sustain.
7.20 Essentially, Chad's argument is that the doctrine - the
juristic writings- of the time lend ample support to the French position that the
borderlands could be regarded as terra nullius.
7.21 Chad relies on a part of the doctrine - called by Jorg Fisch
the "Theorie der herrenlosen Souveranitat" or "theory of sovereignty without
master" - closely linked with the interests of the European Colonising Powers,
which presupposes that sovereignty only could attach to "Civilized states13".
Chad deliberately ignores other authors of the time, clearly in favour of the rights
of indigenous peoples14, and concludes that the Libyan thesis on title to the
territory:
"..présente de très lointains rapports non seulement avec l'opinion
sur la personnalité juridique internationale des tribus et
populations indigènes, prédominante parmi lesjuristes positivistes
de l'époque, mais encore avec ce,F?, pourtant très nuancée, de D.
ANZILOTTI (deuxième version) .
13 See, CC-M. paras. 5.141-5.142. Fisch, J., Die Euro~aische Expansion und das
VOlkerrecht,Stuttgart,Steiner, 1984.
14 On the doctrine of the period-, Exposé Ecritde la Mauritanie, in I.C.J. Pleadinfi
Oral Arcuments, Documents. WesternSahara, Vol. III, pp.28-48,in particular, pp. 33-
37, and more extensivelyFich, J.z. &., Kapitel 4, "Die Stellung der überseeischen
Gebiete in der VOlkerrechtslebre"(nie positofncolonial territories in the doctrine of
International Law),pp. 15g-q.
15 m. para. 5.143,adding in the followingparagraph that: "Toutefois,e supposer
que cette affirmationlibyennesoit correcte, et que lesSenoussistesaient dès lorspossédt
un titre jurique sur le B.E.T.,il n'endemeurerait pas moinsvrai que ce titre serait remis
en cause par l'occupation militairefranpise.a, pp. 219-220. To sustain this
argument, Chad treats the title of the local tribes as purely proprietaiy in character, 7.22 The argument is defective, not only because it isbased upon
a highlyselective choice of doctrine, but even more because it simply ignores the
Court's conclusionsin the 1975Opinion that this positivist, minority view in the
doctrine dida represent the law. Many writers have noted that one of the most
important contributions made by the western Sahara Opinion was the rejection
of that positivist,minorityviewAs Shaw puts it:
"The Court unambiguously asserted that 'the State practice of the
relevant period indicates that territories inhabited by tribes or
peoples having a social and political organization were not
regarded as terrae nullius'. This posthumous rehabilitation of the
classic authors of international law, and sidestepping of those late
nineteenth-century theorists denying any form of international
personality inherent in non-State entities,places considerable stress
upon the numerous agreements concluded between the European
colonizing powers and the local communities. It elevated them
from the status of mere methods by which European powers
demonstrated their occupation of a particular territory as against
each other to documents fi a central character in the acquisition of
sovereignty over territory."
7.23 The Court's opinion, not surprisingly, has influenced legal
doctrine in this area, and it has not been unusual for commentators to modify
their previously held views in the light of the Court's position. To givejust one
example, Ian Brownlie adapted his viewsto the Court's pronouncements. In the
second edition of his "Principles of Public International Law" (1973), p. 141, he
stated that territory not possessed by a political community satisfyingthe criteria
of statehood "are subject to occupation"; sixyears later, after the Western Sahara
Opinion was rendered, the same passage refers in the third edition (1979), p. 142,
to territory not possessed by a community having a social and political
organisation.
deriving from tribal customary law and having no significancefor public international
laww, para. 5.18.
16 Shaw,M.,"The Western Sahara Case", British Year ofInternational Law, Vol.
XLIX, 1978, pp. 120-154,at p. 133. See,also Fisch, &,: p. 467. Although
obsening that the AdvisoryOpinion did not judge the nature and legal effectsof such
agreements, Fisch States that "In gleiche Weise ergibt sich indirekt, dass die St2mme
Volkenechtssubjekte sind". ("Equally it results indirectly that tribes are subjects of
international law.") For other comments on the Western Sa-e,aChappez,J.,
in R.G.D.I.P.80,1976,pp. 1132-1187;Flory, MAED.I. t,21, 1975,pp. 253-277;
Franck,Th. M.,AJ.I . Ll70, 1976,pp. 694-721;McWhinnE.,inZaorv,Vol. 37,
1977,pp. 1-42;revost, J.inClunet.J.t. 103, 1976, pp. 831-; iedelE.H.,in
German Y.B.I.L.,Vol. 19,1976,pp. 405-442and ON.O.,n I.C.L V.o. 8,1979,
pp. 296-317. 7.24 In French legal doctrine, the Court's analysis of the law was
also widely praised. Thus, Nguyen Quoc Dinh, D., Daillier, P., and Pellet, A., in
Droit International Public, ze éd.(1980), p. 432, highlight the Western Sahara
Opinion in these words:
"La doctrine traditionnelle distingue les territoires étatiques des
territoires sans maître - ces derniers étant définis comme non
incorporés dans un Etat; n'importe quel temtoire se trouve alors
inclus dans l'une ou l'autre categorie.
Cette conception européo-centriste a étéclairement rejetée par la
C.I.J. dans son avis consultatif du 16 octobre 1975; appelée à
répondre à la question suivante: "Le Sahara Occidentaletait-il au
moment de la colonisation par l'Espagne un territoire sans maître
populations nomades socialement et politiquement organisées, nes
constituait pas, au moment de l'occupation coloniale, une terra
m.
Il convient donc de distinguer les territoires sans maître, inhab-tés
car on imagine mal des sociétéshumaines totalement inorg-nisées -
des territoges non étatiquesmais habités."
7.25 However, Chad's refusal to acknowledge the Court's
rejection of this minority doctrine is not the most conspicuous weakness of Chad's
argument. It lies in Chad's refusal to acknowledge that what the Court had
principally relied o- to support its conclusions on the la-was not doctrine, but
State practice.
7.26 In paragraph 8.1 of its Advisory Opinion, the Court
considered the Spanish practice in respect of the Western Sahara territory. It
stressed the fact that the Royal Order of 1884proclaimed the establishment of a
protectorate "..on the basis of agreements which had been entered into with the
chief of the local tnbes". It noted that Spain, in negotiating with France over the
limitsof the territory in the nort..did no: rely upon any claim to the acquisition
17
of sovereigntyover a terra nullius" .
7.27 The first fact, considered as the "controlling factor" in the
case, prompted Judge Dillard to state that "...you do not Drotect a terra
mol8. The Court relied on the "State practice of the relevant period"-that
is, on the general practice of European States dealing with indigenous peoples
17 I.C.J.Revorts 1975,para.81,p.39.
18 I.C.J.Reports197p.124.with regard to acquisition of African territ-rwithout examining its constitutive
elements.
7.28 In fact, these elements of practice were demonstrated in the
information furnished to the Court, particularly by au ri ta nia a'd,they are
contained in well-knownworks of that period20. In respect of Great Britain, the
works of M.F. Lindley and E. ~ertslet~'. The works of Rouard De Card and P.
Fauchille illustrate French practice22; and thatE.fNysthe practice of Belgium
in respect of the Congo area23. To these maybe added the studies of G. Jeze and
Ch. alo or no and^ ^mongst more recent studies, the works published by Ch.
~lexandrowicz~~ presumably were also relevant for the Court in the Western
Sahara case.
7.29 From the State practice in the relevant period, that of
France merits particular attention, given that theM in paragraph 3.12 States
that: "La France a, en fait, conclu certains accords avec des chefs dans la partie
méridionalede ce qui est aujourd'hui leTchad (mêmesi ces accords n'ont pas été
respectés)." Adding that: "Toutefois, ailleurs, elle a établi son autorité par voie
d'occupation, parfois par usage de la force26."
19 I.C.J.eadines.Oral Areuments. Documents, Western Sahara, Vol. III, pp.48-50.
20 -, Fisch, JOJ.a, pp. 332-337on this matter and, in particular, his remarks on
colonial agreementsin the treaty collectionof p.337.s,at
21 Lindley,M.F.:The Acquisition and Government ofardTerritow in International
law. Treaties on the Law and Practice in Relation to the Law of Colonial Expansion,
London, Longmans,Green and Co., 1926; Henslet, E.: Mao of AfricabvTreary,Vol. 1.
22 Rouard De Card, ELesTraitésde Protectorat conclus par la France en Afrique, 1870-
1895Paris, Durand et Pedone-Lauriel, 1897;Fauchille, P.: Trait6 de Droit International
Publ iar,, Rousseau, 1925.1.I,2èmePartie, p. 692,
23 Nys,E.: Le Droit International. Les principes, les th61.II, Bruxelles,Edit.
Weisenbruch,pp.85-90.
24 Jeze, G.: Etude théorique et pratique sur I'occu~ation comme mode d'acqu6rir les
territoires en Droit international, Paris, Girard de Brière, 1896; S&lomon, Ch.:
l'occupation desterritoires sans maître, Paris, 1889.
25 Alexandrowicz,Ch"TheRole of Treaties in the European-African Confrontation in the
Nineteenth Centuiy", in African International Leeal History, Mensah-Brown, 1975,p.
64, a.; The Euroaean African Confrontation. A Studv in Treatv Making, Leyden,
1973.
26 a. para. 3.12. 7.30 In fact, independently of agreements with indigenous
peoples collected in the French works indicated above, it may be noted that, for
the period from November 1883to December 1884,the President of the French
Republic signed a series of decrees approving treaties concluded with indigenous
chiefs. Itresults from those acts that France concluded 11agreements concerning
Senegal and Haut-Niger, two with regard to the Côte des Graines, seven
concerning the Ivory Coast and about 30 concerning the Gulf of Guinea and the
Congo area~~~. It seems difficult to deny that such agreements were considered
by France as a basis for title in Africa, for they had no other very obvious
purpose 28.
7.31 It is worth noting that this belief was also shared by Great
Britain and Germany in respect to the Lake Chad area. This fact is evidenced by
Article 5 of the Convention of 1st July 1890 concluded by them, in which each
Party undertook to notify the other Party of any treaties or agreements it might
conclude with tribes inhabiting the area surrounding Lake ~had~~.
7.32 This practice eloquently testifies to the fact that, in this
period, European Powers did not rely on occupation as a root of title, but rather
on cession. Thus they did not regard Afnca as generally terra nullius, and they
were in pnnciple prepared to accept a derivative title, based on treaties of cession
or protection, which presupposes that they accepted the validity of the prior title
of the relevant African tribe.
7.33 One element largely ignored by Chad in its presentation of
the law is the body of arbitral practice. This is perhaps because that arbitral
practice is largely contrary to Chad's thesis. True, Judge Huber in the Island of
Palmas Case viewed these treaties as in the nature of mere contracts and not in
themselves a basis of title30. But thisviewwas not shared by other arbitrators.
27 I.C.J.Pleadings,OralArguments,Documents,WesternSahara,Vol. III,p.49 referringto
the Revuede Gkoeraohie,t.XVI,janvier-juin1885p.223.
28 Sec.also,hi.8, above, concerninga 1862 convention betweenFranceand the Ajjer
Tuareg.
29 I.C.J. Pleadines.OralAreuments, Documents. esternSahara,Vol. IIIp. 50, referring
to Bonfils,H.:Manuelde Droit InternationalPublic (Droitdes Gens), 7&meed., Paris,
Ed.Rousseau, 1914N, o.541,p.379. 7.34 In the Case of the sovereientv of Zanzibar and its
devendencies in Africa in respect to Muscat after the death of Savid-Said,
decided on 2nd April 1861 by the Governor of 1ndia3', an African ruler, the
Sultan of Zanzibar, accepted international arbitration with an Arab State. The
previous Report of General W.M. Coghan and the final decision of the Governor
of India did not express any doubt on the international personality of Zanzibar or
its title to territory; the former Report referre"..l'indépendante souveraineté
de Zanzibar et de ses territoires'Afrique"32.
7.35 In the later case of the Lamu Island (GerrnanvlGreat
-1, decided in 1889, the sovereignty of the Zanzibar Sultanate over its
territory and its international capacity to enter an agreement with European
Powers is once more recognised, both Parties relyingon evidence of their rights in
acts of the local r~ler~~.
7.36 African tnbes have also submitted themselves to
international arbitration with States. In the Case of the Territorv of
Bechuanaland and i ri au al an dhe^Parties were effectively the Repub!ic of
South Africa (Transvaal) on one hand and, on the other hand, the Chiefs of the
Barolong, the Batlapins, of the Bechuana, and the Chief of the Griquas. Being an
international arbitration, the international personality ofthose African tribes
cannot be denied. This case is of special interest on the status of territory under
African rulers.
7.37 In accordance with the special agreements of 1March 1871,
the subject matter of the dispute was the limits between the territories of the
tribes and that of the Republic of Transvaal, the latter claimingagainst the Chief
of Griquas "..la ligne suivante, que ce dernier considère comme la frontière
septentrionale de son territoire, savo..."ûnd the Chief"..conteste le droit de la
31 De Lapradelle,A, andPolitis,N.:RecueildesArbitram Internationauxt,. 11,1856-
1872, 2nd.ed., ParLesEditions Internationales, 1,p. 54-77. For other sources,
w, Stuyt,AM.: Suwevof InternationalArbitrations1794-1970,Leiden,Sithoff, 1972,
Nr.62,p.65.
32 De Lapradelle,A, andPolitis,N.,a..1,II,p.69.
33 See he sourcesin Siuyt,AM.9. d., Nr.156,p. 161,andthewmmentson the caseby
Fisch,JOJ.nt.,pp.419-422.
34 De Lapradelle,A, andPolitis, N.: RecueiArbilraeesInternationa,nd.ed.Paris,
LesEditions International,956,II,pp.676-705witha NoteofJ.Westlake.RépubliqueSud-Africaine sur le territoire situé auS. de cette ligne, qu'ilréclame,
au contraire, pour lui et le peuple dont il est le chef'. Transvaal also claimed
against the Chiefs of the Bechuana tribes "..certaines lignes dont la description
est donnéedans le document ci-annexé"and the Chiefs "..contestent les droits de
la République Sud-Africaine sur les territoires situés à l'O. et au S. des lignes
décritesdans l'appendice ci-joint"35. The arbitral decision of 17 October 1871
not only established the boundary between the territories of the tribes and
Transvaal but also the limits between the territories of tribes.
7.38 It is implicit in that decision that the territory in question
could not be terra nullius. Nor can it be persuasively argued that the issues raised
were simplyissues of proprietary rights, without prejudice to whether the territory
was m nullius or not, because questions of proprietary rights could have been
settled bythe municipal courts of the Transvaal, without any need for arbitration.
7.39 Moreover, these decisions cannot be distinguished on the
basis that some of the tribes were parties to the arbitration, because similar
principles have been applied even in cases where the two parties were European
States.
7.40 In the Case of the Bularna Island fPortuealIGreat
the judgment of 21 April 1870,comparing the titles to the territories
claimed by each party, stated that "..le titre britannique dérive d'uneprétendue
cession consentie par les chefs indigènes en 1792", although in the result the
Arbitrator preferred the Portuguese title because "..la souverainetédu Portugal
avait étéétabliesur le continent et sur l'îlede ~ulama"~~. However, the validity
of such agreements entered into with local rulers as a basis of title was not denied.
7.41 A similar case is the Delagoa Bav Case (Great
~ritain~ortu~al)~~, where the British contended that the territory was "..libre et
indépendant, les naturels du pays, sous l'autorité de leurs chefs, y gardant un
pouvoir absolu en étant en possession des territoires". Britain argued that the
-
35 De Lapradelle,A, andPolitN.,W. G., pp.685-688.
36 W., 1.IIpp.605-617.
38 M., tIII,pp.597-650. territo~yappertained to the African rulers of the Tembe and the Mapouto, and
"..ces chefs, avec le consentement des indigènes, et en vertu de leurs droits
indépendants, ont cédépar un traité, en 1823,la souverainetésur ces territoires à
la Couronne de la ~rande-~retagne"~~. These contentions, it may be observed,
arefar from the idea of terra nullius and they rely on the legalvalidity and effects
of agreements with local chiefs. Portugal did not opposethem on the rnents, but
argued that such agreementswere without effect on quite different grounds40.
7.42 In the judgment of 24 July 1875, the Arbitrator upheld
Portugal's clairnsto the territory on the basis of a long and effective presence
partly acquiesced in by other European Powers, adding in respect of the British
title that"..si l'affaiblissement accidentel de l'autoritéportugaise dans ce parage
a pu, en 1823, induire en erreur le capitaine Owen et lui faire considérer de
bonne foi comme réellement indépendants de la Couronne de Portugal les chefs
indigènes des territoires aujourd'hui contestés,les actes par lui conclus avec ces
chefs n'en étaient pas moins contraires aux droits de Portugal". The Arbitrator
added that, after Owen's visit in 1823, "..les chefs indigènes de Tembe et de
Mapouto ont de nouveau reconnu leur dépendence vis-à-vis des autorités
portugaises" 41.
7.43 Finally, in the Barotseland Boundarv case (Great
~ritain~ortugal)~~, the parties asked the Arbitrator to determine "...the limits of
the territory of the Barotse Kingdom", this expression meaning "...the territory
over which the King of Barotse was paramount ruler on the 11thJune 1891". The
reference to this date is of great interest: it is that of the Treaty between Great
Britain and Portugal establishing spheres of influence in Central Africa, in which
the limitsreached "the territory of the Barotse ~in~dorn"~~.
7.44 Consequently, to decide on the dispute between Great
Britain and Portugal, the judgrnent of 30 May 1905was obliged to determine the
extent of the territory over which "..le Roi du Barotse regnait comme Chef
39 W., p.604.
40 m., p.614.
41 W., p.638.
42 U.N.R.I.A.A.,Vol.XI,pp.65-69.
43 m., p.65.Suprême (Paramount Ruler)", and so to establish which tribes were under his
actual authority. To this end, the Arbitrator referred to local law in force, by
virtue ofwhich:
"..le Chef Suprêmeest celui qui exerce l'autoritégouvernementale
selon leurs coutumes, c'est-à-dire, en nommant des Chefs
subalternes, ou en leur accordant l'investiture, en décidant des
litigesentre ces Chefs, en les déposantselon les circonsta4gten
les obligeanà les reconnaître comme leur Seigneur Suprême .
7.45 Once more, the doctrine of terra nullius is rejected if title to
territory of anfrican ruler is clearly recognised and if this title is taken as a basis
for the delimitation of spheres of influence between two European Powers.
SECTIOS~. The Links Between Tribes such as the Toubou and the
Awlad Sulaiman and the Senoussi
7.46 Chad's thesis of the lack of "une structure unifiée"depends
upon minimising the role and influence of the Senoussi. Thus, Chad concludes
that the Senoussi never provided the essential political and social organisat,on
that they were an entirely religious organisation46, with no powers of
administration or taxation over the tnbes, but only over caravans 47. Chad
concedes that, in order to resist the French advance, the Senoussi assumed a
military role, organising the tribes, but for Chad this role fell far short of
territorial sovereignty based on effective, stable and permanent control over the
tribes4'.
7.47 As can be seen £rom Libya's ~emorial~~, this picture of
Senoussi control deliberately minimise its effectiveness. It omits the role of the
Senoussi in providing education, protection of the caravan trade, settlement of
tribal disputes, and active encouragement of commerce. It ignores the special tax
exemptions granted by the Ottoman Governor of Tnpolitania, pursuant to
44 m., p.68.
45 See,CC-M.para.5.156.
46 See,CC-M.para.5.157.
47 See,CC-M.paras.5.158-5.159.
48 See,CC-M.paras.5.163-5.164.
49 Sec . M,para.3.44.a.Firmans from the Sublime Porte, to each and the sheikh at itsheadS0, as a
recognition of the quasi-autonomy of the Senoussi movement. Moreover, it
shows a total failure to grasp the link between the religious authority of the
Senoussi and temporal power. Libya has included in Volume 2 of this Reply a
note that explains in some detail this Ottoman-Senoussi relationship and the roles
51
of each under Islamic concepts of sovereignty . In addition, Ottoman
documents from the Turkish archives have been annexed that specifically
demonstrate this relationship 52. For many years, communications passed
between the Porte and the Head of the Senoussi. Gifts and ceremonial robes
were sent to the shei of the zawivas. The Senoussi were consulted onmatters of
defence of the region from the invadingEuropean Powers.
7.48 Traditional Islamic doctrine saw no division between
religious authority and temporal power, the latter being conceded by the
followers of Islam to the Caliph or his represe~tativess3. As noted in a British
Foreign Office memorandum, "In Islam rule and religion go togetherS4". Without
overall temporal authority, the Senoussi could not have organised the tribes into a
collective,military defence of the territory.
7.49 It is clear from the historical record that France began to
make contact with the leader of the Senoussi in June 1911,via the French Consul-
General in Cairo, with a view to coming to an agreement over boundaries 55.
Such a move was unthinkable if the Senoussi presence in the borderlands was as
trivial as Chad now pretends. The reply of the Head of the Senoussi Order took
the French to implythat Arada was the frontier claimed by France, and reiterated
50 &, Al-Dajani, A: The Senussi Movement: its Orinin and Develooment in the
NineteenthCentury,1967,pp.205-206,LR Exhibit12.
51 -ee,Su~olementarvAnnex,No. 3.
52 -ee, SuoolementarvAnnex,No. 8.
53 See, El-Kosheri, "Historyof tLaw of Nations, Regional Developments: Islam",7
Enwclo~ediaof lnternationLaw, pp.222-230. Theseparaiionof staleandreligwas
rssentiallva moderndevelo~ment.beeinnine.in the 20th Ceniurv,with no innuencc in
the borderlandsat thistirne.'&, also,>ui>~lemAnnex,Na.3, pp.1-8
54 CitedinLM, para.3.47.
55 -ee, SuoolementarvAnnex,No. 10.7that the Senoussi boundaries ("c'esà dire celles du Gouvernement ottoman") are
at Oum Chalouba ("sont à Oum ~halouba~~").
7.50 In the event,higher French authority regretted this initiative
taken by the French Consul-General and it was not pursued. It was seen as
detrimental to the French claim to the limit laid down in the 1899~eclaration~~.
But the incident reflects the French perception at the time that real control of the
territory laywith the Senoussi.
7.51 The paradox in Chad's argument lies in its unwitting
destruction of any French claim to have replaced Senoussi control. For if one
accepts Chad's argument that Senoussi control was inadequate to sustain legal
title to the territory, it follows inevitably that one must reject the French claim.
Whatever one thinks of the effectiveness of the Senoussi control, the fact is that it
was net a purely military administration. There was at least some semblance of
the normal attributes of territorial administrat-othe provision of education, the
furtherance of commerce, the settlement of disputes etc. - whereas with the
French there was none. It is clear beyond question that the O& French activity
was military, confined to very few posts, and in relation to Tibesti, relying
exclusivelyon very occasional patrols around the perimeter of the area5'. So the
very tests which Chad applies in an effort to defeat any claim of title by the
Senoussi are in fact fatal to Chad's own thesis. For by those tests France could
never have acquired title.
7.52 The further weakness in Chad's argument is that it depends
upon isolating each element in the Libyan claim - as if each .element,
independently,had to establish a sovereign claim of title to the territory. Thus, in
Chad's view, the indigenous peoples, considered as a separate element, lacked
sufficient unityto claim title. Similarly,the Senoussi, as aarate element, were
too ineffective to support a claim of title. And lastly, the "effectivités"of the
Ottoman Empire were, as a third separate element, inadequate. As willbe shown
in Section 5 below, this view reflects a total failure to understand the system by
which, under overall Ottoman sovereignty, these territories were administered.
Thus, if one looks at the administration of the territory as a system combining al1
56 LR Exhibit10.23.
57 &, Su~plementaivAnnex,Nos. 10.7,10.11and 10.12.
58
& para.8.04g m., below.three elements - the local tribes, the Senoussi, and the Ottom-nrather than
looking at each element in isolation, it can readily be seen that there was an
effective administration of the territory, far superior to that which the French
subsequentlybrought to the territory after conquest.
7.53 However, mention must first be made of a different Strand
in Chad's argument, namely that the indigenous peoples were quite separate from
the Libyan people.
S~cno~4. Borderlands4th Libvalndieenous Inhabitants of the
7.54 Chad questions the identity between the tribes of the
59
borderlands and the people of Libya itse.fIt is not entirely clear what purpose
this observation serves within the context of Chad's legal argument as a whole: it
cannot be to question Libya's locus standi, so itresumably directed more to
questioning Libya's right of succession to the claims of title derived from these
tribes.
7.55 In any event, it is an observation with no foundation in fact.
The Awlad Sulaiman are without question a Libyan tribe in the sense of a tribe
whose origins lie in temtory that is indisputably Libyan, havingmoved southwards
from Fezzan in the mid-19th Century in the face of Ottoman penetration of the
"hinterland". So far as the Toubou are concemed, theTeda Toubou, although
centred in the Tibesti, are nomadic and range from areas as far north asAl
Qatrun in Fezzan and the Koufra oases in cyrenaicaoO: their links are therefore
decidedly "Libyan", and Chad has conceded their close tie to the senoussiol.
During the recent civil war in Chad, many Toubou fled north to Fezzan and
Cyrenaica. The Daza Toubou are certainly centred more in the south, as well as
in Ennedi and Ounianga, but their trading links have been traditionally
northwards. The numerous Libyan merchants, originating in Fezzan and
Cyrenaica, are unquestionably Libyan. And the Senoussi of course are so, with
59 See,CC-M.para.5.174.
60 B. L&l,para.3.40,andthe authorities therecited.
61 See,CC-M,para.5.71,where1911despatchofa FrenchOfficeriscitedinwhichitwas
caidof theToubonthat they"reçoiventleurmotd'ordredesSenoussiset leurobkissent
aveugl6ment."the result that ihe predominant affinity of the borderland peoples is now, and
alwayshas been, with Libya 62.
SECTIO 5. The Basis of the EarlvClaims bvthe Ottoman Empire
7.56 Chad's basic thesis is that the Ottomans never acquired any
rights or title in the border~ands~~.From this it would follow,according to Chad,
that neither Italy nor Libya had anphingto inherit from the Ottoman Empire.
7.57 The Ottoman hinterland daim was expressed in some detail
byMunir Bey,the Turkish Ambassador to Paris in May 1899~~.~lthough lacking
precise limits-and on that score being treated with a certain scepticism by both
France and Great Britain - such a hinterland claim had rather more right to
recognition, as the law stood at the end of the 19th Century, than a claim to a
mere "zone of influence". For itwas a claim to sovereientv, which the Anglo-
French claim to a mere zone of influence was not.
7.58 Moreover, unlike the British and French, to whom in 1899
the borderlands were unknown territory, the Ottomans knew the territory and
had already established some evidence of control. Munir Beywas able to cite the
dispatch of military expeditions, of civil servants, magistrates and religious
teachers; the fostering of the caravan trade; and the acceptance of the authority
of the Sultan in Constantinople as "Caliph, as the leader of Islam. The Ottoman
emissary, Muhammed Basala had been in close contact with the tribes and rulers
of tribes as far south as Lake Chad by 1894~'.
7.59 Of the re-inforcement by Turkish forces of positions
throughout the borderlands, in 1908-1913, in response to the French advance
62 The CC-M attempts to portray the Senoussi Order as non-Libyan because the founder of
the Order, the Grand Senoussi,was barn in Algeria. See, CC-M. para. 5.104. But al1his
descendants became unmistakably Libyan as were most of thek oh he &
appointed by the Head of the Order. -, Evans-Pritchard, E.E.: The Sanusi of
Cvrenaica, Oxford. 1949,pp. 11--.. also, Supplementarv Annex, No. 3, para- 4.1
4.9.
63 See, CC-M,para. 5.19.
61 See, LM, French Archives Annex,p. 61.
65 See. LM, paras.4.122-4.125. northwards froni Lake Chad, there can be no doub@. This is portrayed on Map
29,which appears below at paragraph 9.12. Certainly Chad rejects the notion
thata purely military presence could confer tit~e~~(despite the implication this
must have for the eventual French military "occupation"). But there is equally no
question that the Ottomans had a rudimentary civilian administration in place.
The French acknowledged the appointment of a Kaimakam in Tibesti in 1910~~,
and the post of Kaimakam was that of a civilianadministrator. In fact, the French
69
Government expressed great concern over this development . The French
ambassador to Constantinople sent a full report to the French foreign minister, by
letter dated 9 May 1911, confirming that a Kaimakam had been appointed for
Bardai since 1908,supported byTurkish gendarmes from 1910onwards70.
7.60 The Ottoman system of administration, based on the 1861
Law of the Vilayets, envisaged each with its ownGovemor, and, under his
authority were the Kaimakams and Mutassarifs (a Mutassarifik being a sort of
district or arrondissement) who exercised both administrative and judicial
functions7'. However, the Ottoman system conferred on each district a large
measure of self-government, so that the total picture of the administration of the
territory emerges, not from the Turkish presence in isolation, but from the totality
of the administrative system. And, whilst the Porte recognised the quasi-
autonomy of the Senoussi, certain controls were maintained. When the
European States complained of Senoussi activities, the Porte sent a delegation to
Djaraboub in 1889to inquire about these matters directly from the Head of the
senoussiR. The reports indicated his loyalty to the ~ali~h~~,and both by
correspondence and by persona1 envoys to the ~ali~h~~ the Senoussi
66 &,LM, paras4.121-4.150;and-MapsNos. 34and 35inthalsectionofthe&f.
67 See,CC-M,para.5.56.
68 See,CC-M.para.5.60.
69 -ee,Supplernen!an, nnex,Nos.9.2,9.3,9.4,9.8,9.9 and9.10.
70 &. Su~plementarAnnex,No.9.10.
71 &, EncvclooediaBritannica,11Ed.(1910-1911),pp.427-428%, also,/C-M, para.
5.29andExhibir14thereto.
72 Al-Dajani,A.3. &.,p. 210.
73 m., pp.213-214.demonstrated their support of the Ottoman Caliphate. Thus, since Ottoman rule
was accepted, the situation did not cal1for close supervision from Constantinople.
7.61 The system, as a system of indirect rule, was not essentially
different from that used by other empires where vast and inaccessible territories
were governed with a minimum of presence of the Imperia1Power on the ground.
The Spanish, Portuguese, French and British empires would offer analogous
systems. Yet no one would have characterised the territories in questioterra
W.
7.62 Indeed, in the present case, whilst scepticism was expressed
about how far south the Ottoman hinterland might extend, no truly direct
challenge to the Ottoman claim of sovereigntywas made, even by the two Powers,
Great Britain and France, which had the greatest interest in making that
challenge. Great Britain was at pains to assure the Ottomans that the Anglo-
French Declaration of 1899 did not prejudice their And France, far
from directly challenging the Ottoman claim, merely supported France's own
claim to the areas around Lake Chad itself, then in the process of occupation by
rance^ ^nd as late as 1911-1912France was not prepared to directly challenge
the presence of Turkish troops in these border~ands~~. To the West of the
borderlands, in the region of Djanet, there was an actual confrontation between
French and Italian forces resulting in a statusgreement being reached7'. In
October 1911,the French Minister of Colonies reported to the French Foreign
Minister that the construction of a blockhouse at Yao in Tibesti by the Turks
"constituerait une manifestation indiscutable de l'occupation effective ottomane
dans ces régions79". His concern was that Italy rnight succeed to the Turkish
claims, and thus he argued for a study of how France might secure "nosdroits" in
these regions.
7.63 At the risk of repetition, it needs to be emphasised that,
however limited the Ottoman presence, it far exceeded the purely military
75 LM, paras.5.56-5.61.
76 LM, paras5.54-5.55.
77 L&i,para.4.135.m., e, esp.,MapNo. 35.
78 See,Sup~lementan,Annex,No.9.1.
79 See,Suoplementan, Anne, o. 10.3.presence France brought to parts of these borderlands. Moreover there was a
fundamental difference. The Ottoman presence was accepted, 'andeven sought
after, by the local tribes and the Senoussi. Thus, it was a peaceful occupation,
which the French presence in the area was not until well into the 1930s80 .Thus,
Ottoman control could function by way of delegation. The Turkish authorities
could, with confidence, leave much of the local administration in the hands of the
tribal leaders, and the Senoussi, precisely because the voluntary acceptance of
Ottoman authority permitted that degree of delegation. It was this loose
partnership that Libya has described as "shared sovereignty",a term which Chad
professes not to understand (and to which, therefore, the followingsection must
be dedicated). But France could never rely on such delegation, for its authority
was vehemently resisted. Accordingly, claims of title by France had to rely on
French militarv force alone, as contrasted with the Ottoman claims resting on the
combined administration of Ottoman, Senoussi, and tribal agencies.
SECTIO 6. TheNature of "SharedSovereientv"in this Reeion
7.64
Chad professes to find "incoherent" Libya's thesis that
sovereignty in the borderlands was shared between the indigenous tribes, the
Senoussi, and the Ottoman ~m~ire~'. Obviously, it is easier for Chad to take
each "partner" in turn, and to argue that neither the Turks, nor the local tribes,
nor the Senoussi could separately have sovereignty than for Chad to argue that
the effectiveness of the partnership between these three elements fell short of
that required to support a sovereign daim of title tothe territory.
7.65 Yet Chad's notion of sovereignty, of the powers of
government being located in one Derson, is neither necessary nor in accordance
with the experience of States. There is no inherent reason why title to the
borderlands should not have resided in the local tribes, with the administration -
the executive and judicial powers - being divided between the tribal leaders and
the Senoussi, given that no real separation existed between the temporal and
spiritual power, so that the spiritual leadership of the Senoussi gave rise, quite
naturally, to leadership in such matters as education, commerce and dispute
80 For example,in1933a French expeditionwassent Io the TibestofModra,where
resistancewas beingencountered,with the objectivethat Modrabe "entikrementruiné.".
-ee,SupplementarvAnnex,No. 7.4.
81 CC-M, paras.5.167-5.199.sett~ement~~. The result was that, in sparsely-populated territory of desert and
mountains, the Ottomans had no need to provide any overall, elaborate system of
governmental administration. Being accepted by the local tribes, and with the
Caliph in Constantinople commanding their spiritual allegiance, the Ottomans
could govern in partnership with the tribes and the Senoussi, with minimal direct
control.
7.66 Shared sovereignty can exist in many forms, and no rule of
lawdictates a particular distribution of the various powers that together constitute
~overei~nty~~.Thus, there is no prescribed form of federalism: the distribution of
powers between central and local units -be they cantons, provinces or states - is
no concern of international law provided that, in the totality of powers exercised
in partnership, the obligations of the State are fulfilleds4. Equally, there is no
standard or prescribed form of Protectorate, and each Treaty of Protection has
provided for such distribution of powers between the Protecting Power and the
protected territory as was deemed appropriate to the circumstances8'. The
Mandates system and its successor, the Trusteeship system, saw yet another form
of "partnership", between indigenous people, administering authority and
supervisory body (Council of the, League, Trusteeship ~ouncil)~~. The quite
special relationship between the Holy See and Italy, embodied in the Lateran
87
Treaties of 1929, illustrates yet another form of "partnership" .
7.67 A distinct type of shared territorial sovereignty has been
known in international law under the term "condominium", characterised as a
82 -, Supvlementarv Annex,No. 3,
83 &, Ago, R.: Yearbook of the I.L.C.,Vol. 2p.1at,p.276.
84 -, Rudolf: "Federal States", 10Encyclovediaof Public Internatiopp. 165-178;
Reuter, P.: "Confkderation et Ftderation: vetera et nova" in M6lan~aCharless
Rousseau, 1974.
85
See.Crawford: The Creation of States, 197pp.187-208;Venturini: II Protettorato
Internazionale, 1979.
86 Bentwich: The Mandates Svstem, 1930;Hall: Mandates. Devendencies and Trusteeshiv,
1948;Chowdhuri: lnternational Mandates and Trusteeshiv Svstems. A Comparative
u, 1955.
87 S. Cardinale: The HolvSee and the International Order, 1976.territory over which at least two States share sovereignty 88. At various times,
well-known, relevant examples of this State practice (albeit in different settings)
have existed: in Schleswig-Holstein (after 1864); in Sudan (after 1899); New
Hebrides (now Vanuatu, after 1906);and Memel and Danzig (after 1919).
7.68 Thus, given this abundant experience, there is no basis for
Chad's ridicule of the notion of "partnership" or "shared sovereignty". It existed
between the tribes, the Senoussi and the Ottoman Empire precisely because it
was accepted and applied voluntarily by al1three parties. That could not happen
with France. For France came as a foreign conqueror, an alien power to be
resisted by armed struggle.
SECTIO 7N. TheEffectof the Treatvof Ouchy
7.69 If it is accepted that the borderlands were not terra nullius,
but territory held under the joint or shared sovereignty of local tribes, Senoussi
and Ottoman Empire, it follows that any claim of title by France must rest on
conquest. The only way to avoid this conclusion would be to argue (although
Chad does not so argue) that with the departure of the Turkish forces in 1913a
"vacuum"of sovereignty arose, whichFrance was able to fill.
7.70 Such an argument is not tenable, however, given the terms
of the Treaty of Ouchy of 15 October 1912~~. The effect of this Treaty was to
transfer to Italy the rights previously enjoyed by the Ottoman Empire over the
territorial andpersonal rights subject to its contro~~~.No "vacuum" could arise,
therefore, and France was expressly excluded from refusing to acknowledge
Italy'ssuccession to Ottoman rights, both as a result of its recognition 'ofItalian
sovereignty over Tripolitania and Cyrenaica on 20 October 1912~' and by Article
10of the Treaty of London of 1915, under which:
88 -, Schneider,P.:Encvclo~ediaof Public InternatioLaw,Vol. 10, 1987,p. 58; El-
Enan, A: Condominiumand Related Situations in International Law,1952.
89 See.LM.para. 5.130a m.; and para. 6.76,m., above.
90 The transfewas not unconditional: it involveda reciprocal obligati10respecty
and observe the "autonomy"granted byFirm aonthe inhabitants of Tripolitania and
Cyenaica and to respect certain rights retained bythe Porte.
91 See,para. 6.73,above. "Allrights and privileges in Libya at present belonging to t& Sultan
byvirtue of the Treaty of Lausanne are transferred to Italy ."
7.71 The Treaty of Lausanne of 24July 1923confirmed Turkey's
renunciation in favour of Italy of al1its rights ("tousdroits et titres")
7.72 It necessarily follows, therefore, that the French military
invasion of the borderlands was either aggression against Ottoman territory or
against Italian territory, dependingon whether the violation occurred pre- or post
1912. There was no interval of time during which France could have taken
advantage of any 'bacuum"in whichsovereignty had lapsed.
92 &, para.6.74,above.
93 Sec .lso,thereferenceto theTreatyofS6wesof 1920footnotedin para ..81,above.CHAPTERVIII. THE FRENCHCWMS OF TITLE
8.01 In essence, Chad adopts the French claims of title, and
Chad's Counter-Memorial reveals the complete identity between the tactics
pursued by France in 1955 and Chad's tactics in this case. Chad seeks to shift
attention away from the basis of title (what Chad disparagingly terms "titres
historiques"') and toocus the attention of the Court on the 1955Treaty (le coeur
du litige2). This had alwaysbeen the French policy. Recognising the weakness of
a claim of title-whether based on occupation or conquest - France sought to
remedy that weakness in 1955by persuading newlyindependent Libya to sign the
1955Treaty, without any negotiations concerning Libya'ssouthern boundary, in
the hope that the provisions of Article 3would create an illusion of title which the
Libyans were unable to challenge. Today Chad adopts exactly the same tactic
before the Court.
8.02 Libya has shown elsewhere3 that in 1955 Libya did not
intend to recognise any specificboundary in the south, or to recognise French title
to any specific area of territory. Libya had neither the necessary knowledge nor
4
the means ofverifyingany French claims,at that stage. But quite apart from the
fact that this was not the purpose of the 1955Treaty, it is self-evident that France
lacked the capacity to conclude a boundary treaty, endorsing the supposed 1899-
1919line, & France had title to the territory to the south of that line. Thus,
whatever view is taken of the 1955 Treaty, there is no way in which Chad can
escape the obligation of showing that France was sovereign over al1territory to
the south of the line Chad now claims. The issue of title cannot be evaded.
SECTIO 1N. Chad'sMisuseofthe Notionof "Inter-tern~oralL "aw
8.03 Chad suggests that Libya's arguments contradict the
5
requirements of "inter-temporal" law. In fact the position is the opposite. Libya
has no quarrel with Max Huber's dictum that juridical acts must be evaluated in
1 CC-M para.3.01.
2 See,CC-M,para.3.03.
3 See, LM,paras.5.438-5.W.2; paras.3.03-3.33.
4 -, also.Sup~lcmentaryAnnexNo.6.7 (5)
5 SeeCC-M .aras.3.02-3.06.the light of the law prevailing at the time those acts were committed6. Libya does
not, in fact, seek to apply legal principles - specifically the principle of the
prohibition of the use of force -retroactively. For Libya the essential questions
are the following:
(i) Were the borderlands terra nullius at the time France
started toinvade part of them militarily?
(ii) If yes, did the actions of France constitute a sufficient
occu~ation of the territory, in accordance with the law then
prevailing, to confer a good legal title?
(iii) If no, did the actions of France constitute an unlawful
acquisition of territory by force, in accordance with the law
then prevailing, so as to negate any title claimed thereby?
It is clear that none of the above questions involves any reliance on the
retroactivity of the rule outlawing the acquisition of territory by conquest, or,
indeed, of any other rule. In the sections that follow the essential issues arising
from these questions willbe examined.
SECTIO 2N The Nature and Extent of French Occupation (Effectivitésl
of the Borderlands
8.04 It is only if the borderlands were terra nullius that this
question arises. As indicated in Section 1of the previous Chapter, in Libya'sview
the evidence and the law suggest incontrovertibly that this was not the case.
However, even if, arguendo, this were the case, there is in Libya's submission no
evidence that the French presence constituted a sufficient, peaceful and
continuous display of State authority over the territory in question. Both Parties
agree that a purely military administration would not ground a good title 7.
8.05 Chad's evidence as to what France actually did is again set out in Chapter
6 and Chapter 9 of its Counter-Memorial. It amounts to this: only in 1913,after
6 See, Island of Palmas Case, 11 U.N.R.l.kk,al p. 845:"..a juridical fact musc be
appreciatedin the lightof the lawcontemporatywithit, andnocof the lawin forceai the
limewhenadispiitein regardto itaris...."
7 See,3C-M paras.9.24-9.27;CM, pp.71-73,paras.89-92. 8.
the Turkish uniis had been withdrawn ,did France begin its military occupation
of specific locations in Borkou and Ennedi: Ain Galakka fell to the French in
November 1913, Faya in December 1913, and also Goura a few days later;
Ounianga was not entered by the French until late December 1913. Regrettably,
the CC-M has attempted to blur and even ta mis-state the facts by use of a map
appearing there at page 254. The striking misrepresentations on this map of the
alleged "progression of French occupation" is illustrated here on LRp 28: the
left-hand map isChad's erroneous map (on page 254of the m).
8.06 The important elements in this narrative are, first, that the
French invasion occurred afte tre Turkish troops had left, that is, it began in
November 1913. This fact alone suggests the territory was not terra nullius. The
Ottoman presence was clearly based on a claim of title, repeatedly asserted since
the 1890's,and, moreover, it was a presence sought by,and CO-ordinatedwith, the
Senoussi. Nor was it a purely military presence, for the Ottoman Kaimakam was
a civilian, not a military governor. Thus, though the Ottoman units were not
large, they were part of a complex relationship of military, civand religious
authority which could realisticallybe regarded as an "effectiveoccupation9". The
French militaiy incursions in 1913-1914could not. They were entirely military
and aimed at controlling a few strategic points. The French presence was resisted
by the local population, and France made no pretence at providing any form of
civiladministration or government of the territory.
8.07 Asregards Tibesti, the French incursion came from another
direction, from French West Africa (the A.O.F.), and consisted of one column of
troops. Having occupied Zouar on 13December 1913and Bardai in !uly 1914,
and havingsent reconnaissance patrols ta Yoo, Kayougué,Wour and Aouzou, the
French column was disbanded in October 19141°. What remained was a
detachment of 80 men at Bardai, commanded by a French lieutenant and 3
8 Chad suggests thitwas no1 the militarystrengthof the Ottomansthat caused the
French militaryadvanceto hall,but rathera diplomaticconcernno1Io embarassanally.
The reasonmatterslittle,althoughthissuggestioninthlackscredibility.The fact
is that the Ottomans were in possession of these borderlands,in alliance with the
Senoussiandunderaclaimof title,until earlSee,CC-M,paras.6.51-6.55.
9 B. para.7.59,above.
10 Se,CC-M,para.6.59. FALSEPICTURE
OF FRENCH OCCUPATION
OF THE BORDERLANDS
PROGRESSIONDEL'OCCUPATION FRANÇAISE -1900-1914
1s' 20
sourca. p2%. > - 7 4
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5 bFrench N.c.0."~; and a small detachment at Zouar - one section of camel-
mounted troops, one section of riflemen, commanded by a French lieutenant and
2N.c.o.'s''.
8.08 But Bardaï was abandoned toward the end of July 1916,as
was Zouar, and no permanent French presence existed in Tibesti from 1916-
192912.
8.09 Given this account, it is extraordinary that Chad should
seriously claim that France had exercised an "effective occupation" over Tibesti.
Even as a military presence it scarcely existed after 1916,and Chad adduces no
evidence vihatsoever of any attempt to bring to the territory a peaceful and
continuous display of State authority.
8.10 It is true that Chad devotes the whole of Chapter 9 of its
Counter-Memorial to an attempt to prove the contrary. It is entitled "l'exercice
continu de la souveraineté française, puis Tchadienne, sur le B.E.T." But this is
based on the following:
- A supposed Italian recognition of French sovereignty over
the so-called "B.E.T."during the 1919 Peace Conference
(para. 9.07);
- A statement by a French Senator in 1920(para. 9.09);
- A few words taken £rom a speech by Foreigq Minister
Tittoni to the Italian Parliament in 1919(para. 9.12)~~;
-
The evidence that Italy sought a "cession" of the "B.E.T."
from France in the period 1928-1934(paras. 9.14-9.21)~~.
II SeeCC-M. para.6.75.
12 TheCC-M (para.6.78) claimsthatZowasreoccupiedin 1916,basedon a statement
in a book by Emile GentiThis is overwhelminglyrefutedby other evid%,ce.
GeneralSerrignyReportof 12October 1928,m,jara5.25%s& ako, ~up~lemenÏ&
Nos. 11.3and11.4.
13 On this,see, LC-M,paras.4.192-g,19also,para.6.105,g-qabove.
14 As towhyltalynegotiated intheseterms,g, para.6ett2,and11.4,above.Clearly, this is no evidence of effective occupation at all. That concept requires
evidence of administration, of State activity, within the territoqStatements
made in Paris or Rome cannot constitute effective occupation of the
borderlands15.
8.11 The conclusion must be, therefore, that even on Chad's own
assumption that the territory was terra nulliu-a assumption which Libya has
show above to be wrong -there is no evidence that France acquired a valid title
to the borderlands via effective occupation in 1914(or in919),as Chad claims.
What we have is evidence of a very minimal French military presence at a few
posts in Borkou and Ennedi, and virtuallyno evidence of even a military presence
in Tibesti from 1916-1929. Until at least 1933,fighting between the indigenous
peoples and the French continued. There is no real evidence of even an attempt
at genuine, effective administration of the temtory until the 1950'- after the
critical date and Libyan independence. The result is that, whatever title France
did acquire had to be acquired, not by occupation, but by military conquest.
SECTI 3.N The Invalidity of Acsuisition of Title to Territow by
ConauestPost-1919
8.12 Chad seems undecided whether it should argue that France
acquired the borderlands by way of conquest or by way of occupation. It is true
that at one point theC-M explicitlystates that the alleged title was acquired on
the basis of "occupation" and not on the basis of "conquest" in the narrow sense of
the term16, and that this legalview is,at least in the terminology used, repeated in
subsequent passages of the al7. However, in other parts of the same
Chapter, a different position is expressed and the Chadian argumentsrefer to the
French "conquest"18. Such inconsistent terminology is striking because the
difference between occupation and conquest as modes of territorial acquisition is
well-established and discussedinevery treatise of international law. So it would
appear that the confusion created in Chad'spleadings is intentional.
15 Chad's later endence(a, paras. 9.22-9.41) of French attempts to conduct a
referendumin 1958,or to requisitionland for militaryuse in 1956-1957ra.
9.33)iswholly irrelevantto Chad'sclaim that France had acquiredtitle by means of
effective occupationasearlyas 1914and,in anyevent,by 1919.
16 a, para.6.04.
17 CC-M,paras.6.24,6.42,6.62 and6.82.
18 CC-M,paras.6.08,6.25,6.and 6.72, 8.13 "Conquest" refers to acquisition of territory previously held
by an entity recognised by international law as having title to the territory.
"Conquest" also presupposes the use of force which brings an end to the
resistance by the previous holder of title, and in case of partial annexation a treaty
of peace is needed to complete the process of acquisition. In contrast to the
specific legal regime of conquest, "occupation" refers to a situation interrah
null isufectivelyoccupied, without further requirements.
8.14 Given these differences between conquest and occupation,
it is not open tohad to seek to evade qualifyingthe relevant French acquisition
by treating the two concepts in an apparently interchangeable mannerAs show
previously, the borderlands were not terra nullius, but were held in shared
sovereignty, first by the indigenous peoples and the Ottoman Empire, and, later,
by the indigenous peoples and Italy. Thus, the onlywayfor France to acquire the
lands was on the basis of conquest. However, the requirements of acquisition of
title by conquest were not met. Resistance by those who held title was not
overcome by France until long after conquest had become illegal, nor was any
peace treaty concluded which would have transferred the territorial rights to
France.
8.15 Chad does not argue that France was not bound by the
obligation of ArticleX of the Covenant of the League or by the 1928 Pact of
Paris. Chad argues that the obligations of France extended only to other
-l9, and that ArticleX "..n'a rien àvoir avec de futures acquisitions de titre
sur des territoires, qui n'avaient pas encore acquis l'indépend...u~'In short,
Chad'sthesis isthat "colonial"aggression remained lawful.
8.16 This highly unattractive thesis fails to take account of the
viewthat entities lacking statehood could legitimately hold sovereign nghts. If the
Court's affirmation of that principle in the Western Sahara Cases correct2', it
becomes dificult to explain why,with the introduction of a rule of law prohibiting
19 Infactthe termsof ArticleX contemplated not "", tonly"MemberStates".Itis
not clearwhetherChaissugesting thatagression remainedpermissibleagainstnon-
MemberStates.
20 a, para.3.45.
21 Chad'sinsistencethat inthis case theCourt madeno findingasto the illegalityof Spain's
conquestof theWesternSaharaissurely irrelevant.The Spanishcoccurredlong
before theCovenantof theLeagICC-M,paras.3.09-3.10).aggression, sovereign rights vested in States were protected by the pnnciple, but
sovereign rightsvested in non-State entities were not.
8.17 However, the central point -which Chad's thesis overlooks -
is that the territory belong to a sovereign State, moreover a member State of
the League of Nations, namely Italy. For if the borderlands were under Ottoman
possession until 1913, by claim of right as territorial sovereign, and if Italy
succeeded to the Ottoman Empire's rights under the Treaty of Ouchy of 1912,as
France expressly recognised at the time, and reaffirmed in Article 10 of the 1915
Treaty of London and in the Treaty of Lausanne of 1923, it follows that the
borderlands were in fact Stateterritory at al1relevant times. It is no answer for
Chad to suggest that theTreaty of Ouchy did not define the limits of the territory
to which Italysucceeded: France knew that the borderlands were claimed by the
Ottomans. The Ottomans had held these territories, civillyand militarily, until
1913,and France had halted its northerly expansion south of 15"Nlatitude as a
matter of high French policy because of this Ottoman presence22. Thus, France
knew that to penetrate further northwards would involve the invasion of the
territory of a recognised State; and, in sa far as Italy succeeded ta the Ottoman
Empire, that position remained unchanged.
8.18 The French military incursions post-1919 were fully subject
ta the prohibition of Article X of the Pact of the League of Nations, and
thereafter to the 1928 Pact of Paris. And, in so far as the French militas,
conquest was a continuing wrong - at no stage accepted by the indigenous
population and converted into a peaceful occupation -France's breach of those
treaty provisions was a continuing breach. In short, France never did acquire a
valid title to the borderlandsAs the CC-M admits, Italy protested these French
military incursions, although in the context of the on-going negotiations between
Italy and France.
8.19 In its Counter-Memorial, Chad misunderstands Libya's
arguments concerning this notion of a continuing breach. In its Memorial, Libya
had cited Max Huber's dictum in the Palmas Island Case to the effect that a State
asserting title had to show not only that title had been validly acquire(k, in
conformity with the law as it stood at the date of acquisition), but also that it had
22 -ee,Supplementaw Annex,No.10.4 been maintainid in accordance with the changing requirements of the ~aw~~.The
classic example would be when a title acquired in the 16th Century by mere
discoverywould require the support of effective occupation in the 20th Century.
8.20 Chad sees Libya's reliance on this doctrine as a
misapplication of inter-temporal ~aw~~.In fact, however, Libya does no more
than repeat the normal principle that State conduct must be judged, as to its
validity, bvthe ~revailine law. In the present case, even if France had effectively
conquered certain lirnited areas of the borderlands pre-1919, so as to acquire a
title under the law then prevailing, France could not thereafter validly maintain
that title byconduct which had become illegal. In short,whether France acquired
new territory by conquest or continued to control temtory previously conquered
by military coercion, such conduct was illegal after 1919and could not support a
valid title. The concept of State conduct being continuously subject to scrutiny
under the changing conditions of the law -and of "continuingbreach" where those
conditions are not met - is familiar enough in the context of de-colonisation. For
no one doubted that the colonial titles were onginally validly acquired. But with
the evolution of the law, and the gradua1 recognition that the maintenance of a
colonial title contrary to the wishes of the indigenous peoples was illegal, that
original validity was lost. There is no reason why similar principles should not
apply ta the French acquisition maintenance of title byconquest.
23 See,LM,para. 6.66.
24 See,CC-M. paras..13-3.18. PART IV
CONSISTENCYOFCONDUCTANDTHEISSUEOFACOUIESCENCE
CHAPTERIX. CONDUCT OF THE O'ITOMAN EMPIRE. TBE
SENOUSSI.FRANCE,BRITAINANDITALYPRE-1945
SECTION1. Introduction
9.01 This Chapter is devoted to a consideration of whether, on
the assumption that there exists at present no conventional boundary east of
Toummo, it is possible to maintain that, by reason of the conduct of one or more
of the States or other entities from time to time exercising or claiming to exercise
sovereign rights in or over the Libya-Chad borderlands, a settled boundary has
corne to be tacitly recognised. More specifically, it analyses, from this
perspective, Ottoman conduct (up to 1913), Senoussi conduct, British conduct,
French conduct and Italian conduct in thepenod up until 1945. It is useful at the
outset of the discussionto summarize the conclusions reached in this Chapter.
9.02 Asfar as Ottoman conduct is concerned, it is demonstrated
below that there is not a shred of evidence to support the view that the Ottoman
Empire "acquiesced in a French claim of title to the borderlands, a claim so
flagrantly incompatible with the hinterland rights asserted by the Ottoman
Empire in 1890and again in 1899and 1902and so obviouslyat variance with the
Ottoman civil and military presence in parts of the borderlands from 1908
onwards.
9.03 As far as Senoussi conduct is concerned, the eyidence is
clear that the Senoussi tribes in the borderlands offered fierce, determined and
widespread resistance to the French military advance northwards in 1913-1914
and continued to attack the limited number of French garrisons andadvance
posts in the borderlands long after the end of World 1and indeed well into
the 1930s. Far from "acquiescing" in the French attempt to take over their
temtories in the borderlands, the Senoussi, in conjunction with the indigenous
tribes, offered prolonged resistance.
9.04 British conduct is more peripheral to the issue, since Britain
never at any time exercised or claimed to exercise sovereign rights over the
borderlands. But it is clear that Bntain did not take the same view as France
about the legal effect of the 1899Declaration. The British view at the time wasthat, north of 15"Nlatitude, the 1899 southeast line was not intended to be a
temtorial boundary and that the Declaration as a whole could not affect the
rights of third States. The British may have accepted, after 1919,that the Anglo-
French Convention of 1919 created, as between Bntain and France, a true
eastlwest boundav as far north as the intersection of the southeast line with
latitude19"13'N,but otherwise their position remained unchanged. Throughout
the period until 1945, Britain, although aware of conflicting French and Italian
claimsto title over the borderlands, refused to take a position on these conflicting
claims.
9.05 French conduct has to be considered from the standpoint of
whether it displayed inconsistencies as regards the French claim to title over the
borderlands, based on the thesis that a conventional boundary had resulted from
the combined effect of the 1899 Declaration, the 1900 and 1902 Franco-Italian
Accords and the Anglo-French Convention of 1919. The most notable French
flawsand inconsistencies were the following:
- Their repeated assertions that a map was annexed to the
1899 Declaration and that this map supported the French
thesis as tothe direction of the 1899southeast line;
- The agreement of the French Government in 1911 and
again in 1914to enter into delimitation negotiations with the
Ottoman Empire and, then with Italy - negotiations that
would have included Libya's southern boundary - while
subsequently maintaining that Libya's southem boundary
had already been fixed conventionally (as least asfar as Italy
was concemed);
- The admission in the Exuosédes motifs accompanying the
draft French law authorising ratification of the 1935Treaty
of Rome that, prior to signature of that Treaty, there had
been no conventional boundary between France and Italy
east of Toummo, followed by subsequent French assertions
that a boundary in this arehad resulted £romthe combined
effect of the 1899, 1900, 1902 and 1919 instruments
mentioned above.France did not'seek at any time to rely on colonial effectivitésas the basis of its
claim to title over the borderlands.
9.06 1talian conduct displays no evidence of Italian
"acquiescence"in the French interpretation of the nature or direction of the 1899-
1919southeast line during any part of the period between 1912and 1945. There
is no evidence of Italian "acquiescence" in French title to any part of the
borderlands, save in the context of the boundary which Italy was reluctantly
prevailed upon to agree with France in Article 2 of the 1935 Treaty of Rome,
which failed to come into force. Italy took the view that the 1899southeast line
was intended to be a strict southeast line, challenged the French claim that the
line had become a boundary line, and protested vigorously against the 1919
Anglo-French Convention and the 1924 Protocol and declaration, and equally
protested against any French military incursion across the 1899 strict southeast
line.
9.07 It is an integral part of the Chad thesis that Italy
"recognised" a French sphere of influence extending up to the "frontier" of
Tripolitania by virtue of the 1900-1902 Franco-Italian Accords, and that the
northern and eastern limits of that French sphere of influence were constituted by
the southeast line from Toummo to 24"E longitude described in the 1899
Declaration as "interpreted"(or, as Libya woüld contend, modified) by the Anglo-
French Convention of 8 September 1919. The Chad thesis is then amplified to
assert that Italy had, at some unspecified point of time, accepted in respect of
Libya the line constituted by the 1919Anglo-French Convention as the boundary
between Libya and what is now Chad.
9.08 How Italy could, in 1900-1902have accepted a "line" the
course of which, even as between Britain and France, was fixed in 1919
(modifymg the line fixed in 1899),is conveniently left unargued. Equally, Chad
dorlges the issue that not until after the 1912 Treaty of Ouchy did Italy have
standing to agree a boundary with France concerning Libya 1.
9.09 Chad's thesis is the more striking, given the ample evidence
on the record of vigorous and repeated Italian protests through the 1920sand
1 As ChapterVI has demonstrated,the1900-1902Accords andthe 1912Franw-ltalian
Agreement, entered inohortly aftertheTreaty, werein anyeventnoternedwith
fixingboundaries.early 1930s against the 1919 Convention. That France itself did not seriously
espouse the view that the combined effect of the 1899 Declaration, the 1902
Accord and the 1919 Convention was to establish a boundary as between Libya
and what isnow Chad is confirmed beyond a peradventure:
- Bythe terms of Article 2 of the 1935Treaty of Rome, where
it is stated that the boundary separating Libya from the
A.O.F. and the A.E.F. "sera déterminée"as follows2; and
- By the terms of the Emosé des motifs accompanying the
French draft law authorising ratification of the Treaty of
Rome of 1935, where it is clearly admitted that the 1919
Franco-Italian Agreement left Italy and France without a
3'
conventional boundary to the east ofToummo .
9.10 But assuming that no such conventional boundary had been
established prior to 1935,assuming also that, as both Chad and Libya agree, the
boundary line stipulated in Article 2 of the 1935Treaty never took legal effect as
a result of the failure of the two States concemed (France and Italy) to exchange
instruments of ratification of the Treaty, and assuming finallythat the 1955Treaty
did not itself determine Libya'ssouthern boundav east of Toummo: is it possible
to maintain that, by reason of the conduct of one or more of the States or other
entities from time to time exercisingor claimingto exercise sovereign rights in or
over the Libya-Chad borderlands, a settled boundary had come to be tacitly
recognised? In this Chapter, Libyawillassess the conduct of al1interested parties
prior to 1945from this perspective - that is to say the conduct of the ,Ottoman
Empire, the Senoussi, Britain, Franceand Italy. In Chapter X, Libyawillsimilarly
assess the conduct of al1 interested parties, including France, Italy, the Four
Powers and the United Nations, in the periûd between the close of World War II
and the advent of Libyan independence in 1951. Finally,in Chapter XI,Libyawill
analyse the significanceof Libyan and Chad conduct since 1951frornthis point of
view.
2 See, LMparas.5.331and5.332;B, also,para.6.213,above.
3 See.LM,paras.5.335-5.338.Note alsothattheBritishForeignOfficetooktheview that,
priorto the negotiationof the 1935Treaty,Libya'ssouthernundaiyhad not been
determined: paras.5.340and5.341. SECTIO 2.N Ottoman Conduct
9.11 Ottoman conduct prior to 1912is relatively straightfomard.
In 1890,the Ottoman Empire vigorouslyprotested the Anglo-French Declaration
of 5 August 1890, whereby Britain recognised a French "zone of influence"
southwards from their Mediterranean possessions to the Say-Barroua line, on the
ground that this was an encroachment on territories over which the Ottoman
Empire had rights as part of the hinterland of ~ri~olitania~. The Ottoman
Empire again lodged a strong protest against the terms of the 1899Declaration.
The protest was made not only in Paris and London, but also in Berlin, Vienna
and St. petersburg5. The Ottoman protest was repeated on 12March 1902,when
the Ottoman ambassador in Paris handed in to the Quai d'Orsay a memorandum
elaborating on the reasons why the 1899 Declaration infringed Ottoman
hinterland rights6. France returned no reply to this communication.
9.12 But Ottoman conduct did not stop at making paper protests.
There is evidence that the Sublime Porte was becoming increasingly concerned at
French expansionism in northlcentral Africa in the early years of the centuiy to
the detriment of Ottoman rights in and over the hinterland of ~ri~olitaniAs
early as 1901-1902,it was reported that a detachment of Ottoman forces had
7
occupied Bilma . In 1906,the Ottomans were installed at Djanet, and amodus
vivendi was reached between the French and Ottomans covering that region
pending diplomatic settlement (Map LR 2918. With the steady French military
advance towards the northern oases of Kouar in 1907,the indigenous tribes of the
borderlands, acting in conjunction with the Senoussi, sought, and were accorded,
9
the protection of Ottoman forces.
4 & LM, paras.5.09-5.15:E, alLM, paras.4.46-4.49. Itwill be recalledthat Britain
and Francehadsought to soften the Ottomanprotestby exchangingnotes placingon
recordtheir view that the 1890 Decla"..does no1affect any rights whichHis
ImperiaMajestythe Sultanmayhavithe regionswhichlieon thesouthernfrontierof
hisTnpolitanian dominions".
5 See,LM.paras..49-5.55.
6 See,LM.para.5.77.
7 %LM, paras.5.78,5.80and5.81.
8 See, also, MLR 17,referredto at para.6.121,ahove,andSup~lementan,Annex,No.
9.1.
9 &LM. paras.4.126and4.127. 9.13 There is clear evidence of an Ottoman political and military
presence in Tibesti from early 1908onwards, in Borkou from 1911onwards, and
in Ennedi from 1912onwards. There is likewiseclear evidence of the steps taken
on the ground bylocal Ottoman and French militarycommanders to avert conflict
between forces under their respective commands. The correspondence between
Captain Rifky (the Ottoman commander at Aïn Galakka) and Colonel Largeau
(the French commander at Fort Lamy) in 1911,particularly after theutbreak of
war between Italy and the Ottoman Empire in September, 1911,confirms that a
temporary modus vivendi was arranged in this region (as in the region of Djanet)
whereby the status auo (including the continued presence of Ottoman troops and
officiais in the posts which they then occupied in Tibesti, Borkou and Ennedi)
would be maintained until the end of the Italo-Turkish war1° (Map LR 29). It
was only after the conclusion of the Treaty of Ouchy in October, 1912,that the
Ottoman forces began to withdraw and the French felt able to resume their
advance north of 15"N latitude, although this move was further delayed until
Novemher 1913".
9.14 Itwill of course be recalled that part of the background to
these developments on the ground was that France and the Ottoman Empire had
agreed in 1911, following the successful outcome of the Franco-Ottoman
negotiations in 1910to delimit the boundary between Tripolitania and Tunisia, to
form a mixed commission to continue the delimitation of the boundanes of their
respective territories in the Sahara and the Sudan beyond Ghadamès. Asa result
of the outbreak of the Italo-Ottoman war in 1911and the subsequent defeat of
the Ottoman forces in Tripolitania in 1912,this mixed commission never met; but
the evidence establishes that the modus vivendi on the ground in the borderlands
(as well as in the area of Djanet) was reached with the insistence of Paris because
it was anticipated at the time that the question of the boundary with French
territories south and east of Ghadamès would be resolved shortly through the
work of this Franco-Ottoman mixed commi~sion'~.
10 See,LM, paras.4.142-4.150; aLC-M, paras.5.25-5.28& ako, Sup~lementaw
Anne Nos. 10.12and11.3.
11 See, LC-M.para.5.29. @, para.8.05, above,and MapLR 28, for adiscussionof the
fake picturetCC-M portraysof France'sadvanceinto theborderlands,tryingto play
dom themodus vivendireachedgenerallyalong15"Nlatitude.
12 &LM. paras.5.113-5.116;aLC-M, para.4.140. 9.15 There is accordingly not a shred of evidence denving from
Ottoman conduct that would support any view that the Ottoman Empire or its
representatives in Tripoli or in the borderlands had ever "acquiesced"in a French
claim of title to the borderlands, a claim so flagrantly incompatible with the
hinterland rights asserted by the Ottoman Empire in 1890and again in 1899and
1902. Bythe time Ottoman forces evacuated Tibesti, Borkou and Ennedi in 1913,
they had been, together with the Senoussi and the indigenous tribes owing
allegiance to the Senoussi, in effective occupation of large parts of the
borderlands for periods of some five years. Furthermore, even the compromise
proposa1 recommended by the v> of Tripoli to the Porte in 1911as the basis
for the Ottoman position in the planned negotiations within the Franco-Ottoman
mixed commission would have left almost al1of the borderlands on the Ottoman
side of the line13. Thus, it cannot seriously be maintained that the Ottoman
Empire had at any time admitted any French claim of title totheborderlands14.
SECTIO 3N Senoussi Conduct
9.16 If Ottoman conduct prior to 1912 is relatively
straightforward, Senoussi conduct through the penod in which they played an
active role in the borderlands isequally so. In the latter years of the 19thCentury,
the Senoussi had acquired a powerful religious and secular influence over the
indigenous tribes of the borderlands, partly as a result of their proselytising
activities and partly as a result of the educational and mediating role which they
played in seeking to settle disputes among the various tribes whose home was in
the borderlands15. Even Chad, in its Memorial, correctly acknowledges that, at
13 See,LM, paras. 4.140and 4.141,together with Map. No. 35. See,also, paras. 7.59and
8.06, above,where it is brought out that the Ottomans instadministration in
this region, unlike the subsequent, purely military, French presence; furthermore, that
the Ottomans had been welcomedbythe Senoussi peopleswhilethe French invasionwas
bitterly contested.
14 &, alsou, paras. 8.62and 8.63.
15 For a description of these various nomadic tribes and tribaLM,rparas. 3.34-
3.43; for a general account of the unique role playedbythe Senoussiin the region in the
late 19th Century and early 20th CenturLM, paras. 1.22-1.30,and 3.12-3.19;and
for a more detailed amunt of how the Senoussi exercised their authority in the
borderlands, and indeedthroughout the region asa whLM.,paras. 3.44-3.&,.
alsoLM, para. 4.78 for comment on Ottoman-Senoussi relationLM,aparas. 4.89-
4.98and 4.103-4.112,for the role played by the Senoussi in organising the resistance of
the indigenous tribes to French advancesnorth of Lak&,Chalso, Exhibit LR 12
and Suo~lementarvAnnex,No. 3,for independent studiesof the matter.that time, and at least until 1912, it was the Senoussi who exercised sovereign
rights in and over the borderlands16.
9.17 Admittedly Chad seeks to go back on this admission in its
Counter-Memorial by denying that the Senoussi, although having a certain
structure and a certain degree of social organisation, were sufficiently organised
as an entity to be able to acquire title to the borderlands17. Chad then seeks to
develop the imaginative (but fallacious) theory that a distinction can be said to
exist between a "territorial title" inhenng in the indigenous peoples of the lands
which they occupy (deriving from customary tribal law) and a "sovereign title"
(deriving from the international law of the time)18. Chad cites no authority for
this theory, which in any event fails to explain how, and in what manner, the
asserted "sovereign title" could displace the "territorial title" in the absence of
agreements with the leaders of the indigenous peoples. The flaws in Chad's
arguments have already been demonstrated in the previous two chapters19.
9.18 Where Chad falls into error yet again is in denying the
continued relevance of the original title shared between the Senoussi and the
Ottoman Empire after the events of 1912. Senoussi conduct after 1912cannot be
represented as amounting to capitulation to the territorial designs of the French
in the borderlands or as any "acquiescence" in the establishment of French title to
the borderlands. Indeed, the evidence demonstrates that the Senoussi tnbes
offered widespread and determined resistance to the French military advance
northwards in 1913-1914,and continued to attack French garnisons or advance
posts in the borderlands long after the end of World War 1,and indeed up until
the early 1930s20. It is a travesty of the historical record for Chad to claim that by
1919(when French forces had been withdrawn from Tibesti and exercised at most
a precarious and sporadic control through a post established in other parts of the
borderlands) France had peacefully occupied the whole of Borkou, Ennedi and
Tibesti up to the 1919line2'. Far from "acquiescing"in the French attempt to
16 See,CM.p. 254,para.177;and,p. 19, para.12.
17 See,CC-M,para.3.07.
18 Se, CC-M, paras..16Io5.18.
19 S-, paras.7.57.M., and8.123 M., above.
20 See, LC-M.paras.5.35-5.9B. also,Su~olementarAnnex,Nos.7.2and7.4.
21 The even attempü to move up the dateof alleged Frenchoccupatito 1914,
presumablytotiyto showthaton the eveof delimitation negotiars iththe Italians, take over their ierritories in the borderlands, the Senoussi, in conjunction with the
indigenous tnbes, fought the French tooth and nail; and this struggle continued
long after the Ottoman withdrawal in 1913. Moreover, the Senoussi found
themselves with the problem of organising the indigenous peoples' defence on
twofronts: in the south against theFrench;and in the north against the Italians.
S~ION 4. British Conduct
9.19 Throughout the period until 1945, British conduct was
reasonably coherent, though it did display sonie inconsistencies. In 1899,British
policy in Africa was dominated by the need to establish a bamer against French
.colonial expansion eastwards to the Nile Valley where the British position in
Egypt and the Anglo-Egyptian Sudan had been seriously threatened by the
Fachoda incident of the previous year. This is in itself sufficient to explain the
British interest in agreeing with France a line to the northeast of Lake Chad
which would effectively place a limit on French expansionist policies in north-
central Africa. The British certainly did not regard the southeast line described in
Article 3 of the 1899Declaration as a territorial boundary. Neither Britain nor
France were in occupation of territory anywhere near the course, or approximate
course, of the southeast line. But Britain did have designs on Darfour, which it
regarded as appertaining to the Anglo-Egyptian Sudan. There was no agreed
boundary between Darfour and Ouadaï which lay to its west. Equally there was
no agreed boundary between the French Congo possessions and that part of the
Anglo-Egyptian Sudan lyingto the south of Darfour. Thus, part of the object and
purpose of the 1899 Declaration was to establish a true eastlwest frontier
between French possessions south of 15"N latitude and the Anglo-Egyptian
Sudan, and part was to place a limit on French expansionism to the north and rast
of the southeast line described in Article 3.
9.20 Although it proved possible during the 1899negotiations to
fk the boundary between approximately 5"N and 1l0N, it was not possible to
determine the boundary between Darfour and Ouadai'; it was therefore agreed
that this task should be entrusted to a mixed commission, which would have the
task of delimiting that portion of the boundary in an area between Darfour and
Ouadaï stretching from approximately 1 l0N to 1YN and lyingbetween 21°E and
whichin theeven;neveroccurred,French forceswereifim mntrol of theborderlands.
Thisis totallyrefutedbytheevidenceset out in theLC-M andhere.-, -g, para.
8.05,above,andMap LR 28.23"E. Article 2 of the 1899Declaration dealt with the boundary south of 15"N;
and Article 3 descnbed the southeast line as running from the point of
intersection of the Tropic of Cancer with 16'E longitude southeast to 24"E
longitude and then following 24"E longitude until it met, to the north of 15"N
latitude, the frontier of Darfour as eventually fied.
9.21 Libya has analysed in great detail the travaux ~réuaratoires
of Article 3 of the 1899Declaration, and the matter has been taken up once more
in Chapter VI above22. The story is a complex one; and the record has becorne
somewhat blurred as a result of the confusion created by the Non-Annexed Mau
and the uncertain state of geographical knowledge at the time. However, as
Libya has demonstrated, the travaux do disclose that the intended direction of the
southeast line in Article 3was southeast to intersect with 24'E longitude just
to the north of 15"N. Certainly, Britain regarded it as a true southeast line at the
time, as is evidenced by the British War Office maps of 1906 (revised to 1913),
1914and 1916~~.
9.22 A factor which influenced British conduct in 1899 (and
indeed in subsequent years) was the concern that the southeast line described in
Article 3 of the Additional Declaration might be regarded by the Porte as an
infringement of Ottoman rights over the hinterland ofTripolitania and Cyrenaica.
Lord Salisbury was well aware that, only nine years previously, the Ottoman
Empire had staked out a far-reaching hinterland claim and had notified it to
Britain and France. Lord Salisburywas also anxious about Italy'sreaction, since it
was known that Italy regarded itself as the potential successor to Ottoman rights
in Tripolitania and Cyrenaica. These concerns were voiced to M. Cambon at
several stages during the negotiation of the 1899 Additional ~eclaration.~~ A
study of the travaux reveals that it was the British, much more than the French,
who were anticipating, and wished to soften the effect of, potential Ottoman and
Italian protests and expressions of concem.
9.23 This is indeed confirmed by the ex~lanations which the
British subsequently gave in response to Ottoman and Italian representations.
22 See,LM. paras5.19-5.4LC-M p.aras4.14-4.7-e, para5.75g m., above.
23 See,LC-M. para4.18,andMapsLC-M 14Aand 14B;s, alsoLM, para5.182and Map
No. 63.
24 See,LM.paras.5.21-5.22,5.25,5.and5.32.The most complete and significant explanation is that given in the 1902Anglo-
Italian ~ccord~~. It willbe seen that Britain specificallyassured Italy that, to the
north of 15"N latitude, the line described in the 1899 Declaration represented
merely the limit beyond which the French Government would not at any time
advance its pretensions; and equally assured Italy that the provisions in whichthis
limit was laid down were carefully worded so as ta avoid bnnging into question
either the existing rights of other Powers or any prospective claim which they
might later put f~rward~~. Even more specifically,Britain declared ta Italy on 11
March, 1902,inter alia, that the 1899Declaratio"...in no way purported to deal
with the rights of other Powers, and that, in particular, as regards the of
Tripoli and the Mutessarifik of Benghazi, al1 such rights remain entirely
unaffected by
9.24 Thus, the British view of the legal effect of the 1899
Declaration differed radically €rom the French view as it was subsequently to be
developed. The British view wasthat, north of 15"Nlatitude, the 1899southeast
line was not intended to be, and indeed could not be, a temtorial boundary, and
that the Declaration as a whole could not affect the rights of other non-signatory
Powers. This was the viewconsistently maintained by Britain in subsequent years,
notably in the exchanges between Britain and France in the early 1920s when
these two States were seeking to prepare a concerted response to the Italian
protest against the Anglo-French Convention of 8September 1919~'.
9.25 Thst Britain and France were anxious to conceal their
differences when responding to the Italian protest against the 1919Convention is
only natural. But this in no way implies, as CC-M appears to suggest29, that
the British and French viewson the effect of the 1899Declaration were identical
or even complementary one to another. A close study of the record reveals the
contrary.
25 &,LM. paras.5.59and5.103-5.110;m,d paras4.97-4.105.
26 See,LM,para.5.105.
27 CitedaLM ,ara5.107.
28 &,LM, paras5.192-5.21m, paras4.203-4.21-e,also,para.6.18a=., above.
29 CC-M .aras.8.65-8.75. 9.26 In the an attempt is made ta argue that the effect of
the 1919Anglo-French Convention, coupled with the effective French occupation
of her "zone"up to the 1899line, was to transform what had hitherto been a line
dividing the limits of spheres of influence into a true boundary. Quite how this
miracle was achieved is nowhere made clear. The most that can plausibly be
argued is that, as between Britain and France, the 1919 Convention established
an eastlwest boundary between Darfourand Ouadaï, and extended that boundary
northwards from 15"Nlatitude along 24"E longitude ta 19"30'N latitude, which
was "interpreted" ta bethe terminal point of the famous southeast line described
in Article 3 of the 1899~eclaration~'. In no sense at al1can it be argued that the
1919Convention altered the character of the southeast line described in Article 3
of the 1899 Declaration; it merely modified its direction (under the guise of
"interpretation") as between the parties alone. This is amply confirmed by the
attitude which the Britishside took during the negotiations preceding signature of
the Italo-Anglo-Egyptian Exchange of Notes of 20July 1934,relating ta the Sarra
triangle. Libya has produced a full account of those negotiations3'. Two points
are particularly worthy of attention:
- The interna1 Foreign Office memorandum of 16 November,
1933,in describing the Sarra triangle, States tha"..the line
fixed in the Anglo-French agreement of 1919 represented
the southerly limit of a triangle in which His Majesty's
Government mieht wish to acauire territon, or noJitical
infl~ence"~~,thereby confirming that, even after 1919, the
southeast line described in Article 3 of the 1899Additional
Declaration (as "interpreted in 1919) was a regarded by
Britain as a territorial boundary.
- Britain, being aware of the continuing dispute between
France and Italy about the course of Libya's southern
boundary with French possessions east of Toummo,
specificallydissociated itseif from taking any position on that
30 -, para.5.09g M,, for afullerdiscussionofthe 1899Declaration.
31 See,M,paras.5.284-5.302;and-e,also,LC-M, paras.4.230-4.242,rebuttingthe totally
unfoundedChadianargument that,by mncluding this Exchangeof Notes, ltaly had
somehowsucceededIo Britishrightsand obligationsunderthe earlierAnglo-French
agreementsof1899and1919.
32 CitedinLM. para.5.289. Emphasisadded. dispute by agreeing that the southem terminal point of the
Libya-Sudan boundary should be on the 24th meridian at "...
its junction with the frontier of French possessions."
Accordingly,Britain clearlydid take the position that the
terminal point of the southeast line (in its 1919version) at
the point of intersection of 19"30'Nwith the 24th meridian
was opposable to Italy, the question of where should be the
junction of the Libya-Sudan boundary with the frontier of
French possessions being left over for further negotiations
between Italyand rance^^.
9.27 Itwill be recalled, in further confirmation of this consistent
British position, that the Foreign Office took the viewthat the Treaty of Rome of
1935 had, for the first time, determined a frontier in the area where southern
Libya meets French Equatorial Africa - that is to Say, in the area east of
Toummo 34 .
9.28 Thus, it is clear that Britain never accepted the 1899
southeast line (even as "interpreted" in 1919) as a territorial boundary between
Bntain and France. At most, it may have come to be thought of as a line dividing
spheres of influence, without any impact on the rights of other interested Powers
such asthe Ottoman Empire and Italy, although even this concept is complicated
by the fact that Egyptian, not British, sovereign nghts were concerned to the
northeast of the line. How a line (or, rather, diffenng lines because of the
disparities between the 1899and 1919lines) of this nature can be regarded as a
"boundary" line between two Powers, one of whom consistently denies that it was
a boundary, defies legal analysis. Britain was throughout the period up until 1945
fullyaware that there were conflicting claimsof title by France, on the one hand,
and by the Ottoman Empire and Italy, on the other hand, to the borderlands
between Libya and what is now Chad. But Britain steadfastly refused to take a
position on these conflicting claims, and there is nothing in Britain's conduct,
beyond the occasional sceptical comment about the extent of the Ottoman
33 The m s Mao Atlas,No. 27,reprcducesa pan of the mapaccompanyingthe 1924
Anglo-FrenchProtomldelimitingthisboundarybehveenFrance andGreatBritainnonh
to 19"30'Nlatitudeand speculatesthat this "consacreofficiellement la reconnaissance
anglaisede la limite Nord-Estdu Tchad".The 1934Exchangeof Notes destroysentirely
anysuchcontention.
34 See,citationshom BritishdocumentsaLM.para.5.341.hinterland claim advanced in 1890and the occasional doubt expressed about the
strength of Italian claims based on Ottoman occupation of the borderlands
between 1908 and 1912, to suggest that Britain was taking a position on these
conflictingclaimsto title in and over the borderlands
SEC~O N. FrenchConduct
9.29 French conduct up to 1945 is marked by notable
inconsistencies, which must cast doubt on the credibility of the French thesis,
maintained up until 1955,that a conventional boundary between Libya and what
is now Chad had resulted from the combined effect of the 1899Declaration, the
Anglo-French Convention of 8 September 1919,and the Franco-Italian Accords
of 1900and 1902. The most flagrant example of French inconsistency of conduct,
amounting effectively to a distortion of the truth, are the repeated French
assertions that a map (the notorious Livre Jaune map) had been annexed to the
36
1899Declaration . An almost equally flagrant example of French inconsistency
of conduct is the continuing French assertion, following the refusal of Italy to
exchange ratifications of the 1935 Treaty of Rome in 1938, that the boundary
between Libya and what is now Chad had reverted to that which resulted from
these four instruments, notwithstanding that in the Emosé des motifs
accompanying the draft French law authorising ratification of the Treaty of
Rome, it is specificallystated that the Franco-Italian Agreement of 12September
1919 had left France and Italy without a conventional boundary east of
37
Toummo .
9.30 Quite how the failure of the 1935Treaty to enter into force
could transform what the French Government of the time hadknowledged to
be, immediately followingthe signature of the Treaty, the absence of a boundary
between Libya and French possessions east of Toummo into a boundaryiving
from instruments which,in the Emosé des motifs, France had acknowledged had
not been accepted by Italy as determining a territorial frontier, is nowhere
35 Britishskepticismcanbetracedto anincnmpleteknowledgeof theextentand natureof
Ottoman occupation otfhebordeat the time, anunderstafailuregiven the
lackof knowledgeoftheionpossessedbyGreat BandFrance.
36 Sec. .paras.5.2,.31, 5.85,1,.92,.94,.9to 5.98,.185.1975.2075.210,
5.263, 5.392 5.393e, alsom, paras.4.50-4and 7.10-7.19s.the map
appearingin theWs Mar>Atlas asMap32shows, evenin 1,taly wasnotaware
thatnomaphadbeenannexedothe 189Declaration.
37 Sec. M.paras.5.336-5a3dL;C-M p.ras.6.27-6.35.explained. The significance of what is admitted in the Ex~osédes motifs is
particularly illuminating, given that, at the time when it was submitted to the
French Parliament, the French Government had high hopes that the Treaty
would be ratified by both France and Italy, thereby delimiting for the first time a
true boundary between Libya and French possessions east of Toummo, and could
therefore afford to be more frank and open about the previous absence of a
boundary in thisrea.
9.31 Leaving aside for the moment the frank admission by the
French Govemment in the Emosé des motifs accompanying the French draft law
authorising ratification of the Treaty of Rome of 1935,the one relatively constant
theme in the French position vis-à-vis Italy in the 1920sand 1930swas that the
boundary between Libya and what is now Chad had been laid down in the 1899
Declaration as "interpreted" in 1919and that the line so laid down was opposable
to Italy byvirtue of the 1902Franco-Italian ~ccord~~. France did not seek at this
stage, nor indeed did she do so subsequently in the Franco-Libyan negotiations in
1955, to rely on French colonial effectivitésas giving her title in and over the
borderlands. In this major respect, the case now advanced byd differs from
the pre-1945 position taken byFrance.
9.32 It is nonetheless interesting that now appears to rely,
--ter alia, as'an element supporting or sustaining French title to the borderlands,
on a claim that, by 1919, French forces had occupied al1the territories on the
French side of the 1899-1919 southeast line. This claim is unfounded on the
fa~ts~~. It was not indeed until 1930with the establishment of a French "zone à
surveiller" in northem Tibesti that we begin to see the first signs of French
military posts being installed north of a strict southeast line; and it is significantto
note that this provoked an immediate Italian protest on 19May 1930Mar>LR
30).
38 &, para.6.125,above,whereit is show, citingProf.RouardDe Card,thatthis French
thesiswasfirstdevisedin 1913-1914.
39 See. LC-M.5.4-,-q.;andpara.8.0g,a., andMapLR 28above.
40 See.LC-M,paras.5.77and5.78 SEC~ON 6. Italian Conduct
9.33 Italian conduct throughout the period upto 1945displayed a
high degree of consistency. Italy regarded herself, in consequence of the
conclusion of the Treaty of Ouchy in 1912,as having inherited al1Ottoman rights
and claims in respect of the territory of Libya as a whole (k, Tripolitania,
Cyrenaica, Fezzan and the borderlands). Prior to 1912, of course, Italy had an
interest in Libya, since she regarded herself as the potential successor to the
Ottoman Empire as sovereign over the temtory; but Italy had, at that time, no
formal status in or in relation to Tripolitania, Cyrenaica and the Tripolitanian-
Cyrenaican hinterland. Accordingly,the Franco-Italian Accords of 1900and 1902
were political, and not territorial, agreements since Italy had no authority at the
time to determine with a third power the limitsof Ottoman territory.
9.34 Libya has already disposed decisively of Chad's arguments
that, by the Franco-Italian Accords of 1900and 1902:
- Italy had recognised a French z e of influence extending
uptothe Tripolitanian boundary 81:,
- Italyhad accepted the 1899southeast ~ine~~;
- Italyhad accepted the Tripolitanian b~undary~~;
- Italy had renounced the rights of theOttoman ~m~ire~~.
These arguments are again refuted in Chapter VI, Section 3,above.
9.35 All of these arguments are completely lacking in foundation
if a close study is made of contemporary documents. But they were advanced by
France (and are now advanced by Chad) to overcome the formidable hurdle that
the two Anglo-French agreements of 1899and 1919were res inter alios acta so
far as other Powers were concemed, those other Powers including, prior to 1912,
the Ottoman Empire and, subsequent to 1912, Italy, as the States exercising
sovereigntyin and over Libya.
41 See,LC-M.paras.4.80-4.82,4.854.89,4.93-4.95,4.106-4.109,4.11and.4.123.
42 See,LC-M.paras.4.119-4.122.
43 See,LC-M.paras.4.1234.125.
44 See,LC-M.paras.4.126Ga., esp.,paras.4.1424.149. 9.36 Even if the view were taken that Italy had at some stage
accepted the 1899southeast line, if only as a strict southeast line dividingspheres
of influence, this cannot be interpreted as acceptance by Italy of the modification
in the direction of that line effected by the Anglo-French Convention of 8
September 1919. Italy protested strongly to Britain and France in 1921about the
northward shift in the terminal point of the 1899southeast line, and repeated that
protest in 1924 45. The Italian refusal to accept that part of the 1919 Anglo-
French Convention, which related to the extension northwards to 19"30'Nof the
Darfour-Ouadaï boundary dividing the Sudan from French possessions, and to
the direction of the southeast line described in the 1899 Declaration as
"interpreted" in 1919,was persistently maintained until the conclusion of the 1935
Treaty which would, had the exchange of ratifications taken place, have fixed the
terminal point of the agreed boundary east of Toummo at the intersection of
18"45'Nlatitude with 24'E longitude. This is evidenced, inter alia, hy the position
taken by Italy in the Anglo-Italian negotiations of 1934 relating to the Sarra
46
triangle .
9.37 In theu, an attempt is made to argue that, whatever the
position may have been in consequence of the 1902Franco-Italian Accord, Italy
in any event renounced definitivelyher right toelyon the Ottoman claimsbyway
of inheritance by relying exclusivelyon Article 13of the Treaty of London and on
her protests against the 1919 Anglo-French Convention in negotiating with
France on Libya'ssouthern boundary between 1920and 1934~~. But a careful
study of the documentation relied on byChad in this respect reveals no more than
that Italy invoked Article 13 of the Treaty of London as a basis for negotiations
with France over Libya's southern boundary4'. This was a basis whio France
could not deny, since, in the Franco-Italian Accord of 12 September 1919,both
parties specifically acknowledged that the boundary question resolved by that
Accord -namely, the course of the boundary between Ghadamès and Toummo -
did not exhaust al1the boundary questions in issue between Libya and French
~~
45 See.LM,paras.5.188-5.191and5.21s-, alsoLC-M ,aras.4.203-4.218.
46 See,LM, paras.5.290-5.299.
47 See,CC-M.paras.7.40-7.60
&. para.6.196%a., above,andSuv~lernenta~Annex,No. 5.
48possessions bordering on Libya and that "other points" were reserved for
subsequent examination 49.
9.38 it was only natural that Italy would rely on Article 13of the
1915 Treaty of London in subsequent negotiations, given that France had
acknowledged that her obligations to Italy under that Article had not been
exhausted by the conclusion of the Accord of 12 September 1919;but this in no
sense implied that ltaly had renounced or abandoned the rights which she
claimed by wayof inheritance from the Ottoman Empire. Indeed, in the Anglo-
Italian negotiations in 1933-1934on the Sarra triangle, Italy specifically invoked
the Ottoman occupation of part of the Libya-Chad borderlands in the period
immediately preceding 1912 as the ground for her entitlement to the area in
dispute5'. And in the 1928-1929 negotiations conducted between French
Ambassador Beaumarchais and Mussolini, the latter specifically referred to the
Ottoman rights inherited by ltalyS1.
9.39 Libya has already demonstrated that no importance should
be attached to the use of the word "cession" in certain French and Italian
documents dating from the period 1935 to 1938~~. In this context, it is worth
recalling that, at the time, the word "cession" was not always utilised with strict
accuracy. In the Sarra triangle negotiations, even British officiais, at least in
internal documents, referred inaccurately to the "cession" of the Sarra triangle
when it is clear that al1they had in mind was merely the renunciation by Britain
and the Sudan of their potential claim to the temtory compnsing the Sarra
triangle3.
9.40 Thus, there is no evidence of Italian "acquiescence" in the
French interpretation of the 1899-1919 southeast line during any part of the
penod between 1912 and 1945. Nor is there any evidence of Italian
"acquiescence" in French title to any part of the Libya-Chad borderlands, save in
the context of the boundary which Italy was reluctantly prepared to agree with
49 See,LM, paras.5.168-5.172.
50 &, passagecitediLM, para.5.291.
51 -ee,Su~~lementarvAnnex,No.5.4.
52 See,LC-M. paras.6.30-6.35; also,paras.6.222-6.223,above.
53 &, thepassage fromBritish intedlocumentscitedaLM, para.5.295.France under Article 2 of the 1935Treaty. Italy firmly and consistently took the
position that the1899southeast line did no more than divide spheres of influence
between Britain and France and that it was intended to be a strict southeast line
intersecting the24"Elongitude just to the north of 15"Nlatitude. Indeed, Italy
consistently protested against any Frenchm1litaryincursion beyond the 1899strict
southeast line(Mau LR 30).CHAPTERX. SUBSEOUENTCONDUCTOFINTERESTEDPARTIES
UNTIL1951
10.01 In the immediate post-war penod from 1945 to 1957, it is
French conduct and, to a very much lesser extent, British conduct that is of most
interest in the.context of -the present dispute. With the defeat of Italy during
World War II, Italian conduct ceases to have any real importance. On the other
hand, account has to be taken of the 1947Treaty of Peace with Italy; and, even
more significantly, account has to be taken of discussions within the United
Nations preceding the independence of Libya and relating to Libya's frontiers
with neighbouring States and territones. It is ta these matters that attention is
now directed.
10.02 What is shown below is that French conduct during the
penod between 1945and 1951was dominated by the desire to acquire and retain,
for the benefit of French possessions bordering on Libya, substantial portions of
Libyan territory. As far as Libya's southem boundary was concerned, France
continued to rely on her thesis that, with the failure of the 1935Treaty to enter
into force, the boundary had reverted to the 1899-1919line opposable to Italy
(and any successor in title to Italy in respect of Libya) by virtue of the 1902
Franco-Italian Accord and other assorted instances of Italian acquiescence. But
this did not inhibit France, in the Four Power discussions, immediately following
the entry into force of the 1947Italian Peace Treaty, from advancing claims ta a
sizable portion of Libyan territory, including territory to the north of the 1899-
1919line.
10.03 That France was nervous about the validity of her main
thesis is, however, attested to by her conduct in the United Nations debates on
Libya's boundaries. Confusion was undoubtedly created in the Four Power
discussions and later in the United Nations debates by reliance on misleading
maps, some of British and some of French Algerian provenance. Even more
confusion was created by a French notation on one of those maps referring toa
(non-existent) Franco-Italian protocol of 10 January 1924. But the French
representative to the Ad Hoc Political Committee corrected these errors
immediately before the vote on what was to become General Assembly
Resolution 392(V); and the vote on that Resolution (conducted in full knowledge
of the French thesis) demonstrated that the General Assemblywas convinced
that Libya's southern boundary had already been delimited by international
agreement. SECTIO .. French Conduct in Fezzan andthe LibvaIChad Borderlands
10.04 During World War II,Libya wasa major theatre of military
operations. From the beginning of 1943onwards, British and other Allied forces,
advancing from Egypt, succeeded in occupying the whole of Cyrenaica and
~ri~olitania;' and French troops, advancing from the south, occupied the
borderlands and ~ezzanl. One detachment of French troops in fact occupied
Koufra, whichwas however later handed over to British militaryadministration.
10.05 Thus, by the end of World War II,the whole of Libya was
under foreign military administration, and this remained the position until Libya
achieved its independence at the end of 1951. Inthe immediate post-war period,
French forces, and indeed French Governments generally, were determined to
stay in Fezzan for reasons of national pride and for other, and perhaps more
compelling, political and economic reasons2.
Smo~ 2. Senoussi Conduct Durin9 World War II
10.06 The Senoussi joined the British (and eventually Allied)
cause during World War II. A meeting of Senoussi leaders from Tripolitania and
Cyrenaica resolved in August 1940to participate in the war alongside the British
army in Egypt under the leadership of the Senoussi Emirate. Subsequently, a
Libyan Arab Force came into being, as a result of an agreement between the
Assistant Military Secretary, British Forces in Egypt and the Emir Idris,
representing the Senoussi 3 . The British were conscious of the Senoussi
contribution to the war effort, and on 8 January 1942, Mr. Eden (then Foreign
Secretary) declared that this British Govemment were determined that, at the
end of the war, the Senoussi in Cyrenaica would in no circumstances again fall
under Italian domination 4.
1 S-, LM.para.5.357.
2 See,LM. paras.5.403and5.412.
3 See,LM,para.5.355.
4 See,LM,para.5.356. 10.09 There were differing reactions to these treaty provisions.
Within Libya itself the Four Power Commission reported that there was an
almost unanimous Libyan desire for complete independence, although the
Commission itself concluded that Libya was neither economically self-supporting
(this was before the discovery of oil on Libyan territory) nor ready for
independence. As already indicated, Italy wanted Libya placed under U.N.
trusteeship, with herself as Administering Power, but this was objected to by
Britain. Egypt supported Libyan independence but proposed herself as
Administering Power if the trusteeship solution were decided upon.
10.10 For the Four Powers, the matter was complicated by
demands for an adjustment of Libya's boundaries (or asserted boundanes)
advanced by Egypt and France. The Egyptian demand was for revision of her
eastern boundary with Libya, so that the oasis of Djaraboub, the plateau of
Sollum, Bardia and the Sarra triangle would either revert to, orbe acknowledged
as belonging to, Egypt. The French demand was for revision of the boundary
between Libya and Algeria so as to place Ghadamès and Ghat firmly within
Algerian territory; it was also for a drastic simplification of what France regarded
~ib~a'ssouthern boundary (pre-1935) to be, involvingthe transfer to France of al1
territory to the south of a straight line drawn along the Tropic of Cancer from
approximately 1l0N longitude to 20°N longitude, from whence it would descend
due south to join the 1899-1919 southeast line (Mar, LR 26 referred to in
paragraph 6.251)~. The French wished the Four Power Commission to examine
these demands for "frontier adjustment". But this was never done.
10.11 Thus, France sought to take advantage of her ,privileged
position as one of theFour Powers to have attributed to her, in respect of Aigeria,
French West Africa and French Equatorial Africa, sizable portions of Libyan
territory, even before the final disposal of Italian possessions in Africa had been
decided upon. Fortunately, others of the Four Powers resisted this French
pressure, and it was eventually decided that any question of revision of Libya's
external frontiers should be left over until a decision on the final disposa1of Libya
had been taken, the question of frontiers thereafter to be settled by a boundary
commission to be set up bythe United ~ations~.
6 See, alsm, paras.5.364and5.365.
7 para.5.367. 10.12 As the Four Powers were unable to agree on the final
disposal of Libyawithin the time-limit fixed in the Joint Declaration XIntox
the Treaty of Peace with Italy), the issue was referred ta the U.N. General
Assemblyin 1949.
S~cno~4. United Nations~onsidektion of ~ibva>s~oundaries
10.13 Both Libya and Chad have sought to analyse in considerable
detail the debates within the various United Nations organs to whom was assigned
the task of studyingthe Libyan question between 1949and 19518.
10.14 Libya contends that the wording of General Assembly
Resolution 392(V) of 15 December 1950, particularly when read in the light of
the travaux uréuaratoires of that Resolution, confirms that, on the date of its
adoption, no agreed boundary existedbetween Libya and French possessions east
of ~oummo~. The Resolution recommended, inter alia, "that the portion of
[Libya's]boundary with French territory not already delimited by international
agreement be delimited, upon Libya's achievement of independence, by
negotiation between the Libyan and French Govemments ..."But the adoption
of this Resolution had been preceded by significantpreparatory studies. General
Assembly Resolution 289(IV) of 21 November 1949,had already recommended,
despite doubts expressed by Britain and France,-that Libya should be constituted
as an independent and sovereign Stateand that this independence should become
10
effective as soon as possible and in any case not later than 1 January 1952.
Section C of the same Resolution called upon the Interim Committee of the
General Assembly "to study the procedure to be adopted to delimit the
boundaries of the former colonies in so far as they are not already'fixed by
international agreement" and to report with conclusions to the next regular
session of the General Assemblyll. It should be noted that this was to be a
general study embracing &i theformer Italian colonies and not simplyLibya.
8 See, LM,paras.5.369-5.39CM. pp. 221-235, paras.61-LC-M paras.8.34-8.43;
anda paras.11.133-11.138.
9 The Resolutiisdiscussedabove,staning atpara.4.12.
10 Se,LM. para.5.373.
11 Sec .M.para.5.376.LIBYA 10.15 The Interim Committee thereupon (in early January 1950)
commissioned the U.N. Secretariat to study the problems. The Secretariat Study
was submitted to the Interim Comrnittee on 27 January 1950.. It is an important
document, despite the confusion that Chad tries now to lay at its doorstep. The
Study (correctly) pointed out that Libya'sboundary with Tunisia had been fixed
by the Franco-Ottoman Convention of 1910; that Libya's boundary with Sudan
had also been fixed by international agreement; and that Libya's boundary with
Algeria and French West Africa had also been fiied by the Franco-Italian
agreement of 12September 1919 12. The Study noted that no claims or questions
had been raised with regard to these portions of Libya'sfrontiers with adjoining
temtories. But uncertainty was apparent with respect to Libya'ssouthern frontier
with French West Afnca and French Equatorial Africa. The Secretariat Study
had included, as an Annex, a rnap entitled "Libya :Sketch Map of Frontiers",
showing the southem boundary of Libya, east of Toummo, as a dashed line with
question marks (Map LR 31)13. The boundary was not the southeast line
resulting from the Anglo-French Convention of 8 September 1919;it was closer
to, but not identical with, the line described in Article 2 of the 1935~reaty'~.
10.16 The Secretariat was clearly perplexed by the rnap attached
to the Report of the Four Power Commission which contained a Note by the
Commission itself and a "Note by the French ~ele~ation"". The rnap itself was a
reproduction of a British Ordnance Survey rnap based on a rnap printed by the
Italian Ministry of Colonies in 1937,and showed the southem boundary as a line
similar to the 1935Treaty line. But it also showed an alternative French version
of this line (but stoppingshort at 18"Elongitude) based upon a rnap published by
the Algerian Government in February 1948. The "Note by the French
Delegation" (correctly) pointed out that the boundary shown on the British
Ordnance Survey rnap was based on the 1935 Treaty, which had never entered
into force, but (incorrectly) claimed that the 1948Algerian Government rnap was
12 See,LM.para.5.378.
13 Thisrnapappearedinthe asMap No. 87.
14 See,LM. para. .377and MapNo.87.
15 See,LM.para.5.381,and MapNo. 88.based on a noniexistent Franco-Italian Protocol of 10 January 1924. This was
dulypointed out bythe Secretariat in its Study of 27January 1950.
10.17 The Interim Committee deferred consideration of the
question of boundaries in the light of the ~ecretariat Study until 15 September
1950. It is appropriate to interpolate here that this left the French delegation
ample time to correct any misunderstanding created by the incorrect reference
made in the "Note by the French Delegation" added to the map annexed to the
Report of the Four Power Commission; but nothing was done. When the Interim
Committee met on 15 September 1950, the United States Delegation tabled a
draft resolution, the relevant part of which was virtually identical with the text of
what became General AssemblyResolution 392(v)17. This was forwarded tothe
Ad Hoc Political Committee which began to debate it on 13 December 1950.
Before a vote on the draft resolution was taken, the French representative made
a statement which, inter alia, presented a claim for rectification of Libya's
boundary with Algena in the area of Ghat and Serdeles and then proceeded to
correct the error created by themistaken reference to a Franco-Italian Protocol
of 10January 192418.
10.18 If the object and purpose of the corrective statement by the
French representative was to maintain that Libya'ssouthern boundary had been
delimited by the international agreements and acts referred to in that statement,
it is clear that his statement did not cany conviction with other delegations.
Moreover, had that been the object and purpose, France should in al1logic have
voted against Resolution 392(V) instead of voting for it. The reference in
Resolution 392(V) to "the portion of [Libya's]boundary with French territory not
already delimited could & have been a reference to Libya's southern
boundary, since the Secretariat Study (whichwas not contested on this point) had
already concluded that Libya'sboundaries with Tunisia, Algeria and the Sudan
had already been fixed by international agreement, and the French claim
advanced in the debate was a claim for rectification of Libya's boundary with
Algena. Furthemore, the Egyptian claim was likewisea claim for rectification of
16 The studiedlyneutralanalysisby the Secretanatof the positionon this aspect of the
matterisreproducedaLM, para.5.379g, alsoLM, para.5.382.
17 See,LM. paras. .386and5.387.
18 Relevantextractsfromthe statembyttheFrenchrepresentativearereproduceLM,
paras.5.388and5.390-5.392.See,also,SuaulemenAnnex,No.6.1.the Libyan-E&tian boundary, and this was to be the subject of a separate
~eneral Assembly resolution of 28 January 1952 recognising Egypt's intent to
enter into negotiations with Libya.
10.19 The makes a comment about Article 3 of the 1955
Treaty that Libya finds revealing, even ifit is not simple to understand:
"Ils'agit en quelque sorte de la rirmation sous une autre forme
destermes de la résolutio392(V)% ."
But Resolution 392(V) had called for substantive negotiations on those of Libya's
boundaries with French territory which had not clearly been delimited by
international agreement-this referring specifically,as Libya has demonstrated, to
Chad does not, and cannot, on the facts, assert that
Libya'ssouthern boundary.
substantive negotiations took place in 1955 on Libya's southern boundary.
Indeed, Chad admits that the substantive frontier negotiations between Libya and
Chad in 1955 related to the segment of boundary separating Libya from Algeria
and ~i~e?l. This was the segment of boundary that France wished the most to
have rectifiein her favour.
10.20 Chad then goes on to argue that little importance should be
attached to the consideration that the 1955 Treaty makes no mention of
Resolution 392(V) and that one should not in any event attach to the travaux of
the U.N. any fundamental importance in the interpretation of t1955 Treaty22 .
This only serves to confirm the weakness of the Chad position as regards the
significanceof Resolution392(V) and its relationship to 1955 Treaty.
10.21 As Libya has already explained, neither Libya nor France
wished to enter into substantive negotiations in on the subject of what was or
should be Libya'ssouthern b~unda$~. Libya did not wish to do so because her
basic position was that frontier delimitation questions should be dealt with outside
the framework of the 1955 Treaty and because she was insufficientlyinformed as
-
19 SeeLM, para5..39andhi .58.
21 SeeCC-M, para.11.123.
22 SeeCC-M. para. 11.138.
23 Seepara.5.12g S.. ,bove.to the details and did not have available in its delegation any experts on frontier
problems. Libya'sprime objective was to secure the evacuation of French forces
from Fezzan 24.
10.22 France's position was different. She wished to receive
compensation for agreeing to withdraw French forces from Fezzan, particularly
on questions of security and frontiers 25. But, as regards frontiers, and
particularly the "frontier" between Libya and French Equatorial Africa, the
Governor General of the A.E.F. strongly advised against asking Libya to
recognise what France regarded as the existingboundary between Libya and the
A.E.F., but rather to set out the principles that should govern such a delirnitation
in the future, taking as the sole basis for such a delimitation the treaties in force
on the date of Libya'sindependence26. The viewsof the Governor General were
concurred in by the Ministre de la France d'Outre Mer and were reflected in the
instructions given to the French negotiating team when negotiations resumed in
July 1955~~.France therefore confined itself, in the Franco-Libyan negotiations,
to seeking rectification of the Libyan-Algerian portion of the bounda~ybetween
Chat and Toummo, but was otherwise content not specifically to raise the
question of Libya's other boundaries with French territory, including Libya's
28
southern boundary .
10.23 Such travaux préparatoires to the 1955 Treaty as are
available do not disclose why no reference was made in the preamble to that
Treaty to General Assembly Resolution 392(V). One can surmise that the
French negotiators might have been reluctant to include a preambular reference
to that Resolution since it was predicated on the assumption that there a
portion of Libya'sboundary with French territory which had not been delimited
by international agreement. It is however equally plausible that it was in the
interest of both parties not to make any reference in the 1955Treaty to General
Assembly Resolution 392(V), since both sides were aware that the 1955Treaty
--
24 See,LM, paras.5.423.5.445-5.451,and5.459-5.462.
25 See,LM, paras.5.429-5.439.
26 See,LM. paras.5.437-5.439.
27 Sec .uo~lementarvAnnex,No. 6.6.
28 The Ghadamès-Ghatsegmen tfthe Libyanboundarywassubsequentlydealtwithin the
1956 Agreement. The southernboundary wasintended Io be settled al a subsequent
time.Sec .ara.5.12g S., above.provisions on 'frontiers did give effect to the recommendation in that
~esolution, but at most amounted to what Chad has revealingly referred to as "la
réaffirmation sousune autre forme des termes de la résolution.392(~)~~".
29 See,para.5.38,bove.CHAPTER XI . CONDUCTOFLIBYAANDCHADPOST-1951
SECTIO 1. Introduction
11.01 In its Counter-Memorial, Chad reproached Libya for
"incohérent" conductin the penod between Libya's independence and the
presentation to the Court ofts Memorial. According to the CC-M. Libya had
many opportunities to set forth its present tzmtonal claims but failed to do so.
As a result of this conduct, Chad asserts that Libya recognised a boundary
between Libya and Chad corresponding to the boundary line claimed by Chad in
this case.
11.02 It is appropnate, in beginning this analysis of the conduct of
the Parties after 1951,to recall that General Assembly Resolution 392(V) of 15
December 1950 reflected the view that no boundary existed between Libya and
France's colonial boundaries east of Toummo. France had expressly recognised
this to be the case in 1935~. Accordingly, in this Resolution, the General
Assembly invited Libya and France to negotiate in order to delimit this boundary.
As Libya has demonstrated, such negotiations conceming Libya's southern
boundary east of Toummo never took place and, thus, the 1955Treaty did not
cany out such a delimitation. No such boundary east of Toummo resulted from
the 1956Agreement either, since it was concemed solelywith the rectification of
Libya'sAlgerian boundary between Ghadamèsand ~hat~.
11.03 Thereafter, the international climate was hardly propitious
for such negotiations between Libya and France, as has been explained above and
in pnor pleadings .To mention again a few reasons whythis was so,France was
caught up in the war with thF.L.N i.Algena, thus eaming it the hostility of the
Arab world. As a result, France had more important womes than the
delimitation of Libya's southern boundary. As for Libya, it supported the
Algenan people in their struggle for independence. Any negotiation of this
character presupposed the existence of a minimum climate of confidence and
1 S-, para.4.17,above,and the discussionof the Resolutionjus1abovein the previous
Chapter.
2 See,LM.para.5.32m, para.6.26;andpar6.211above.
3 See,para.5.45,above.
4 5-, para.4.2g,S.,above,andreferencesthereto theandm.goodwill between the participating States. This confidence was conspicuousl~
absent at the time5. Outside the meaning to be attributed to the 1955Treatyand
the 1956Agreement, no conclusions can be drawn from Libya'sconduct between
its independence in 19'51and 1960,when Chad achieved independence. In the
discussionthat follows,the followingconclu~ionsare reached concerning the post-
1951conduct of Libya and of Chad:
- In their mutual relations, the two Parties failed to raise the
problem of their boundary during the period 1960-1971;
In the period after 1971, Chad recognised Libya's
sovereignty over the so-called "Aouzou Strip", but
subsequently reversed itself and contested Libya's
sovereignty there;
-
The debates before the U.N. were essentiallypolitical;
-
It was onlyin 1987that the O.A.U. started to become really
involvedin the matter of the Libya-Chad boundary;
- In its statements before both international bodies on the
question of the territorial dispute between Libya andad,
Libya made reference to its inheritance of the rights and
titles of the Ottoman Empire.
11.04 In the followingdiscussion,the conduct of thearties willbe
examined in the context of their mutual relations. Then the conduct of each Party
before the O.A.U. and theU.N. willbe examined.
Smo~ 2. Conductof Libyaand Chadin the Contextof TheirMutual
Relations
11.05 An understanding of the relations between two States can
only be acquired if examined in historical context. Both States had just emerged
from their colonial past: Libya regaining independence under the special
procedures of the 1947 Italian Peace Treaty and under the aegis of the U.N.;
Chad as a result of decolonization. But as new States they had shaky foundations.
5 LC-M p.ara3.113.They knew practically nothing about the pnor relations among Great Britain,
ran cnd Italy- and hence about any possible boundary problem between
them. And Chad, almost from themoment of independence, suffered from
intense instability, rendenng any meaningful negotiations over its territorial
boundaries virtuallyimpossible.
11.06 To pretend today that Libya had a duty starting i1960 to
formally set out its territorial claims,based on a rigorous jundical analysis and a
thorough knowledge of the background facts and documents, is to try to rewrite
history and especially to ignore the situation that then prevailed in the region.
But this is Chad's position before the Court in this case; and it occurs to Libya
that it might have behooved Chad to be moretemperate in its attack on Libya for
supposed "incohérence" when itsown conduct was,without any doubt,far worse.
11.07 The situation before and at the time of the conclusion of the
1966 Treaty between Libya and Chad may accurately be descnbed in this way.
From independence and for many years following,Libya was a poor country. It
was dependent on international support. It certainly had no corps of competent
jurists (certainly not to deal with such matters as international boundarieit; and
had no knowledge of the documents to be found in the British, French and Italian
archives relating to the questions nowbefore the Court in the present dispuAe.
candid assessment of Libya's knowledge, preparation and competence in such
matters as boundary negotiations - and in respect to the 1956 negotiations
concerning the Algerian boundary, as to which the Libyans were far more
informed than its southem boundary -is contained in a note of 23November 1956
of M. Joxe, Secretary General of the Ministryof Foreign Affairs:
"...nos interlocuteurs n'avaient qu'une connaissance insuffisante
des régionsen cause; ils étaientincapables de formuler clairement
leurs revendications et encore moins de les arrêtersurune carte; ils
ne possédaient ni dossiers ni documents, se bornant à se faire
l'échode vagues témoignageset de prétentions e 8géréesdont ils
ne parviennent pas àfaire une synthèsecohérente ."
A few days later, on 29 November 1956,the French Minister gave a similar
account tothe French Parliament of the difficultiesthat Libya faced at the time in
readying itselffor boundary negotiations, again as to the boundary with Algeria:
6 Su~plementawAnnex, No.6.7. "C'est en juin que nos experts devaient se rendre à Tripoli. Que
s'est-il passé? Il s'est pass...que la Libye n'avait pas d'expert,
qu'elle a dû en chercher en S sse, et qu'au dernier moment, cet
expert s'esttrouvéindisponibleu'."
This perfectly illustrates the predicarnent facing these new States that had just
achieved independence - and yet today Chad would attempt to hold Libya to a
standard of conduct that not many experienced States could liveup to.
11.08 It should be noted that Libya as well as Chad experienced its
share of instability during this period. Between 1963and 1969,seven changes of
the Libyan Govemment and 15 ministenal replacements occurred. The 1967
agression against ArabStates in the Middle East must also not be overlooked and
the troubles resulting within the Arab world. In that year, there were
demonstrations and riots in Tripoli, including attacks against British and
American installations.
11.09 Thus, Chad was not alone in experiencing difficulties. Like
Libya, it had been poorly prepared for independence by its colonial parent. This
was especially the case with respect to military matters, as reflected in the 1960
Accord between Franceand Chad, which accorded in its Article 4 -
"..aux forces armé 980rançaises la libre disposition des bases qui
leur sont nécessaires.
And the companion Accord concerning military and technical assistance
provided, in its Article 1, that France would assist Chad in establishing its police
force and national army. Thus, whatever military presence there was in the
borderlands was purely French.
11.10 Chad'spoverty wasbrought out in this 1972description:
"En tennes d'écon mie modeme, le Tchad est l'undes pays les plus
pauvres du monde 8."
7 JournalOfficieldelaRkpubliqueFrancaise(J.O.R.F.),29November195p.2364.
8 J.O.R.F.,24Nov. 196p.10460.
9 Casterou,C.:"La rebellion au Tchad",Revue francaised'ktudesaolitiques africaines,
Janvier1972p.47.But even graver was the rebellion that developed as early as 1963 and led, in
1966, to the creation of the ~rolinat'O. As a iesult, there was a progressive
disappearance of any semblance of governmental administration. It was owingto
French military intervention in 1968 and 1969 that Chad avoided falling totally
into chaos.
11.11 It is, thus, no surprise that neither of the parties to the 1966
Treaty of Arnity between Libya and Chad raised the matter of territonal
boundanes. This is illustrated by the fact that the 1966Treaty, whose provisions
11
replaced those of the 1955 Convention concerning the "régime frontalier" ,
never refers back (unlike the 1955Convention) to Article 3 of the 1955Treaty.
The quite different function of the 1955Convention (and its successor, the 1966
Treaty, in respect to the "régimefrontalier") has already been discussed above2.
11.12 It is mystifying how the can see in the subsequent
agreements between Libya and Chad, in 1972,1974and 1980,any further proof
of Libyan acquiescence in the boundary line claimed by Chad. For these
agreements Iead to quite the opposite conclusion.
11.13 In 1971, the then Govemment of Chad, alleging that Libya
was interfering in its interna1affairs, broke off diplomatic relations. But relations
resumed in 1972,culminating in the 1972Treaty,signed in December of that year,
which concerned cooperation and mutual assistance13. There was no mention at
al1of boundaries in this Treaty; it dealt only with cooperation in such fields as
economy and finance, commerce, technical assistance, and cultural affairs14. In
the Treaty, the parties undertook to resolve any future disputes by pieans of
negotiation, observing the provisions of the Charters of thU.N. and the O.A.U..
11.14 Whywere boundary problems not raised at that time? The
answer is clear: it was hardly the right moment to do so given the stormy period
10 Frontde libkrationnationale tchadien.
11 Sa, para.5.50.m., above.
12 -Ibid.
13 Libya hadalreadystarted Io establish ils civilian administration in thenonh of the
borderlandsbyhen.
14 See,LM. para.5.5543 a. andInternational Accords aAmeementsAnnex,No. 34,
where theTreaty'steisseout.both countnes had been through. And what was to be discussed had not been
defined, and this was a very poor time to do so.
11.15 The 1972Treaty was signed on 23 December 1972less than
a month after the letter President ~ombalba~e addressed to Colonel Kadhafi
(dated 28November), containing this declaration:
"En ma qualitéde Présidentlégaldu Tchad, je tiens àvous affirmer
que la bande d'Aouzou a étéet sera, sans aucun doute, partie
intégrantedu Territoire Libyen."
This letter, which Chad has chosen to introduce into evidence, is important in
several respectsm, it confirms what Libya also believed in 1972:that the 1955
Treaty had not delimited Libya's boundary with Chad. Otherwise, the letter
would not have brought up the question of sovereignty over the so-called "bande
d'Aouzou".
11.16 Second, the letter shows that Chad recognised Libyan
sovereignty over this territory. There was no question in theletter of ceding
terntory; President Tombalbaye affirmed that "la bande d'Aouzou a partie
intégrante du territoire libyen15". Thus, Chad'sPresident expressed the v-in
a most official manner - that this region had always belonged to Libya. This
official view of Chad at the time is a long distance away from Chad's position
today in front of the Court. In addition, by thisr Chad foreswore any claim in
the future concerning this region of the borderlands. For the letter said that this
region not only had always been Libyan temtory but also that it would always
remain so ("lesera")6.
11.17 The legal effect of such an official statement has been
addressed by the court17. In respect to territorial questions, the Permanent
Courthad this to Say,in the Eastern Greenland case:
''The Court considers it beyond al1 dispute that a reply of this
nature given by the Minister for Foreign Affairs on behalf of his
Govemment in response to a request by the diplomatic
representative of a foreign Power, in regard to a question falling
15 Emphasis added.
16 Thetexof theletterisset oC&inAnnex343. SecalsoLC-M p.ra.5.119,a..
17 See.C-M.para.5.123fn.191. within his prow, is binding upon the country to which the -
'Ministerbelongs ."
That case concerned a statement by a Minister of Foreign Affairs. A fortiori, a
statement by the head of a State cames even more legal weight. It is also
apparent that such a letter must have been written in response to a question
raised by Libya in order to determine whether in Chad's view this region was
under Libyan sovereignty. It was a very pertinent question at the time since
Libya, assuming that the temtory was Libyan, had started to install its civilian
administration there.
11.18 However the Tombalbaye letter is interpreted -even if it is
not read as a renunciation of territory by Ch-at the very least it establishes that
the question of delimiting the boundary between Libya and Chad remained to be
resolved and that it would necessarily be the subject of negotiations in the future.
In fact, evidence from the French diplomatic files reveals that shortly after Chad's
independence this was the viewof the Governments of both France and chad19.
11.19 As Libya explained in the m. Libya did not refer to or
produce the copy it has of the Tombalbaye letter in the present case because it
has not been able to find the original. Apparently, Chad has not found her copy,
but the CM discusses the letter and produced the same copy that Libya has of it.
,The rumours as to such a letter were sufficientlywide-spread at the time20 as to
suggest that the copy produced by Chad is a faithful copy of the original. Chad's
subsequent conduct also confirms the fact that such a letter was sent. In fact, it
would not matter if such a letter had never been sent, for Chad's attitude and
conduct in the ensuing years reveals that Chad acquiesced in the Libyanpresence
in this northern part of the borderlands. Otherwise, Chad'sconduct in the face of
this fact made no sense.
11.20 Starting at the end of 1972, Libya started to expand the
reach of its governmental administration into the northem borderlands - an
indication that the Tombalbaye letter did in fact exist, for having received this
18 LeealStatusof EasternGreenland.Judement.1933,P.C.LJ.,SeriesAlB.No.p.71.
19 a, Su~vlementawAnnex,No. 6.9(6,s and10).
20 Sec . anne,B.:Tchad:Laeuerredesfrontieres,Paris,Karthalapp.228-229.recognition of Libyan sovereignty in the region, it was an appropriate move to
make. Moreover, Libya's action incitednot the slightest Chadian protest.
11.21 Nor was there any reaction from France, whichwas minutely
following the situation in Chad and which had intervened militarily and was to
intemene again several timesinChad to safeguard the various successiveChadian
governments. It willbe recalled that the French Ambassador in Chad atthe time
noted the absence of any Chadian reaction to Libya's actions in his book
published in1974, saying:
"Aouzou est maintenant dotée d'une garnison libyenne, sans a
pour autant entraîné réactiondu gouvernement de Tombalbaye ??l.t;
Over ten years later, the French Minister of Defence, Charles Hernu, had this to
Sayon the subject in a statement he made o27 March 1985:
"Labande d'Aouzou est hors du Tchad. Cela, tyjt lemonde en est
d'accord...C'estune affaire qui remonteà 1934 ."
Such an affirmation at the very least is evidence that the French Government had
never been convinced that the1955 Treaty established a boundary between Libya
and Chad. M. Hernu's reference to the year 1934,just before the signing of the
1935 Treaty, once again confirms the French Government's statement in the
Exposé des motifs accompanying the law to authorize ratification of the 1935
Treaty that prior thereto no such boundary existed.
11.22 It is not the mere absence of a Chadian protest that is
significant. After1973, Chad and Libya enjoyed excellent relations, &hich had
been restored in December 1972,just when Libya's move into the borderlands
was under way. On 7 March 1974,on the occasion of a visit of Colonel Kadhafi to
N'Djamena, according to Chad'sofficialcommuniqué:
"Le PrésidentN'Garta Tombalbaye a tenu àremercier son collègue
libyen et le peuple de Libye pos l'aide efficace qu'ils apportent
pour le développement du Tchad ."
21 Se,LM.para.5.560,andthe citation tto this boSee .lsom, para.5.125.
22 LC-M pa.ra.5.145.
23 AgenceTchadPresse,NouvellesNationales,8ma1974.No head of State would so address another whose troopswere in occupation of its
temtory.
11.23 Chad's acquiescence is confirmed by the 1974 Treaty
between Libya and Chad. After stressing the ties that existed between the two
States, Article 2thereof provided as follows:
"The frontier between the two countries is a colonial conception in
which the two peoples and nations had no hand, and thisgatter
should not obstruct their cooperation andfraternal relations"
11.24 The 1974Treaty in fact substituted a new régimefrontalier
for that established in the55Convention and replaced in the 1966Treaty. If,as
Chad mentions, the reference in these 1955and 1966instruments to a boundary
means that a boundary had been determined - a proposition Libya rejec-sthen it
is clear that such a boundary included within 1-ibyan temtory the part of the
borderlands Chad called the "bande d'Aouzou".
11.25 Two conclusions maybe drawn frorn the 1974Treaty. m.
Libya's presence in a pan of the borderlands went uncontested by Chad.
Othenvise, Chad would not have concluded this Treaty in 1974 that stresses
repeatedly the fratemal character of the relations between the two States.
Second, that aside from the so-called "bande d'AouzouU there existed an
unresolved question of delimiting the Libya-Chad boundary. This is the only
explanation to be given to the statement in Article 2, quoted above, that the
colonial concept of the frontiers between the two countries should provide no
obstacle to their close relations. This Article supports Libya's vie. that no
conventionalboundary existed then (or existsnow): for in the 1974Treatythe two
States took note of the fact that the boundary between thern had not been
delimited and that such differences between them should be resolved by future
negotiations.
11.26 The CC-M gives the 1974 Treaty a different reading. It
directs attention to the use of the words "£rontiersHin Article 2 of the Treaty,
overlooking Article 3, which refers to the "border areas", and from this fragile
base concludes that:
24 LM,lnternationalAccordsandAereementsAnnex,No.35. "Cet accord prouve l'existence d'une frontière et la reconnaissance
du fait qu'il est préférable d'aborderle problème des frontières
héritéesde l'époque coloniale,en admettant cette réalitéet en
concernés24."oopération et la libre circulation des peuples
But that was not what Article 2 of the 1974Treaty could have meant: it referred
to the "conception" of frontiers (or boundanes) not to the fact that there was a
boundary between the two States. What it meant was that colonial conceptions
should not stand in the way of resolving their territorial problems amicably
through negotiations. If, indeed, the parties to the Treaty believed there was an
existingboundary, Chad's conduct establishes that any such boundary would have
included the northem part of the borderlands being administered at theime by
Libyawithout any objection from Chad.
11.27 As to the several meetings after 1974 between the Parties
when the boundary issue came up, the very fact that there were these discussions
meant that there was a boundary to be established between them. The LC-M
points out that the unilateral record of the meeting of 23-26 June 1977provided
by Chad must be read with caution26. But in any event, an analysis of this
document reveals several things.
11.28 m, it was evident that in 1977 the Parties were not well
informed at al1asto the legal aspects of the territorial dispute before them. Libya
invoked the 1935 Treaty as a justification for its presence in the borderlands;
Chad argued that the 1935Treaty did not apply because it had been denounced
by Italy and France. A superficial knowledge of the file would have revealed that
the boundary agreed in the 1935 Treaty did not take effect because the
instruments of ratification were not exchanged, not because it entered into force
and then was denounced -legally,an important distinction.
11.29 Second, the unilateral record of this meeting indicated that
when the question of sovereignty over the so-called "bande'AouzouMcame up,
the reaction from Chad was as follows:
25 CC-M .ara2.76.
26 SeeLGM. para.5.134ass "La Partie Tchadienne, de son csté, pense ue tant qu'il y a une
présence effective Lib nne à AOUZO r4, toute coopération
bilaterale est impossibl.
It would be thought that in the light of such a rigid protest on the part of Chad,
good relations between the two States would have come to a halt then and there.
But nothing of the sort happened. On 15June 1980,the two States concluded a
Treaty of Alliance and Friendship. It contained provisions conceming mutual
defence that included the right of Chad to cal1 on Libya for assistance if its
territorial integrity was threateneIt also contained a provision under which
Chad undertook not to allowthe establishment of any foreign militarybase.
11.30 The accurately points out that the980Treaty made
no mention of any territorial claim; but the real point isthat, with Libya present in
part of the borderlands, hadChad considered that it had sovereignty over that
area, it could hardly have signed the Treaty leaving such an issue unmentioned.
No State would sign such a treaty with another State which it considered to be
occupying part of its territory. Chad undertook in the Treaty not to permit the
establishment of foreign military bases on Chadian territory. Then why did the
Treaty not include a provision requinng Libya to withdraw from the borderlands?
It will be recalled that 22 January 1980, the Chadian Govemment called on
France to withdraw its forces; and o27April, the French Govemment reported
28
that the evacuation had been accomplished . Why was there not a similar
request made by Chad to Libya?
11.31 The 1980 Treaty clearly demonstrates that Chad did not
have any thought at the time that Libya'spresence in the borderlands violated its
sovereign temtonal nghts. The 1981 Treaty establishes the same point. There
was not the slightest mention in it of a boundary problem. The Treaty never took
effect, and was contested by other States in the region; in any event it only
contemplated steps to be taken in the future.
11.32 Thus, in the period1972-1983- except for a short penod in
1976-1977, when the Parties held three non-productive meetings and Chad
complained to the O.A.U. and then to the U.N. (and its complaint was
immediately withdrawn) - Chad's attitude was consistent: it recognised Libyan
27 CM. Annex284.
28 See,LM,para.5.566.sovereignty overwhat it termed the "bande d'Aouzou". Starting in 1983,however,
chad's conduct changed, particularly in the arena of international organisations.
It is to the behaviour of the two States before the O.A.U. and the U.N. that this
discussionnow turns.
SEC~ON 3. The Positions TakenbvLibvaandChadBeforethe O.A.U.
11.33 As discussed above, in 1972 Chad recognised Libya's
sovereignty over part of the borderlands, implicitlyconfirmed by the 1974Treaty.
However, in 1977,Chad abruptly changed its course, filinga complaint before the
O.A.U. regarding Libya'spresence in what it claimed to be the territory ofad.
At the same time, in 1977,futile discussionswere taking place between Libya and
Chad.
11.34 The result of Chad's complaint was the creation at the
Conference of Heads of State of an ad hoc Committee. The latter
recommended -
"..la constitution d'un sous-comitéd'experts chargé d'étudier le
problème frontalier posédans tous ses aspects29."
Thus, the Subcommittee had a broad mandate in respect to the Libya-Chad
temtonal dispute.
11.35 The work of the Subcommittee, however, made little
progress in the following years due to the resumption of friendly relations
between Libya and Chad, exemplified by the 1980Treaty, entered into without a
word being mentioned about Libya's presence in the northern part of the
borderlands.
11.36 Both Chad's Memonal and Counter-Memonal give the
impression that there was intense activity at the O.A.U. conceming the Libya-
Chad territorial dispute. In fact, there was none. The O.A.U. during the 1980s
pursued two important objectives: (i) evacuation offoreign forces from Chad's
temtory; and especially (ii) the reconciliation of the rival factions within Chad
claiming the right to govem Chad. None of the activity had anything to do with
the question ofwhere the boundary between Libyaand Chad lay. 11.37 It was not until 1987- 10 years after Chad filed its initial
complaint -that the O.A.U. embarked on a study of the problem. In this regard,
the following points should be remembered. Firs tte.0.A.u.'~ Ad Hoc
Committee gave these reasons for its previous inactivity:
"..un immobilisme certain dans le fonctionnement du Comitédix
ans après son institutio..le drame intérieur tchadien qui avait
pris le pas sule différegg frontalier Libye-Tchad et le refus de
coopérationde la Libye...."
Second, the Subcommittee of experts in its First Report (19 May 1987) recalled
"lecaractère non exhaustif de lacumentation31".
11.38 Although in the conclusions set out below these points will
be mentioned again, it must be borne in mind that special factors existed at the
time:
- The interna1 strife in Chad made impossible any attempt to
resolve the territorialdispute between Libya and Chad;
- Libya did not cooperate in the work of the O.A.-but this
was due not only to Chad's internal convulsions but also to
Libya's viewthat the O.A.U. wasnot the proper fomm for
settling the dispute;
The filewas incomplete.
These factors bear witness to the legal complexity of the problem, as iibya had
always maintained. It also reveals the fact that Chad had not totally cooperated,
either, in furnishing documentation. Chad can hardly be blamed for this giventhe
complexity of the problem and what Chad did not know about the French case
that it was disposed blindlyto follow.
11.39 Nevertheless, in 1988, though it had deliberately refrained
from participating in the work of the Subcommittee up tohen, Libya informed
the Ad Hoc Committee generally as to its legal position concerning its boundary
30 CC-M Annex135.
31 CC-M Annex136.with Chad. The position presented was nowhere near as developed as that now
presented to the Court, for the O.A.U. wasnot the appropriate forum for such a
detailed presentation. In the event, the general line of Libya'spresentation was
as follows:
"Ce sont ces droits historiques que revendique aujourd'hui la Libye
en tant qu'Etat successeuà la fois à l'Empire ottoman par l'Italie
interposee eà l'Italieelle-mêm..."
- Asto the 1898,1899 and 1919agreements, they:
"..ne procèdent pas à une délimitation de frontières mais visent
simplement à fixer, en principe, les limites des zones d'influence
frayaise..."
- Finally:
"Pour la Libye, le Traité de 1955 n'avait pas pour fonction de
délimiterla frontière entre elle et le Tchad, alors territoire français.
Il ne comporte ni disposition ni critèrede délimitation préciseet les
documents citésen a exe sont dépouiws de pertinence faute de
valeurjuridique .. .99.,
11.40 The O.A.U. Ad Hoc Committee took no position
concerning the legal validity of these arguments: it was not its function to do so.
in spite of the brevity with which Libya's arguments were expressed, the Court
will find quite easily the broad outlines of the case Libya now presents to the
Court.
11.41 In the light of this presentation by Libya, Chad makes a
rather surprising argument:
"Bienque tout l'éventaildes arguments libyensait étémentionné,il
n'étaitsuggérénulle part que la Libye étaithabilitéeà revendiquer
plus que la bande d'Aouzou."
While it is true that, formally speaking, the O.A.U. Committee was concerned
with the"boundary dispute"between Libya and Chad - for that was the title given
to the Committee's reports - Chad should have considered more carefully the
substance of thethesis Libya setout atthe O.A.U. If Chad had done so,it would
32 Cornireahoc del'OUA,synthk sesrapport1etIIL,ibrevil1l-e,4vri1988 ;M,
Annex293.have realised that, when the appropnate time came before the appropriate
forum, Libya would claim as successor State to the riehts and titles of the
Ottoman Empire. It was evident on its face that such rights and titles certainly
werenot exclusivelylimited to the region of Aouzou -a region that had no special
geographical or political significance(and was certainly not described in Ottoman
times as the so-called "Aouzou Strip", which gained currency only in the 1970s).
The point to be emphasised here isthat when Libya claimed this inheritance from
the past it manifestly was because. it considered that no boundary delimitation
resulted from the Anglo-French Accords in 1899 and 1919 or from the 1955
Treaty.
11.42 Chad cannot pretend today not to have realised that, in
1988, after a very modest effort to assemble and to consider the file, Libya
evaluated the dispute as involvinga temtorial area far larger than the so-called
"Aouzou Strip". If Chad claims to be stunned today over the scope of the
territorial dispute Libya and Chad have brought to the Court - and attempts to
limit its scope -,it can only be for purely tactical reasons, for Chad's feigned
surprise is totally unconvincing.
SECTIO 4. BehaviourofLibvaandChadBeforethe U.N.
11.43 The CC-M repeats the argument, so fullyset out in the CJ4,
that Libya had an obligation to raise the Libya-Chad territorial dispute at the time
of Chad's admission to the u.N.~~. In its response to this contention, Libya has
pointed out that the admission of a new State was a time for rejoicing and not the
moment to air grievance~~~.The fact that other States may have acted differently
on such occasions does not lead to the conclusion that there is a legal obligation in
such circumstances to challenge the boundaries of the new State if they do not
correspond with the realities, legally speaking. No better example of this is the
case of Burkina Faso and Mali, where no boundary claimswere intejected at the
time of their admission as new States, although within a matter of years, their
boundary dispute was brought before the Court. And there is the further point -
brought out on several occasions in the 1950sand 1960s:Libyajust did not know
the details of the file conceming its boundary with Chad. It intended to deal with
33 SeeC,C-M. para.9.11CM. p.321,para117.
34 SeeLC-M.para.8.53.the problem at'a time when future negotiations became praticable. There was no
articulated Libyan claim asto the boundary with Chad in 1960.
11.44 chad attempts to build up the significanceof its intervention
at the General Assembly on 6 October 1971. But what was really involved? The
only issue concemed the alleged interference by Libya in the intemal affairs of
Chad -and Libya's supposed expansionist aims. There was no question thein
1971of Libya'spresence in the borderlands; Libya was not to start to install the
machinery of govemment there until a year later.
11.45 Nevertheless, Chad tries to build two arguments around its
1971U.N. intervention. It should be emphasised that these arguments have been
devised by Chad now in this case; they were never made before the U.N. or
elsewhere. Firs its.ggests that the speech constituted the first protest against
Libya's presence in the borderlands.It does so by moving up in time Libya's
presence in the borderlands by over a year in order to make it appear that the
1971 speech of the U.N. representative was in protest against that presen.e
But it was not, and nothing can disguisethe fact that Libya'sassumption of civilian
administration in that region, occurring at the end of 1972,gave nse to no official
Chadian protest until over four years later. Second, Chad argues that Libya's
response to Chad's interventions at thU.N. revealed Libya's acquiescence in
what Chad now considers to be the boundary between the Parties.
11.46 The fir artument is entirely contnved, revealing the
wlnerability of Chad's conduct in not having made any public protest at al1
against Libya's presence in that sector of the borderlands for some five years.
The second argument is refuted by the statement of Libya'srepresentative to the
U.N. at the time, who said the following:
"Ce n'est pas la première fois que le Gouvernement du Tchad
accuse ses voisins de s'ingérerdans ses affaires, mais au moins la
troisième fois. Précédemment, il avait également accusé deux
autres de sesvoisins en faisant les mêmesallégatio1ne faut pas
prendre ces accusations pour argent comptant; elles sont en fait le
reflet de probEl4sinternes que le Tchad n'a pas le droit d'imputer
àd'autres Etats .
35 Se,CM, p.323,para.12CC-M p.ara.2.49.
36 Documents officielsde l'Asseaknkrale.26°session, 12octobre1971,para.201.Libya'srepreselitative also made the point that if any threats were involved they
were made by Chad against Libya and could be traced to what President
Tombalbaye allegedlysaid to the Aeence France Presse:
"LesLibyens quiveulent établirdes basesauahad pour combattre
Kadhafi me trouveront prêtàles leur fournir ."
11.47 It must be borne in mind that at this time, and during other
subsequent interventions, these statements were made during the general debates
of the General Assembly that preceded the more concrete matters to be
addressed. Such a general airing of grievances, for which the General Assembly is
such an important forum, is hardly the time or place to introduce a serious
juridical discussionof the problems concerning a temtorial dispute.
11.48 In any event, the incident lasted for no time at al]. One year
later, i1972,Libya and Chad concluded a Treaty of Amity.
11.49 The next intervention of Chad before thU.N. took place in
February 1978. At the time, Chad attempted to paint a darker picture of Libya's
supposed intervention in the interna1 affairs of Chad. In truth, the situation was
not like that described: Chad'scivilwar was raging, and the situation had become
far more complex within Chad, where the warring factions were making al1sorts
of accusations and claims. Chad's representative at the U.N. did denounce
Libya'spresence in what he termed the "Aouzou Strip" at that time. This was the
first time Chad had done so despite Libya'spresence in the area since the end of
1972.Libya'srepresentative replied at once, as follows:
d'une question de frontières. 11se peut qu'ily ait un problème de
fronti' es, mais de tels problèmes ne se traitent pas de cette
façon5i ."
As tothe so-called "Aouzou Strip",Libya'srepresentative added:
"Le représentant du Tchad nous a accusé d'avoiroccu Aouzou
en 1973,mais ce n'estpas vrai, nous n'avons rienoccupe6.,
37 m., para212.
38 m., para.49. Emphasisadded.
39 m., para.65. "Thepeople in Aouzou are Libyanjjind have representatives in the
Libyan General People's Congress .
He also pointed out the complexity of the question and the inappropriateness of
dealing with such a matter before the Secunty ~ouncil~~,and he reminded the
Security Council that in two similar disputes, concerning delimitations of the
continental shelf between Libya and Tunisia and between Libya and Malta, Libya
had agreed to their resolution bythe Court.
11.53 Libya's representative at the time declared: "Libya's
border(s) during the Ottoman era were at the city of ~a~a~~". ' Without
developing the legal arguments in any detail, he went on to say:
"What is the purpose of the Council: to discusslegal question? 1sit
the International Court of Justice? 1sit the Committee of Good
Offices of the OUA? The Council is concerned with peace and
secur& and discusses political issues in the first place and not legal
issues ."
Nonetheless, Libya did allude to the rights it had inherited from the Sublime
Porte. At the end of the day, the Security Council called on Libya andad to
settle their differences bynegotiations usingthe good officesof the O.A.U.
11.54 These debates continued before the Secunty Council and
the General Assembly in the course of the years 1984to 1987. Their focus was
pnncipally the situation in Chad, a situation that had not really improved. Both
States claimed sovereignty over the northern part of the borderlands, popularly
called the "Aouzou Strip". Chad based its claim on Article 3 of the 1955Treaty
and, thus, on "actes internationaux en vigueur" in 1951;Libya invoked iis Italian
colonial hentage.
11.55 In the a, Chad has argued that if, in 1985, before the
Security Council-
43 Séanc eu22 mars1983,para72.
44 m., para.63.
45 m., para.65.
46 m., para.193. "La Libye avait disposé d'arguments supplémentaires et plus
convaincants.,ils auraient certainement éte rése entéen cette
circonstance41.nn
This is certainly not so. As the record of the hearings shows, the relations
between Libya and Chad were particularly stormy at the time. And it concerned
essentially a political problem.As has already been mentioned above, it was
Libya'sviewthat the Security Council, being a political forum, was certainlynot in
a position to judge the ments of the legal problems surrounding the territorial
dispute, unlike the International Court of Justice.
11.56 Thus, Libya did not attempt to plead its case before the
Security Council. However, in 1988, it revealed the essential elements of its
argument, such as had been developed up until then, before the O.A.U.
SECTIO 5N. Conclusions
11.57 Chad's theme conceming Libya's conduct is expressed in
this wayin them:
"Le comportement passé de la Li e est tout à fait incompatible
avecses revendications actuelle... .,
Chad goes on to saythat Libya -
"...avait, indépendamment de l'accord de 1955, acquiescé à
l'affirmationfrança$~ relative à la localisation de la frontière entre
la Libye et le Tchad ."
Thus, Chad's theme is based on the supposed acquiescence of Libya resulting
from its conduct after the signing of t1955 Treaty. But as has been show in
the analysis above of Libya'sconduct, no such thing is demonstrated by Libya's
conduct. If anything, it was the conduct of Chad during this period that raises a
question of acquiescence.
11.58 Libya did not consider that the 1955 Treaty delimited its
boundary with Chad or that it had camed out the mandate of Resolution 392(V),
47 CM, p.339para.180.
48 CC-M .ara2.108.
49 m. para2.112which reflected 'theview of the General Assembly that such a boundary had up
uniil then (December 1950)not been delimited.
11.59 In 1960, Libya celebrated the gaining by Chad of its
independence. No doubt, in the next few years, negotiations to delimit a
boundary might have begun. But both countries lacked the qualified people and,
as the pleadings of the Parties have shown,the legal complexityof the case issuch
that neither State could have understood its real dimensions at the time.
11.60 For a short period after Chad's independence, the situation
between the two States disintegrated and diplomatic relations were severed.
Chad seized the opportunity in 1971 to denounce what it described as Libya's
expansionist aims, which Libya denied. Thus, in the years between 1960 and
1971,the territorial issue was not raised, and this did not imply acquiescence of
any sort by either State. The question reflected in Resolution 392(V) merely
remained open and unresolved.
11.61 Then in 1972 the situation changed. In his letter of 28
November 1972,Chad's President recognised the ments of the Libyan claim to
the sovereignty over what he called the "Aouzou Strip". Such a recognition of
sovereignty could only have been in response to Libyan claims. Thus, the
problem of delimiting the boundary between Libya and Chad was placed then on
their common agenda.
11.62 There is no issue between the Parties that, starting at the
end of 1972, Libya installed its governmental administration throughout the
northern part of the borderlands. It was a peaceful administration which Libya
installed, and it was common knowledge throughout the world that this had
occurred, as France's Ambassador to Chad has recorded50.
11.63 Inthe face of this development, Chad not only registered no
protest but it impliedly consented when it entered into the 1972and 1974Treaties
with Libya. While it is tme that in 1977Chad protested before the 0.A.U against
Libya's presence in what it claimed to be Chad's temtory, and repeated this
protest before the Security Council in 1978, the latter protest was at once
withdrawn. In any event, this protest continued for a very limited time and was
50 SeeLM,para. 5.560,then contradicted by Chad's conduct in entering into the 1980and 1981Treaties
Ah Libya.
11.64 In this regard, the jurisprudence cited byChad works against
Chad rather than ~ib~a'l. In the ~em~leof Préah Vihear case, the Court took
into consideration, in finding Thailand's conduct to constitute acquiescence, the
absence of protest by that State against manifestations of sovereignty by
Cambodia. The Court acted similarly in the King of Svain arbitration. Thus, it
would appear that, in the light of Libya's clear and continuous behaviour in the
northem borderlands from 1973on, Chad's positive acts of entenng into treaties
with Libya and the absence of any sustained protest from Chad until 1983
constituted its acquiescence and should prevent Chad now from making a daim
to these areas of the borderlands.
11.65 There is no doubt that starting in 1983, Chad's conduct
changed: it reversed its pnor attitude as expressed, inter alia, in the Tombalbaye
letter and laid claim to the so-called "Aouzou Stnp". But this did not erase its
earlier acquiescence. Furthemore, Libya contested Chad's claim and continued
to aEm that this region belonged to Libya. It continued to govern a substantial
part of the northern borderlands.
11.66 Thus, ifthe attitude and conduct of Libya and Chad are
compared in respect to this region in the years after 1960nght up until now, the
followingconclusions emerge:
- Between 1960and 1972,no delimitation was attempted and
the matter of the boundas, between them was raised by
neither State;
- Between 1973 and 1983,in the face of Libya's presence in
the northem part of the borderlands, Chad by its conduct
recognised Libya's sovereignty there but then, in 1983,
reversed this position;
- ~ p -
51 See,CC-M. para.2.111,gss. - '
Libya's conduct from 1972 was a clear and consistent
manifestation of sovereignty over the northern part of the
borderlands;
-
If the conduct of either Party constituted acquiescence orat
the very least inconsistency, it was the conduct of Chad not
Libya.
11.67 Chad's position based on acquiescence,unfounded as it is,is
not just aimed at the region it callsthe "Aouzou Strip". For Chad attempts tostop
Libya from presenting its claims to areas that extend well beyond the territory
falling within that region, reproaching Libya for not having formulated such
claimsin the past before the initiation of this case before the Court.
11.68 It should be emphasised here that the settlement of a
question of attribution of territoly fits quite naturally within the framework of
bilateral negotiations between the parties to a territorial dispute. Now thereisno
question that Chad's interna1 situation from 1965until the end of the 1980swas
hardly suited ta deal with negotiations of this kind. The situation in Chad was
characterized by rebellion and then civilwar, by unsuccessfulattempts at national
reconciliation and byrepeated intervention of French forces. Few, if any,African
States have had such a tragic beginning as a newly independent State. Such
events could not have failed to engender great concern in Libya, where the
memory of the French occupation of Fezzan was still fresh as well as the great
difficulties encountered by Libya in getting France to withdraw, including the
French Government's refusal to honour its obligations under the 1955 Treaty
until it had been awarded additional consideration in the form of the Edjéléoil
field.
11.69 In spite of these conditions, it was possible for Libya and
Chad to enter into agreements of amity of a general nature, such as the 1972,
1974,1980and 1981Treaties. For these required only the political willto do so.
But to attempt to settle then the temtorial dispute between Libya and Chad was
of an entirely differentrder of difficulty,requiring the expertise to examine legal
filesof great complexity.
11.70 This can be seen from the work of the O.A.U. where the
difficulties of even collecting the complete dossier became apparent. In thereport of the Subcommittee of 19 May 1987, well after work had begun, the
Subcommittee emphasised "le caractère non exhaustif de la documentation" and
added that "la délégationtchadienne s'est engagéàfaire paivenir au Président
du Comitéles textes des deux accords par voie diplomatique52". At the meeting
of the Subcommittee on 20 May 1987,several experts considered that there was a
need for an "éclairage historique". If the list of accords deposited by Chad with
the Subcommittee is examined, it can be seen how far it isfrom being compl.te
11.71 Libya certainly does not blame Chad for these gaps; they
merely illustrate the difficulties encountered by the Parties in trying to assemble
the very extensive historical and legal files. This explains whyLibya was not able
for a long time to express with any precision its temtorial claims, other than by
the useofthe handy phrase "Aouzou Strip".
11.72 Libyapointed this out tothU.N., when it said:
"Frontier problems are not easy t98r olv..But there are things
that must be examined and discussed."
11.73 The fact is that if Chad had made the effort to really
examine Libya'sattitude at the time, rather than repeating the French thesis that
it knew byheart, Chad would have understood the essential position of Libya as it
has now been formulated. For example, in 1983, Libya invoked its Ottoman
heritage and mentioned that Faya had once been occupied by the Ottomans. In
1985,Libya invoked the ltalian rights which it had inherited. Even a superficial
consideration of the implications of these sources of Libya's territorial claims
would lead to the realisation that the dispute was not narrowed to the so-called
"Aouzou Strip". And there is not the slightest indication of Libya'sacquiescence
in Chad'sclaims as set out totU.N. in 1983.
11.74 Chad argues that the spirit of the Accord-Cadre of 31
August 1989,the basis of the Court'sjurisdiction, as understood both by Chad and
the O.A.U., was that it concemed only the "Aouzou Strip". This is incorrect and
unsupportable. To pick just one example, it will be recalled that in 1988 Libya
52 CCM. Annex136.
53 CC-M An.nex137.
54 SPV. 2060.1 7ebniai1978p,ara71.indicated to the'0.A.U. that its rights stemmed from its Ottoman heritage. This
by itself revealed that the scope of the dispute far exceeded the region called the
"Aouzou Stnp". Chad was not unaware of this fact when it signed the Accord-
-. As has already been pointed out in Chapter III above, by not making a
forma1objection to the Court's competence to deal with the dispute as presently
framed by the pleadings of the Parties, Chad has now waived the right to do so.
Such an objection could have not have been made, in any event, because of the
history of the relations between the two States.
11.75 But putting aside the procedural aspects of the case, Chad
has invoked Libya'sconduct in connection with the ments of the case, contending
that its conduct is not compatible with Libya's present claim before the Court.
There are two elements of this line of argument. The fir isacauiescence, which
has already been discussed and found wanting. The second is estouuel. Here
Chad claims that Libya has modified its case, has "blownhot and coldS5",leading
to a situation of estouuel.
11.76 The Court has considered claims of estopuel in a number of
different situations. In the North Sea Continental Shelf cases the Court said the
followingregarding estou~el:
"..that is to say if the Federal Republic were now precluded from
denying the applicability of the conventional régime,by reason of
past conduct, declarations, etc., which not only clearly and
consistently evinced acceptance of that régime,but also had caused
Denmark or the Netherlands, in reliance on such5~onduct,
detrimentally to change position or suffer some prejudice .
In the Gulf of Maine case, theCourtadded the following:
"...but even disregarding the element of detriment or prejudice
caused by a State's change of attitude, which distinguishes estoppel
--ricto sensu fiom acquievnce, it nevertheless presupposes clear
and consistent acceptance ."
55 SeeCC-M. para.2.14.
56 NorthSea ContinentalShelf,Judement.I.C.J.Reports1969,p.26, para.30.
57 Delimitation of the MaritimeBounda~ in the Gulf of MaArea, Judement,LC.J.
Reports 1984,atp.309. 11.77 None of the conclusjons indjcated by the Court finds
application to the present case. Libya has not modified its claim, for in the
statements of its representativesbefore the U.N. it was not presenting a claim but
rather defending its pr&ence in the north of the borderlands. This necessarily
focussed attention on the so-called "Aouzou Strip" for much of that region
happened to be where Libya had established its governmental administration.
However, the broad outline of what Libya would claim gradually emerged,
particularly when it fumished documents believed relevant by Libya to the
O.A.U. Subcommittee. For these documents related to Libya's Ottoman and
Italian heritage.
11.78 There is also no showing of any prejudice ta Chad, one of
the conditions of esto~uel set out by the Court in the North Sea Continental Shelf
cases. It is truethat Chad asserts in the that:
"Le Tchad a, de plus, consenti à la soumission à la Cour d'un
et sonMémoire est rédigéen conséquenceà I@on."ère qui l'encadre,
This suggests that Chad has been prejudiced, but the statement is not accurate.
Chad signed the Accord-Cadre in full knowledge of Libya's claim to have
inhented the rights and titles of the Ottoman Empire and Italy in its brief
participation in the O.A.U. discussionin 1988. This made clear that the dispute
was not limited to the "Aouzou Strip".
11.79 Clearly, there has been neither acauiescence by Libya nor a
situation that gives nse to estoupel against Libya. Chad's arguments on both
counts must be rejected as without any foundation. It is quite tnie that, as this
case has developed in the written pleadings, the positions of both Parties have
evolved in the Iightof the evidence produced and the arguments of theother side.
This is normal for any case of this kind, and the evolution of Chad's case has, in
the viewof Libya, been considerable. This isnot a matter that givesrise to blame
on either side; but it demonstrates that the territorial dispute in this case is not a
simple one to resolve,as Chad has contended.
11.80 As Libya has maintained over the past 30 years, the dispute
isvery complex and the relevant file is enormous. It is foolhardy for a State to try
58 CC-M, para.2.116.to make out its 'claim insuch a case before political organs such as the Secuit)-
~ouncil, the General Assemblyand the O.A.U.. The Court is the proper forum
before which to present such a claim; and it is onlybefore the.Court that Libya
has attempted to set out its claim. SUBMISSIONS
Havine reeard to the various international treaties, agreements,
accords and understandings and their effect or lack of effect on the present
dispute, as set out in Libya'sMernorial, Counter-Mernorial and in preceding parts
of this Reply;
In view of the other facts and circumstances hanng a bearing on
this case, as discussed above, and in Libya'sMemorial and Counter-Mernorial;
In the light of the conduct of the Parties, of the conduct of other
States or political, secular or religious forces, whose conduct bears on the nghts
and titles claimed by the Parties, and of the conduct of the indigenous peoples
whose territones arethe subject of this dispute;
In auulication of the pnnciples and rules of international law of
relevance to this dispute;
Mav it ~lease the Court, rejecting al1 contrary claims and
subrnissions:
To adiudrreand declare. as follows:
1. That there exists no boundaiy, east of Toumrno, between
Libya and Chad by virtue of any existing international
agreement.
2. That in the circumstances, therefore, in deciding upon the
attribution of the respective temtones as between Libya and
Chad in accordance with the mles of international law
applicable in this matter, the followingfactors are relevant:
(i) that the temtoiy in question, at al1 relevant tirnes,
was not terra nullius;
(ii) that title to the temtory was, at al1 relevant times,
vested in the peoples inhabiting the territory, who
were tnbes, confederations of tnbesor other peoples
owing allegiance to the Senoussi Order who had accepted Senoussi leadership in their fight against
the encroachments of Franceand Italy on their lands;
(iii) that these indigenous peoples were, at al1 relevant
times, religiously, culturally, economically and
politicallypart of the Libyan peoples;
(iv) that, on the international plane, there existed a
community of title between the title of the indigenous
peoples and the rights and titles of the Ottoman
Empire, passed on to Italy in 1912 and inherited by
Libya in 1951;
that any claim of Chad rests on the claim inherited
(v)
from France;
(vi) that the French claim tothe area in dispute rested on
"actes internationaux" that did not create a territorial
boundary east of Toummo, and that there is no valid
alternative basis to support the French claim to the
area in dispute.
3. That, in the light of the above factors, Libya has clear title to
al1 the temtory north of the line shown on Map 105 in
Libya's Memorial, on Mau LC-M 55 in Libya's Counter-
Memorial and shown again here on Mar, LR 32,Jhat is to
Saythe area bounded by a line that starts at the intersection
of the eastem boundary of Niger and 18"N latitude,
continues in a strict southeast direction until it reaches 15"N
latitude, and then follows this parallel eastwards to its
junction with the existing boundary between Chad and
Sudan.
(Signed) ..............
Abdullati Ibrahim El-Obeidi
Agent pf the SocialistPeople's
Libyan Arab Jamahinya
Reply submitted by the Great Socialist People's Libyan Arab Jamahiriya