INTERNATIONALOURT OFJUSTICE
TERRITORIADISPUTE
(LIBYANRABJAMAWAfCHAD)
COUNTER-MEMORIAL
SüBMïiïXDBYTHE
GREATSOCIALISTPEOPLE'S
LIBYANARABJAMAHIRIYA
VOLUME1
27MARCH 1992 ZNTHENAME OF GOD
THEMERCZFUL,THEBENEVOLENT TABLEOF CONTENTS
PART1 INTRODUCTION .........................................1.................
.....
CHAPTER 1. INCHAD'SMEMORIALE CASEAS...........................1...................
SE~ON 1. The DifferenceinScopeBetweenthe Cases
Presented byLibyaand Chad ........................1..........
SECTIO 2. Chad'sDefence ofitsFrench ColonialPast;
itsIgnoringofthe Rightsofthe Indigenous
Peoples ............................................................
............
SECTIO 3. Chad'sReliance on Recognition,
AcquiescenceandEstoppel ........................11.................
SECTIO 4. MajorChangesin the CasePresented byChad
NowAdvancedbyhe TChad ............................13....................
SECTIO 5. SignificantGapsand FailuresofProof in
Chad'sCase .......................................16....................
...
CHAPTER II. STABILITYOF AFRICANFRONTIERS ...........19......
CHAPTER III. THE CRïïICAL DATE IN THISCASE .............22........
CHAPTER IV. STRUCïüRE AND GENERAL CONTENTSOF
THE COUNTER-MEMORIAL .....................3..............
PART II THETASK OF THE COURT ..............................2.......................
CHAPTER 1. THE TERMS OF THE SPECIAL
AGREEMENT ...................................2...........................
CHAPTER II. ZNATïRIBUTING TERRITORY THE COURT
WOULD BE CARRYINGOUT A NORMAL
JUDICIAL FUNCI'ION ............................2...................
SECTION1. Chad'sIncorrect Contention........................2...........
SECTIO 2. Precedent and Doctrine..........,.................3............
SECTIO 3. Conclusions.......................................44..................PART III CHAD'SFlRSTTHEORYIS RULEDOUTBY
ARTICLE 3OFTHE1955TREATY ................................................
CHAPTER 1. THE MEANINGANDINTENTOF ARTICLE 3
OFTHE 1955TREATY ..........................4.....................
SECTIO 1. The TextofArticle3.............................48.............................
SECTIO 2. The TravauxPré~aratoiresand Other
IndiciaofInten.................................5..........................
(a) Libyanand FrenchTravauxand
Related Recordsofthe British
ForeignOffice ....................................................
(b) The "AouzouIncident"..........................................
(c) The Map AUegedly ProducedbyLibya
Duringthe July-August1955Negotiations...........
(d) the Annexc1ListofActeTInternationaux.............
SECTIO 3. ContemporaryStatementsofthe Libyanand French
Governments;the Parliamentaryebates .....................
SECTIO 4. GeneralAssemblyResolution392 (V) and
the 1955Treat..............................................................
SECTIO 5. Aftermathofthe Signingofthe 1955Treaty.................
CHAPTER II . THE INVALIDITY OF CHAD'SFIRSTTHEORY
UNDER ARTICLE 3..................................................
CHAPTER III . CONCLUSIONS ..................................6......................
PART N CHAD'SSECONDTHEORY IS RULEDOUTBYTHE
AGREEMENTSTHEMSELVES AND BYARTICLE 3
OFTHE1955 TREATY ..................................1.........................
CHAPTER 1. INTRODUCTION ...............................0......................
CHAPTER II . INTERNATIONALAGREEMENTSOF
RELEVANCE OMITTEDFROM THE
ANNEX1LIST ...................................2........................
CHAPTER III . THE1899ANGLO-FRENCHADDITIONAL
DECLARATION .................................5......................
SECTIO 1. The Intended Directionofthe
ArticleLine ...................................1...........................
SECTIO 2. The Non-AnnexedMap ...........................2..................CHAPTER IV . THE 1900-1902 ACCORDS .........................43..............
SE~ON1 . Backgroundofthe Accords ..:............:.........144
SECTIO 2. CanevaroSpeech(1899) ..............................6................
SECTIO 3. Pnnetti Declaration (190...........................48.............
SECTIO 4. The 1900Accord ..................................15.....................
SECTIO 5. The 1902Accords .................................153...........................
(a) .The 1902Anglo-ItalianAccord ................153...........
(b) The 1902Franco-ItalianAccord ................158..........
(i) Background ...........................158.....................
(ii) Form and Text ........................160...................
(iii) Reference to the
Non-AnnexedMau .....................163...............
(iv) Italy'sAllegedRecognitionof
a TripolitanianBoundary ...............166..........
Italy'sAllegedRenunciationofthe
(v) Rightsof the OttomanEmpire; the ms
Faul AnalysisofOttoman Rights
and C?lams ............................168......................
The Invalidityofthe Renunciation
(vi) Argument .............................176.......................
CHAPTER V. THE1912FRANCO-ITALIANAGREEMENT .....180.
CHAPTERVI . THE1919ANGLO-FRENCHCONVENTION
(8SEPTEMBER) .................................184......................
The Convention'sText .............................185...................
Maps .............................................1.0................
............
Backgroundand Travaux ...........................19...................
(a) BritishTravaux ..............................194....................
(b) TittoniSpeech ...............................20.....................
Other ContentionsofChad ..........................02...............
Demarcation; ItalianProtests; French and British
Attemptsto Reconcile Their EntirelyDifferent
ViewsinReplyingto Italy .................................................. SECTIO 6. Chad'sContentionthatthe 1919LineWas
Opposableto Ital.................................16....................
SECTIO 7. Chad'sContentionthat in 1934.asSuccessorto
ofthe Sarra Triangle.ItalyBecameBound bythen
1919Convention .................................2.3......................
CHAPTER VI1 . THE 1919FRANCO-ITALIANACCORD
(12SEPTEMBER) ................................29....................
SECTIO 1. BackgroundandText ..............................29...................
(a) MarinReports ..............................23....................
(b) 1915TreatyofLondonfA.......................235.............
SECTIO 2. Chad'sCont. .ionsastothe 12September
Accord'sSigruficanc..............................36..................
CHAPTER VI11 . CONCLUSIONS .................................40..................
PART V CHAD'STHIRDTHEORY.BASED ONFRENCH
ARTICLEAL 3 OFTHEïMT1955TREATYED ITSELF;
IS INVALIDIN LAW;AND IS NOTSUPPORTED
BY THE FACïS ......................................43....................
...
CHAPTER 1 . THE THIRDTHEORY ISNOT LEGALLY
SUPPORTABLE ................................2.3......................
CHAPTERII . THE LIMITEDNATURE ANDEXTENT
OF THE FRENCH PRESENCE IN THE
BORDERLANDS ...............................2.......................
SE~ON1 . Introduction....................................2.......................
....
SECTIO 2. The Period 1899-1912............................25....................
SECTIO 3. ThePenod 1913-1919 ............................25.....................
SE~ON4 . The Penod 1920-1935 ............................27....................
CHAPTERIII . THE POST-1935PERIOD .......................2..................
SECTIO 1. General Observations............................29.....................
SECTIO 2. CertainEventsofSomeRelevance .................2.........
(a) French-ItalianArmisticeCommission .........2......
(b) The FrenchPostat Aouzou ..................2..............
(c) Libya'sAssumptionofAdministrationover
Parts ofthe Borderlandsafter 197...........301......... The French "LignesRouges".983.1984.
(d) and EventsBoth Beforeand After
their Establishment......................310..................
CHAPTER IV . CONCLUSIONS ...............................313..............................
PART VI THE 1935TREATY OF ROME ANDRELATED ACCORDS .317
CHAPTERI . AGREES ......................................317................
..............
SECTION1. Italy'sSacrificeofitsTemtorial Rightsand
Interests ....................................318.................
...............
SECTIO 2N Unlikethe Other Accordsofthe SameDay.the 1935
TreatyNeverFormaliyEntered IntoForce .........319.....
SECTIO3N. Sincethe 1935Treaty Failedto Enter Into Force. the
LegalStatusofthe Boundav Unchangedi............20......
SECTIO 4N France Failedto Dischargeits Obligationsto Italyto
Provide"E uitable Compensation"Under Article 13
ofthe 1919 reaty ofLondon......................21..............
CHAPTER I. POINTSOF DISAGREEMENT BETWEEN
LIBYAANDCHAD ...........................322...........................
SECTIO N. Temtorieso....................................32.....................
...
(a) The Article 13Argument....................24............
(b) The Ma AUegedlyAnnexedto
the 19.tTreat............................325....................
(c) The Re uirementthat the 1935Treaty
BeRat'3'ed................................2........................
SECTIO N. SubsequentInterpretation......................329.......................
SECTIO N. The EffectofFrance'sFailure to Fulfilits Obligations
Under Article 13ofthe 1915Treaty ofLondo.......32..
CHAPTER III . CONCLUSIONS ...............................337..............................
PART W . GOODFAITE IN THE LAWOFTREATIES ..............33..........
CHAF'TER1 . INTRODUCTION: DOCI'RDE .................339................
CHAPTER II . JURISPRUDENCE ............................343............................
CHAF'TERIII . APPLICATIONOF THE PRINCIPLE OF GOOD
FAITH IN THE PRESENT CASE ................3............
SE~N 1. The MissingMap ..............................3......................... SECTIO 2. The 1955Negotiations..............................2..................
SECTIO 3. Conclusions.......................................0........................
PART VI11. THE MYTH OF RECOGNITION. ACQUIESCENCO ER
CONSOLIDATION OF THE BOUNDARYCWMED BY
CHAD ................................................3...........
.................
CHAPTER 1 . INTRODUCTION: THEBASISOF
"CONSOLIDATION ANDITSLIMITS ............63...
CHAPTER II . THE QUESTIONSRAISED INANYPLEA OF
"CONSOLIDATION .............................69..................
CHAF'TER III. THEELEMENTS OF "CONSOLIDATION
ADDRESSED BY CHAD ........................37................
SECTIO1 N Treatyof 1935....................................71.........................
SECTION2. The 1938"Jef-JefIncident........................37................
SECTIO 3N Nations: 1948-1952..............................37.....................
SECTIO 4. Libya'sOwnConduct.Post-Independence ............80.....
(a) The "AouzouIncident"of 1955 ..................0.........
The NegotiationsinJuly/August1955
(b) Leadingto the 1955Treaty...................382............
(c) Libya's"Silence"at theime ofChad's
Admissionto the United Nation..............38........
CHAPTER IV . ELEMENTSRELEVANT TO ANYARGUMENT
OF "CONSOLIDATIONIGNORED BYCHAD ....384
SECTIO1 N The Attitudeand ConductofGreat Bntain ..........3.4....
SECTION2. The Conductof the OttomanEmpire ...............3.6........
SECTIO 3N The Conductofthe Senoussi .......................87...............
SECTIO 4.
The ConductofFrance ...........................388...................
SE~ON5 . The ConductofChadItself ........................9..........
CHAPTER V . CONCLUSIONS ................................392.......................PART IX INTHEPRESENTCASERMlNING ...................................5...................
CHAPTER 1 . INTRODUCTION ................................39.5.........................
CHAPTER II . THE CRITERIA TO BE APPLIED ..................7.........
SEC~ON 1. Pnonty ofTitle (Prior inTemuore. Potior in Ju......7
(a) The Title of Lib...............................................
(b) The Title of Chad...........................400.......................
SECTIO 2. The Critenon of"Effective"Possession..............402..........
SECTIO 3. The Cntenon of "Peaceful"Possession...............404..........
SEC~ON 4. TInter-TemporalLawe......................................................
SECTIO 5. The Relevance of Recognition or Acquiescence
in the French Claimsof Tit.............................................
SEC~~~ 6. as ReflecteinTheir Proposals for Settlement............
SECTIO 7. Other "Equitable"Cntena..........................4.................
(a) Borderlands..................................1.......................
(b) Geographical Consideration...................13..........
(c) Economic Considerations....................................
(d) HistoricalConsideration......................1.............
(e) Considerations of Stabiiity.Peaceand Secun...14
SUBMISSIONS .........................................................7.....
................................. MAP INDEX
Map Number Appeanng
at Para.
LC-M 1 1890Ottoman claim
1928Maximum Italianprogram ...........................................
LC-M 2 Stnct southeast line
Notional Tripolitanian frontier (Livrejaune map).................
1.07
LC-M 3 Bardai - Gouro line.......................................1........................
LC-M 4 1928French offer
1929ltalian claim
1948French rectificationproposa1...........................1.............
LC-M 5 1928Maximum Italianprogram
1928MinimumItalian program
1929Italian claim...........................................2......................
..
LC-M 6 1910-1912ede facto lin...........................................................
LC-M 7 1929Italian claim
1935Franco-Italian Treaty line
1948French rectificationproposa1............................4.............
LC-M 8 Stnct southeast line
1911VilayetofTripoli proposal
1929Italian claim
1935Franco-Italian Treaty line..............................................
LC-M8A Stnct southeast linehadborderlands)
1911VilayetofTripoli proposa1
1929Italian claim
1935Franco-Italian Treaty line..............................5...............
LC-M9 Jef-Jef Plateau.................................................................
.....
LC-M 10 Strict southeast line
1935Franco-Italian Treaty line..............................................
LC-M 10A Location ofEdjeléoilfieldandSerdeles ...................3.78...........
LC-M 11 "Libya:Sketch Map of Frontiers", annexed
to1950U.N. Secretariat Study ............................3...................
LC-M 12 1890 Ottoman claim
Caravan routes
Say-Barroua line.........................................4.............LC-M 13 Ghadamès(1863):
Mourzouk (1865)
Ghat (1875) ............................................4.12...............
..........
LC-M 14A (revised1913)showingemap
strictsoutheast lin.....................................4.18.........................
LC-M 14B 1914BritishWarOfficemap
showingstrictsoutheastline .............................4.18......................
LC-M15A 1906BritishWar Officemap
(revised1924)showing
1919Anglo-French Conventionline
(east-southeast)........................................4.18....................
.......
LC-M 15B 1914BritishWar Officemap
revised 1935)showing
!935Treaty line ........................................4.18....................
.......
Negotiations Precedingthe
LC-M 16 1899Anglo-FrenchDeclaration .........................4.23...................
LC-M 17 B.C.A.F.Map: 1899
(southeastfineadded) ...................................4..4.....................
LC-M 18A French ArmyMap: 1896
Strictsoutheastline
East-southeast line Livrejaune map)
1919east-southeast (he .................................4.36......................
LC-M18B JustusPerthes Map: 1892
(showingsamethree lines) .................................6...................
LC-M 18C B.C.A.F. Map: 1899
(showingsamethree lines) ..............................4..6......................
LC-M 18D TimesAtlasofthe WorldMap: 1990
(showingsamethree lines) .................................0...................
LC-M19 Strictsoutheastlineby:
East-southeast line(Livrejaune map) ....................4..1.........
LC-M20 TerritoryEncompassedby:
1919Anglo-French Conventionline map)
(east-southeast)..........................................7.....................
...
LC-M21 TerritoryEncompassedby:
S1919Anglo-French Conventionline
(east-southeast).......................................4.16......................
.LC-M22 French ArmyMap: 1896
(overlay)................................................4.71...
LC-M 23 Actual Topography US
J(overlay)................................................4.71...........
.............
LC-M 24 Actual Topography US
B.C.A.F.Map: 1899
(overlay)...................................................1..............
........
LC-M25 "Extraitof the Livrejaune rnap
appearing atCM. page 162 ..................................3..................
LC-M 26 Reproduction of the Livrejaune rnap
(fold-out...................................................3..............
.........
LC-M 27 Prinetti Declaration, 190................................4.88..................
LC-M28 Ottoman Occupation
of the Libya-Chad
Borderlands: 1908-1913
LC-M 28A 1912French Ministry
of Coloniesmap ........................................4.156....................
..
LC-M 29 Anglo-French Convention
of 8September 1912 .......................................63.....................
LC-M 30 1919Anglo-French Convention Map
GeographicalSection,
beace Congress,No. 224) ...............................4.17..................
LC-M 3 1A French ArmyMap: 1896
with Lord Salisbury's
proposal for the Article 3 li...........................4.17................
LC-M 31B Justus Perthes map: 1892
proposal for the Article 3 li...........................4.17................
LC-M 32 ColonelTilho'srnap
(1912-1917) ............................................4.17...................
........
LC-M 33 (1912-1917)withstrict
southeast lin....................................4.1......22..............
LC-M 34 Re roduction of Livrejaune map
end point oflineats1YNlatitude
(fold-out)................................................1.................
............
LC-M35 Italo-Anglo-Egyptian
Accord of20July 1934 ....................................2..7....................LC-M 36 of 12September 1919d ....................................2.....................
LC-M 37 Chad'sContentionsas to
the Significanceofthe
12September 1919Accord ..................................4..........
LC-M38 Area ofFrench MilitaryConcentration
after 1913.................................................................
..............
LC-M39 CommercialArrangement
b1899Declarationr.........................................5.23.......
LC-M40 French Military Incursion
into the Libya-Chad
Borderlands: 1913 ........................................5.24............................
LC-M41 Ottoman Civiland Miiitary
Controloverthe Libya-Chad
Borderlands: 1908-1912 ...................................5..................
LC-M42 Comparisonbetween:
1911Recommendation ofVilayetofTripoli ...........................
LC-M43 French MiiitaryBattles
inthe Libya-Chad
Borderlands: 1913 ..................................................................
LC-M44 French Military
Deploymentinthe Libya-Chad
Borderlands: 1914........................................5.41............................
LC-M45 FrenchiMilitarvPresence: 1914;
Strictsoutheasi line;
1935Franco-Italian Treaty line;
1919Anglo-FrenchConventionline .......................5.41..............
LC-M46 French MilitaryIncursion
Into Tibesti: 1914-1916..................................5.47.........................
LC-M47 Toubou AttackonFrench
Military Convoyat Yeki,
12March 1915 ...........................................5-52...................
.....
LC-M 48 French MilitaryBattlesinthe
Libya-ChadBorderlands: 1914-1927 .......................5.60..............
LC-M49 Implementedbythe French Military:1930 ..............................
LC-M50 French MilitaryGovemor
at Tekro: 1934...........................................5.87...................
......LC-M51 French 1910-1912edefacto line;
VilayetofTripoliProposal,1911 .........................8.................
LC-M52 1926ItalianMinistry of ColoniesMap
(nosouthernboundary) .................................8..3...................
LC-M53 1937ItalianMinistry of ColoniesMap
(1935line) ................................................3..............
............
LC-M54 1939ItalianMinistry
nosouthernboundary) de.................................8.3.......
LC-M 55 Libya'sClaim
(withLibya-Chad Borderlands ).........................9..7............... PART1
INTRODUCTION
1.01 This Counter-Mernorial is filedby Libya in accordance with
the Court's Order of 26 August 1991fixing27 March 1992as the time-limit for
1
the submissionof Counter-Memorials by the Partie.
CHAPTER1. AN OVERVIEWOF THECASEASSETOUTIN CHAD'S
MEMORIAL
1.02 In their initial pleadings the Parties have taken entirely
different approaches to the resolution of the temtorial dispute submitted to the
Court by the Accord-Cadre of 31 August 1989. Some of the more striking of
these differenceswillbe noted here.
SECTIO 1.N The Difference in Scow Between the Cases Presented by
LibvaandChad
1.03 The Chad Memorial isvirtuallya petitio vrincioii:the Court
must decide in favour of the precise boundary iine advanced by Chad as a
conventional international boundary, or else the Court, it seems, lacks the
comoétence togo further in settling the dispute. The presentswhat it terms
"la fausse alternative", as if the Court had a choice to make between two
boundary lines: the 1919line and the 1935line2. But there is no choice at al1to
be made here. Although the 1935Treaty isbyno means irrelevant to the present
case, Libya'sclaim does not rely on the 1935line as such; and there is no dispute
between the Parties over whether the 1935iine is a conventionalboundary under
international law. So the Court's only task under Chad's thesis is to accept the
precise boundary IineclaimedbyChad - and no other.
1 Tenus suchas"Libya"and "Chasdefinedin Libya'sMemorialwillcontinue to be used
in the samesense in the present pleading. References to Libya'sMemonal and to Chad's
Memonal willoiïen be made byuse of the a"LMnand "w, respectively.
2 niese and similartem refer back LM:tthe "1919liisthe Lineset out in Article
3 of the 1899 Anglo-French Additional Decasrmodified ("interpreted") by the
Convention of 8September 1919;the"193isthe boundaryagreedbetwwn ItaIyand
Franceinthe 1935Treatyof Rome, ratifications ofwhichwerenever exchanged. 1.04 Hence, Chad's Mernorial has been presented in such a way
that the facts and evidence and the legal arguments have al1 been carefully
selected and arranged to arrive at one, and onlyone, precise result.
1.05 Libya'scase is not so hampered;for Libya considers that the
Parties have submitted their temtorial disuute to the Court for resolution -
whatever the outcome may be. Libya denies that there is any agreed boundary
line between Libya and Chad; it maintains that the question of title to the Libya-
Chad borderlands is the principal question put to the Court in this case. As a
result, in the Libya has attempted to set outl1of the relevant facts,evidence,
documents and legal considerations for the Court's consideration in reaching its
decision. Libya has taken special pains to demonstrate by maps and other
illustrations the various elements to be considered in this case in as clear a fashion
as possible. For Libya has nothing to hide and has only to look fonvard to the
Court's resolution of this dispute.
1.06 This is not, in fact, a "bounda~y"disputein the restricted
sense, with the Court having to choosebetween two alternative lines proposed by
the Parties. For no true boundary has ever existed. There are certainly many
different sorts oflines that have at different times served different purposes:
some have been claim lines, some lines agreed for particular purposes, some
representingproposalsfor a boundary.
1.07 First of au, there is the boundary claimed by the Ottoman
Empire in 1890~. The maximum program formulated by the Italian Ministry of
Colonies in 1928was similar to the Ottoman claim4. These are show here on
Mau LC-M 1. Then there is the line agreed between Great Britain and France in
Article 3 of the 1899Declaration. As is repeatedly conceded in theCM, this was
not intended tobe a territorial boundary line5. It was intended to be the northern
and eastern limit of French expansion in the region. As will again be
demonstrated in this pleading, the 1899 line was intended to follow an almost
exact or true southeast direction. However, the iiiustrative map unilaterally
annexed by the French Foreign Ministry to the version of the 1899 Declaration
published in its Livre iaune depicted an east-southeast rather than the intended
3 Se,LM.para.5.10, andMaps Nos.37and38.
4 See,LM. para.5.251,andMapsNos.68and 69.
5 S-, G., CM. pp.144-145,para.11;andp. 376,~onclusi(di).southeast line. It will again be demonstrated that the line on this map did not
accord with Great Britain'sintention at the time as to the direction of the linethat
had been agreed in Article 3 of the Declaration; and subsequent British maps
showed a strict southeast line, as depicted on Mar>LC-M 2. Nevertheless, these
two lines relating to the 1899Declaration- strict southeast and east-southeast as
shownin the Livre iaune - are relevant in the present case as part of the historical
background.
1.08 The importance to Chad's case of the Livre iaune rnap is
brought out time after time in its Memorial. Regrettably, the CM has omitted
reference to certain key evidence that reveals that the rnap - which will be
referred to hereinafler as the Non-Annexed Mau (and sometirnes as the "missing
map") - did not reflect the agreed 1899 line at all, which wasintended to be a
virtuallystrict southeast line. On the map, the 1899lineended at the intersection
of 24"E longitude and 19"N latitude, following an east-southeast direction,
instead. There is no way to reconcile this difference. The Italian government
consistently maintained that the 1899 southeast line was meant to be a strict
southeast line (also illustrated on Mav LC-M 2); and over a period of some 15
years it vigorouslyprotested the attempt in 1919to push this line even further
northward. Great Britain consistently maintained that, contrary to the French
view, the 1899-1919line was not a conventional boundary line, or even a line
separating zones of influence, but only a limit to the territorial expansion of
France; and Great Bntain so informed Italyof the intended negative aspect of the
line and assured Italy that it did not, and could not, affect the territorial rights of
other Powers,suchas the Ottoman Empire and Italy.
1.09 The concedes that the 1899Line was not opposable to
6
the Ottoman Empire, which vigorously protested the agreement . However,
through a misreading of the Franco-Italian 1900-1902Accords, the attempts
to make the 1899southeast line opposable to Italy (and thus to Libya). Aswill
again be shown below, Italy never accepted the southeast line as pushed
northward on the Non-Annexed Map, for the 1900-1902Accordswere concerned
with a quite different line: the wavy,dashed line marking the generally-accepted
viewof Tripolitania'sfrontiers, whichhad not yet been delimited7. This linealso
6 See,CM, p. 176,par120.
7 TheTripolitanianboundarykom RasAjdir(on theMediterraneancoast) to Ghadamès
wasdelimitedin1910;the boundarybetweenGhadamèsand Toumm o asdelimitedfor
thefirsttirnebytheFranco-ItalianAcof 12September1919.appears on Map LC-M 2, where it is identified as the notional Tnpolitanian
frontier.
1.10 There are a number of other lines forming part of the
background of this case. During the meetings ofthe Colonial Commissionin 1919
over implementation of Article 13 of the secret 1915 Treaty of London, the
French Govemment proposed that Bardaï be considered to lie in Libyan
territory. As early as 1914,,ColonelLargeau, who had led the French incursions
into the Libya-Chad borderlands, had proposed that Gouro, the former seat of
8
the Senoussi Order just east of Tibesti, be considered as part of Liby. These
places are shown on Map LC-M 3, and the kind of partial boundary line these
proposals might have produced has been suggestedon thismap.
1.11 Then, in 1928,France proposed ceding to Italy a portion of
temtory south of Toummo, forming a sort of salient or bulge southward to the
Djado oasis9. In 1929 Italycountered with a proposal that would have included
only the Libya-Chad borderlands north of 18"N latitude within Libyan temtory.
This 1929proposa1of Italywould have left to Libya the entire regions of Tibesti,
Ennedi, Ounianga and Erdi as well as the northern part of Borkou. It is
interesting to note- jumping ahead to 1948 - that France proposed almost the
opposite type of boundary as part of the disposition of Italy'sAfrican colonies
under the 1947 Peace Treaty. The French proposa1 would have drawn the
boundary across the Tropic ofCancer, thus leavingal1of these regions to France's
colony, the A.E.F. However, France never pursued this claimbefore the U.N.
These three proposals are showntogether on M~DLC-M4.
1.12 The 1929Italian claimwasa more modest proposal than the
"maximum"and "minimum"programs formulated by the Italian Colonial Ministry
in 19281°,as M~DLC-M 5shows.
1.13 Earlier,in 1911, inpreparation for scheduled delimitation
negotiations between the Ottoman and French Govenunents, the wvi of
8 S-, para.5.44etset., below.
9 Thisproposalwuld properlybe regardeasinvolvinga "cessiof territorybyFrance
sinceit wncemedarectificationof the Franw-ItalianAccordof 12September1919.
10 ThesearediscussedanddepictedinthLM, startingat para.5.251.LC-M 6Tripoli had also proposed a substantial reduction of the 1890Ottoman clairn1'.
In the meantime, a de facto line had come into being between the opposing
French and Ottoman forces, and a similar line was envisaged in the French-
Senoussidiscussions. The 1911and de facto linesare shownon Mai, LC-M 6.
1.14 Thus, when Laval and Mussolinisat down in 1935to agree
upon a general settlement of al1 African issues between Italy and France,
includingboundanes, there had been lines of al1sorts formulated,proposed and
even agreed - but no boundaq concerning the area of the Libya-Chad
borderlands had emerged from thern. The special significanceof the boundary
line that Italy and France agreed in 1935 is that it was a settlement of that
boundary by the two States directly concerned at the time, not an arrangement
involving third States - and it was overwhelmingly approved by the two
Parliaments of the two States, each of which passed laws authorizing its
ratification.However, for reasons extraneous to the issue of boundanes,
ratificationswere never exchanged as called for bythe 1935TreatyAs Mai, LC-
- 7 demonstrates, the 1935 line would have divided the borderlands region
rather than leavingal1of it north of 18"Nlatitudeto Libya (and Italy),as in Italy's
1929 proposal, or leaving more than the entire borderlands to France, as in
France's subsequent post-World War II proposal. It must be said, however, that
neither Government regarded the 1935 line as a satisfactory line. France's
General Tilho sharply cnticised it; and at the final stage of the negotiations, the
Italian ColonialMinistrytned to reduce sornewhatthe boundary concessionsItaly
wasmaking to France bymovingont0 the Libyanside of the line both Bardaï and
Tekro; but Mussolinibarred this attempt, hiseyesbeing focussedon EthiopiaAs
the indicates, the 1935iine was a "pis-aller"for France; and it was a major
temtorial sacrificefor Italy, the consequence of an odious secret deal concerning
Ethiopia.
1.15 For the purpose of attribution of the territory compnsing
the Libya-Chad borderlands, Libya submits that al1 these lines (and related
negotiations) have some relevance and sorne have considerable significance. The
latter category would appear to include, in varyingdegrees, the strict southeast
line of the 1899Declaration, the 1911 of Tripoli proposal, the 1929Italian
proposal and the 1935Treaty iine. These various linesare displayedon MaoLC-
- 8; they are again set out on Maa LC-M 84 on which the Libya-Chad
11 SeeLM.para.5.114,andMapsNos.52iAand 521B.borderlands are depicted,together with Libya'sclaimin this case. The Court has
a wealth of material concerning lines of al1kinds to consider in determining title
between the Parties in the area comprisingthe Libya-Chadborderlands, and not
just one line as Chad maintains.
1.16 The narrow focus ofChad'scase isstrikinglyillustrated byits
obsession with one of the regions in disp-tTibesti-and even more so with a
small oasis in northern Tibesti known as Aouzou. TheCM has entitled its first
chapter "LesDonnées de l'Affairede la Bande d'~ozou"'~; the last word of the
CM prior to Chad'sSubmissionsis "~ibesti"~~;the name "Aouzou"(spelt "Aozou"
in theCM' appears on virtuallyeverypage. Why this obsession? The Court has
not entitled this dispute "l'Affairede la Bande d'Aouzou";to the contrary, in the
lightof the Accord-Cadre, this case is officiallycalledTemtonal Dispute (Libvan
Arab ~amahiri~al~had)'~.
Chad admits that the term "Aouzou Stnp" or "la bande
1.17
d'Aozouuwas a journalistic invention that did not gain currency until the late
1970s15. As the map shows(Map LC-M 8A),Aouzou isan oasisin the northwest
part of the Libya-Chad borderlands, which themselves consist of not just Tibesti
but also the regions of Borkou, Ennedi, Ounianga and Erdi. The boundary line
agreed between Italy and France in 1935,as part of their general settlement of
African problems, would have placed Aouzou on the Italian side of the line. It
wasone of the minor oasesin Tibesti that the French were willingto let Italyhave
in the 1935boundary agreement that was so disadvantageous to Italy. The Quai
d'Orsay describedhowrelativelyunimportant the effect of the 1935boundary was
on French interests in the borderlands in this deprecating way: "les centres
d'habitation principaux"were aUleft on the French side of the line; "[ellledonne
à l'Italie une bonne palmeraie, celle d'Aouzou, et quelques points d'eau
secondaires, Guezenti, Ouri et ~ebbi-souma"16. This may have been the first
occasionfor most Italians that Aouzou wasbrought to their attention; for it layon
the French side of a true southeastline under Article 3 of the 1899Declaration,a
12 CM. p. 16.
13 mp.382.
14 DifferendTerritorial(Jarnaa rabeLibvennemchad).
15 Sec .M,p. 17,para.1.
16 Sec .ara.5.99,below.line with which the Italians had flirted in drawing up various proposais for the
southern boundary of Libyain the years followingWorld War 1.
1.18 The locations the Italians and French had been interested in
were Zouar, on the southem edge of the Tibesmassif .nd Bardaï at a strategic
location in Tibesti. Of course they knew of Gouro to the east of Emi Koussi,the
former seat of the Senoussi, which like Bardaï had once been offered by the
~rench'~. So also were Ounianga Kebir and Ounianga Saghir known, and
especially Tekro on the main trade route to Koufra, the location of the 1934
incident1'. The French had no plans in 1935to leave these key places to Italy in
spite of a last-ditch attempt in the 1935negotiations by the Italian colonialiststo
obtain Bardaï and Tekro (as well as Afafi to the west of the borderlands)19. But
Aouzou could be left to Italy;for the French it wasonly"unebonne palmeraie".
1.19 The CM has attempted to create a major event out of a
minor episode that occurred at Moya, a tiny place just north of Aouzou. The
episode took place in between the two sets of negotiations in 1955leading to the
1955Treaty, and was dealt with in th&f under the rubric "Moya incidentn2'.
Aswillbe gone into below,theCM has named the episode the "AouzouIncident"
and made it a centrepiece of its expositionas to the meaning of the 1955-reaty
se~ng as a kind of surrogate travaux for documents concerning the 1955
negotiations that Chad has chosen not to offer in evidence2'.CMhecontends
that Libya'sPrime Mnister Ben Halim, in the wake of this "incident",formally
recognized "la souverainetéfrançaise suoz ou" ^w^.pages later in thCM.
Mr. Ben Halim is alleged to have recognized "la souverainetéfrançai&e
Further on (155pages later), the same events are cited iCMthas
an admission by Libya "que la bande d'Aozou étaitsoumise à la souveraineté
17 See .ara.5.4g,-q.below.
18 See .ara.5.8g=., below.
19 See .ara.5.100,below.
20 See,LM,5.512,g -q. The locationsof Moya andAouzouareshownon MLC-M 9
referredto atpara.3.34, below.
21 See .ara.1.44anfn37,below.
22 CM. p. 134,para.111. Emphasisadded.
23 CM. p. 136,para.118. Emphasisadded.exclusive de la rance"^^. Quite a remarkable evolution in the territorial
coverage of the alleged statement of Mr. Ben Halim!
1.20 Libya will demonstrate in PartIIIthat this whole episode is
misinterpreted and exaggerated in the CM; that what the Prime Minister is
claimed to have said is not established in theby acceptable evidence; and that
in the circumstances the very most that his remarks might be taken to me-if he
made them at al1 -was that he had been reliably informed that French troops
were present in Aouzou, which had not been the case for many years, and that he
was not planning to send another expedition there as rumoured. The very most
he is even alleged by Chad to have said concerned onlythe "bonne palmeraie" of
Aouzou - not the so-called "Aouzou Strip- and certainly not the rest of Tibesti,
or Borkou, Ounianga, Ennedi or Erdi, al1of which are part of the LibyaIChad
borderlands. Moreover, no evidence at al1has been produced to show that during
the July-August 1955negotiations whatever Mr. Ben Halim is alleged to have said
came up in the discussionsbetween the Libyan and French negotiators.
1.21 The ultimate French occupation of Tibestiin 1929-1930 was
the result of the Italian advances south into Feuan and Koufra in wenaica. In
addition, the northwestem part of Tibesti lay near the Algerian frontier, and
Algeria had been annexed as part of metropolitan France and was no longer just
a colony. Until 1930, Tibesti was regarded by the French as within the
administrative control of A.O.F., with headquarters at Bilma; it was not even a
part of the colony of Chad. In1930,this region of the borderlands was shifted by
the French Government to the A.E.F..
1.22 Bycallingthe area between the 1935 line and the1899-1919
line the "Aouzou Strip", Chad draws attention to the fact that real French
interests lay only inthat sector of the borderlands, for it was close to Algeria, and
hence to France itself. Even then, however, the region of the borderlands nonh
of 18"N (the approximatelatitude of Faya) waslargely ignored by France until the
1955 negotiations approached. It was only then - when the incident at Moya
brought out the fact that the French had a minimal presence in this regio-that
the French Government, particularly the people in command in the A.O.F. and
the A.E.F., reacted strongly and sought to turn this minor episode into an event
furthering French interests in the negotiations. Yet the episode at Moya, from
24 CM. p.291,para.324.Emphasisadded.the evidence so far produced, never played a role in the July-August 1955
negotiations, and was not brought up at ail. It was some20 years later that
"Aouzou"gained currency asthe name to apply to the territorial dispute between
Libya and Chad. During the rebellion and civilwar in Chad, the "AouzouStrip"
became a sort of political slogan. In the view of Libya it is an entirely
inappropriate term to apply to the present case. Not only it wronglynarrow
the geographical focus of the dispute, which concerns the borderlands and not
just the area lyingbetween the 1935 and 1899-1919lines, but it also imports a
politicalelement that has no bearing on the question of title to the borderlands.
SECTIO 2. Chad's Defenceof its French Colonial Past; its Ienorine of
the Rights ofthe Indigenous Peoples
1.23 In its Memorial, Chad defends in its entirety the French
colonialthesis developed over the years, even to the point of covering up or
attempting to rationalize some of its more conspicuous defects.CMhetries to
make out a case for the Non-Annexed Mau as having reallybeen annexed to the
1899Declaration. It tries to disguiseFrance's senebévu etsthe U.N., and to
place the blame on the U.N. Secretanat. It suppresses what must have been its
astonishment (not to mention displeasure) to discover, after this case was
brought, that the French Govemment had not considered the 1955Treaty to be
of sufficient importance to be registered under Article 102of the U.N. Charter;
and the CM fails to mention that in 1972the U.N. Secretanat actually reminded
France of its omission,but the French Governmentagain failed to take steps to
'havethe Treaty registered. (In contrast, the 1956Agreement concerning Libya's
frontier with Aigeria was registered with alacrity under Article 102.) Perhaps
most remarkable of all, thCM disclose- but without any outward display of
embarrassment - that the 1900-1902Franco-Italian Accords, on which Chad's
casevirtuallydepends,were not en vimeur at the time of Libya'sindependence in
1951- nor in fact was the Franco-Italian Accord of 12 September 1919,which
dealt with the western boundary ofLibya withAlgeria and ~i~er~~.
1.24 In its vigorous defence of the actions of the French
Government during the colonial past, the neglects to consider the legal basis
on which France's claimed effectivitésrest. TCM totally ignores the nghts of
the indigenous peoples of the area, who fought valiantly under Senoussi
25 See,para.3.1below.leadership to oppose this attempted invasion of their lands by forces under
French command. The borderlands were not terra nullius-and the does not
assert othexwise-and the peoples of the region rejected any overtures to reach
agreement with the French. Yet these peoples, paradoxically,are nowclaimed by
Chad to inhabit Chadian not Libyan temtory. In the face of the French threat,
these Senoussipeoples welcomedinto the borderlands Ottoman civiland military
forces. Until 1913, a modus vivendi existed between the French and the
Ottomans and between the Frenchand the Senoussi,with a de factoseparation of
forces alongroughly 15"Nlatitude (Mau LC-M 6). Chad devotes not one word to
the legal basis on which, starting in 1913, French forces invaded these lands,
destroyingthe zawivasof the peoples and uprooting their Islamiccivilizationand
culture, and totally disrupting their economic life. The fact that, post-1920,
conquest was no longer avalid means ofacquiringtemto~yissimplyignored.
1.25 Libya'sclaim to title in the borderlands area reposes on the
rightsof these peoples and on the rights,titlesand claimsof the Ottoman Empire,
whichItaly inhented in 1912. Libya'scase issolidlyfounded in the rights of these
peoples to self-determination. It rejects the illegal acts of the French forces,
which in any event were directed not at settlement, but at the protection of the
only part of Chad that the French considered to be of any val-ethe southern
part generallybelow 15"Nlatitude ("leTchad utile"). Certainlypnor to 1930,and
even thereafter, these military measures of protection fell far short of the
effectivitésthat under the law existingpnor to the League Covenant might have
conferredon France sovereigntyoverthe area andits peoples.
1.26 The CM fails to address the question how, in any event,
under the 1955Treaty, Article 3 of which sets out the basis for delimiting the
southern boundary of Libya;colonial effectivitéscould be regarded as a relevant
factor. The basis on which the delimitation was to be negotiated was to be the
"actes internationaux" en vieueur in 1951,and whatever international boundary
emanated therefrom - in short, &i possidetiu. Under such a criterion,
colonial effectivitéshadno place, evenifproved, and even ifvalid26.
26 Secp.ara5.01g a.,below. SEC~O3 N. Chad'sRelianceon Recognition.Acauiescenceand Estoppel
1.27 There is an elegant flow to the Memonal of Chad: at first
glance the case seems to hang together with style,like an expensiveFrench dress.
But after a few stretches and tugs and pulls it comes apart at the seams, held
together bya fewthin threads, whichare arguments based on alleged recognition,
acquiescence and even estoppel; and this characteristic persists with remarkable
consistencythroughout Chad'spleading.
1.28 The applies such a line of argument first against Italy.
In this way it attempts tourmount the problem that the 1899Declaration was
between Great Britain and France, as was the Convention of 8 September 1919;
and so far as Italywas concemedboth agreements were res inter aliosacta. The
comerstone of Chad's acquiescence theory is the Non-Annexed Mau, which
miraculouslyissaid to have accomplishedfour things:
-
The establishment of Libya'swestern boundary to Toummo
and evennorthward from Toummo to the Tropic ofCancer;
- The abandonment and even renunciation of any Ottoman
claimby Itaiyover the Tripolitanianhinterland;
- Recognition and acceptance in the 1900-1902Accords ofthe
1899 Declaration's southeast line as shown on the Non-
Annexed Mau (which was more east-southeast than
southeast,as the British observed at the time); and
- Bya considerablefeat oflogicalleap-frog,the acceptance by
Italy of the 1919 line which, as a result of the 1900-1902
Accords,it wasestopped from opposing.
Thus, mirabile dictu, the principle of res inter alios acta is disposed of, without
even addressing howItalyin 1900-1902couldhave agreed or settled anyboundas,
rights in respect to temtos, that was at the time under Ottoman sovereignty. As
for the Non-Annexed Mau, this in reality is claimed by Chad to have become
annexed for al1practical purposes since it was,tCM maintains, acquiesced in
or recognized by Great Britain-whichmust have known about it and had raised
no objection. Of course, as will be seen below, a few pieces of evidence
overlooked bythe CM_make short shrift ofthis argument. 1.29 The CM maintains that Libya inhented al1of the results of
this claimed recognition, acquiescenceand estoppel attributed to Italy. But there
is no discussion by Chad of the legal basis for such a conclusion. Unless a
conventional boundary came about as a result ofh conduct, a fair reading of
the1955 Treaty isthat Libyaagreed onlyto examine the "actes internati-naux"
vieueur in1951,unencumbered by the politicaland legalmachinations of French
or Italian Govemment officiais,who had been jockeying for position in the
boundaxynegotiations between them lastingfro1919 until their culmination in
the 1935Treaty.
1.30 Then the seeks to apply these pnnciples to Liby-
although not quite danngto assert that Libyais estopped from presenting its case
to the Court because it failed to do so to the Security Council. It requires a
detailed examination of the in this respect to expose al1of its flaws. This will
be done in the course of this pleading. Butit is necessaxyto mention here that
Chad failsto apply thisstandard to the conduct ofitselfor of France. To pickjust
one example, Chad argues that Libyawas obliged to deploy before the Security
Council its legalcase conceming the frontier in the wayChad d1978nand in
1983. But the CM cites no authority for such a proposition.In Chad's
presentation to the U.N. a number of senous mistakeswere made, iilustratingthe
undesirabilityof a premature expositionof a legal case:
- Chad referred to a map annexed to th1899Declaration-
whenit shouldhave knownthat there wasno suchmap.
- Chad invoked the1955 Treaty-when it should have known
that it had not been registered under A102of the U.N.
Charter.
- Chad referred to th1900-1902Accords and the Accord of
12 September 1919 as en vigueur i1951 -when it should
have knowntheywere not.
Furthemore, the caseChad advancestoday ismatenally different from the one it
presented at the U.N. 1.31 Libya believes it adopted the wiser course: to abstain from
discussing a very complex legal question, which is now in the process of being
unravelled before the appropriate internationatribunal, the Court, instead of
taking the risk of making erroneous statements the way Chad did, which under
Chad's estoppel theory should now act to bar Chad.
SF~ON4. Major Changesin the Case Presented bv Chadto the U.N.:
theThreeDifferentTheones NowAdvanced bvChad
1.32 In spite of the detailed presentation to the U.N. by Chad of
its case concerning the Libya-Chad boundary, this case has been extensively
modified in them. Libya does not question Chad's right to do so; but it does
question how the CM could with any consistency criticize Libya's conduct in not
spelling out its case when Chad itself has substantially modified its own widely-
publicized case.
1.33 Until these proceedings, Chad's case had alwaysreposed on
the 1955Treaty; and its theory seemed relatively simple, albeit incorrect and not
fully thought through. It was that, in Article 3 of the 1955 Treaty, ubya and
France camed out the recommendations of G.A. Resolution 392(V), fixing the
boundary by reference to certain "actesinternationaux" en vigueur in 1951;and by
not mentioning the 1935Treaty in Annex 1to the Treaty, the parties specifically
rejected the 1935line. The second point was paramount, since Chad (as France
had before) at least publicly believed that the "actes internationaux" listed in
Annex 1did delimit a boundary; and, hence, the absence of the 1935Treaty from
the list was ofitical importance.
1.34 A full analysis of the 1955Treaty willbe undertaken further
on; but it emerges £rom the QJ that Chad has replaced this rather simplistic
theory with a complex composite of three theories that, properly viewed, are quite
separate and different, although each purports to lead to the exact same
boundary ~ine~~.No doubt when Chad looked below the surface of the French
thesis about Libya's southem boundary, which it felt obliged to defend, it found
someunpleasant surprisesthat required someintricate legal footworin order to
deal with them. One such surprise -the fact that the 1955Treaty had not been
27 Thethreetheonesof Chadaresuainctlysetforthin thems mnclusions,appeanngat
pp.75-376.registered under Article 102 of the U.N. Charter - undoubtedly was an
embarrassing, though remediable, defect. Of course,'France's casual treatment of
that Treaty is significant in itself. A second -the fact that th1900-1902
Accords were not en vigueur 1951 -was a potentially disastrousrevelation. The
1902 Accord and the famous map- the1899 Livre iaunemap now to be called the
Non-Annexed M~D -were critical to the French thesis espoused by Chad before
the U.N. In addition, certain key "actesinternationaux"had not been included in
Annex 1,such as the1900Accord and 1924Protocol and Declaration (to which
Chad's Application o3 September 1990 made reference), and the Franco-Italian
Accord of 28October 1912,which the CM reveals to be an important element of
Chad's case2&.
1.35 This new three-pronged approach of Chad is in effect the
presentation of three separate, alternativepleadings, for each theory is
independent of the others and stands on its own feet. Such an approach
necessarily carnes with it the implication that Chad does not have sufficient
confidence in any one theory to rely entirely upon it. But it should be observed
that advancing three theories does not thereby strengthen Chad's case, for none
of the theories supports the others. In fact, there are inconsistencies between
them. At the end of the day, Chad's case depends on putting forward one theory
that cames conviction. Chad has failed to do this in its Memorial. Furthemore,
none of these three different theories is the same a& thetheory that Chad
advanced in its presentations concerning the boundary issue before the U.N. in
1978and 1983.
1.36 The first of Chad's three theories for arriving at the precise
line is clearly an attempt to remedy the defects just mentioned. Under the first
theory, Article of the1955 Treaty by inAnnex 1to the 1899boundary
lin ehown on the Non-Annexed MaD, and referred to in the 1902 Accord
(alleged to be the same line subsequently descnbed in words in the 1919
Convention), expressed the agreement of Libya and France to this exact line
(terminating at24"E longitude-1Y30'N latitude) as a boundary line, whatever
the status of the underlvina ameements mav have been. This is a fundamental
change in the French-Chadian case as heretofore publicly expressed. It clearly
reflects an attempt to overcome the formidable defects in the French thesis that
Chad has heretofore put forward as its own.
28 SeeCM. p. 182,para.151;g, alsLM. para.5.117,seq .ndpara.4.150g =.,
belowA listof 11agreementsomifiomtheAnnex1lut appearsatpa4.09below. 1.37 Then the CM advances an alternative route to the exact
same line: this is Chad'ssecond theory. It resembles Chad'searlier case,but with
the addition of a significantnew feature: the concept that1899 line,conceded
to relate only to zones of influence at the time, became transformed into a
boundary line as a result of French effectivitésstarting1913 and taking effect
well before 1919. This second theory is complex. It is a bit like a circus trapeze
act,with four sets of swingsand four artists tumblingthrough the air and catching
each other. If one part goes wrong the whole act plunges to the n-tand in this
case there really is no net. This complex alternative submissionof Chad willbe
examined in detail below. Manyof its components have already been dealt with
in theLM: and the flawsin the new component based on French effectivitésand
their supposed effectintransforming the 1899 zone of influence into a boundary
lineby 1919 willbe exposedfurther on in this Counter-Mernorial.
1.38 Finally, Chad has advanced a third theory of its ca-ethat
once more leads to the exact same line. Thisisbased solelyon French effectivités
prior to1919. It, too, is a theory not heretofore advanced by either France or
Chad. As will be shown, it is ruled out by the terms of Article3 of the 1955
Treaty, isinvalidin law,and isnot supported bythe factsand evidence.
1.39 Such an evolution in Chad's case is understandable. It
shows that a case of thiskind cannot properly be presented before a political
forum such as the U.N. General Assemblyor the Security Council or the O.A.U.
as a statement of a "political" position and without having done the prior legal
research. Italso showshow wide of the mark are the suggestionsin theCM that
in the 1955 negotiations the Libyan team had a firm grasp of the various
agreements referred to in Annex 1and of the boundary line to which Chad now
claims they inevitably led. Libya has only recently discovered after reading the
Memorial of Chad that neither the Accord of 12September 1919 nor the 1900-
1902 Accordswere en vigueur in 1951,one of a number of keyfacts not disclosed
at the time by the French negotiators.Thus, Annex 1contained a fundamental
mistake consistingof the fact that these agreements were listed as havingbeen
vigueurin 1951,when theywere n~t~~.The French travaux that maybear on this
29 Had Francebelievedat the timethatListingtheseagreementsin Annex1wouldremedy
the problemof their not beingen vimeur, the FrenchGovenunentshouldsurelyhave
madecertainthatth1955TreatywasregisteredunderArtic1M of theU.N.Charter,
which itfailedIo do.question, which concern the second part of the 1955 negotiations (in July and
August), have been very sparingly offered in evidence by Chad.
SECTIO 5. Sienifkant Ga~sand Failures ofProofin Chad's Case
1.40 There are notable gaps and omissions in Chad's case as set
out in the m. The lack of French travaux covering the July-August 1955
negotiations has just been mentioned. This contrasts sharply with what appear to
be the rather complete travaux submitted for the fïrst phase of the negotiations,
in January 1955in Paris. But itthe second period that is themore significantin
tems of the intent of Libya and France as expressed in Article 3.CMorhase
revealed that the list of "actesinternationaux" set out 1was added to the
draft Treatyonly in the final days, just prior to signature. Yet Chad omits the
travaux that might explain why.
1.41 In fact, Chad's Memorial seems evasive in its attempt to
explain the reasons why this list of "actes internationaux" was added at the last
minute. For example, thCM suggeststhis answer:
"C'est probablement à la suite de cet incident3' et pour que les
choses soient tout à fait claires que les négociateurs décidèrentde
préciser, avec un certain luxe de détails,le trac' de la frontière
dans l'échangede lettres annexéau Traitéde 1955."
Must a key fact like this be left to speculation? Are there no French travaux that
directly bear on thetent of the negotiators? TCM asserts that the "liste des
actes" in Annex 1was "dressée avecsoin comme en témoignela correspondance
diplomatique échangéeentre les But where and what is this alleged
diplomatic exchange? It is not cited; it is not annexed; and Libya has no
knowledge of any such exchange. Then this explanation isoffered a: the
"Il semble évidentque, dans la phase ultime de la négociation,les
négociateurs français estimèrent nécessaire de 'mettre les points
sur les i'et de substituer à une vague référence géeux actes
internationaux en vigueur, une énumérationlimitative des traités
30 Refemngta theAouzou"incidenof 28 Fehruary1955(referredta in tas the
"MayaincidentSec .M.para.5.51g,-q.
31 CM.p. 31,para.66.
32 CM ..123,para.82. fixant la ligne fro ière afin d'écarter toute ambiguïté sur la
frontièredu Tibesti-."
1.42 This incomplete, unconvincingexplanation diverts attention
from certain cntical defects in the French-Chadian thesisas to the significanceof
Annex 1. It was by no means prepared "avecsoin";the Annex is full of mistakes
and omissions. Annex 1lists two agreements that were "en vigueur"in 1951:
the 1902Accord and the Accord of 12September 1919. It failsto lista number of
other agreements that were directly pertinent, among which were the 1900
Accord, the 1924Protocol and Declaration, and the Franco-Italian agreement of
28 October 1912~~. There is every indication that the Annex 1 list of "actes
internationaux"mayhave been rushed in at the last moment of the negotiations to
try to remedy a fatal defect just then realized by the French side: two of the key
agreements were not en vigueur, a disclosure not communicated to the Libyan
side; and a reference to them in the Annex was presumably thought to confer on
them a validitythey otherwise la~ked~~.So that rather than containing a certain
"luxede détails",as thCM off-handedlysuggests,Annex1reflects a certain "luxe
de fourberies";and the Chad Memorial does nothing to set the record straight.
1.43 There are other major gaps and omissions in the facts
presented by Chad's Memorial, facts that are directly relevant to the question
whether there is a conventionalboundary east of Toummo,whichChad bears the
burden of proving. Examples of some ofthese gaps are the following:
- The travaux referred to in the CM conceming the 1899
Declaration omitted a number of key documents, which has
led to several serious errors in the analysis set out in the
-7.
- Chad failed to fumish a document to be found in the British
Archives that demonstrates that the British Government at
the time did not regard the line placed by the French
Govemment on the Non-Annexed Mau as faithfully
33 CM. p.137para.121.Notehereagaintheemphasison TibestSee,para.1.16gJm.,
above.
34 Foramorecompletelistofomissionsec,ara.4.09,below.
35 Bute, ni29,above. reflecting the agreed line, which wasintended to follow a
true southeast direction36;
- The CM overlooks the Anglo-Italian Accord of 1902,
entered intonor to the 1902Franco-Italian Accord, which
bears directlyon the meaning ofthe later agreement;
- The facts alleged to support French effectivitéspnor to 1919
in the borderlands region fa11 well short of such a
demonstration;
- The CM omitsa large number ofimportant events occumng
between 1919and 1934relating to Italy'sprotest against the
1919Convention and concerning the on-going negotiations
between Italyand France to £ixLibya'ssouthern boundary;
- The CM fails to refer to or to annex the Exposédes motifs
accompanyingthe draft law to authorize ratification of the
1935Treaty, in whichthe French Government informed the
French Parliament that east of Toummo there was no
conventionalboundav;
-
Onlythe briefestreference ismade in thCM to the vanous
agreements entered into between Libya and Chad in the
1970s and 1980s - the 1972 Libya-Chad Agreement of
Fnendship and Cooperation, the 1974Protocole d'Accord,
the 1980 Treaty of Arnity and Alliance, and the 1981
"Accord de fusion", conduct of the Parties that was not
consistent with Chad's accusation that Libya had invaded
and occupied the territory of Chad but that was in keeping
with the actual situation, namely, that a boundary between
Libyaand Chad had yet tobe delimited.
1.44 Related to the matter of evidence produced by Chad is the
fact that the documents comprisingthe "Productions",furnished by Chad to the
Court in one copy, onlybecame available for copying by Libya, at its expense,
36 See,LM, para5.98-e, also,pa4.M)below.some two months after the Memorials were filed. The Registrar has since acted
to require Chad to submit this evidence in the appropriate manner, although
Libya still has been furnished only one copy37. Libya has clearly been
disadvantaged by this, as well as by the tardy submission of certain required
translations. Thus, Libya must reserve al1its nghts in regard to these procedural
failures. In spite of these diffïculties, Libya has done its best to address fully the
evidence presented by Chad and the contentions advanced in Chad's Memonal;
however, Libya'sfailure to have dealt with a particularfact or contention does not
implyits admission of that fact or its agreement with that contention.
CIiAPTERII. STABILITY OFAFRlCANFRONTIERS
1.45 It is asserted at the beginning and at the end of Chad's
Memorial that a decision by the Court, other than to affirm Chad's position as to
the exact boundary line alleged to divide the territories of Libya and Chad, would
threaten the stability of al1other African frontiers that owe their ongin to the
agreements relevant to the presentcase entered into during colonial times.Itis
put this wayin the final paragraph of tCM:
"Si la Cour, revenant sur le principe deI'I &ossidetis, venait à
décider en faveur d'une ligne différente que celle défendue par la
République du Tchad et fondéesur les accords de 1899,1902,1919
et confirméeen 1955,eue menacerait la stabilitéde l'ensemble des
frontières trouvant leur origine dans les accords conclus entre
puissances coloniales et, dans les meilleurs cas, ultérieurement
acceptéespar les Etats successeursLa coniïrmation de la frontière
tchado-libyenne sur le fondement du Traité de 955 a une
importance qui va bien au-delà des collinesdu Tibesti."
37 On 20 Feb. 1992, Chad resubmitted many of these Prodastadditional annexes.
The lateness of this submission, month before Counter-Memonals are to be filed,
has prevented Libya from referring to these documents in its Counter-Memonal or even
studying them. On 10 Mar1992,Libya receivedyet another communication from the
Registrar indicating that an additiowasbeing sent. Asof 19March 1992,Libya
had received none of these additional annexes. Libyareserves the nght to comment on
these documents at a later stage after it has examiExhibheLi-M 1 hereto
contains al1 the correspondence of the Registrar relating to this problem with Chad's
evidence.Inaddition, Libya bas written to the French Govemment requesting equal
accesswith Chad to the vanfileasd archives containing documents bûaring on the
present disputA.copy of Libya'snote verbale is a&Exhib LCitM 2. A reply
dated18March 1992from the French Govemment has iust been received, too late to be
included in LC-M 2. Therefore, a copyhas beenfumished to the ~e~istry.
38 CM. p. 382,par29. 1.46 What Chad seems to be sayingis this: that the Court has no
choicebut to approve Chad'sline because other boundary lines in Africa are even
less supportable; and that it is too dangerous to peer beneath the surface and
determine whether or not in fact a conventional boundary does exist in the
present case since other boundaries may be even more suspect and vulnerable.
This is tantamount to tuming the doctrine of estoppel against the Court itself.
1.47 Chad's Memonal brandishes the threat that to question
Chad's line would be to place in serious doubt Libya'sboundaries with Tunisia,
Algeria and Niger, because al1these frontiers:
"..ont, tout comme celles du Tchad, étéfixée[s]par le Traité
franco-libyen du 10 août 1955 dans lequel la pafjJje libyenne se
refuseà voir un accord de délimitationdefiniti... ."
This assertion ispermeated with inaccuracy. The Libya-Tunisiaboundary was not
-ixedby the 1955 Treaty; it owesits origin tot1910 Treaty between France and
the Ottoman Empire. Libya'swestern frontier as far south as Toummo was £ked
by the Franco-Italian Accord of 12 September 1919; and Annex 1of the 1955
Treaty brought about a rectification of that boundary between Ghat and
Toummo. In addition, in the 1956 Agreement between Libya and France, the
sector of the Algenan boundary between Ghadamès and Ghat, fixed in 1919, was
rectified. None of the boundary lyingbetween Libya and Algena wiUbe affected
bythe outcome of the present case.
1.48 If there are questions conceming Libya's boundary with
Niger, they stem not from the1955 Treaty, but from the fact that no conventional
boundary east of Toummo was in existence at the time of Libya'sindependence;
and the 1955 Treaty did not alter that situation. Should the Court uphold this
view and accede to Libya's submissions, there may have to be consequential
negotiations between Libya and Niger to determine the course of the boundary
between the two States, from Toummo eastwards and then southwards to the
intersection of the eastem boundary of Niger and18"N latitude. In this context, it
is noteworthy that, at present, there is no conventional boundary between Niger
and Chad.
39 CM. p. 13, para.11Thisisa referenceto Libya'sstatement inits notificationof 31
August1990 ofthe Accord-Cadre,inwhichLibyastatedthat the Libya-Chadboundary
hadyerto bedelimited. 1.49 Libya rejects the general line of argument of Chad based on
a perceived threat to stability. The Accord-Cadre was not an agreement to go to
the Court to "rubber stamp" the French-Chadian thesis as to a conventional
boundary. It was to ask the Court to resolve this temtonal dispute applying
principles of international law. The greatest promise of stability in the region in
respect to boundanes between African States is the willingness of States like
Libya and Chad to take such a dispute to the Court for resolution in accordance
with international law and to agree to abide by the Court's judgment -whatever it
may be.
1.50 Libya maintains that what could be threatening to stabilityin
the region is if Chad attempts to back away from its agreement to submit this
dispute to the Court for resolution by accepting to abide by a judgment only if it
accords one hundred percent with Chad's position as to a boundary line. What is
potentially destabilizing is Chad's attempt to defend the colonial past and the
French boundary thesis, without questioning its validity; and without considering
the nghts of the indigenous peoples to whose lands France claimed title. Chad
appears to give the benefit of the doubt to the French claim as a matter of blind
faith.
1.51 As'wasbrought out in its Memonal, Libya did not emerge as
a colonialtemtory being granted independence anew. It was not part of the U.N.
decolonization program in 1960. Its peoples regained their independence in
1951,and these peoples included the indigenous peoples of the borderlands who
had fought so hard to keep the French £rom invading their lands - just as they
fought the Italians in the north. Libya's case relies in large part on the self-
determination of these peoples; not to change an established boundary - for there
was none - but to support the identification for the £irst time of a boundary
between Libya and Chad.
1.52 There is no ment in the assertion that the security of other
States in Africa or in theegion is threatened by Libya'sclaim. Libya'swillingness
to have this territorial dispute settled by the Cour-with no strings attached -is a
stabiliziig influence. This is the third boundary case Libya has taken to the
Court; and it urges other African States to follow its example. The cause of any
instability would be Chad's attempt to retain what it contends were the fruits of
French colonial conquest of the borderlands, without questioning the French
claim to legal rights and titles, and without even considering the rights and titles ofthe indigenous peoples, whom they now claimto be Chadian, or their nght to self-
determination40.
1.53 The pnnciple of stability can hardly be applied to a
boundary that has never been established, as here. Stability is the basic aim of
every temtonal delimitation, whether achieved by direct negotiations or by
judicial or arbitral settlementIn itself, the pnnciple furnishes no method for
settling a territorial dispute; it provides no solutioThe stability pnnciple
becomes applicable onlywhen the delimitation has occurred. Thus, Libya's claim
does not conflict with thO.A.U. Charter, or with the 1964 Cairo Declaration;
and it affis the pnnciple ofytJpossidetiiun as applied on the date of Libya's
independence -the agreed basis of delimitation with France set out in Article 3 of
the 1955 Treaty. Similarly, there is no conflict between Libya's claim and the
U.N. Charter or resolutions of the General Assembly.In its willingness to have
this temtorial dispute settled in accordance with the principles and des of
international law, including the nght of self-determination of peoples, Libya's
claim isinfullaccord with these instruments.
CHAPTERIII. THE CRITICAL DATE IN THISCASE
1.54 It appears that the Parties are in agreement that there is a
cntical date in this casehe date of Libya'sindependence on 24 December 1951.
Although the CM refers to a number of "dates cruciales" in the history of the
dispute4', it recognizes the date of Libya'sindependence as the critical date in
terms of determining the southem frontier of Liby.:
"Lorsque la Libye devint un Etat indépendant, elle le fut dans le
cadre de ses frontières telles qu'elles exist$2emoment de son
accession àl'indépendance,le 24décembre 1951 ."
40 In this regas,,para.5.113(last item), below,andthe Petitionof the TibestiTribes
dated3 November1991, LGM 3,whichconcenu anexpressionofaffiliationwith
Libyabytheinhabitantsof Tibestiina Resolutionado4,000membersof thelocal
tribes on 11 March 1991. Even the French Government inadvancin1948 its
boundaryrectificationproposalexpressedconcernthat the nomadtnbes alongLibya's
frontier withAlgena be linked withtheir brethrenin the northratherthanbe left to
Chad.See,CM.pp.125-126,para92
41 CM. p.43, para.123.
42 CM. pp.88-89,para.138.The date of Chad's independence is cited by the CM as having the same
significance for Chad. Thus, on independence, Chad inhented the boundary
position of France vis-à-visLibya; and that position was defined at the moment of
Libya's independence, unless subsequently modified prior to Chad's
independence. On this point, the Parties appear to agree.
1.55 The 1955 Treaty between Libya and France confirmed the
boundary status QUO as of the cntical date of Libya's independence in 1951.
Article3 of the Treaty provided that Libya and France:
"..reconnaissent que les frontières séparant les temtoires [of
Tunisia, Algeria, A.O.F. and A.E.F. from that of Libya] sont celles
qui résultent des actes internationaux ehvigueur à la date de la
constitution du Royaume Uni de Libye ... ."
The CM cites the1955 travaux to confirm that Libya and France during the first
phase of negotiations in Pans in January 1955 accepted as the delimitation
"technique" the reference to former agreements "en vigueur à la date de la
création de 1'Etatlibyen", and agreed to abide by the "stipulations générales"of
the text~~~.
1.56 In consequence, the evidence of the Parties' conduct after
that date is of diminished relevance, unless of course the Parties entered into an
agreement to modify the situation as to the boundary as it existed i1951. In
1955, France and Libya confirmed the status auo as of1951, and only agreed to
modify parts of Libya's frontiewest_of Toummo. Libya and Chad have never
entered into an agreement establishing their common frontier east of Toummo.
The Parties' conduct after1951, therefore, can only operate to confirm or deny
the position as it exisin 1951.
CBAPTERIV. STRUCïüRE AND GENERAL CONTENTS OF THE
COUNTER-MEMORIAL
1.57 Libya's Counter-Memonal is in two volumes. Volume 1
contains the text of the Counter-Memorial(Parts 1-IX)and Libya's Submissions.
Volume II consists of the Exhibits.
43 CM,p. 115,para56.
44 CM,pp. 116-117, ara.5andAnnex 250. 1.58 Following this introduction (Part 1)Part II takes up the task
of the Court. Parts III, IV and V then deal with Chad's failure to demonstrate or
prove the existence of a conventional boundary. Part VI is devoted to the
relevance and importance of the 1935Treaty to the present case.
1.59 Parts VI1 and VI11then address two subjects that have a
special beanng on the case. The first - the subject of good faith in the law of
treaties- emerges from the background of this dispute, and is dealt with in Part
ViI. The second subject, dealt with in Part VIII, concems the factors of
recognition, acquiescence and estoppel in Chad's case and Chad's theory of
"consolidation" of the boundary between Libya and Chad that relies on these
factors.
1.60 The Counter-Memorial then turns, in Part IX, to the process
of determining the boundary in the present case in the absence of a conventional
boundary. It develops further the points made preliminarily in Part II, which
concerns the task of the Court primarily in its jurisdictional aspects. There itis
demonstrated that the process fits readily within the traditional judicial function
of courts and legal tribunals and involvesthe kinds of findings and judgments that
courts traditionally have made, notably the International Court of Justice. In
discussing this process, Libya wiil further spell out the evidence and critena it
believes relevant to determining a boundary in this case and that support Libya's
claim as set out in itsMemorial.
1.61 There is one final matter to mention concerning the
contents of Libya's Counter-Memorial, and indeed its approach to the case.
Unlike Chad, Libya avoided presenting its case before such political forums as the
U.N. or the O.A.U. For Libya considers this territorial dispute to be one for
resolution in accordance with the principles and rules of international law. A
fortiori, in the presentation of their respective cases to the Court, which is not a
political forum, Libyafeels it to be entirelyout of place for the Parties to set forth
arguments and matenal of a political character. Some portions of Chad's
Memorial are, in this respect, offensive to Libya. It is earnestly hoped that both
Libya and Chad can address this dispute before the Court as an entirely legal case
and leave to one side the political aspects, which can only lead to acrimonious
exchanges. 1.62 Libya'sCounter-Memorial(Volume 1) ends with Libya's
Submissions,whichremainunchanged. PARTII
THETASKOF THE COURT
CHAPTER 1. THETERMSOFTHESPECIALAGREEMENT
2.01 As Libya'sMemorial pointed out, it was apparent from the
papers filed at the outset of this case that the Parties perceived the dispute
differently both as to its origin and its temtorial extent. Chad's Memorial has
now brought out the basic differences that exist between them as to the Court's
task inthis case.
2.02 Chapter 1 of the &f calls this case "l'affairede la bande
d'Aozouu,admitting that this was a journalistic phrase that appeared in the late
1970s'. But the Accord-Cadre uses no such term; it consistently refers to the
"différendterritorial" (temtorial dispute) between Libya and Chad. The term
"temtorial dispute"is usedin the title and twice in the preamble of the Accord-
Cadre. Article 1states that the twoParties:
"..unde ake to settle first their temtorial dispute by all political
means ...."
Article 2 provides that:
"Inthe absence of a political settlement of their temtorial dispute,
the twoPartiesundertake:
(a) to submit the dispute to the International Court of
Justice."
Paragraph (b) of that same Article refers to the "disputed regio-"not to the
"Aouzoustrip";and paragraph (d) providesthat the Partiesundertake:
"(d) to observe the said concomitant measures
[mentioned in (b) and (c)] until the International
Court of Justice handsdown a finaljudgment on the
territorial dispute."
1 CM. p.17para.1.
2 Ernphasisadded. TheEnglishtextcitedhereis basedon the tranof the Accord-
CadrebytheRegistry.TheFrenchandEnglishtextsmaybefoundatLM. International
AccordsandAereementsAnnex,No.39. 2.03 It is understandable that Chad initially conceived of this
territorial dispute as being confined to the region lying between the line it
maintains is a conventional boundary line and th1935 Treaty line. The extensive
discussion of the 1935 Treaty in the &i reveals that Chad had regarded the
boundary line agreed in the 1935 Treaty to be the main threat to its claimed
boundary line. Chad may have anticipated that Libya's case would rely on the
1935 Treaty. And certainly both Parties in their Mernorials have acknowledged
the relevance of the1935 Treaty to this case; but though they are in accord on a
number of points concerning the Treaty, they reach diametrically opposed
conclusions as to the meaning to be drawn from it as regards the existence of a
conventional boundary.
2.04 Libya's Memorial explains carefully why there is no
conventional boundary between Libya and Chad in Libya'sview. This point had
already been made in Libya's Notification of the Accord-Cadre on 31 August
1990. However, such a boundary was agreed in 1935 between the two Powers
directly concerned, Italy and France. That boundary never became a
conventional boundary under international law because, for reasons extraneous
to the boundary question, ratifications of the35 Treaty were never exchanged.
Thus, the temtonal dispute between the Parties does not concern a choice
between two boundary lines: there are no boundary lines between Libya and
Chad. Had the Accord-Cadre intended the disputesubmitted to the Court tobe
narrowly considered in the way Chad suggests it would have contained a term
other than "temtorial dispute"- such as "boundarydispute"or "boundary line" or
even "choice between line x and line y". The dispute here is over title to temtory.
Chad may believe that title has been determined by internationalagreement; and
certainly this is the initial question the Court has to resolve. But if Chad i-wrong
as Libya believes it has already demonstrated in its Memori-the dispute has not
vanished. To resolve it then willinvolve the attribution of temtory between Libya
and Chad in accordance with the applicable principles and rules of international
law,a task which the Court is eminently equipped to perform. The Accord-Cadre
places no restrictions on the Court in car~yingout this task.
2.05 It should be noted that Libya's position that there is no
existing conventional boundaiy between Libya and Chad is neither surprising nor
unusual: international tribunals have observed on a number of occasions that the
existence of a State does not carry with it the implication that ail of its boundariesmust necessarily have been delimited. This Court, for example, in an gJ&g
dict uhmt isoften cited,has affirmed that:
"There is..no rule that the land frontiers of a State must be fully
delimited and defined, and often in various places and for long
periodsthey are not, as is Pwn in the case of the entry of Albania
into the League of Nations."
2.06 In this passage the Court cited as precedent the opinion of
the Permanent Court in the Monasterv of Saint-Naoum case, where it was held
that Albania had been admitted as a Member of theLeague ofNations in 1920 at
a time when its boundaries were not entirely fixed,as the resolution of admission
explicitlyrecognized. In the Court'sAdvisoryOpinion, it was recalled that the
Member States subsequently,by unanimous vote on 1 October 1921, decided to
leave the task of delimiting the Albanian boundaries to the "Principal Powers",
who took action at once but without succeedingin completing the operation. In
fact, even after the decision of the "Powers",in the region of the Monastery of
Saint-Naoum,the boundary, accordingtothe Court, "hadbeen left unsettled".
2.07 Lastly,there isan important third precedent: the decisionof
the Mied German-Polish Arbitration Tribunal of 1 August 1929 in Deutsche
Continental Gas Gesellschaftv.Etat polonais5. Therethe tribunal saidthat:
".. uelle que soit l'importancede la délimitationdes frontières,on
ne saurait allerjusqu'à soutenir qu'aussi longtemps que cette
délimitationn'a pasétéarrêtée juridiquement i'Etat en cause ne
peut êtreconsidérécomme ayant un temtoire quelconque. Ici,
également, la pratique du droit international et les précédents
historiques démontrent le contraire. Pour qu'un Etat existe et
puisse êtrereconnu comme tel avec un temtoire sans lequel ilne
pourrait, ni exister,trereconnu, il suffitque ce temtoire ait une
consistance suffisamment certaine (alors même ue les frontières
n'en seraient pas encore exactement délimitée7 et que, sur ce
temtoire,il exerce en réalitéla puissance publique nationale de
façon indépendante. Nombreux sont les exemples de cas dans
lesquels des Etats ont existésans contestation, ont étéreconnus et
se sont reconnus mutuellement à une 'ROque où la frontièreentre
euxn'étaitpas encore exactementkée.
3 NorthSeaContinentalShelf,Judement.I.C.J.Re1969s,.33,para46.
4 MonasterofSaint-Naoum.AdvisowOuinion1924,P.CLJ.SerieB. No. 9.
5 ZeitschriftfiirauslandischesOffentlichesRechtundVOl, andII,Noln,Teil 2,
p.23gm. 2.08 Thus, it is perfectly possible, as the international
jurisprudence demonstrates,for a situation toexist where no boundary between
two States has been legally determined by means of treaty or otherwise. This is
precisely the situation before the Court in the present case since, as Libya has
extensively shown, at no time during the course of history has a boundary in the
borderlands been definitively settled so that it became binding on the States
concerned. Such a boundary, therefore, is to be delimited today for the first time.
In contrast to the Court's Advisory Opinion in Monasterv of Saint-Naoum, the
task of fixing this boundary has not been conferred on other States (there the
"Principal Powers"); in the present case, the Parties have agreed to entrust the
Court with this task, to be carried out in accordance with international law.
2.09 The devotes no attention to the text of the Accord-
Cadre in the course of discussingthe Court's intended role. Rather it makes this
sort of unsupported assertion:
"Alors que l'accord-cadre de 1989 parle d'un 'différendrritorial',
les limites, c'est-à-dire d'un différendde frontLarrequêtede ladsur
République du Tchad, d'après ses termes mêmes, vise à la
détermination du tracéde la frontière6."
The CM goes on to observe, incorrectly, that the Accord-Cadre makes no
reference to a disputed zone or region7. But Article 2(b), quoted from above,
does precisely that: it refers to the "région litigieuse" (disputed region)Of
course, at the end of the day, the Court willhave to indicate the "limites"between
Libya and Chad; but that does not mean that the temtonal dispute referred to
the Court is necessanly over boundary lines. For if there are no conventional
boundary lines then the question becomes one of attribution of temtory, of
determining which State has title to which parts of the Libya-Chad borderlands.
Otherwise, the Parties are faced with a non liauet.
2.10 The CM just sweeps past this fundamental point:
"La Cour est priée de déterminer la frontière internation le ui, à
son tour, préciseraleslimites de leurs temtoires respect.fs
6 CM, p.47,para.4.
7 CM. p.47,para6.
8 CM, p. 47,para.7.Such remarks fail to address the question of what the Court is to do if it finds no
conventional international boundaq to exist - as surely is the case here.
Apparently, for Chad such a possibility is unthinkable. The task of the Court,
according to Chad, cannot envisage such a situation:
"Le r61e de la Cour n'est pas déterminer jusqu'à quel point la
souveraineté sur les temtoires en cause a étéexercéepar chaque
Partie puis de tracer, de novo, une ligne qui ne t41(t pas compte des
instruments existants ayant identifié lafront.ère
Of course, the Court must consider initially whether existing agreements have
identified aboundaq in the sense of having fixed a boundary by agreement; but
the CM does not address the question of what the Court is to do if no such
boundary has been fixed. It merely asserts that a "différendtemtorial suppose un
choixentre différenteslignespréexistantes"0.
2.11 In its discussion of the law in Chapter II, Sec1,the CM
similarly avoids facing up to the real question involved in the case as to the
Court's task. It dips into the jurisprudence and doctrinelating to delimitation
and attribution of temtory, and it attempts to equate the role the Court would be
playing if it were to become involved in the attribution of temtoq to that of
amiable com~ositeur acting ex aequo et bono. None of its citations to authority
support such a conclusion. As the next Chapter will demonstrate, such a
conclusion iswrong.
2.12 Chad's emphasis on delimitation seems designed to evade
any discussion of th& claimed by France and now by Chad. The issue of title
cannot be evaded by assurning that the only issue is delimitation - a choice
between one line or another.Chad has theburden to prove it has valid title based
on a conventional boundary, which italleges to exist. If no such boundaq exists,
Chad -just like Libya-has the burden to establish its title to part or al1of the
borderlands. The Libyan Memorial attempted to do just that; Chad's Memonal
seeks to by-pass the question by telling the Court it has only one task to perform:
to choosebetween the line claimed by Chad to be a boundary, based on th1899 -
1902 -1919 agreements, and the 1935 Treaty line.
9 CM,p.52,para.25.
10 CM. p.51,para.20. 2.13 The CM does not go so far as to deny that the Court has the
com~étenceto settle the territorial dispute referred to it if the Court finds that
neither Chad's line nor the1935 line constitutes a conventional international
boundary binding on Libya and Chad. But it comes close to that, first in
threatening that if the Courtes not accept the 1899 -1902 - 1919 line, the
stability of the region willbe disturbed and severedoubt willbe cast on al1other
frontiers in the area; secondly, insuggesting that the Court would be 9cting
aeQuoet bono if it went beyond a simple choice between that line and1935
line in determining the boundary between the Parties. Furthermore, the
Submissions of Chad consist of a description of the one line that Chad claims is
11
the conventional boundary .
2.14 Libya considers that the Court has full jurisdiction and
com~étence to decide this temtorial dispute under the Accord-Cadre, in the
absence of a conventionalboundary, through the attribution of territory based on
the respective titles each Party can prove over regions of the Libya-Chad
borderlands. To deny this wouldbe to repudiate the Accord-Cadre.
CHAPTERII. IN AïTRiBüïïNG TERRITORY THE COURT WOULD
BECARRMNGOUTANORMALJUDICIALFUNCTlON
2.15 This Chapter deals with the jurisdictional aspects of the
Court's authority to resolve the disputetributing temtory to one Party or the
other. In PariX, the judicial process to determinethe boundary by attribution of
territory willbe examined in the light of the facts of this case.
SECTIO 1. Chad'sIncorrectContentions
2.16 The CM starts right off with the contention, quoting from
Libya's Notification of the Accord-Cadre of 31 August 1990, that if no
conventional boundary exists, as Libya maintained in its Notification, then the
Court willbe called on to perform a task not contemplbyethe Accord-Cadre:
11 The legalbasisforamvingat tbisboundaryis not pan of Chad'sSubmissions,butal1
threethwries advancedby Chadlead ineluctablyto the sameline;so the Coun may
choosebenueentbesealternativetheories,accordingto Chad,providedit reaches the
onlypermissiconclusion."une mission d'amiable compositeur"12. As theCM points out, quite correctly,
Article 38, paragraph 2, of the Statute of the Court requires the parties to a
dispute submitted to the Court expressly to agree in order for the Court to
assume such a role. But Chad proceeds £romthis correct analysisof the Court's
Statute to reach an entirely incorrect conclusion:that the Court in this case can
only act to confirm the precise boundary line set out in Chad'sSubmissions,for
othenvise it would be required to act as "amiable compositeur"; and the Parties
have not agreed to confer sucha missionon the Court.
2.17 In spite of an extensive discussionof the law relating to
delimitation of boundaries and attribution of temtory, nowhere in its Chapter II
or elsewhere does the CM make any serious attempt to explain exactlywhythe
Court wouldbe required to act exaequo et bono if it resolved the dispute on any
basis other than the acceptance of the precise boundary line claimed by Chad.
The CM just makes - and frequently repeats - such an assertion, as in the
followingstatement, for example:
"C'estseulement lorsqu'aucunefrontièren'a étéfixéeou qu'iln'est
pas possible de constater où passait un tracé accepté,qu'il peut
s'averer nécessairede seb&se.rsur des considérationsautres que
purement conventionnelles ."
Thiswould seem to implythat ifthe Court shouldstrayfrom the determination of
a boundary on the basis of one or more treaties it would necessarilybe required
to arrive at its decisionnot on the basis of applyingpnnciples of international law
but ex aequo et bono; and such an inference seems confirmed by the sentence
that followstheone quoted above:
"Dans certains de ces cas, le Tribunal est spécialement prié de
déterminer une frontière par réff4'99 à des principes équitables
[citingthe Bolivia-Peruarbitration.
2.18 In other words, the CM implies that ifdetermining the
boundary involves a task that goes beyond the interpretation of international
instruments in order to find a boundary line it requires the agreement of the
12 CM,p. 12,par6.
13 CM,p.59,para.51. Emphasisadded.
14 CM,p.59,para.51.Parties to act exaeauo et bon0 for the Court to proceed further. Thus, the same
paragraph continuesin the followingway:
"Aucune tâche de cette nature n'a étéconfiée à la Cour dans la
présenteaffaire. Au contraire, sa fonction consisteéterminerla
ligneétablieen tant que frontièretchado-libyenne,et de décidersi
ce tracéest opposable auxparties.l n'estpas demandé, àla Cour
de statuer ex aequo et bono et les 79fties ne l'ont pas chargée
d'agiren tant qu'amiablecompositeur .
2.19 In the Section that follows, Libya will demonstrate that
precedent and doctrine ovenvhelminglyreject anysuch conclusion. Nevertheless,
this lineof argument in tCM maybe comfortingin one respect: it suggeststhat
if the Court rejects such an argument, and holds that the Court can settle this
dispute without requiring an agreement to act as amiable comuositeur, then the
Accord-Cadre confers on the Court the comuétenceto do so.
2.20 There is a rather incomplete discussion in the of the
clear distinction between a tribunal acting ex aequo et bon0 and a tribunal
applying equity infra leeem as part of applicable pnnciples and rules of
international law. For example,the failsto refer to the Court's Judgrnent in
the Tunisiakibva Continental Shelf case,where this distinctionwas disbussed16;
or to the Rann of Kutch arbitration where the tribunal ruled that equitable
considerations should be taken into account in the context of applying
international lawin attributing the temto~yin dispu.e
2.21 The CM limitsits discussionto suggestingthat the North Sea
Continental Shelf casesconcerned specialcircumstancesnot applicabIe here; and
it then refers to the Burkina FasolMali case as support for the assertion that
"l'équitécontraleoem n'a aucune place en la matière"18. This is a false target:
there is no question in this case of a resort to equitycontra leeem. Furthermore,
the discussionof this point inthe Burkina Fasomali case has no relevance: there
is no question here of attempting to apply equity to ovemde the principl&iof
15
CM, p.60,para.51.
16 I.C.J.~0rtS1982,p. 60,para.71.
17 TheIndo-PakistaWesternBoundaw (Rannof Kutch)Case.(Indiav.Pakistanl.Award
of 19Febmaw1968.50I.LR p.254.
18 CM. pp.58-59,para.48.possidetis for there is no conventional boundary line. Statements such as
the followingarequite beside the point:
"Ce n'est pas simplement que l'équiténe peut jouer contragem
pour réviseryye frontière; c'estque les traités pertinents résolvent
ces questions ."
This may be true if the relevant treaties do in fact resolve the boundary question;
but if they do not do so, as Libya'has demonstrated in its Memorial and as will
again be shown in this Counter-Memorial, it does not followthat the Court has to
resort to equity contra leeem to resolve the dispute, although equity infra legem
most certainly willhave a bearing on the outcome of the case.
2.22 Not only does the discussion in the CM fail to justify its
contentions concerning the role of the Court in such circumstances, but what it
says is inconsistent and contradictory. In discussing the Island of Palmas
arbitration, theM acknowledges that the case concerned the attribution of
temtory (adding parenthetically that in Chad's view this would be an incorrect
characterization of the Libya-Chad dispute) and that in such a case, as Judge
Huber there maintained, "la Cour pourrait appliquerle droit relatif àl'acquisition
d'un titre". ThCM goes on to say:.
"Alors que les arguments des Parties dans ces affaires peuvent
s'avérerrelatifs, les critères selon lesquels elles doivent établir la
souveraineté sont clairs et objectifs. Il n'y a p~ de place pour
l'équitdansla solutionjuridique de ces question."
It is hard to know what tCM means to say. The present case, in the absence of
a conventional boundary, is just such a case of attribution to which "clear and
objective"legal principles would apply; the Court would not be required to act
aequo et bono or as amiable compositeur at all. ThCM fails to explain why,in
this case, the Court cannot do what the tribunal did in the Island of Palmas case,
although the CM admits that in the latter case "clear and objective" legal
principles were applied. It is nowhere made clear in thCM why in Island of
Palmas the Tribunal could attribute temtory without acting ex aeauo et bon0
while the Court here, were it to assume the task of attributing territory, would
perforce be acting ex aequo et bono.
19 CM.p.59,para50.
20 CM, p.58,para46. 2.23 In concluding this point, it must be emphasized that the
missionthe CM envisages for the Court in the present case appears to overlook
certainjuridical concepts that are essential, evenelementary, which emerge from
Article 38 of the Statute of the Court. When, as here, the Court has not been
requested by the parties "to decide a case ex aequo et bono" (Article 38,
paragraph 2), the Court must "decide in accordance with international law"
(Article 38, paragraph 1): none of the sources of international law may then be
ignored. Thishas direct consequences.
2.24 The fir csntsequence is that the Court unquestionably must
first of al1seek to settle the dispute on the basis of "international conventions",if
any are found to be relevant for this purpose; but if the Court fails to find any
such conventions-whichis the case here in Libya'svi-wthe Court is obligby
its own Statute to tum to the other sources of law set out in Article 38:
"international custom, general principles of law",etc. In other words,the Court is
operating strictly within the framework of its ordinary mission ("to decide in
accordance with international law") when it decides a case submitted to it on a
basisother than bysimplyapplyinginternational treaties. Of course, thisisso for
anytype ofinternational dispute, not solelytemtorial disputes.
2.25 The second consequence, well-established in the
jurisprudence,is that even when it decides secundum j-, the Court must always
accord an important role to equiîy:not by setting aside the rules of law as it may
do in decidine ex aeauoet bon0 (equity contra or Draeter leeem), but in order to
modulate and integrate the application of the international rules when they so
require (equitinfraand secundum m).
2.26 It is appropriate now to tum to precedent and doctrine to
demonstrate that they provide no basis at aUfor Chad'scontention that the Court
here would be acting as amiable com~ositeurif it went beyond the affirmation of
Chad's Submissionsas to the precise boundary iine it claims. To the contrary,
precedent establishes that the Court would be exercising the same kind of
ordinaryjudicialfunctionsas it has in other suchcases. Smo~ 2. Precedentand Doctrine
2.27 Temtonal disputes involving the attribution of temtory
have existed for centuries, and a large body of State practice exists reflecting the
evolution and general acceptance of principles and rules of international law to
govern these matters21. An analysis of the leading cases demonstrates that weli-
established rules have emerged, which courts have not hesitated to recognize and
to apply in a variety of factual situations. The cases selected for analysis below
are among the most widely-citedjudicial decisions on attribution of terntory: the
Island of Palmas arbitration, the Cli~perton Island case, the Eastern Greenland
case, the Judgrnent of this Court in the Minauiers and Ecrehos case, and the
Rann of Kutch award. These cases establish beyond any doubt that the
attribution of temtory in settling temtorial disputes has been considered a task
perfectly suited toudicial settlementon the basis of rules of lawwithout requiring
the parties to reach agreement (pursuant to Article 38,Section 2, of thetatute of
the Court)for the Court to act as amiable compositeur.
Island of Palmas Case
2.28 The Island of Palmas is an island lying roughly half way
between the Philippine Islands and what was formally the Netherlands East
Indies. The case involved a dispute over title to this island between The
Netherlands and the United States, which was resolved in 1928 by an award
rendered by Judge Max Huber (a member of the Permanent Court of
Arbitration) on the basis of a com~romis in which the two States selected him as
sole arbitrator todecide whether the island formed "a part of temtory belonging
to the United States of Arnerica or of Netherlands temtory". Judge Huber's
Award in the case is one of the most widely-citedjudicial decisions conceming
territorial disputes .
2.29 Many of the typical facets of temtorial acquisition during
the penod of European colonial expansion form the background of that dispute.
21 For a recentreview-e,TorresBernardezS.:"TerritoryAcquisition",Encvclo~ediaof
Public Internationl awIR.Bernhardt.ed.)Vol. 10, 198p.4%. Sec .lso,Jennings,
R.Y.: nie Awuisition of Territow in InternationLaw, Manchester, Manchester
University Press, 19p.164; Shaw,M.:"Territorin InternationLaw" ,etherlands
Yearbookof InternationalLaw,Vol.XIII, 19p.60.
22 Islandof Palmas.eaow of InternationalArbitralAwards,Vol.p.831.Two important treaties by which the European States attempted to order their
relations followinglengthy wars in the 17th and 18th'Centuries were involved:the
Treaty of Münster (1648) and the Treaty of Utrecht (1714). The arbitrator was
faced with questions of interpretation and application of these two treaties, which
he did not hesitate to deal with. There were, in addition, questions for the
arbitrator to consider conceming the effect of contracts entered into by The
Netherlands (or, more precisely, the Netherlands East India Company) with local
chieftains. 19th Century maps played an important role, although The
Netherlands also relied on earlier maps dating from the 16th Century.
Documentary evidence from the 17th, 18th and 19th Centuries was at the centre
of the proceedings. Yet there is no suggestion in the Award that the resulting
complexity required that these matters be addressed outside the pu~ew of
recognized principles and rules of intemational law. Indeed, the arbitrator went
to great lengths not only to review the evidence, but also to spell out the legal
principles to bepplied23.
2.30 One of the reasons whythis Award has so often been cited is
because it systematicallyexamined and discussed a number of concepts central to
the régime govemingthe acquisition of temtory. Thus, Judge Huber addressed,
--ter alia, the legal relevance of: the discovery of temtory; the notification of
claims;State succession; the requirements of effective occupation; and the task of
judicial tribunals in assessing the relative strength of competing claims to
temtorial sovereignty. The Award in the case reveals the clear conviction of
Judge Huber that the resolution of temtorial disputes involving attribution of
temtory is an ordinas, judicial task for a tribunal to undertake. The notion that it
would require a court of law to assume the role of amiable comuositeur in such a
case is nowhere discemible in the proceedings: no such notion can be detected in
the pleadings, in the Award itself, or in the subsequent doctrine, where no
24
criticismof the Award inthis respect has been uncovered .
23 M., pp.838-840.
24 See,Jessup,P.C.:"ThePalmas IslanArbitration, mericanJournalof International
Law .ol.22, 1928, pp. 735-752;Nieisen, F.K: "nie Island of Palmas Arbitration"
Reoon. Washinmon D.C.. 1928.De Visscher. F.: "L'arbitraeede I'ne de Palmas
(Miangas)", evuede droitinternationalet de leeislationmmoarée,Vol. 56, 1929,pp.
735-762;Fuglsang.W.:"Deramerikanisch-holla Stdisumhdie lnsel Palmasvor
dem Standigen Schiedshof im Haag", institut für Internationales Rechtan der
Universitilt,Kiel, 1. Reihe, Heft 17, 1931;Versfelt,W.J.B.:The MianeasArbitration,
Thesis,Universityof Utrecht, 1933. CliaaertonIsland Case
2.31 The Clipverton Island case was decided in 1931 by King
Victor Emmanuel III of 1taly2'. The King had been requested by France and
Mexico to resolve "the dispute between the High Parties on the subject of
sovereigntyoverthe island of Clipperton". The Island is a smallcoral reef atoll in
the Pacific ocean. It was discovered in 1705. No claim of sovereignty had been
made until 1858, when a French merchant sea-captain declared French
sovereigntyover this island aboard a merchant ship after the French govemment
had granted a concessionfor the exploitationofguano.
2.32 In 1897, France discovered that Mexico had also put
forward a claim, and it was the resolution of these conflictingclaims of the two
Statesthat the King wascaiiedupon to arbitrate. The Award inthe case held that
the islandswere terra nulliusuntil 1857;that the French acts undertaken in 1857
satisfied the requirement of effective occupation; that France had never
abandoned her claim; and that the Mexican claim raised after 1897 could
therefore not oppose the sovereignnghts acquired earlier byFrance. The Award
spelled out that since time immemonal international law had required matenal
rather than fictivepossession in addition to animus occu~andifor the acquisition
of territory to be effective, and that France had fulfilled these requirements as
they related to this island. Considerations of equity are nowhere discussedin the
Award, and a commentary of E. Dickinsonmakes no suggestion that in deciding
the case the King was acting ex aeauo et bono26. The Award states that its
reasoningwasbased upon usage that had acquired the force of a rule oflaw.
EasternGreenlandCase
2.33 The Easte.m Greenland case was decided in 1933 by the
Permanent Court, jurisdiction beirigbased on the optional clause of the Court's
statutez7. Denmark had filed suit against Norway in order to clam the
territorial dispute existing between them over Eastem Greenland. The area
covered some 2,200,000square kilometres. Although inthe present case between
Libya and Chad the disputeconcems vast areas of desert and sparsely populated
25 IIRIAA, p. 1107.
26 Dickinson,E."nie ClippertonlslandCase, m.J.Int'lL,Vol.27,1933,p.135.
LeralStatusofEasternGreenland.Judment. 1933.P.C.I.J. eries&B. No.53,p.22.
27 -regions in a hostile environment, rather than the frozen expanse of the Arctic,
there are a number of parallels between the settings of the two cases. Aside from
the large size of the area under dispute in both cases, the background of the
Eastern Greenland case concemed the colonial ambitions of two Powers blended
with scientific discovery, economic greed, the fate of indigenous people, the
histoncal uncertainties in the building of settlements and their disappearance, and
issues concerning terra nullius and effective occupation. A large number of
documents including maps were laid before the Permanent Court by the parties.
The problems submitted to the Courtwere not unlike those in the present case in
their historical reach and complexity.
2.34 The Permanent Court considered and ruled on aspects of
intemational law that are before the Court in the present case: the critena of
peaceful and continuous exercise of State functions; what constitutes the
manifestation of State activity;concepts of sovereigntyotherhan those prevailing
today; and the effect of treaties between third States upon the parties to the
dispute. Although no two territonal cases are exactly alike, the Eastern
Greenland case concerned issues in many respects similar to those in the present
case. The Permanent Court addressed a host of rules concerning the acquisition
of temtory that are relevant here. It is of particular note that neither of the
parties in that case even hinted in their pleadings that the attribution of the
territory could only be adjudged on the basis of equity contra legem rather than
under general principles and mles of international law.
2.35 In its submissions, Denmark asked the Permanent Court to
rule that a Norwegian declaration of occupation of the area under dispute was
unlawful; and Norway, in turn, asked for a mling that Norway and not Denmark
had acquired sovereign nghts. In the event, the Court found that the King of
Sweden and Norway had acquired a valid daim to sovereignty between 1721 and
1814,and that later developments had led to atransfer of this claim to Denmark.
The Permanent Court ruled in favour of Denmark, and Norway complied without
raising any issue at al1over the Permanent Court having exceeded itsjunsdiction
by acting as amiable compositeur in reaching its decision. 2.36 The Eastern Greenland case provoked a number of
scholarly articles and mon~~ra~hs~~.In none did the authors suggest that the
Permanent Court's Judgment deviated from the application of the general
principles and rules of international law governing the acquisition of territory.
There isno suggestionthat the dispute had been decided exaequo et bono.
MinquiersandEcrehos Case
2.37 In the compromis submitting to this Court the dispute
between the United Kingdom and France over the islets and rocks in the
Minquiers and Ecrehos groups lyingbetween their coasts, the two States asked
the Court to determine "whether the sovereignty [in the area concerned] ...
belongs to the United Kingdomor the French Republic". The Court rendered its
judgment in 1953finding in favourof the United ~in~dom~~.
2.38 The submissions of the parties spelled out the different
cntena bywhichthey felt their dispute shouldbe resolved. The United Kingdom
submitted that the Court was bound to base attribution of the islands on the
"effective possession evidencedby acts which manifest a continuous display of
sovereignty"; alternatively,"by long continued effective possession alone, such
possession being evidenced by similar acts". France asked the Court to base its
decision on "original title", "effective exercise of her sovereignty", and the
assumption of "the essentialresponsibilitiesrelevant in her s~verei~nty"~~.
28 See,Castberg,F."Leconflit entre le Danemark et la N0wege concernant le Groenland",
Revue de droit international et de I6eislation comnarke, Vol. 51, 1924,pp. 252-273;
Wolgast,E.:"Die danische-nomegische Gronlandfrage", Zeitschrift für internationales
Rech tol. 31, 1924,pp. 141-153;Bull, J"La question de la souverainet6 sur le
Groenland oriental", Revue de droit international et de lkcislation mm~ar6e, Vol. 56,
1929,pp. 572-605;BerlinK.: Denmark's Rieht to Greenland, Paris, F. Alcan, 1933;
Preuss,L.:'The Dispute between Denmark and Nomy over the Sovereigntyof East
Greenland",Am.J. Int'l.L, Vol.26,1932,pp.469-487;Wolgast,E.: "DieGrbnlandfrage",
Zeiuchrift für offentlichesRecht, Vol. 12,1932,pp. 329-385;Cohn, G.: "Statut juridique
du Groenland oriental",Revue de droit international etde 16cislationcor60,r&, Vol.
1933,pp. 557-571;Hyde, C.C.:'The Case Concerning the Legal Status of Eastern
Greenland",Am. J. IntL,.Vol. 27, 1933,pp. 732-738;Haver, W.: "WurdeOstgronland
durch Danemark in dem Zeitraum von 1921bis 1931okkupiert?", Kiel, Verlag des
Instituts für Internationales Recht, 1937;E:m"TheIhlen Declaration Revisited",
Grundprobleme des internationalen Rechts, Fesischrift für Jean Snironoulos, Bonn,
Schimmelbusch, 1957, pp. 227-236;Svarlien, O.: "The Eastern Greenland Case in
Historical Perspective",Gainesville,Universityof Florida Monographs, 1964.
29 Minquiersand Ecrehos.Judment. 1.C.J.Renorts 1953,p. 47.
30 M., pp. 50-51. 2.39 The origins of the case harked back to ancient times: the
U.K. claim to 1066 when William, Duke of Normandy, first became King of
England; the French claim to the expulsion of the Anglo-Normans from
Normandy by King PhilipAugustus of France in 1204. Treaties concluded in the
ensuingcenturies were analysedbythe parties, aswas a Papal Bull issuedin 1500.
The nature of feudal relationships and their relevance to the development of
territorial sovereigntywere givenmajor emphasis. The Court did not hesitate to
review,to weighand to adjudge the historicalevidencepresented bythe parties in
support of their respective claims. The Judgment in the case illustrates that
factors such as the age of documents, the presence of legal structures quite
different from those prevalent today, or the complexityofhistorical eventsare not
considered as obstacles in deciding aterritorial dispute under principles and rules
of international law. Once more, the extensive commentaiy on this case in the
3 1
doctrine revealsno suggestionthat the Court ruled exaequo et bono .
Rann of KutchArbitmtion
2.40 The Rann of Kutch is a tract of land, often inundated,
comprisingabout 7,000square miles,situated in the western region of the Indian
subcontinent at the frontier between India and Pakistan. Even before the
independence of these twocountries in 1947,the boundaiy between the temtorial
units of Kutch, an Indian state, and Sind, a British-Indian province, was
controverted. Several efforts to resolve the dispute between India and Pakistan
failed, and in 1965the escalating conflictled to hostilities. Followinga ceasefire,
the two States agreed to settle the matter byjudicial means. An arbitral tribunal
31 Sec H.ambro, E.: "Urteildes Intemationalen Gerichtshofsvom 17November 1953,inder
Sacheder Minquiers-und Ecrehos-lnseln"(in Engiiih), Vol.4,1953154, p. 490-
497;Honig, F.:"Die Rechtsprechung des Intemationalen Gerichtshofs 1951-1953".
R.V.. Vol. 15, 1953154,pp. 681-730,at pp. 723-726;Bishop, W.W.: "Minquiers and
Enehos Case",Am.J. Int'L.,Vol. 48,1954,pp. 316-326;Hudson, M.O. "nie Minquiers
and Ecrehos Case"Am. J. Int'lL, Vol. 48, 1954,pp. 6-12;Johnson, D.H.N.: "The
Minquiers and Eaehos Case", International ComoaratLaw Quarterly, Vol. 3, 1954,
pp. 189-216;Orcasitas LlorenL:"Sentenciadel Tribunal intemacional de Justicia de
la Haya sobre soberania de las islas Minquiers y Ecr6hous en el Canal de la Mancha",
Revista es~aïiolade derecho intemacional, Vol. 7, 1954,pp. 531-54EC:ad"The
Minquiersand Ecrehos Case",Transactionsof the Grotius Societvfor the vear 1954,Vol.
40,1955,pp. 97-109,Vismara,M.: "Affaredei Minquiers e degli Ea6hous", Communita
internazionale, Vol. 10, 1955,pp. 306-309,Faria, P.: L'affaire des Minauiers et des
Ecrkhous, h&t de la Cour internationale de Justice du 17 novembre 1953,Thesis,
Universityof Paris, 1956;Roche,AG.: The Minquiersand Eaehos Case (An Analvsisof
the Decisionof the International Coun ofJustice), Geneva,E. Droz, 1959.was set up under an agreement in which India asserted that there was no
territorial disputeat all,whilePakistan set forth its claimto about half the area of
the Rann. The verbatim records of the proceedings cover more than 10,000
pages. About 350 maps were submitted by the parties. The Award, rendered in
1968,runs to nearly 1,000pages, a portion of which is reprinted in Volume 50 of
the International LawRe~orts (1976).
2.41 The submissions of both parties asked the Tribunal to
determine the boundaries in accordance with linesas theywere drawn on specific
maps submitted in the proceedings. Each party argued that its ownposition drew
support from well-established, recognized boundaries. The complex historical
presentations of the parties reached back as far as the 9th Century, although
developments inthe 18thand 19th Centuries were giventhe most emphasis. Not
surprisinglyfor thispart ofthe world,precolonial concepts of sovereigntypeculiar
to that period and distinctfrom current notionswere presented to the Tribunalas
well as the intncacies of colonial relations in that area. In these respects, the
elements of the case have certain parallels with the proceedings now before the
Court. Oddly enough, the year 1885witnessed events not only affecting Afnca
(Congress of Berlin) but also the area under dispute in the Rann of Kutch
proceedings. In wayssimilarto the area in dispute between Libya and Chad, the
borderlands there concerned "a barren track incapable of habitation and of any
but intermittent use for limited purposes". The evidence concerned a mass of
detail, colourful incidents and historical episodes, and colonial reports of the
general kind found in the present case. The legal framework raised many of the
same themes as are now before the Court in this case: issues concerning the
critical date (in that case, 1819),terra nullius. occupation, acquiescence and the
weighingof historical evidence.
2.42 These parallels are ail the more interesting because the
Tribunal stated specifically that it had decided the dispute on the basis of
international lawrather than exaeauoet bono (page 18). Pakistan had submitted
that the agreement establishing the Tribunal had empowered the arbitrators to
render a decisionex aeauo et bono. In a preliminaryruling,the Tribunal made it
clear, by unanimous vote, that it had no such power, and that it would render its
decision on the basis of the applicable legal pnnciples. In view of the paraiiels
pointed out above between Rann of Kutch and the dispute between Libya and
Chad, this explicitruling, and the absence of any criticisinthe literature on thispoint32, flyin the face of Chad's assertion that any decision by the Court other
than to accept the line claimed by Chad would transform the court into an
amiable com~ositeur.
SE~ION 3. Conclusions
2.43 Thus, the leading arbitral and judicial decisions concerning
the attribution of disputed temtoty lend no support to Chad's contentionthat, in
attributing temtory between the Parties, the Court would be going beyond its
ordinaty function of applying the principles and rules of international law to the
facts and wouldassume the role of amiable com~ositeuracting exaequo et bono,
which would require the specific agreement of the Parties. The principles and
rules conceming the acquisition of temtoty, including those governing the
geographicalextent of territorial claims,are of an entirelyjundical character; they
are amenable to interpretation and application by courts of law like any other
rules of international lawthat courts habituallyappl?3.
2.44 The criteria a tribunal wiii apply in resolving a territorial
dispute depend, initially,on the principles of law referred to by the parties in the
com~romis. In State practice, a variety of criteria have been chosen:
considerations of an histoncal, strategic, ethnographic, social, economic,
geographicaland politicalnature have been in~oked~~. If,asin the current case,
the parties to a dispute do not specify in the com~romis any such criteria, the
Court willdeduce them from the generallyaccepted rules ofinternational law.
32 Sec. Anand, R.P.: "TheKutch Award", lndia Ouanerls Vol. 24, 1968, pp. 183-212;
Rousseau, C.: "Rkglementdu dierend relaAi'appanenance territoriale du Rann de
Kutch",R.G.D.I.P., Vol.72, 1968,pp. 1100-1121;Khan, R.: "RelinquofhTitle Io
Territoxy,The Rann of Kutch Award, A Case Study",Indian Journal of International
Law V.ol. 9, 1969,pp. 157-176;Rama Rao T.S"An Appraisal of the Kutch Award",
Indian Journal of International Law, Vol. 9, 1969, pp. 143-156;Munshi, A.A.: "The
Backgroundand Basisof the Rann of Kutch Award",Pakistan Horizon, Vol.23,1970,pp.
37-50; WetteJ.G. "TheRann of Kutch Arbitration",AJ.Int'l.L, Vol. 65, 1971,pp.
346-357; Munkman, ALW.: "Adjudication and Adjustment, International Judicial
Decisionand the Settlement of Territorial and Boundary Disputes",British Yearbook of
Internationalw, Vol. 46, 1972-73,pp 1-116, at pp. 70-81; Untawale, M.G.: "The
Kutch-Sind Dispute, A Case Study in International Arbitration", International
ComparativeLawQuanerly, Vol.23,1974, pp. 818-839.
33 See, -g, the studies published in Judicial Settlement of International Disvutes, Berlin-
Heidelberg-NewYork, H. Mosler,R. Bernhareds.1974.
34 For detailss-, Munkman, A.L.W.: "Adjudication and Adjustment -International
Judicial Decision and the SettleofnTerritorial and BoundaxyDisputeB.Y.LL.
Vol.46,1972-1973,pp. 1.21-26,and pp. 95-110. 2.45 The Accord-Cadre in the present case' imposes no
restrictions on the Court in this respect: the Court has been asked, tout court, to
resolve this temtorial dispute. In a dispute between Venezuela and Great Bntain
concerning the British Guyana ~oundad', the parties had only referred to
principles of international law as the basis of the decision, and the Court decided
accordingly. However, even where more specific rules have in individual cases
been indicated by the parties, tribunals have, in a vanety of cases and settings,
nevertheless turned to the general principles of internationalw,when the more
specificrules offered only limited guidance. In deciding inaccordance with the
general principles of international law, international tnbunals have also to apply
equitable principles, infraegem and secundum lepem .n the present case, the
Parties agreed on no restrictions, guidelines, or criteria binding on the Court in
amving at its decision. As to the substance of the rules of international law
relevant in cases of this kind, it is useful to distinguish between relevant to
the actions of States under international law such as good faith, estoppel and
acquiescence, on the one hand, and pnnciules and rules specific to territonal
matters, on the other hand.
2.46 It is now appropriate to turn to an examination of the three
theories of Chad's case. PART III
CHAD'SFIRSTTHEORYIS RULED OUTBYARTICLE3
OFTHE1955TREATY
3.01 Chad'sfirsttheoq developsthisline of argument1:
- The 1955 Treaty itself determined with precision the
boundary line, in implementation ofResolution 392(V)
of 15December 1950:
-
The 1955Treaty defined this boundary by to the line
resulting from certain "actes internationaux pertinents,
expressémentet limitativementénuméréslisted in Annex 1
ofthe Treaty;
-
This exclusivelist, "dresséeavec soin",intentionally omitted
any reference to the 1935 Treaty but included the 1902
Franco-Italian Accord and 1919Anglo-French Convention;
- Asa result of trenv siicethe 1955Treaty "constitueun
titre incontestable", the juridical status of the acts referred
to at the time they were adopted is not a relevant
consideration; if the 1899 Declaration was limited to
defining zones of influence at the timerenve oithe
1955 Treaty was only to the 1899 lin end not to its
provisionsandthus not to the 1899status of that line,which
in 1955was accepted as a boundary line, as portrayed on the
map referred to in the 1902Accord and described in words
in the 1919Anglo-French Convention.
1 SeeCM. p375,Conclusio(i-vi). -48-
CHAPTER 1. TEE MEANINGANDINTENTOFARTICLE3 OFTHE
1955TREATï
3.02 It is Chad's first theory that relies most heavily on the 1955
Treaty. In order to demonstrate the basic flawsin this theory, it is necessary, first,
to examine Article 3ofthe Treaty in detail.
TheText ofArticle3
S~ON 1.
3.03 The French text of Article 3 isset out below:
"Les deux Hautes Parties Contractantes reconnaissent gue les
frontières séparant les temtoires de la Tunisie, de l'Algerie, de
l'Afrique Occidentale Française et de l'A£rique Equatonale
Française d'une part, du temtoire de la Libye d autre part, sont
celles qui résultent des actes internationaux en vigueur à la date de
la constitution du Royaume Uni de Libye, t 15,,'qls sont définis
dans l'échangede lettres ci-jointes (Annexe 1).
3.04 As its text clearly States, Article 3 provided that Libya and
France recomized ("reconnaissaient") something about certain boundaries; they
did not determine or fixanything. Certain of the boundanes concerned had
indeed been fixed prior to 1955 (and prior to 1951) - for example, the Libya-
Tunisia boundary, fked by treaty in 1910, a boundas, that had been both
delimited and demarcated. Thus, under Article 3, Libya and France recoenized
that boundary as having been &ed, as well as any other boundaries that had
similary been ked by "actes internationaux en vigueur" on 24 December 1951,
the day on which Libya was declared an independent State -the critical date.
Although Article 3 fked no boundaries, it recognized those boundanes that had
already been fied under internationalagreements in force in 1951.
3.05 What Libya and France recognized under Article 3 were
boundaries separating the territones in question that had already been fixed by
such international agreements: "lesfrontière..sont celles qui résulten..". The
word "celles" can only refer to "frontièresw3;so the recognition attached to
territorial boundaries, not to lines establishing the limits of temtorial expansion of
- --
2 LM. International AccorasndAereementsAnnex,No.28.
3 Inthe Arabictextof Articl3thewords"lesfrontikresare repeatedratherthanusing
"celles",o that the Frenchequivalentwould read:"reconnaisstue les frontikres
separantles territoi..sont frontikres quirhultent des actes internatxnnaue
vigueur...(Emphasisadded.)the Colonial Powers (such as in Article 3 of the 1899 Declaration) or zones of
influence. Some of the "actes internationaux" listed in Annex 1had established
boundaries (the 1910Treaty and the Franco-Italian 1919Accord); others had not
(the 1902Franco-Italian Accord). The recognition of the parties under Article 3
("les frontières...sont celles qui resultent") relates solely and exclusively to
already existingboundaries at the time of Libya'sindependence on 24 December
1951. In other words, the text makes it clearthat there can be no question of lines
established before that date, for purposes other than fixing an international
boundary, being transformed into boundaries by virtue of the 1955Treaty. Only
boundaries existing at the time of Libya'sindependence were recognized by the
partiesunder Article 3.
3.06 To fa11within the scope of the recognition accorded by
Article3, a boundary had to result from "actes internationaux en vigueur" on 24
December 1951and not from other kinds of agreements, conduct or practices of
the Colonial Powers. For example, no role in determining a boundav was
envisaged under Article 3for colonial effectivités.
3.07 If, as Chad suggests, the 1955 Treaty "constitue la
consécrationexplicite de'u possidetis de 1951"',it was only &i possidetis
in its strict, precisee. Libya and France under Article 3 agreed to consider as
binding between them those boundariesthat had been established by the Colonial
Powers under international agreements duly concluded prior to Libya's
independence and in force on that day. That was the one and only agreed
standard.
3.08 The identification of "actes internationaux" referred to in
Article 3 was to be made by Annex 1:"tels qu'ils sont définisdans l'échangede
lettres ci-jointes (Annexe1)". There are several points to be made about this
reference to the list of agreements set out in An1.x
3.09 m, Article 3 expressly required that these agreements be
"en vigueur" on the date of Libya's independence in order to be taken into
account in recognizing any boundary emerging from them. Ifthe list included
"actes"not "envigueur" on that date, they would have to be ignored for not having
fulfilled thaessential condition of Article 3. As an annex consisting of an
exchange of letters between the heads of the Libyan and French negotiatingteams, which was referred to in Artic3,Annex 1was necessarily subordinate to
Article3 and had no independent life of its own.
3.10 There are hints in the that the effect of "actes"
appeanng on the Annex 1 list was to validate them as having been in force in
1951,whether or not they were. Such a daring thought must be quicklydismissed.
Unless there were an express novation, under no legal theory could a treaty
between Libya and France restore life to agreements between Italy and France
that under the tenns of Article 44 of the 1947 Treaty of Peace had been
abrogated.
3.11 This is by no means a hypothetical discussion. As thCM
reveals, it was not th1935 Treaty alone that was not notified by France under
Article44 of the 1947Treaty "commedevant faire droit entre les deux Parties";
none of the relevant Franco-Italian agreements, including those appeanng on the
Annex 1list, had been notified to 1taly4. An examination of the notification by
France under Article44 reveals that the Franco-Italian Accords1900,1902 and
12 September 1919 were not reported under the1947 Treaty or registered under
Article102 of theU.N. Charter, as the Treaty required5. The &l concedes that
France's failure to notify these agreements to Italy was intentional, for France at
the time aspired to obtain substantial temtonal concessions under the 1947
Treaty and did not want to betied dom in anyway6. Paragraph 3 of Articl44 of
the 1947 Treaty provided:
"Tous les traitésde cette nature qui n'auront pas fait l'objet d'une
teile notification seronttenuspour abrogés."
France's conduct in this respect cannot be justified on the basis that these
agreements concerned boundaries, and thus survived, whether the underlying
treaty was notified or not. Neither t1900 nor the 1902 Franco-Italian Accord
produced a boundary, and yet they are key elements in Chad's case. It is of
particularinterest to note that one treaty notified by France, the Treaty24f
March 1860 between France and Italy, did indeed concem boundanes -
boundanes of the greatest importanceto France;forunder this Treaty, Savoyand
4 CM .p.122-123,para.81.
5 CM. Annex210.
6 CM ..123,para.81.Nice became part of France. This Treatv was notified bv France to Italv under
Article447.
3.12 There is a second point to be made with respect to these
listed "actes internationaux". ThCM repeatedly contends that the Annex 1list
was carefully prepared ("dresséeavec soin") and exhaustive ("limitative"). This is
not borne out by the text of Artic3eor of Annex 1,by the agreements listed and
not listed in Annex1,or by the conduct of France and the subsequent conduct of
Chad.
3.13 The reference in Articl3 to the agreements listed in Annex
1refers to "actes internationaux..tels qu'ils sont définis"in Annex 1. It is not
clear at al1that these words were intended by Libya and France to restrict the
agreements "en vigueur" to those appeanng on the list of Annex 1;and as it has
been shown above, some agreements listed in Annex 1did not meet the test of
being "envigueur"in 1951 as set out inArtic3.
3.14 The conduct of France reveals that the list was not intended
to be exclusive. Inthe statement of the French representative to the Ad Hoc
Political Committee of the U.N.(M. Naudy) on 13 December 1950, in an attempt
to correct the French Government's previous regarding Libya's southem
frontier, the "ensemble des textes ...qui règle actuellement la matière" was
referred to. Among the agreements mentioned were two that did not later
appear on the Annex 1 list: the 1924 Anglo-French Protocol and Declaration
(which "completed" the 1899 Declaration and the 1919 Anglo-French
Convention). It seems evident that France did not intend to exclude from
consideration these highlyrelevant agreements.
3.15 In its Application 1fSeptember 1990,Chad similarlymade
reference to the same two 1924 instruments in setting out the agreements
between France and Great Britain from which the course of the boundary
claimed by Chad was derivedg It is also evident that thCM relies on the1902
7 CM.Annex 210.
8 Para7 of Chad'sApplication.SLM, International AccorsndAmeementsAnnex,
No.39.Franco-Italian Accord and the Franco-Italian Agreement of 28 October 1912,
9
agreements similarlynot on the Annex 1list.
3.16 The conclusion to whichthis discussionleads isthat Article 3
and Annex 1cannot be read to exclude other agreements that were "en vigueur"
in 1951merely because they were omitted from the list. It was intended to be a
non-exhaustive listing. Libya considers certain other agreements to be entitled to
the same effect as those appeanng on the Annex I list (without considenng
whether they were en vieueur in 1951). A total of 11such agreements are listed
below at paragraph 4.09. Had the parties to the 1955Treaty intended to exclude
the 1935Treaty they could easily have done so expressly.Ifthat agreement is to
be considered excluded, it is not because it was not on the Annex 1 list but
because it was not en vigueur in 1951. However, it is directly relevant to the
present dispute as isrecognized byboth Libya and Chad in their Memorials.
3.17 A thir point is that, aside from the condition of beinen
vieueur. the mere fact that an agreement appeared on the Annex 1list did not
imply that a boundary separating the territories in question resulted from it. The
1898 Declaration was on the list, and yet it cleariy produced no relevant
boundary.
3.18 Fourthlv, al1 of the boundanes that had been fixed as of
1951 were sought to be rectified by France either in the 1955 Treaty itself
(concerning the Ghat-Toummo sector modified by Annex 1) or in the 1956
Agreement (concerning the Ghadamès-Ghat sector of the Algenan boundary),
whichwas made a condition of ratification of the 1955~reat~l'.
9 See, CM p.182, para. 151In addition, t-1 argues that the 1934Italo-Anglo-
EgyptianAccord relatto theLibya-SudaBoundaryhadthe effectof makingthe 1919
Anglo-French Convention opposable Io Italy as successor Io British righu and
obligations.See.CM,pp.196-197,para.2s-,also,para.4.2g=., below. Yet the
1934Accordwasomitted£romtheAmex 1list.
10 Sm, LM,para.5.462. Smo~ 2. TheTravaux Préparatoiresand Other Indicia of Intent
Libvan and French Travaux and Related Records of the
(a) BritishForeim OfFice
3.19 In its Memorial, Libya drew upon documents from the
British archivesto supplement the travaux available to it concerning the January
and the July-August 1955 phases of the negotiations between Libya and France
that led to the 1955 Treaty. The British Government was following these
developments closely;both Libya and France - and particularly France after the
January phase - reported frequently to the Foreign Office. The French
Government, in fact,was pressingthe Britishto lend their support to France; and
the British Govemment (as well as the Arnericans) was anxious that a treaty be
concluded promptly. Accordingly,the Foreign Office records are an excellent
source to consult asto what the positionsofthe twosideswere at variousstages of
the negotiations.
3.20 Resort to the British records is indeed necessas: for the
travaux furnished with thCM are notably sparse, especiallycovenng the second
phase of negotiations in Julyand August. Libyahas drawnupon suchrecords as it
found in its own archives, and has annexed the key documents to its Memorial.
These are largely unilateral records and are far from complete, reflecting the
general lack of training and experience of the Libyan officials involved at the
time. The French side, in contrast, suffered from no such handicap; and it can
onlybe presumed that there are many documents in the French archivesbearing
on the negotiations that have not been produced byChad.
3.21 One of the particularly inaccurate parts ofCMhe is where
it deals withthese negotiations. ThCM tries to givethe picture of a competent,
experienced Libyan team, surrounded by foreign experts,in contrast to the down-
trodden French representatives, thwarted at every turn. For example, there is
this passage:
"L'examende la correspondance diplomatique française relativeà
la négociationdu Traite du10août 1955 témoignede l'habiletédes
négociateurslibyensqui firent échecaux ambitions françaises surla
Libyeet qui conduisirent le Gouvernement françaisreculer pas à
jypu'à accepter l'évacuationpure et simple du temtoire
ibyen ."
11 CM,p.100,para21.It was not the skill of the Libyan negotiators that secured the'evacuation of
French forces from Fezzan; it was the hostilityof the entire Arab world to their
military presence there, and the concern the French Government itself had of
being accused by Libya before theU.N. Security Council of violating Libya's
temtonal rights in contravention of U.N. Charter. These were the effective
forces that compelled France to pull out of Fezzan. Furthermore, after Libya's
independence, neither the British nor themencans supported France in its
attempt to incorporate Fezzan into its colonial empire and, when that attempt
wasabandoned, to remain there militarily,asCMe admits12.
3.22 It will be noted that the conclusion set out in the ms
passage just quoted above is said to have been based on an examination of the
French diplomatic correspondence relating to the 1955 negotiations. One
searches in vain for a citation to an annexed document that bears out the
allegation as to the "habileté"of the Libyan negotiators. The Libyan negotiators
may have exercised native good judgrnent and common sense; but they knew
nothiig about land boundanes or about the vanous agreements that France had
listed in Annex1. The Libyansmade an attempt to find out something about the
1935Treaty, as thCM recounts13,but the informationwas,at best, supérficial.
3.23 When the CM cornes to discussinga very sensitivemat-er
the introduction, preparation and contents of Annex 1 of the Tre-it again
presents a picture of a sophisticated, knowledgeable Libyan negotiating team.
Refemng to Annex1,the CM asserts:
"La liste des actes internationaux en vigueur à la date de la
constitution du Royaume Uni de Libye est dressée avec soin
comme en témoignela correspondance diplomatique échangée
êtreexclueP."e. L'hypothèsed'une omission du côtélibyen doit
It has already been noted above how the French Govemment had omitted from
Annex 1several keyagreements15. This and other errors in the Annexgiveevery
12 CM.pp.108-109,par38,
13 CM p. 123,par83.
14 CM,p.123,para.82.
15 Sec.ara.3.14,et=.,above.indication that it was hurriedly assembled in order to t~y to deal with the
disastrous fact, possibly onlyrealized toward the end of the negotiations, that
several key agreements, on which France's thesis concerning Libya'sboundanes
relied, were not en vieueur in 1951. It will also be observed that the passage
quoted above refers, once again,to certain diplomaticcorrespondence exchanged
between the parties; once again, there are no citations or references to annexed
documents. As far as Libyaisaware,there were no suchexchanges.
3.24 Ifthe Annex 1listwas "dresséeavecsoin",it was not done so
by Libya. The listwas prepared entirely by the French Government; the Libyan
negotiators had no part in it and, in fact,had no knowledge of the agreements on
the list, which were never produced dunng the negotiations or discussed in any
detail at al]. In the circumstances,it is wrong to suggest that "une omission du
côté libyendoit êtreexclue"; Libyahad made no study atal1of the list, whilethe
French Government, which had done so, committed a senes of extraordinary
bévue isits preparation: twoagreements, listedas beingen vieueur in 1951,were
not; a sizeablenumber of directlyrelevant agreementswere carelesslyomitted.
3.25 The CM then pushes its assertions concerning the
competence and knowledgeof the Libyannegotiators a step further. It asserts:
"Au demeurant, le gouvernement libyen s'entoura de conseils
aviséslors de la négociation duTraitédu 10août 1955.&tint à ses
côtésdes experts suissesquil'aidèrentàfinaliserle text."
No evidence is produced by Chad to support this contention; and it is untrue, as
willbe shownshortly.
3.26 One must pause to wonder why such an effort has been
made in the CM to try to establish that the Libyan team were more than a match
for the French negotiators, whenit issucha preposterous suggestion. At the time
of its independence, and in 1955,Libya was one of the poorest nations in the
world. Only a few years before, France had opposed Libya'sindependence in
part because it was uncertain whether Libya had the interna1 competence to
conduct its affairs as an independentate17. U.N. CommissionerPelt had also
16 CM.p.123,para84.
17 Sec.Pelt, A.: LibvanIndevendenceand the United Nations.New Havenand London,
YaleUniversityPre1970,p.108.noted Libya's meagre resources at the time, particularly in regard to trained
people equipped to deal with matters of governinent18. The Four Power
Commission Report had observed the same lack of trained, educated people
equipped to deal with the problems facing a new state19. Can it be that Chad has
come to realize that the1955 negotiations were conducted under conditions in
whichthe conduct of the French participants fell short of the standard that should
have been obse~ved,particularly in the light of the limited capability of Libya at
the time to cope with the issues irn!o~ved~~?
3.27 Who were these "conseils avisés"surrounding the Libyan
Government during these negotiations? The produces no evidence at al1to
inform us. However, the travaux produced by Chad for the January 1955
negotiations, and the Libyan travaux covenng theuly-August phase, identify the
members of the two teams; and it is apparent that the Libyan team were
hopelessly out-classed by their French counterparts.The only "conseil avisé"
available to Libyawas Mr. Fekini, a recent law graduate, whose training had been
in Tunisia and who had virtually no background or expenence in dealing with the
matter of land boundaries.
3.28 There were no foreign experts advising the Libyan
delegation at al1during either phase of the negotiations, with the exception that
dunng the January phase of negotiations in Pans - when the land boundaq
question was bnefly touched on -a person from the Egyptian Embassy attended
several of the meetings2'. The contends, however, without producing the
slightest proof, that Swiss experts assisted in finalizing the text of the Treaty.
Libya had no Swiss experts helping it in these negotiations at the time.In
connection with negotiating the 1956 Agreement concerning the frontier with
19 &, -g, "Situationkconomiqueet politique des ancolonies italiennes(D'aprh
le rapportdela Commissiond'enquetedesquatrePuissancesdanslesancienneswlonies
italiennes)",Notes Documentaireset Etu29snovembre 1948,No. 1026,Sene
Internationa(CLXXXVIII ),.1-32. Acopyof thesepagesis attachedat LC-
M4.)
20 Thissubjectis pursuedfurinPanVII ,elow:"GoodFaithin theLawof Treaties".
21 See,CM.Annex 241.1.Algeria, a Swiss expert did participate; but that was an entirely separate matter
occurring over a year late.
3.29 The CM contends that the text of Article 3 of the1955
Treaty is clear and that there isno need to interpret it; and it adds:
"Le texte du Traité étant clair, il a'pas lieu de recourir aux
travaux préparatoires. Mais à ,&e subsidiaire, ceux-ci en
confirment le sens et sansambiguïte."
But this contention must be taken on faith since the produces practically no
travaux for thentical second phase, during July-Augus1955.The CM refers to
"lerécitde la séancedu26 juille1955"and claimsthat it reveals t-at
"...l'attitude libyenne confirma l'acceptation explicite de la
frontière du Tibesti telle qu'gif résulte des actes internationaux
citésdans l'annexe au Trai... ."
Presumably the "récit"referred to consists of minutes or some kind of record of
the 26 July meeting. Libya has been unable to find any such document either
cited in or annexed to tCM.
3.30 Infact, thCM and one of its annexes show this statement
to be incorrect on its face; for tCM reveals that the Annex 1 list of "actes
internationaux'' didnot make its appearancentil early August, some days after
the 26July meeting:
"C'est d'ailleurs, semble-t-il, lors de la négociation finale que la
décisionfut prise de substituer à une référence généeux textes
internationaux en vigueur, une énu ration limitative des actes
internationaux définissant lafrontièr.
22 - See,para.3.110, below.
23 CM p. 139,para.127.
24 CM. p. 136,para.115. TexcerptfromtheQj againrevealsitsobsessionwithTibesti
(andwithouzou) S.eepara.1.1sa., above.
25 CM. p. 136,para.119. 3.31 In support, thCM cites a document described as a "tableau
comparatif'26. The document is neither signed nor dated; it isa unilateral French
summary of the result of the negotiations, as reflected in the Treaty as signed.
The CM suggests it was probably prepared in August 1955'~. Although this
rather unimpressive piece of travaux is hardly binding on Libya, it brings out that,
in the viewof France, the alleged agreement of Libya and France in January 1955
to "s'en tenir aux stipulations généralesdes textes internationaux en vigueur à la
date de création de 1'EtatlibyenH'hadnot been disavowed in August but rather
that-
"Lerèglement de c2lfequestion est précisépar i'article 3 duTraité
et par son annexe 1."
It refers to the "énumérationlimitative des actes internationaux limitant les
frontières"set out in Annex 1.
Although Libya rejects the document's interpretations and
3.32
characterizations of Article 3 and Annex 1for reasons already stated above, this
document, together with the summary of the chief French negotiator Ambassador
Dejean of the situation as it stood 28 ~ul~~',shows that the Annex 1list had
not yet made its appearance in the negotiations, M.rDejean summarized the
situation in thisway:
"L'article3 maintient que les frontières sont celles qui résultentdes
actes internationaux en vigueur lors de la constitution du Royaume
de Libye."
There is no mention at al1of any list of agreements set out in Annex 1. So clearly,
as of 26 July, Libya had not even seen this list; and the contention that at the 26
July meeting Libya had "explicitlyaccepted the boundary resulting from these
agreements must be rejected. This is confirmed by the Libyan travaux relating to
the 26July meeting. Annex 1made its amearance then. but it onlv concerned the
frontier between Ghat and Toummo and the demarcation commission to
26 CM A.nnex269.
27 CM .. 136,para.119.
28
CM ..137,para.120.
29 CM .nnex268.demarcate that boundarv. There is no mention of the list. which had vet to be
added to Annex 1.
3.33 Itis remarkable that these two documents - the 28 July
report of Ambassador Dejean to the Quai d'Orsay, concerning the progress of
negotiations(CM. Annex 268),and the unsigned, undated "tableau comparatif'
(Annex 269) - are the entirety of the French travaux furnished with thCM
covering the July-August negotiations. Instead of fumishing al1 of the
documentary evidence that is no doubt available, the &l focusses on several
episodes, partly to confirm its contentions as to the intent of Libya in the final
phase of the negotiations, partly as an indication of Libya's alleged acquiescence
in the French view as to the boundary. The first, in order of time, is CMat the
refers to as the "Aozouincident"; the other concerns a map allegedly produced by
Libya during the negotiations in July 1955 said to have placed part of Tibesti
within Libyan temtory.
(b) The "AouzouIncident"
3.34 This episode took place on28 February 1955, in between
the two sets of 1955Treaty negotiations; it has already been touched on above30.
The concluded that the significance of this event (more accurately called
there the "Moya incident" for it was at Moya that the episode took place) was
two-fold31: (i) it revealed the French Government's interna] doubts as to the
existence of a conventional boundary along Libya'ssouthernkontier; and (ii) it
was an early attempt by Libya to install the machinery of government in the
Libya-Chad borderlands, an initiative that France repelled with military f.rce
It is interesting to note that M. Bernard Lame, one of Chad's most articulate
30 Sec .ara.1.1a,S., above.
31 LM. paras.5.512-5.517.ThelocatofAouzouandMoyaareshownhere on Mau LC-
-M9.supporters in its territorial dispute with Libya, amved at the conclusion that the
incident "prouva que la Libye continuait de contester lefrontière^'^^.
3.35 The reaches quite a different conclusion, contending
that this episode resulted in the confirmation by Libya of the "international
bounda~y"~~. Itwillbe noted that this event and an earlier one, the so-called "Jef-
Jef incident" of 193g3', play a pivota1role in Chad's case and are given major
33 Lanne, B.:Tchad-Libve: Laquerelle des frontières, Paris,Karthala, 198L&p. 210.
Exhibit45.
34 The "AouzouincidentisdiscussedpnncipallyCM. pp. 132-137,paras. 106-121and at
pp. 284-289,paras. 296-311.
35 nie Jef-Jef "incident"is dealt with in pfiS.,8.below. Jef-Jef is also shown on
Map LC-M 9. The incident was regarded by Libya to be so trivialisnot even
mentioned in thm. Far more significantwere the exchangesof notes verbalesin 1934
wnceming Tekro, to the south of Jef-Jef. See.LM, para.-e,2also, para. 5fi7,
S., below.emphasis in them. Both "incidents"were in reality minor events that have been
blownup out of al1proportion as part of Chad'srecognition-acquiescence cas.
3.36 What an analysisof the facts of this episode (and CM'S
discussionof it) bnngs out is that the post at Aouzou had been a militaryoutpost
more on paper than in reality. Thisisrevealed in the report of Lt. Col.de Seze, a
member of the French negotiatingteam, who was ordered to make a report after
the episode37. Accordingtc~the CM. the post at Aouzou had been established in
1930,havingonlybeen reconnoitredbefore that in 1914bya French patro138.
3.37 The facts concerning this post set out in thCM and its
annexes are contradictory and unclear; but as is shown below, the Aouzou post
wasnot manned bythe French in anyreal sense untilJune 1951. It wasevacuated
on 1 April 1954, "temporariiy reoccupied" during the harvesting of dates in
August-September 1954,and then "permanentlyreoccupied" in December 1954,
39
after France had receivedword that the Libyansintended to visitthe po.t
3.38 It is no wonder that the Libyan authorities who organized
and authorized the expedition to Aouzou, which included the mission of
conductinga censusunder the supervisionof aU.N. official,Dr. Shanawany,were
not aware that Aouzou was occupied by the French, in the light of the history of
sporadic "occupation"of the post bythe French, and that they understood it to lie
in Libyan temtory, as U.N. maps at the time appeared to indicate. The
incorrectly descnbes the Libyan visitors as a military mission comprised of 19
persons in three jeeps, of which 13were Libyan militarypersonnel, plus a doctor
and a U.N. official. This is not so, as Dr. Shanawany'sdetailed report fumished
by Chad establishes40. The group of 19 persons had an entirely different
composition. It included no military personnel, but there were several Libyan
civilianofficiais. The make-up of the group according to Dr. Shanawanywas as
follows:
36 Sec.enerally,PaVIIIbelow.
37 See. CM,Annex 262,May1955.
38 See,CM,p. 268,paras.231-235.
39 B. para.5.11ett., below,andthedeSezeReportCM. Annex262.
40 See,CM.Annex 272. The Deputy Director of Interior;
- The Mutassarif ofKoufra;
- The ChiefofPoliceofKoufra;
- The personjust appointed Mudir ofAouzou;
Plus 2 police, 4 drivers(for the 4 Land Rovers) a7dother
civilianemployees.
3.39 These correct details lend an entirely different complexion
to the episode. The Cyrenaican authorities were sending a mission south to
Aouzou to install the machinery of govemment under a w4l who was to
report to them ut as sa ori fi^ra. While there, it was also intended to take a
census. Thisdelegationwasrepelled bythe French militarygamson.
3.40 Chad has fumished a largenumber of documents bearing on
the "Aouzou incident";and the CM givesthe impression that it provoked a fluny
of diplomatic protests, a formal apologyby thU.N. tantamount to recognizing
the validityof France's claimto Aouzou, and, above ail,an explicitrecognition by
Prime Minister Ben Halim of French sovereignty over Aouzou. When the
evidenceisexaminedit does not support these conclusionsat ail.
3.41 There was only one French note of protest, and Chad
apparently has been unable even to fïnd this document; it has producea mere
reference to it43. Even this reference, a telegram from the French Ministein
Tripoli, M. ~umar~a~~~,to the Quai d'Orsay, has not been produced in the
original version but has been retyped. This is not acceptable evidence of either
the protest or the reference. Al1 the other French documents are interna1
dispatches exchanged within the French Govemment, which reveal that the
authorities in the A.E.F. were verywomed over the incident and wanted to make
sure it did not damage France's posture in the negotiations then underway with
41 TheMudir wasa civiiian(appointedbythe Mutassarif),roughlyequivalentto a Counry
Administrator.ThMudir n tum, appointeda Kairnakor districtofficerforeach
districtunderhisadministration.
42 Roughly equivalentto the civilian postof District Govempara.5.29, below,
wherethese positionsand the organizationalstmcturesof the Ottoman authorities in
Libyaandthe SenoussiOrderaredescribedintabularfS-, also, LC-M14.
43 See,CM.Annex251.
44 Libyadidnot yet haveaccreditedto it at Tripolia FrenchAmbassador,onlya diplomat
of Ministerialrank.Libya. The CM claimsthis protest was "renewed" on 19March 1955. No proof of
such a new protest is offered, onlya rather confusing'accountof requests to renew
the protest made within the French ~ovemment~~. These documents confirm
what Libya said in its Memorial: that the reaction of the French Govemment
revealed its basic insecurity as to the viability of the French thesis concerning its
sovereignty over the region. These dispatches reveal, as well,the fact that French
effectivités in the area were more theoretical than real. For example, the
Ministre de la France d'Outre-Mer wrote the followingtothe Minister of Foreign
Affairs, on 9March 1955:
"L'immensitéde la frontière àsurveiller et l'exiguitéde nos moyens
...nous conduisent en effet à souhaiter que les Libyens ne
s'attachent pasà nder systématiquement les lacunes inévitables
de notre disposi$8 ."
It is interesting that this dispatch mentions onlysurveillance, not occupation.
3.42 Inits reply to th9March dispatch, the Quai d'Orsaysaid:
"La réoccupation d'Aozou par un détachement français a montré
strictement aux dispositions [ofthe 1899and 1919 agreements] .
And the followingwas added at the end of this same dispatch:
"Peut-êtreestimerez-vous opportun, dans la conjoncture actuelle,
de maintenir notre occupation du poste d'Aozou, afin de prévenu
toute nouvelle tentative libyenne dans ce secteur."
This suggeststhat in factAouzou had been virtuallyabandoned by the French and
was quickly reoccupied in the light of the Aouzou episode. In the same dispatch,
the Quai d'Orsay observes that M. Dumarçay had been requested to get in direct
contact with the A.E.F. inorder that it provide a representative-to
"...articiper àl'élaborationdu projet de convention frontalière qui
sera ultérieurement négociéavec le Gouvernement libyen par
notre Légation."
45 See,CM.p. 286para.303and £os76 and77.
46 CM,Annex252.
47 CM,Annex257.Thus, it is evident that the French Government was considering the preparation
ofa draft boundary treaty withLibyainwhichthe A.E.F. was to participate.
3.43 Thisputs in perspective the important dispatch,furnished by
Libyawith itsMemonal, from the Govemor General of the A.E.F. to the Ministre
de la France d'Outre-Mer of 2 May 1955,which recommended the negotiating
strategyfor the forthcomingnegotiationswithLibyain these terms:
"..j'estime que les pourparlers engagésen vue de la conclusiondu
futur traitéfranco-libyendevront êtreconduits avec la plus grande
prudence et évitertoute discussion sur le tracé des frontières.
semble que cette question ne devrait êtreévoquée dansles accords
que pour poser le principe d'une délimitationsur le terrain à
entreprendre dans I'avenir,mais en prenant pour seu4$s ases les
traitésen vigueuràla date de la créationde 1'EtatLibye."
As the points out, this advicewas heeded by the French Government dunng
the 1955negotiations49;and accordingto the Quai d'Orsay dispatchquoted from
earlier, the A.E.F. was given the opportunity to participate directly in
implementing thisstrategy.
3.44 Aside from the one alleged protest bM. Dumarçay to the
Libyan Government of 4 March 1955 -a document not produced -there was no
other formal action taken by the French Government, in the aftermath of the
Aouzou episode, but there was a great deal of intemal confusion, for France's
lack of effectivitéshad been exposed right in the middle of the negotiations with
Libya.
3.45 The alsotries to givethe oral apologyofthe senU.N.
officialin Libya,whichfollowedthe episode, a significancethat it does not ment,
asserting the following:
"ine faut as négligernon plusle fait que les autoritésdesNations
Unies en 'bibye admirent elles aussi que le village d'Aozou se
trouvait dans une e sur laquelle la France exerçait sa
souverainetéeffective .
48 LM,FrenchArchivesnnex,p.171.
49 SeeLM, para5.437g set^.
50 CM.p.288,para309.This is not only untrue but it reflects a lack of understanding of the manner in
which U.N. officiaisact in circumstances of this kind'and of their role in general.
The relies here on two dispatches of M. Dumarçay from Tripoli,
communicationsthat are not the epitome of accurate, diplomatic reporting. The
10March dispatch suggeststhat, during M. Dumarçay'smeeting with Mr. Spence
(the U.N. representative in Libya)some daysearlier, the latter:
"...ui a approuvénotre attitude dans cette affaire,m'aexpri~f ses
regrets d'avoirmêléun de ses agentsàune pareille entreprise ."
In a report of 20March, M. Dumarçay summarizedMr. Spence'svisitin thisway:
"M. SPENCE, Directeur de la Mission de I'O.N.U., est venu
s'excuser qu'unde ses collaborateurs se soit fourvoyédans une
pareiiie équipée, quia motivé natureYsment une démarche de
protestation de la part de cette Légatio."
It is submitted by Libyathat the oral apologyof Mr. Spence wasno more than an
expression of his regret that the U.N. had beome entangled in an interna1matter
between Libya and France. That is al1Mr. Spence could properly have said; any
gratuitous comments he may have made, if M. Dumarçay's description is
accurate, wouldhavebeen out ofplace and ofno significance.
3.46 The last element in this episode concems what M.
Dumarçay reported was Prime Minister Ben Halim's reaction to the episode,
characterized in the as constituting "[lja reconnaissance formell...de la
souverainetéfrançaise sur ozo ou^ T h. evidenceproduced byChad to support
this contention must be examined closely. It consists of a telegram from M.
Dumarçay to the Quai d'Orsaydated 28 June 1955. Once again, the original
document isnot produced; onlya typed draft allegedto be a copyofits te~t~~.
51 CM. Annex253.
52 CM. Annex 255.
53 CM, p. 134,para.11See,para.1.19,above,for adiscussionoftheevolution in the
of this alleged statetf MI.Ben Halimfromthe supposed recognitiof French
sovereignty overAouzou, to Frenchsovereignty over Tibind, finally,ovc: tnr
"AoumuStrip".Note, asweU,the suggestionthatthwas the "formarecogniii;inof
Frenchsovereigntyby the PrimeMinister. If madeat all, Mr.Ben Halim'sremarks
appearto haveallegedlybeenmadeduringaninformconversationonly.
54 See.CM,Annex264. 3.47 The date of this dispatch is the next thing to note: the
Aouzou episode occurred on28 February; this dispatch is da28June. Asthe
CM itself brings out, rumours of other Libyan expeditions were in the air, one of
-
which was reported by theA.E.F.on 20 une^^ The French authorities there
seemed to have been constantly on tenterhooks. There was in fact, as the
mentions, another expedition planned in the general area in Ma1955 -joint
Anglo-Libyan manoeuvres to be conducted not far north of ~ibesti'~. (It willbe
recalled that by Treaty with Libya the United Kingdom was responsible for the
defence of al1of Libya.) Once again, the French authorities demonstratan
attitude verging on paranoia, and prevailed upon the British to stay as far as
possible awayfrom Tibesti. The Foreign Office dispatch that related this episode
stated:
"We conveyed our decision to the French Embassy orally rather
than in writing as we felt disinclined to go formally on record about
the change of a plan which we had a perfect right to make and we
thought that it might be awkward with the Libyans if by any
mischance some written communication which we had made were
to leak out. Butwe agreed to meet the French because we felt that
this was one al1matter on which we could show our willingness
to be helpful?.
3.48 So it would appear thatM. Durnarçay's report o28 June
related to an incident other than the much earlier episo28February where
the Libyan mission at Aouzou was forcibly repelled by French military forces.
The CM. even here, attempts to find an element of acquiescence, which it then
attempts to fort@ with an alleged statement of Mr. Ben Halim. Playingdown the
military nature of France's actionsin the evenCM tconcludes:
"Bienque l'incidentn'eût pas de conséquencesfâcheuses grâce àla
fermetéfrançaise et à l'acceptation immédiate,par les membres de
la mission libyenne, des raisons motivant i'attitude française, le
Ministre de France à Tripoli crut bon malgrétout d'enwerle4
mars, une protestation formelle au Gouvernement liby."
55 SeeCM,p. 287,para.305aAnnex 263.
56 SeeLM, para.5.518.
57 LM,BritishArchivesAnnex,p.317.
58 3, p.286,para.303. 3.49 This is acompletely unfounded assertion in the light of the
facts as related in Dr. Shanawany's repod9. For the Libyan group, led by the
onlyguide they could find in Koufra, who had to be released from prison where
he had been incarcerated for alleged cohabitation with histeenage step-daughter
(hiswife havingperished in the desert with their onlychild), amved half dead in
the vicinityof Aouzou after a harrowingjoumey. They had lost their provisions
and one vehicle on the way across one of the most desolate areas on Earth.
There they were met by the French militaq withguns in their faces and forced to
retum, with barely the chance to take a drink from the onlywellthey had seen in
days. Yet in so doing, according to the CM. their action reflected their
"acceptation immediate ..des raisons motivant l'attitudefrançaise"; and the sole
officialFrench protest -in a letter Chad has not produced or even located -was
almost superfluous,the suggests.
3.50 Returning to the 28 June telegram of M. Dumarçay, aside
from the fact that the original document is not produced, but only its purported
text60, its contents should be looked at carefully. It starts off by stating that M.
Dumarçay's Britishcolleague - presumably a reference to British Ambassador
Graham -had several times successfullyintervened with the Libyan Government
on the matter of the transit of men and arms toward North Mca. M. Dumarçay
then switches to certain rumours attributed to Libyan officers to the effect that
the Libyan army was preparing "à occuper définitivement"the post at Aouzou.
M. Dumarçay recounts that, in the light of these rumours, Ambassador Graham
had drawn Prime Minister Ben Halim's attention to the serious repercussions
such an operation might have and, M. Dumarçay adds, to the necessity of
avoiding"uneréédition de l'équipéeuoo 1f the previousFebruaq.
3.51 No evidencehas been found anywhereto substantiate either
this allegedconversationor what wassupposedlysaidbyAmbassador Graham,as
59 See.CM,Annex272. TheoriginalEnglishversionof thereponof thisU.N.officialhas
beenannexedhereto as LC-M5,sinceitappearsonlyintranslationin Annex
272, not only in view of its importancebut also because it containsan hilarious
descriptionof thisepisode. Thisardlya mission composof Libyansinaposition
to accept"desraisons motivt'attitudefrançawhenturnedawayat the pointof a
gun. AsDr. Shanawanyreports,they werein pathetic conditiont,ryingonlyto survive
the rigoursof their jousouthandthe impendingperilsof their returnto Koufra,
requiredbytheFrenchsoldierstobeundenakenimmediately.
60 See.CM.Annex 264.
61 "Arepeatoftheescapade'.so loosely reported. There had, of course, already intewened the May joint
Anglo-Libyan manoeuvres; and it has already been noted how tense the French
authorities were at the time over possible border incidents. So it could be that the
French had again prevailed upon the British to intervene with the Libyan
Government.
3.52 Then M. Dumarçay proceeds to say, according to the
retyped text, that Mr. Ben Halim, to whom he himself had givena serious warning
on the subject-
"..m'a confirméla démarche de M. GRAHAM en précisant que
son Gouvernement n'avait nullement l'intention de rouvrir la
question d'Aouzo&~uisqu'il reconnaît que ce village se trouvait en
temtoire français .
According to M. Dumarçay, Mr. Ben Halim promised to inform the commander
of the securityforces of Cyrenaica and the civilauthority there of this position.
3.53
There are two other French dispatches that bear on the
matter: a 7July 1955dispatch from the Quai d'Orsayto the Ministre de la France
d'Outre-Mer; and a dispatch dated 12 July from M. Dumarçay to M. Pinay,
French Minister of Foreign Affairs. Both documents are copies of the original
documents.
3.54 The 7 July dispatch mentions the rumours circulating of
"une prochaine réoccu~ation"(emphasis added) of the Aouzou post by Libyan
troops or police frorn Cyrenaica. This, of course, suggests there had been a
previous Libyan occupation. The dispatch then refers to M. Dumarçay's report of
the senous warning he had recently given Mr. Ben Halim and goes on to say that
the latter:
"...a cependant démenti formellement les intentions prêtéesà ce
sujet au Gouvernement libyen et s'est engagé à rappeler au
Commandant des forces de Sécuritéde Cyrénaïqueet aux autorités
de cette Province, que le Gouvernement fédéralreconnaissait
l'appartenance française de l'Oasisd'Aouzou."
The dispatch concludes with this interesting paragraph:
62 As noted inpara1.19,above,if thisconversationdidindeedtakeplace,Mr.BenHalim
had allegedlyonly mentioned "villagof Aouzou-notTibesti-andnottheso-called
"Aoumu Strip". "Si ces indications sont de nature à apaiser les inquiétudes du
Gouverneur Général de l'Afrique Equatoriale Française sur
l'éventualitd'une nouvelle incursion libyenne dans le Tibesti, vous
estimerez sans doute qu'ilne serait pas opportun, pour autant, de
relâcher les mesures de virrilanrise eDar les autorités militaires
dans cette réeion à laauë~t: les LibverÎs n'ont certainement pas
renoncéde facon définitiveo3."
So while the dispatch repeats what M. Dumarçay had reported regarding the
conversation with Mr. Ben Halim, it also givesthe Quai d'Orsay'sevaluation of it,
namely, that it was not a definitive renunciation of Libyan claims in the region of
Tibesti. Apparently, the French Minist~y did not accord much weight to M.
Dumarçay's report from Tripoli, or it interpreted it asrowly confined to the
oasis of Aouzou.
3.55 The other dispatch is th12 July report of M. Dumarçay to
M. Pinay. It forwards a bnef report of Commandant Robert concerning mmours
that Libya had 30 vehicles and 100 men poised to descend on Aouzou. The
report concluded that such an operation was unlikely. M. Dumarçay uses the
occasion to refer again to his earlier report of his conversation with Mr. Ben
Halim. However, he does not refer to the dispatch o28 June - but one of27
June. Aside from the fact that the document dated28 June is not a copy of the
original telegram whose text it purports to reproduce, no communication d27ed
June has been furnished by Chad. In this 12 July dispatch, M. Dumarçay
summarizes what he claims Mr. Ben Halim said tohim,in these words:
"..[Mr. Ben Halim] m'a précisé - ainsi qu'il l'avaitd'ailleurs déjà
dansses intentions de faire procédàrl'occupation d'unPoste dont
la situation territoire français ne pouvait etre l'objet d'aucune
contestation .?!
This version suggests that Mr. Ben Halim had told Ambassador Graham as well
that he considered Aouzou to be inFrench temtory. There is no evidence to
support this second-hand report. Had this occurred, it certainly would have been
reported to the Foreign Office; but no such report has been found in the British
archives. The Foreign Office filesreveal Ambassador Graham to have been a
-
63 CM,Annex266. Emphasisadded.
64 CM, Annex267.veryfaithfuland detailed reporter of al1events affectingthe negotiations between
Libyaand France that were under way.
3.56 It will be recalled that these vanous dispatches were
prepared on the eve of resumption of negotiations, which had been delayed over
and over again by the French Govemment while ittried to reach a side military
agreement with the British conceming the defence of Fezzan in wartime6'. In
the meantime, the French Embassyin London had been importuning the Foreign
Office to support its position in the negotiationso6. The Foreign Office reaction
appears in a dispatchsent to Ambassador Graham on 11May:
'The Quai d'Orsayapparently considers that the French frontier to
the south of Libya ought to extend northwards to embrace the
whole of the Tibesti Massif. This of course is bound up with the
Laval-MussoliniAgreement of 1935which was abrogated by the
Italians in 1938. The French Embassy will probably be letting us
have some maps showingwhat it is that they want. MYpersonal
viewis that we shouldbe welladvised to keep out of the potentially
awkwardauestion offrontier rectificationso'."
It seems evident from the evidence of how closelythe Britishwere followingthis
question that any declaration of Mr. Ben Halim of the kind reported by M.
Dumarçay would have been promptly reported by Ambassador Graham, had it
been made to him. No suchdocument has been found.
3.57 Whatever Mr. Ben Halim may have said to M. Dumarçay -
and Libyadoes not accept the evidence produced by Chad as anykind of proof of
what he did say -the Quai d'Orsayobviouslydid not evaluate it as a renunciation
of Libya'sclaims in the region68. In spite of the alleged Dumarçay-Ben Halim
conversation, the French Government was busy trying to enlist British help and
65 See.LM,paras.5.452-5.453.
66 LM, paras.5.44-5.458.
67 LM. para.5.449andBritishArchives Anne, . 315. Emphasis addAs.desnibedin
detailin theLM,para.5.449,gt-q., theFrenchdidfurnishtheBritishshortlythereafter
withtwomaps,oneofwhichdetailedtheFrenchpositionmncemingLibya'sboundaries.
Sm, LM, MapsNos. 91 and 92, referredto in para.5.454. It is, thus, al1the more
remarkablethatnosuchmapwaseverproducedbyFranceduringtheactualnegotiations
with Libya;only a generalreferenceto "actesinternationauxen vigueur"was made,
supplementedbyalistofsuch"acte"ddedtaAnnex 1ofthedrafttreatyinAugust1955,
afewdaysbeforesignature.
68 Sec .ara.3.54,above.support; and the A.E.F. continued to have a case of the jitters over rumours of a
Libyan expedition to Aouzou, well after this alleged conversation.
3.58 What is perhaps the key point is that when the negotiations
resurned on 19 July, there is no indication that the French delegation led by
Arnbassador Dejean ever raised or referred to this alleged statement of Mr. Ben
Halim. Similarly,Libya'srecords show no evidence of this statement having been
discussed. If Mr. Ben Halim had made the statement, if is inconceivable that
France would not have invoked it expressly. Thus, the significance attributed to
the retyped version of this report of M. Dumarçay in the CM is not reflected in
the travaux of the 1955Treaty at all.As for the "Aouzou incident" itself, and the
other episodes and rumours at the time, al1they reveal is the intense insecurity of
the French Govemment as to its position conceming Libya'ssouthem boundary,
which the Govemor General of the A.E.F. had cautioned should be dealt with
prudently and without directly raising the issue of a boundary line at al1for fear of
Libyan disagreement. The attempt in the CM to portray the withdrawal at the
point of a gun of the exhausted Libyan mission that amved at Moya on 28
Febmary as official Libyan acquiescence in the French position as to the
boundary onlydemonstrates the weakness of this part of Chad's argument.
3.59 It must also be borne in mind, as pointed out in Part 1,that
the tem "Aouzou Strip" or "bande d'Aozouu had not yet been in~ented~~;and
the "Aouzou incident" was about the oasis of Aouzou not the area subsequently
dubbed the "Aouzou Strip". What was involvedwas the oasis of Aouzou, where
the military post established on paper had remained virtually unmanned by
French military forces until the 1955 negotiations approached. Until 1930,
Aouzou had been shown on French maps as being part of the A.O.F. It lies in the
northwest part of the Libya-Chad borderlands. Italian maps (except those
reflecting the 1935 Treaty) showed no boundary east of Toummo, so whether
Aouzou lay in French or Italian temtory was not indicated on these Italian maps.
The 1935 Treaty would have placed Aouzou, which lay just north of the line, on
the Libyan side of the boundary line agreed between Italy and France. On the
other hand, the southeast line described in Article 3 of the 1899 Declaration,
properly drawn as a true southeast line (asthe British perceived it in 1899),would
have left Aouzou to France (Mau LC-M 10). So whatever Mr. Ben Halim is
aiieged to have said, it concerned only an oasis in the northwest part of the Libya-
69 Sec .ara1.16fia., above.Chad borderlands in a strip of territory which Chad callsthe "bande d'Aozouu,the
strip itself comprising an area of the approximate size of ~witzerland. It is likely
that, if these conversations did take place, Mr. Ben Halim said no more than that
he realized French forces were in Aouzou and he did not intend to disturb that
situation since negotiationsleading to the 1955Treaty were to be resumed.
(c) The Map Alleeedlv Pmduced bv Libva Dunne the Julv-
Aumist1955Neeotiations
3.60 The second episode that the CM tries to build into an
important incident concerns a map produced, according to tha, by Libyan
officers during t27 July negotiation session, showing as part of Libya a portion
of ~ibesti~'. This account appears in the under the rubric: "La Libye
confirme la frontière internationale en toute connaissance de cause lors de la
négociation ultime de juillet-ao1955". This is another episode that the
contends supports the followingstatement:
70 &,CM. p. 136,para.116. "A plusieurs reprises, son [the Libyan Government's] attention a
été explicitement attirée sur la question de sa frontière
devant la position française"utoritéslibyennesse sont inclinées
The other episodes constituting "plusieursreprises" were the withdrawal from
Aouzou of the Libyan missionat the point of a gun on 28 February 1955and the
statement reported to have been .made by Mr. Ben Halim, as recounted in the
retyped text of a telegram from M. Dumarçay in Tripoli dated 28 June 1955,both
ofwhichhave been dealt withabove. This third strand of the argument isasweak
and contrived as the others.
3.61 The evidence produced by theCM isa telegram tothe Quai
d'Orsayfrom Ambassador Dejean reporting on the meetings of 27 and 28 ~ul~~~.
In relevant part, this iswhat he reported:
"L'article3 maintient que les frontières sontcellesqui résultentdes
actes internationaux en vigueur lors de la constitution du Royaume
de Libye. Alors que desOfEicierslibyens avaient roduit hier une
carte ui englobait dans la Libye un (motpasséedu Tibesti, M.
BEN ~IM a reconnu ce matin en séance que les accords
devraient leur êtreappliqués. Toute difficultémajeure est ainsi
exclue."
3.62 The CM entirely missesthe meaning and importance of this
report, for it springs to the conclusionthat, on the basis of this report, the Quai
d'Orsay in a subsequent note of10 September 1955 was justified inconcluding
that Libya-
"..a renoncé à se rév valoires accords Laval-Mussolini du 7
janvier835, ce qui 16vetoute hypothèquelibyenne sur le Nord du
Tibesti ."
3.63 The first thingthat is interesting about this report is that it
preceded the appearance of t!ie Listof agreements that was added to Ann1in
71 CM, p. 139,para.127.
72 CM, Annex 268. The incompletenessof the Fretrava puoducedby Chad is
illustratedbythe factthatthis dispatchrefersto earlierc, hich mightbe
veryrevealing,but whichis notproduced.
73 CM. p. 136,para.117,aAnnex271. Iisagainnotedthatthe Frenchfowason the
nonh of Tibesti, not the whole of the so-caUed"AouzouStrip",and not the entire
borderlands.August; the proposed formula was still that the boundary should be based on
agreements in force in 1951. Thus, according to M. Dejean, it was not the fact
that the 1935Treaty hadbeen left off the Annex 1list-a listthat had not yet been
tabled -but that the 1935Treaty was not in 1951 en vimeur, which constituted
Libya's (and France's) so-called renunciation of the Treaty. Since the 1902
Franco-Italian Accord and the Franco-Italian Accord of 12 September 1919,by
Chad's own admission, were not en vigueur in 1951, the same reasoning would
lead to the conclusion that the parties had similarly "renounced" the application
of these agreements in delimiting the boundary. It would appear that M. Dejean
had not yet been informed of this fact, which the Annex 1list was presumably
intended to cure.
3.64 The second aspect of this episode concerns why such a map
would have been produced at the negotiations on 27 July, if indeed it was. The
Libyan travaux contain no mention of such a map; but if one was produced as the
French travaux indicate, it could onlyhave been in relation tothe boundary being
discussed; this was not the southern boundary of Libya but the western boundary
with Algena, as far as Toummo. Colonel Senoussi al-Atioush, the Libyan military
officer who attended the meeting, was concerned only with this sector of the
boundary. Shortly after this alleged map incident, he left as part of a joint
expedition to the Ghat-Toummo region to examine on the ground the part of the
boundary to be rectified between Ghat and ~0u-o~~. Assuming such a map
was produced, as Chad's unilateral record indicates, it would have been presented
by the only Libyan officer on the negotiating team, Colonel al-Atioush, and not
for purposes of discussingthe southem boundary, which was not his concern, but
the western boundary between Libya and Algeria, which was.
3.65 The third point is that if, as the French travaux also indicate,
the southern boundary shown on the map happened to be a boundary line other
than the 1899-1919line -for example, a line similar to that appearing on thU.N.
maps at the time - that would have been not at al1surpnsing. France's travaux
show that instead of confronting the issue head on and discussingthis boundary,
Ambassador Dejean avoided doing so by an oblique reference to the boundary
resulting from "actes internationaux en vigueur" at the time of Libya's
independence. Nor was there anything striking about the fact that:
74 See,LM, paras5.461-5.462. "M. BEN HALIM a reconnu ce matin en séance que les accords
devraient leur êtreappliqués."
This was the formula already agreed by Libya and France in January and it
established the basis for the separate delimitation exercise to come later, which
Libya had insisted not be a condition of signingthe Treaty. The only exception to
this formula had to do with the Ghat-Toummo sector of the western boundary
which,in Annex 1,the parties agreed to modifyby specMg three points through
which the line should pass; thus aitering the 1919Franco-Italian Accord line in
France's favour. It was in connection with this rectification that the map had been
produced. This has been fully discussed in the and is supported by the
travaux produced by ~ib~a~~.
3.66 M. Dejean's account of the meetings on 27-28 July
concluded, as to Article 3 of the draft Treaty, that as a result of Mr. Ben Halim's
recognition that "lesaccords devraient leur êtreappliqués"
"Toute difficultémajeure est ainsi exclue."
And M. Dejean went on to say:
"Il reste à se mettre d'accord sur une délimitation de la frontière
entre GHAT et TOUMMO Our laquelle les textes sont d'une
interprétation malaisée. DesBfsciers spécialementvenus de Paris
s'y emploient avec des %,$ers libyens au sein d'une Sous-
Commission crééecematin .
This brings out the facts just referred to above. Any map that they might have
been examining would have been produced for the purpose of discussing the
Ghat-Toummo sector. M. Dejean's expression of relief - "any major difficulty is
thus excluded" - reveals in the clearest way that he was following the A.E.F.'s
advice on the negotiating strategy to be followed in respect to the southern
boundary: to avoid discussing any line and to merely refer to the "actes
internationaux en vigueur".
3.67 A Foreign Office dispatch of4 August 1955is relevant here.
Itis a note from A.A. Duff in the British Embassy in ParisT.E. Bromley of the
75 See ,M,paras.5.45-5.462andExhibit74.
76 CM. Annex268.Foreign Office's African Department in London, reporting on the status of
negotiations in Tripoli, based on information given to him by Mr. Barker of the
British Embassy staff, iollowing a conversation the latter had had with M.
Beaudouin of the Quai d'~rsa~~~. He reports: "Full texts have been agreed
between the two delegations for the Treaty of Friendship ..."and he goes on to
descnbe in some detail the draft Treaty's contents. He mentions that there
remained certain supplementary matters to be negotiated, notably financial ones,
and that the French wanted to delay actual signature until the parliamentary
holidays had started. (Actual signature occurred in fact on 10 August, six days
after this British dispatch.) The matter ofboundaries is reierred to in this way:
"Beaudouin did not mention that there had been any difficulty on
the frontier question but Barker understood from a conversation on
the telephone which Beaudouin had within the department during
hisvisitthat the question had not yet been discussed in detail."
This confirms the fact that the southem boundary had in effect been settled on 28
July by a reference to "actes internationaux en vigueur" in 1951~~. The Sub-
Cornmittee studying the western boundary was on a field trip to examine the
Ghat-Toummo segment, as Colonel Senoussi al-Atioush's report annexed to the
brings out7'. Presumably they had yet to return and assist in putting the final
touches to the language of Annex 1relating to that sector.
3.68 It must be emphasized that when the southern boundary was
settled by means of a general reference to the international agreements in force
in 1951the Annex 1list of agreements had yet to be tabled by the French. So this
list was evidently introduced for a different reason; and the evasive manner in
whjch the deals with this matter appears so to indicate. For example, right
after its discussion of these negotiations and of M. Dejean's report, the
remarks:
77 FO3711113897. LC-M6,hereto.
78 LC-M 7hereto isa dispatch€romAmbassadorGrahamto the ForeignOffice
dated29July1955(FO371/113896170799).Init Mr.Grahamreports:
"MyFrench mlieague and leaderof the FrenchDelegationcalled on me this
morning and mnfirmed that in 8 days they hadreached full, satisfactory
agreement withthe Libyan..The French are given fulatisfactionon other
points,includingfrontiers."
79 See,LM. paras..461-5.462andExhibit74. "C'est d'ailleurs, semble-t-il, lorsde la négociation finale que la
décisionfut prise de substituàune référence généraleaux textes
internationaux en vigueur, une énu ration' limitative des actes
internationaux définissant lafrontiè.e
From the evidence addressed so far, it seems more Iikelythat the real reason for
introducing the Annex 1list related to the last-minute realization by the French
Govemment that the general formula could be disastrous since several of the
agreements on which France's thesis as to the bounda~yrelied were found not to
be "en vigueur" in1951, for they had not been notified under Artic44 of the
1947 Italian Peace Treaty or registered under Articl102 of theU.N. Charter.
Stnpped of the support of these treaties, the French thesis had no basis
whatsoever. So the Annex 1list would appear to have been produced at the last
minute in the hope that this would somehow cure the deficiency; and the Libyan
team remained blissfullyignorant ofwhat this was al1about.
(d) The Absence of the 1935 Treatv kom the Annex 1 List of
Actes Internationaux
3.69 The crux of Chad's contention that in 1955 Treaty Libya
renounced any claim based on the 1935 Treaty is that th1935 Treaty did not
appear on the Annex 1list. There is no evidence introduced by CM, however,
to show that Libya intended to renounce the Treaty in this fashion. The French
travaux bearing on the point consist only of Ambassador Dejean's report o28
July1955~~ and the unsigned, undated 'Tableau comparatif', which States:
"Enumération limitative des actes internationaux définissant les
frontières, excluant les accords Laval-Mussolini de 1935 (par
conséqwt renonciation de la Libye à toute prétention su? le
Tibesti) ."
This may have been the French Government's view of the effect of leaving the
1935 Treaty off the Annex1 list, and it certainly is another demonstration of how
the A.E.F. strategy of "prudence" in discussing the southern boundary was
observed to the hilt. But the Annex 1 list was prepared by the French
Government; and no evidence has been produced to show that any of the
80 CM, p.136,para.119,
81 CM, Annex268.
82 CM, Annex269.agreements listed were discussed at au with Libya. The list did not make its
appearance until after the southern boundary question had been resolved to M.
Dejean's satisfaction by a general reference to "actes internationaux en
83
vigueur" .
3.70 The Libyan travaux covering the 28 July meeting record that
Ambassador Dejean brought up the subject of the 1935Treaty and asserted that
it had not been ratified by the French parliament and was thus "illegaland had no
value internationally". This was a rather misleading statement. The 1935Treaty
was approved byboth the French and the Italian parliaments by an overwhelming
majority, but the instruments of ratification of the two Governments were never
fonnally exchanged, as called for in the ~reaty~~. The 1935 Treaty and
companion Accords had a special relevance, as theM demonstrates in its heavy
reliance on the Treaty inChad's attempt to establish Italian recognition of and
acquiescence in the so-called 1899-1919line as Libya'ssouthern boundary. The
LM. on the other hand, demonstrates that the 1935 Treaty established the
absence of any conventional southern boundary of Libya, and that France
acknowledged that fact, notably in the Exposédes motifs accompanying the draft
law submitted to the French parliament and ovenvhelmingly enactedg5. So M.
Dejean wrongly descnbed the Treaty to Mr. Ben Halim as "of no value
internationally", even from the French (and now Chad's) point ofview.
3.71 Libya'srecord of the 28 July meeting indicates that Mr. Ben
Halim proposed to defer the question of boundaries until the Libyan side had had
time to study the subject. The remainder of the discussion concerned the western
boundary and, particularly, the Ghat-Toummo sector. The attempts to
overcome the absence of any express renunciation by Libya of the 1935 Treaty
with two arguments: (i) that the Annex 1list had been "dresséeavec soin" and,
thus, no accidental omission by Libya could have been possible; and (ii) that
Libya looked into the status of the 1935 Treaty at the end of the January 1955
83 See,para.3.6g,a., above.
84 Sec n tbisregarCM. pp. 123-124,pa85,quotingfroma staternenM.yDronneto
the Conseilde la Rbpubliqueon 16 March1950,whichcontainsthe entirely incorrect
remarkthat the 1935Treawas neverapproveüby the FrenchParliamenBoth the
French and ItalParliarnent, ylarge majorities,authorizedits ratifirationand the
exchangeof instruments.SLM,para.5.343,gseq.
85 &, LM.para.5.336ogg.sessions in parisg6. The first argument has already been dealt with and shown to
be incorrectg7. The second has a grain of truth in it.
3.72 The Libyan Minister of Finance is believed to have made a
trip to Rome in January 1955,to have asked for information concerning the 1935
Treaty and to have received certain information from the Italian Government
concerning the Treaty, as theM statesgg. The evidence theCM offers to this
effect is a short dispatch from M. Dumarçay to Paris, which appearsto have been
based on information obtained from the Italian Embassy in Tripoli, acting as the
go-between in the transmission of the information fromorne^^ A.ccording to
M. Dumarçay, the Libyan Government was furnished with a photocopy of the
1935accords andthe Italian Embassy was instructed to:
"..préciser que par suite de l'absence d'échangede ratifications
ceux-cin'étaientjamais entrésen vigueur."
Libya has no reason to question this report. But of course this was onlyscratching
the surface of theatter. If the fact that instruments of ratification had not been
exchanged definitively settled the question, the would not have made so
much of the argument that the absence of the 1935Treaty from the Annex 1list
was, as it contends, an explicit renunciation by Libya of the 1935 Treaty.
Certainly one of the questions the Court willwant to consider in this case is what
significance this Treaty should be given in attnbuting temtory between the two
Parties. For in the context of aeneral settlement of their Afncan problems, it
was an agreement by the two States directly concerned astothe course of Libya's
southem boundary, the agreed boundary never acquiring the status of an
international conventional boundary for reasons entuely apart from the matter of
the boundary itself. This point isen up again in PaVI.
3.73 Inthe light of the above discussionbased onan examination
of the travaux andother evidence produced by Chad as wellas byLibyawith their
Memorials, the false note struck by this passage, setting oCM'se conclusions
regarding the 1955negotiations,s striking:
86 SeeCM, p.123,para.82.
87 Sec.ara.3.24,above.
88 SeeCM. p.123,para83.
89 See. M,Anna 258. "Elles [the Libyan authorities] ont admis non seulement que les
accords Laval-Mussolini n'avaient pas d'application, mais encore
9.. la frontière entre la Libye et l'Afrique équatoriale française
etait bien déterminée parles actes internationaux en vigue%!vant
1935,c'estàdire des [sic]conventions 1899,1902 et1919 .
The evidence shows nothing of the kind. The Libyan negotiators, by the formula
adopted in Article3of the 1955Treaty, had achieved their purpose: to postpone
the issue until they could examine these various agreements, including 1935
Treaty. If an agreement appeared on the list, this did not mean it was en vigueur.
By the same token, agreements not appearing on the list, which were en vigueur,
might prove to be relevant-for the list was not "limitative" (exhaustive), as has
been shown above91.
SWTION~. Cnntem~nrarv Statements of the Libvan and French
Governments: the Parliamentarv Debates
3.74 The CM sets forth the widely-quoted statement of Prime
Minister Ben Halim made not long after th1955 Treaty was signedg2; but it fails
to mention either its source or the attention it was given during the ratification
debates in the French parliament. These may be found in themg3 . hat Mr.
Ben Halim said (on 14 October 1955),as reported by Agence France-Presse, was
this:
"Le traité franco-libyen est un accord d'évacuationpur et simple
qui n'engage en rien la Libye."
In his analysis of the texts of the accords submitted to the French Parliament
during these debates, M. Jacques Soustelle questioned whether the Treaty had
not already been violated, even before it took effectinthe light of Mr. Ben
Halim's tat te ment^^.
90 CM. p. 139,para.127.
91 See,para.3.13,S., above.
92 SeeCM,p. 107,para.35.
93 M. para.5.494,andExhibit71.
94 Ibid. M. Soustewas Govemor-Generalof Algeria and a leadingcritic of the 1955
Gaty atthetime. 3.75 The attempts to explain away this statement by
suggesting that it was directed toward the French Government's proposais,
rejected by Libya, regarding the reactivation of the French bases in Fezzan in
time of crisis. But that was not the interpretation put on it in 1956 by M.
Soustelle,whose interest in the matter was especiallykeen since he was Governor
General of Algeria at the time the 1955Treaty was signed. It would be difficult
indeed to square Mr. Ben Halim's statement with the Chadian thesis that the
1955 Treaty fiied Libya's southern boundary. As the Libyan travaux bring out,
the Libyan delegation was notprepared to reach agreement on this matter and, as
a result, agreed to the Article 3 formula, which postponed the delimitation,
establishing only the criteria to govern it: "actes internationaux en vigueur" at the
time Libyabecame an independent State.
3.76 The CM refers to and annexes the Vives réactions"of M.
Soustelle to the signed 1955 Treaty in a dispatch allegedly sent by him to the
Minister of Foreign Affairs on20 August 1955 -a document that is not a copy of
the original, but a retyped version of extracts taken from it95. As to the
provisions of Article 3 of the Treaty, the French Minister of the Interior followed
the same line as M. Soustelle, expressing this opinion:
"En ce qui concerne la frontière,je note que la limite n'a étédéfinie
que pour la partie Ghât-Toumo et que l'échangede lettresg%mble
exclure que In-Ezzane soit comprise dans le territoire libyen"
3.77 The discussion of the 1955 Treaty during the ratification
debates in the French parliament is treated very briefly in CM, in contrast to
the quite full discussion in Libya's~emorial~~. These debates are a prime source
to consult for the French Government's views at the time as to the meaning and
effect of Article.
3.78 The main burden of setting forth the French Government's
views on the Treaty was shouldered by M. Maurice Faure, Minister of Foreign
Affairs. In his several statements, the boundary withAlgeria was the matter given
principal attention. It will be recalled that after the 1955Treaty was signed a
serious doubt arose whether it would be ratified by France; indeed, the French
95
See ,M,p. 109,para.39Annex270.
96 -, Annex 273.
97 See,LM, paras5.49- 5.503.Government did not even present the instrument to the Assemblée Nationale
until13 November 1956,15months after signature. The taking effect of the 1955
Treaty -and hence the withdrawal of French troops from Fezzan by 30November
1956,as the Treatyrequired -was linked to reaching agreement on rectification of
Libya's boundary with Algeria, concerning which negotiations were then
underway. This was the result of the Isomi amendment adopted on 29November
1956,whichprovided that:
"Les instruments de ratification seront dé~oséslorsaue sera
intervenu I'accor fixant lafrontière entre fe lXoyaumê-unide
Libye et i'Algérie .:
LC-M 10A
3.79 The CM tries to divert attention from the linkage by France
of ratification of the 1955Treaty to rectification of the Algenan boundav by
asserting that the negotiations conceming the latter were instigated by Mr. Ben
Haiim and that they were brought about as a result of events that had
materialized after signature of the 1955Treaty. There is a modicum of truth in
-
98 Sec .M. para5.499.both points; but they do not alter the fact that the French Govemment exercised
what in Libyan eyes at the time was a form of blackmail. One éventthat had
occurred at the end of the year to make rectification of the Algerian boundary a
matter of top priority for the French was the confirmation that the Edjeléoil field
was a major commercial oil discovery (Map LC-M 10A) 99 . But a strong
possibility of this had been known for some time. Even more important for
France was the fact that the war with Algeria made it imperative to resolve the
boundary between Libya and Algeria in order to reduce the likelihood of border
incidents. On Libya's side there was the problem that it was not possible at the
time for Libya, or any other Arab country for that matter, to negotiate with
France over such a matter, given France's low status then in the Arab world,
made even worse bythe 1956Suez crisis.
3.80 In a dispatch to the Foreign Office of 30 October 1956,
Arnbassador Graham reported on a conversation with Mr. Ben Halim conceming
the serious situation caused by the failure of France to have ratified the 1955
~reatylOO. This conversation took place before the French Govemment had
placed the Treaty before the Parliament. In spite of French statements that they
would withdraw from Fezzan on 30 November 1956, recent movements of men
and military supplies by France seemed to belie these statements. Mr. Ben Halim
predicted armed clashes if the French failed to withdraw on the. Mr. Graham
reported that Mr. Ben Halim added the foliowing:
"Ben Halim continued that he believed that the French attitude
over the withdrawal of their troops was connected with the
delimitation of the border between the Fezzan and Aigeria, which
was about to begin. The French had hinted that ifthe Libyanswere
helpful over the frontier question they in their turn would make no
difficulties over the evacuation. But this would be submitting to
blackmail, and Libya held that the two questions were entirely
seParqfjl The frontier question must be dealt with on its
merits ."
99 TheEdjelkoilfielddiscoveisdiscussedintheLM. startingatpara.5.520.
100 LM, British Archives Annex, p 3.43. This isanother exampleof Mr. Graham's
meticulousreportingof suchconversationsto theForeignOffice.in LondItis very
strange,therefore,thatthisnorecordofa reportof theconversatiheallegedlyhad
withMr.BenHalimin 1955 wncerningAouwu, asreponedby hisFrenchwlleague M.
Dumarçay. See,paras.3.55-3.56,above.
101 LM,BritishArchiveAs nnex,p343. 3.81 To retum to the French ratification debates - with this
linkage in mind -the CM quotes from the French' Government's Exposé des
motifs accompanying the 1955 Treaty and includes a short extract from a
-
statement of Foreign Minister ~aure"~. The point Chad seeksto bring out isthe
alleged "renunciation"and "definitiveabandonment" by Libyaof the 1935Treaty.
Asidefrom the fact that there isnot a word inthe 1955Treatyabout renunciation
of the 1935Treaty, this emphasis is curious. For the agreed formula of Article 3
based on "actes internationaux en vigueur" in 1951 would seem to have dealt
satisfactorilywith the problem from the French standpoint: the 1935Treaty was
not "en vigueur" on that date. Perhaps the French Government in these
statements exaggerated the point for politicalpurp-to publicizethe rejection
of a line that the discredited Laval had agreed with Mussolini;and this might in
part have compensated for what many Frenchmen saw as an ignominious
withdrawal from Fezzan after the campaign of General Leclerc, in whichFrance
took so much pride. Nevertheless, the impression remains that the French
Govemment, without putting the details of the southern boundary on the
negotiating table, wanted to go one step further in getting nd of the 1935Treaty.
So this mayhave been an added reason whythe Annex 1listwas put together by
the French Government, in addition to trying to overcome the fact that the
Franco-Italian 1902and 1919Accordswere not "en vigueur"by placing them on
the listas iftheywere in force in 1951.
3.82 The -osé des motifsbrings out another point as well,for
it talked of "[clertains problèmes frontaliers nés de l'imprécisiondes textes
internat ion au M^"Fa^r^.emphasizedthe sarnepoint. Inhisstatement on 22
November 1956 to the Assemblée Nationale,he expressed the Govemment's
viewsas to the boundary questionin thisway:
fixation,nul ne l'ignore, particulièrement complexedanscette
région. Différents textes pouvaient, en effet, êtreinvoqués,qui
avaientplus ou moinsune valeurjuridique.
Le problème vient d'êtresimplifiéet mis au point. En ce qui
concerne la frontière Sud, tout d'abord, la Libye renonce se
prévaloirdes stipulations qui lui étaientfavorables de l'accord de
1M SeeCM,p. 124paras87and88.
103 CM,p.124,para87. 1935connu sous le nom d'accord Laval-Mussolini. Nos ts sur le
Tibesti sont, par conséquent,définitivementsanctionnés lwl."
3.83 Of course, this was a reflection of the familiarthesis of the
Quai d'Orsay: that if the cloud resulting from the 1935Treatywere removed the
boundaiy would revert to the so-called 1899-1919line. But M. Faure's statement
was not accurate: (i) it is a considerable exaggeration to Say that Libya
"renounced" reliance on the provisions of the 1935Treaty; and (ii) France's rights
over the Tibesti were not "sanctionnés":they were left to be resolved under the
criteria agreed in Article 3-"actes internationaux en vigueur" in 1951. What M.
Faure did not mention to the French Parliament -and surely he must have known
- was that several other agreements had, by the same line of reasoning, been
"renounced" under the Article 3 formula -including the Franco-Italian 1902and
1919Accords - since they were not "envigueur" in 1951.
3.84 During the last day of Parliamentary debates (29 November
1956),M. Faure made a considerably longer statementabout the boundaries with
~ib~a"'. He told a little stoiy to explain the hold-upinthe Algerian boundaiy
negotiations (which ultimately became the 1956 Agreement); it concemed the
fact that Libya was relying on a Swiss expert but that he had been unavailable
when the French team arrived in June 1956. It may be this reference that misled
Chad into claimingthat in the 1955negotiations Libyawas surrounded by experts,
including Swissadvisers - a completely incorrect assertion, as discussed earlier .
M. Faure then went on to say,in addressing the problem of boundaries, that -
"..il se présente sous un aspect éminemment complexe pour deux
raisons: uqfjf:ison géographique et une raison diplomatique ou
historique .
3.85 His full statement on this matter is set out in the Libyan
Memorial, so it will be largely paraphrased here or quoted in short excerpts 108 .
Much of what he said related to the Algerian frontier, which was the principal
104 LM. Exhibit71,p.5025. TheFrench emphasison Tibestiis onceagainnoteSec .ara.
1.16, sec^.bove.
105 See,LM, paras.5.50-5.502,andcitations set out there.
106 Sec,para.3.28above.
107 Exhibit77, p.2365.
108 See,LM. para.5.501.French preoccupation. He referred not only to the imprecision of the frontier
with Libya as a result of the geography of the region and also because of the
existingagreements:
"...cette imprécision est aggravée parce qu'au point de vue
historique et diplomatique on peut faire reférence à plusieurs
textes qui sont, sinon contradictoires, du moins successifs et
imprécis, ce qui ouvre évidemment toute grande la porte à un
contentieux et à un arbitrage international dont il est difficile de
dire àl'avancedans quel sens il se prononcerait."
He held out hopes, however, that the1955 Treaty would provide:
"...'abord un apaisement, ensuite un espoir."
He referred to an "apaisement" in respect tothe Ghat-Toummo sector, dealt with
in Annex 1,which made reference to three points demanded by France. Also, he
described as an "apaisement" the "abandon définitif"by Libya of th1935 Treaty,
which might otherwise have provided a basis for a claim in the Tibesti region.
The "espoir", he suggested, concerned the Algerian boundary, where he hoped
that French interests would prevail, particularly in respect to the Edjeléfield and
the airport at Maison-Rouge.
3.86 M. Faure's statements were not altogether clear. Most of
the time they were directed at the Algerian segment of the boundary. But his
admission that the vanous relevant agreements were contradictory, overlapping
and imprecise is significant, as is his use of the word "apaisement-hardly the
word to describe a definitive fixingof the southem boundary in France's favour.
3.87 There isno mention in the statements made on behalf of the
French Government during these debates that Article 3 of the 1955Treaty was an
implementation of G.A. Resolution 392(V) of 15 December 1950. It is to this
subject that the next section turns; for the asserts that the Treaty camed out
the delimitation called for bythe Resolution. SE~ION 4. General Assemblv Resolution 392N) and the1955 Treatv
3.88 In the conclusions to thCM that appear just before Chad's
Submissions, it is said that:
"Le Traité de 1955 avec la France était conforme à la Resolution
392(V) de l'Assembléegénérale,qui avait recommandé que toute
ligne frontalière incerta1'09.it réglée par négociation après
l'indépendancede la Libye .
It is to be noted that the paraphrase of Resolution 392(V) set out in this
conclusion is inexact for the Resolution did not contain the words "toute ligne
frontalière incertaine". The English text of the Resolution was as follows:
"That the portion of its boundary with French territory noteady
delimited bv 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 %pilingtheir agreement, to
be appointed bythe Secretary General ."
The word "delimited" in the Resolution had been carefully chosen, having been
substituted for "fixe-the word employed in the initial draft tabled by U.S. -
and the attendant debates in Committee show that "delimited" was used in
111
contrast to either "demarcated" or "rectified". This is fully set out in the.
The Resolution explicitly concerned only the portion of Libya's boundary with
French temtory not alreadv delimited bv international agreement.
3.89 The same assertion linking Resolution392(V) and Article 3
of the1955 Treatyappears a number of times in the CM. but what emerges from
this discussion in thCM is both contradictory and incorrect. For, as the &l
brings outil2 ,yvoting in favour of Resolution392(V), the French Government
conceded that east of Toummo there was no Libyan southern boundaiy with
French temtory, which of course is exactlywhat the French Governrnent told the
French Parliament in 1935 in the &osé des motifs accompanying the law
109 CM. p.375Conclusion1(ii).
110 LM, para.5.393andExhibit2. Emphasisadded.
111 SeeLM, paras.5.38-5.394.
112 LM, paras.5.386-5.394.subsequently enacted by the Parliament, by a resounding majority, to authorize
ratification of the 1935~reatyll~.
3.90 In Chapter 1of theCM. which is a sort of tour d'horizon of
the case, there appears this statement, followinga correct quotation of the text of
Resolution 392(V):
"Il ne fut pas nécessairede.recourir à cette procédure pour ce qui
est de la frontière méridionale de la Libye: des arrangements
internationaux la délimitant yfjtaient. Ceci est expressément
reconnu par le [1955Treaty... ."
In other words, according to Chad, only the boundWBy of Toummo was to be
"delimited" in accordance with Resolution92(V). None of that boundary lies
between Libya and Chad. So, in so far as the Libya-Chad boundary is concerned,
Chad contends in this part of theCM that no part of that boundary required
delimitation in accordance with the Resolution, since it had already been
delimited byinternational agreement.
3.91 The CM again quotes the text of the Resolution in III,
concluding this time the following (in sharp contradiction to what is asserted in
Chapter 1of theCM):
"C'estdonc un mandat spécifiquede délimitationdes frontières de
la Libye d'une part, des temtoires relevant de la souveraineté
française d'autre part, qui fut confié aux deux Hautes Parties
contractantes.La négociation du Traité qy51 a)ût 1955 avait
notamment pour objet de remplir ce mandat .
It should be noted that nowhere in the text of the Treaty itself, the Emosé des
motifs.or in the French parliamentary debates over ratificatio-what under
Article 31 of the 1969Vienna Convention on the Law of Treaties would be called
its "context-is any reference at al1made to Resolution 392(V); and Chad makes
no attempt to support this assertion except by repetition. And as noted in the
previous paragraph, Chad contends elsewhere in the that what it claimsto be
the Libya-Chad boundary was agreed inpursuance of the Resolution.
113 SecL.M,paras.5.3-5.338.
114 CM p.p.30-31,para.63.
115 CM .. 115,para.55.LIBYA 3.92 The subject comes up again when the CM discusses the
debates in the U.N. in 1950 concerning Libya's boundaries, duhg which the
French delegate clarified earlier French statements made as to Libya's southern
boundary116. The thrust of Chad's argument is that the Study of the U.N.
Secretariat- which contained the mistake made by the French Government -had
shown its hesitation as to the southern boundary by the map attached to the
Study, on which the southern boundary was indicated "en pointillé" (Mao LC-M
Libya's southev boundary appears there as a dashed line, not
conforming to the 1919line, a line generally followed by subsequent U.N. maps
until at least 1958. There are three question marks placed along this line118.
Chad's contention is that, after France corrected its error during the U.N.
debates, Libya was on notice as to the French position; and Libyawas, thus, under
an obligation to contest that position during the 1955negotiations, which it never
did.
3.93 As the explains in some detail, the argument goes the
other way -the French Government by its actions formally conceded that there
was no conventional boundary east of Toummo and that it remained to be
delimited1l9. For purposes of the present discussion,what M. Naudy, the French
representative, said at the time was simply that the 1935Treaty had never corne
into force and that, therefore, reference should be made to the agreements of
1899 - 1902 - 1919(both the 8 September and 12September 1919agreements) -
and the 1924 declaration and protocol. The paraphrased transcript of what he
said in conclusion is this:
'The matter was therefore govemed at present by al1the texts he
had just quoted."
This was roughly what was to become the Article 3 formula of the 1955Treaty,
except that M. Naudy did not overlook the two 1924 agreements that Annex 1
subsequently omitted. There was nothing in this statement ofM. Naudy for Libya
to take issue with in the subsequent 1955negotiations. The further point is that
116 See,CM,pp.130-132,paras.9-105.
117 Thismap wasreproducedin the as Map No.87 (referretotherein para.5.377);it
alsoappearsinthe atp. 129.
118 See, CM,p. 132,para.105.
119 See,LM.paras.5.336-5.338.the statement concerned only the southem boundary of Libya east of Toummo
for it was as to that boundary béwe had been made. Thus, in casting its vote
in favour of Resolution 392(V), a vote that immediately followed M. Naudy's
clarification, it was clear that Francehad in mind thesouthem frontier.
3.94 Chad has introduced four documents of great interest in this
regard. Regrettably, substantial portions of one, in the copy annexed, are
illegible120. The first document, .dated 11 February 1950, contains instructions
from the Quai d'Orsay as to how to clarifythe earlier French mis-statements as to
this frontier12'; and M. Naudy followed them to the letter. At the end of this
dispatch (which was addressed to Ambassador Chauve1who headed the French
U.N. Delegation), there is a paragraph to the effect that an "interpretationUthat
had been communicated over the phone from Paris was to be confirmed in
writing the same day. Such a document has not been fumished with a.e
3.95 The second document is a note of 16 April 1950 prepared
within the French Ministry of Foreign Affairs for the guidance of the French
delegation to theu.N.'~~. Its subject was entitle"La question des frontières
des anciennes colonies italiennes". Much of the note concerns the role of the
U.N. in regard to fixingthe frontiers of the former Italian colonjes. Asmentioned
in theLM, France had taken a broad view of the U.N.'s r~le'~~.As this note
brings out, the French view was that the U.N. had power both to delimit and to
rectifythese boundaries. The note goes on to saythe following:
"Par conséquent, les traités afférents à ces frontières sont
suspendus dans leurs effets tant que la question n'aura pas été
réglée conformémentau traitéde paix, aux possibilitésqu'il ouvre
et à la procédure qu'ilprévoit, c'est-à-dire,actuellement, selon les
paragraphes 2 et3 de1 annexe XI à ce traité. Il suit de là que les
traites de frontières dont il s'agitexàla veille de Bf rre ne
sont plus àl'heure actuelle que provisoirement en vigue."
120 CM,Annex 222.
121 CM.Annex 220.
122 SeeCM.Annex 221.
123 SeeLM. para.5.376andfn438.Thissubjecisdiscussedat lengthbyPelt, A:
Indevendenceandthe UnitedNations,New Haven andLondon,Yale UnivePress,
1970,p.417ett
124 CM.Annex221.This position of the French Government may explain the rather vague statement
of M. Naudy set out earlier that the matter was governed "at present" by al1the
textshe had referred to.
3.96 This important note of instructions for the French
delegation goes on to say that since these treaties "provisoirement en vigueur"
might be confirmed or modified in application of Annex XI of the 1947Peace
Treaty,it must be admitted that:
"...les frontières en cause ne sont pas 'déjà fixées par des
arrangements internationaux' au sens de la résolution289 -C- et
qu'enconséquencela Commissionintérimaireest compétente pour
examiner la procéduredenature àmettre fin àcette difficulté..."
3.97 The note proceeds ta examine each frontier in question:
those withTunisia,withAlgena and with the A.E.F. (east of Toummo). Asto the
latter, the situation from the French standpoint was described in terms that were
almost preciselythose used by M. Naudy in December 1950. It then turned to
boundaries that France wished to modify - of relevance here, the Algerian
boundary in the area of Ghat and ~erdèles'~~(Map LC-M 10A referred to at
paragraph 3.78 above). The note added "pour votre information strictement
personnelle" that the French Government had, "pour le moment au moins",
renounced raising anyquestion asto the attachment of Ghadamès to Algeria or
Tunisia.
3.98 The third document, much of which is totally illegible, is
identified by the as instructions from the Quai d'Orsayto the French U.N.
delegation dated 16June 1950'~~. What can be made out from this document is
that, unlike Egypt, the French Government did not want formaiiy to present its
temtorial demands to the U.N. It wished to make its boundary requests appear
as if they were directed at resolvingfactual issuesrather than as claimsto revise
the boundary.
3.99 The last document in this group produced by Chad is the
report of Ambassador Chauve1(at the U.N. mission) to Paris of 14 December
125 As to th'sregion,the noteindicatesthat the localpeoplesdidnotwishto remainwith
Fezzanandwere expectedtomaketheiraspirationsknowntotheU.N.Commissioner.
126 See,CM, Annex222.1950,the day before Resolution 392(V) was ad~~ted'~~. M. Chauvel mentions
that the draft to be voted on was based on the earlier U.S. resol'utionbut with
certain modifications offeredby~rance'~~. Conceming the Resolution's text,he
went on to observethat:
"Le caractère très vague de ces formules, dont aucune
interprétationclaire n'aété dessein fournie, apparait de nature à
nous donn fZ9.à l'avenir, le cas échéant, certaines libertésde
manoeuvre .
M. Chauvel reported that France's representative at the Interim Committee had
saidthat:
"..il ne voyait pas d'inconvénientmajeur à voter le projet de
résolutionaméricain."
Having said this, France's spokesman (M. Naudy) was reported to have drawn
attention to France's interest in rectifving the boundary in the Ghat-Serdèles
region, which France reserved its rights to resolve in direct negotiations with
Libya,and to have alsorecalled that the 1935Treaty fixingthe boundary between
Toummo and Sudanhad never entered into force:
"..et qu'en conséquencecette frontière était actuellementcelle
existantantérieurementauxdits accords."
3.100 These interesting documents from the French diplomatic
filesbring out severalpoints conceming Resolution392(V):
- Unlike Egypt, the French Govemment did want to put
itscardson the table before thU.N.;
-
The "actes internationaux" referred to by M. Naudy in his
clanfymgstatementwere at the time (1950)regarded bythe
French Government as only provisionally "en vigueur";
France had more ambitious objectives, such as annexing
127 See,CM.Annex223.
128
inthiregard,Pel9, a, p.420.(A wpyof thispageiattachedas LC-M
8.)
129 CM. Annex223. Fezzan, and did not want to be restncted by any definitive
boundary;
- France regarded the Resolution as harmless and sufficiently
flexibleto allowit the leeway itwanted;
- The only negotiations France's representative referred to at
the U.N. concemed rectifications of the boundary in the
Ghat-Serdèles region (subsequently dealt with by Annex 1),
and he did not regard this as falling under Resolution
392(V), but rather to be a matter for direct negotiations with
a future Libyan ~overnmentl~~.
3.101 The CM ignores this evidence, which Chad itself has
introduced, as well as the plain meaning of Resolution 392(V) and the
implications to be drawn from France's having voted for it. For the Resolution
did not relate to the western boundary of Libya. There France wanted boundary
rectifications, which fell outside the scope of Resolution 392(V) as the travaux
show and as the French Government acknowledged before the U.N. By voting
for Resolution 392(V), France conceded that the part of the southern boundary
that had not already been delimited was to be delimited by negotiations with
130 The CM, at p. 120, para. 72, tries to dodge the fact that the provisions of Annex 1
concerning the Ghat-Toummo sector related to a rectification of the boundary. It claims
that it wasan "interpretation authentique" of the 12 September 1919Accord. But, of
course, Libyaas not a party to that Accord and could not have interpreted it.
Moreover,asis demonstratintheLM. para. 5.48g,a., Annex 1in fact changed the
boundary. The gives no suppon for its assenion"Laaprécision [of AnnI]
marque bien la volonté de delimitetnon d'ajustement ou de rectification". The
trava reaxing to Resolution 392(V)demonstrate that France considered the changesin
that sector to be rectifications outside the scope of the Resolution. Finally, this Accord
(12 September 1919wasno longer "en vigueur"for it had not ben notified by France
under the 1947Peace Treaty.Libya when it achieved its independence131. It has been demonstrated above,
and in considerable detail in the LJ4, that Libya'ssouthern boundary was never
the subject of any negotiations between Libya and France, for the French
Government did not want to put the issue of that boundary on the negotiating
table. As a result, the Article 3formula was adopted. It servedFrance's purpose,
for it avoided any direct discussion with Libya about the southern boundary. It
served Libya's purpose, because it postponed dealing with the issue whose
resolution was rejected by Mr. Ben Halim as a condition of the Treaty's entering
into force. He regarded the Treaty as concerning, purely and simply, the
evacuation of Fezzan bythe ~renchl~~.
3.102 It was suggested earlier in this Section that Chad's discussion
of the connection between Resolution 392(V) and the 1955 Treaty is
contradictory and incorrect133. This can be demonstrated, drawing on the above
analysis. The CM repeatedly asserts that a principal object of the Treaty was to
cany out the mandate of Resolution 392(V); but then it also says it was not
necessary to resort to these procedures (to negotiate to delimit the boundary) in
respect to the southern boundary because the prior international arrangements
had already accomplished such a delimitati~nl~~. Yet it is apparent that it was
only the southern boundary with which the Resolution could have been
concerned: the western boundary had already been delimited and was to be
rectified, which theU.N. travaux relating to the Resolution clearly excluded from
131 Such an interpretation of Resolution 392(V) was confirmed in a statement of the
"rapporteur pour avis" (M. Schneider) on 26 May 1955during the debates before the
Assembl6e de l'Union Française concerning France's position in Fezzan and the
negotiations with Libyaabout to resInrefemng to the Briti-Libyanmanoeuvres
ofJuly 1955in the area ofsouthem qenaicM. Schneidersaid:
"Il semble que ces manifestations d'intentions confirment la manoeuvre
diplomatique ayant conduatla r&olution no392(V) des Nations Unies, citée
par le rapport de votre commission des relations extkrieures, dont il ne vous
6chapperapas que la rkduction viseimplicitemenA remettre en causenotre
frontiere entre l'Afrique équatoriale fet la LibyAhauteur du Borkou-
Ennedi -Tibesti.a Exhibit72,p. 567.)
M. Schneider (formerlyColonel Schneidwasone of the most informed Frenchmen on
the subject. This statement is directly contrary to the assertiCM asnIo the
purpose ofthe Resolution.
132 S-, para. 3.74,m., above.
133 S-, para. 3.89,above.
134 S-, para. 3.90,above.its scope. Chad's evidence reveals that the French Government in 1950
considered these international arrangements to be only "provkoirement en
vigueur", and sought to modiQ them, but to do somore subtly than the Egyptians,
who had set out before the U.N. their claimsin detail.
3.103 Nevertheless, theCM tries to make Libya the scapegoat.In
its Chapter V, the CM characterizes Libya's silence and its failure to contest
France's declarations to the U.N. concerning the southern boundary as
constituting an esto~~el,including even the silence of the Libyan authorities while
Libyawas on itswayto becoming i~~de~endentl~~.The asserts that:
"L'absence d'action en ce sens peut etre considéréecomme la
preuve d'une absence de désaccord avec la définition et
l'interprétationfrançaises des textes applicables."
When one examines what M. Naudy said to the U.N. in order to clarify France's
position in theight of the earlier Frenbévue i.isapparent that he said nothing
to take exception t0136. Even if he had, immediately after he made his statement
Resolution 392(V) was adopted, supported by France. It called upon France to
negotiate with Libya, after it had achieved independence, to delimit its yet
undelimited boundanes. If the French Government had believed that the
southern boundary had already been delimited, it would have opposed this
Resolution. Once the Resolution had been approved, there was no cause for
Libya to object to any French statements made prior thereto. The matter had
been resolved by the Resolution; the boundary was to be delimited by
negotiations between France and Libya, after it gained its independence. The
1955 negotiations were not such negotiations, for neither Party saw them as
negotiations about the deiimitation of the southern boundary. For France, this
was precisely the topic to be avoided; for Libya,the topic was premature.
135 SeeCM, pp.237-238paras.113-114.
136 Who was thereto objectat the time, inanyevent?wasbnotyetindependent;Italy
wasnotyet a memberof thU.N. andhadno specialinterestthisboundaryafterits
renunciationofits colonial intenfricain the1947PeaceTreaty. Smo~ 5. Aftermathofthe Signingof the 1955Treaty
3.104 The develops several lines of argument, concerning the
intention of the parties as expressed in Article 3 of the 1955Treaty, built around
Libya'sconduct followingthe signingof the 1955Treaty:
- First, that Libya indicated its satisfaction over the southern
-
boundaiy allegedly delimited by Article 3 by failingto object
to it or invoking the procedures set out in Resolution 392(V)
for resolving disputes;
- Second, that the contrast between the handling of the
southern boundary in Article 3 and the Ghat-Toummo
sector in Annex 1revealed Libya'ssatisfaction with a simple
reference toa line rather than a more precise delimitation;
and
-
m, that had Libya not been satisfied with the southem
boundaiy claimed to have emerged from Article 3, it would
have raised the question in the subsequent 1956negotiations
to rectify the boundary with Algeria.
Each of these arguments willbe considered in turn.
3.105 The fir artument has two components: (i) Libya's failure
during the delimitation negotiations to express its dissatisfactionwith the southern
boundaiy claimed to have resulted from Article 3; and (ii) its failure to have
invoked the disputes procedures of the Resolution. The second point is
expressed thiswayin theCM:
"En évitant de recourir à une telle procédure, le gouvernement
libyen marquait définitivement sonaccord quant aux résultatsde la
procédure de 14$iimitation prévue par l'Assembléegénérale des
Nations Unies ."
Both components assume that the southern boundary was established in Article 3
as a result of delimitation negotiations. This was clearly not so: there were no
137 CM.p.138,para123.such negotiations; and elsewhere CMe so admits, asserting that they were not
138
necessary .
3.106 The second argument, based on the contrast between the
handling of the Ghat-Toummo sector (dealt with specificallyin Annex 1)and the
southem sector (dealt with by reference only to "actes intemationaux en
vigueur"),s expressed in these words ia:the
"En d'autres termes, les Parties considèrèreni [sic]comme
suffisante la délimitation telle qu'elle est prévue par les textes
internationaux de référence sau à où elles estimèrent
indispensable d'ajouter des précisio."
Chad has made no attempt in the a to prove that the parties considered
"comme suffisante" the "delimitation" of the southem boundary, and the travaux
show quite the reverse. France emphatically did not want to discuss the southem
boundary other than by general reference to certain treaties "en vigueur" in 1951.
This was quite satisfactory to Libya, whose negotiators were not prepared at the
time to take up such a complex question and insisted that it be postponed until
later. Thus, there were no boundary negotiations and no delimitations of any
boundary east of Toummo. However, the Ghat-Toummo sector was a different
matter. It involved a rectification of the boundary, which France insisted on as a
condition of the evacuation of Fez-just as France was subsequently to insist
on rectification of the Algenan boundary between Ghadamès and Ghat. It was
the rectification of this sector, by picking three points through which the boundary
should pass, that was the sole subject of boundary negotiations during the July-
August 1955 sessions leading to the signing of the 1955 TrIntaddition to
France's wish to rectiv this boundary between Ghat andToummo, the reference
in Annex 1 to three points through which the boundary should pass helped to
resolve France'sdilemma resulting from the fact that the 1919 Accord (12
September) was no longer "en vigueur".
3.107 The thir argument relates to the 1956 negotiations to
rectify the boundary with Algeria between Ghadamès and Ghat, resulting
what Chad euphemistically calls "la délimitation complémentaire",and which the
138 a. Fixa3.90above.
139 a, p.17 ,ara.0.-M also describes as conceming "précisions"rather than rectification ^tis^^.
stated this way:
"Au surplus, la France suscita la réouverture degociations141en
vue de fixerplus précisémentla frontière entre l'Algérieetla Libye.
Celle-ci n'en profita nullement pour provoquer parallèlement de
nouvelles négociations sur sa frontiere méridionale, ce qu'elle
n'aurait pas manqué de faire si elle avait no un doute sur la
validitédu tracéconfirmépar leTraité de 19551% ."
Both the basic premise of this third argument and the factual assumption
underlyingit are incorrect.
3.108 Libya would have had no reason to suggest at that time that
"new negotiations" be opened as to its southem boundary. It considered that
there had not yet been any such negotiations- they had yet to take place on the
basis of the Article 3 formula. So if Libya did not request a reopening of
negotiations it was no indication of its satisfaction with the southem bounda-y
there was no agreed southem boundary in Libya'sview; and its silence certainly
acted as no preclusion to raise the matter later.
3.109 But why did not Libya press France for negotiations on the
southem boundary? The answer is two-fold: (i) Libya a raise the question of
the southern boundary during the 1956negotiations andFrance refused to discuss
it; and (ii) the general situation at the time made it impossible for Libya to
consider taking up the delimitation of its southem boundary with France. These
twopoints willnowbe discussed.
3.110 The record Libya has of the 1956 negotiations establishes
that at the opening meeting between the Libyan and French negotiating teams on
17November 1956,the Swissexpert advising~ib~a~~s uggested -
140 Se,CM.pp.118-119,paras.64and67.
141 Thisadmission-thatFrancewasthe instigaof the negotiatito rectifytheAlgerian
boundary- contrats with the repeated assertion inthatit wasMr.Ben Halim
whorequestedtheopeningofthesediscussionSec orexample,CM,p.117,para.62.
142 CM, p.33,para.71s-,also,p.138para.125.
143 % para.3.28above,whereit is explainedthatit wasduringthe 1956,not the 1955,
negotiationsthatLibya assistedbyaSwissexpert. "..that the two sides began with a general review of the whole
frontier, to i lude the agreements and treaties to be resorted to in
this regard8t..
Libya'srecord of the meeting indicates that the French replywas the following:
"But the head of the French delegation expressed the view of his
Government that study should be confined only to the frontier
between Gadamès and Ghat, or between Ghat and Gadamès. He
supported this view by thefact that some other frontier areas had
been ironed out in the past under international agreements
concluded between France and the States who governed Libya, like
Turkey and Italy, such as the 1910 and 1919 agreements
agreement concluded with the Libyan Government in 1955 1%:. the
The followingexchange then took place:
"But the specialist replied that to facilitate everybody's task we
should first make a general review of the frontier as a whole,
followedby a discussionof the Ghat-Gadamès issue aftenvards.
The head of the French delegation repeated his opinion that
discussion should be confined to the area between Gadamès and
Ghat, concentrating al1his concern upon this.
The head of the Libyan side [said]that there had to be an exchange
ofviews,and that we should review the frontier as a whole."
3.111 The negotiations resumed on 20 November 1956. The
followingentxyappears in the Libyan record of that day:
"The head of the French delegation replied that the members of
the delegation had come speciîïcallyto discussthe frontier between
Gadamès and Ghat. The delegation was not authorised to discuss
the rest of the frontiMr. Omar Al-Barouni made the resewation
Ghat sector; however, he accepted the French delegation'sadamès-
proposais on the basis that the Libyan delegation be given
adequate time to studythem along with the Minister."
3.112 From this account, it is apparent that there is no factual
foundation for the thir argument of Chad. Libya attempted to open up
discussion of the entire fronti-ron the south as weil as on the West -and was
144 The pertinent pagesof Libya'sunilateralrecordof the 1956negotiations areannexed
heretos LC-M9,togetherwithEnglishtranslation.
145 The following commentpearswritteninonthesideofthistranslatedexcerpt:"perhaps
duetoshortnessoftime;anyother explanation?".rebuffed by France. There is another point to be made here. An examination of
the record of these 1956negotiations shows the striking difference'between them
and the 1955 sessions. In 1956, the French produced maps and detailed
geographical points were discussed, although they only concemed Libya'swestern
boundary; in 1955,the French showed no interest in any detailed examination of
the southem boundaq, and they produced no maps or copies of the agreements
supposedly "envigueur"in 1951.
3.113 It was mentioned in paragraph 3.109 above that there was a
two-fold answer to ththi rrdument; the second part of the answer concems
whythe situation prevailing after 1955made it impossible for Libya andFrance to
contemplate negotiating the delimitation of the southern boundary. There are a
number of reasons why France and Libya never sat down to negotiate the
delimitation of Libya'ssouthern boundaFir snt.the very end of 1956,it was
not at al1certain that France would ratify the 1955Treaty. Second, as just seen
above, when Libya brought up the matter in 1956it was quickly rebuffed by the
French: they did not want to talk about that sector of the boum.ary.the
Suez crisishad erupted in 1956,making France's relationship with theArab world
even worse than it already was, and making it virtually impossible for Libya to
negotiate on anysuch matter with France in the light of Arab public opinion.
_Fourth,he war between France and Algeria had just started (in 1954),and until
it ended in 1962 the atmosphere was anything but conducive to any further
negotiations between Libya and France. The situationwas made even more tense
with Libya's recognition of the F.L.N., thelgerian "Front de Libération
Nationale".Fift fhrthe next few years after the 1956Agreement there were
serious incidents along the Algerian frontierinnthe Ghat-Toumrno sector
between Libya and ~rancel~~. The southern frontier was hardly on the mind of
either Govemment, with so many other problerns to resolve. Thus, Chad had
become an independent State (in 1960) before conditions were such that Libya
and France could fruitfuiiy have sat down to fulfil the mandate of Resolution
392(V). It is apparent that the French Govemment was content to let things
stand as they were. This was yet another demonstration of the French strategy
not to raise the southern boundary issue but to hope that the solution it sought
would gradually evolvein the course of time.
146 LC-M 10 heretocontainsa numberof documentsdescribingthese incidents,
largelyomtheBritishviewpoint.CHAPTERII. THEINVALIDITYOF CJïAD'SFIRSTTHEORYUNDER
ARTICLE3
3.114 There are two main components to the first theory, which is
summarized above at paragraph 3.01:(i) that Artic3eof the 1955 Treaty itself
determined with precision the boundas, line between Libya and Chad; and (ii)
that it did so by to the line resulting from the "actes internationaux" listed
in Annex 1 of the Treaty.
3.115 In the previous Chapter the provisions of Article 3 and
Annex 1have been examined, and the travaux already extensively covered in the
LM have been reviewed again in the light of what the has had to say on the
-
subject. From this examination, it can be seen straight off that the first theory,
which depends on the proposition that Article 3 actually determined or fixed the
boundary with precision, is refuted by the text of Ar3iitself. Asalready seen
above, the action contemplated to be taken by Libya and France under Articl3
was not to decide or fixa boundary but to recoenize the boundary situation as it
existed at the moment of Libya'sindependence. It set the criteria for determining
that situation: the boundanes were to be those resulting ("celles qui résultent")
from the "actes internationaux en vigueur" on the day Libya became an
independent State, thats on24 December 1951. The delimitation formula was to
be a strict application ofpossidetisM.
3.116 There were several frontiers that fell within the scope of
Article3. Libya's boundary with Tunisia had been fixed by Treaty i1910 and
subsequently demarcated. Similarly,the Franco-Italian Accord of12 September
1919 had delimited the Algerian boundary from Ghadamès southward. The
boundary line there went only as far as Toummo. France sought to rectify this
boundaq as it informed the U.N. in1949. It was a boundary of a far higher order
of importance for France, for Algeria was then part of metropolitan France; so it
concemed a boundaiy with France itself, not just with its possessions or colonies.
East of Toummo, a third situation prevailed in December 1951:there was no
agreed boundary at all. Two attempts to delimit this part of Libya'sfrontiers inthe past had fai~ed'~~;and one had succeeded, only tobe aborted for reasons
148
havingnothing to do with the boundary agreement reached .
3.117 The choice of words in Article 3 ("recognize") was well
suited to these different boundary situations with which Libya and France were
faced. The 1910Libya-Tunisia boundary hadbeen fixed by treaty and that treaty
was "envigueur"in December 1951. The Algerian sector of Libya'sboundary had
also been fixedby treaty, in 1919,but it was a boundary France wished to modi£y.
The parties would also have had to determine whether this 1919Accord was "en
vigueur". According to the CM, that Accord was not then in force, for Francehad
intentionally failed to notify it to Italy under the terms of Article 44 of the 1947
Italian Peace Treaty.
3.118 There is no indication in any travaux Libya is aware of that
the negotiators in 1955discussed the fact that the 1919Accord between France
and Italy had been allowed to lapse; the only treaty mentioned by the French as
not being "en vigueur" was the 1935Treaty. However, it did not matter much to
the French because, between Ghadamès and Ghat, the French Government
wanted to rectify the boundary - and this was accomplished by the 1956
Agreement. The 1919 boundary between Ghat and Toummo wasalso not
satisfactory to France; so Annex 1 specifically designated three points through
which the boundary should pass. As the explained, this modified that sector
of the boundary. But this provision in Annex 1 had another effect as well; it
rendered it unimportant whether the 1919 Accord was "en vigueur" for it
accomplished a sufficientlyprecise indication of where the boundary should pass;
and it provided for its demarcation by a boundary commission. Thus, for this
piece of the boundary the 1955 Treaty itself did indeed accomplish the
delimitation -not because of the Article 3 formula, however, but via the specific
indication of the course the line should take set out in Annex,in rectification of
the 1919boundary.
3.119 Asto Libya'ssouthem frontier, the French negotiators had
initially approached this question with confidence. If Libya would agree to the
147 In 1911, the delimitation negotiations scheo take place behveen the Ottoman
EmpireandFrancewerecancelledin thewakeof theTreatyof Ouchy;WorldWar1puta
haltto the negotiations scheto take place behveenItalyand Francestartingin mid-
1914.
148 Thiswas the 1935Treaty.general formula of Article 3, then the French had achieved their aim for, at least
until early August 1955,they had faith in their thesis that a conventionalboundary
did indeed emerge from internationalagreements in force in December 1951,and
that this formula would exclude the 1935 Treaty line since ratifications of the
Treaty had not been exchanged and in 1938 the Italian Government had
announced its intention not to do so. This was essentially what is now Chad's
second theory, minus the ingredient added in theCM based on claimed French
effectivités.
3.120 Under Chad's first theory, theCM contends that Article 3
concerned not the provisions of the "actes internationaux en vigueur" in 1951but
rather a precise line. No words of Article support such an argument; and it is
destroyed by the travaux. It is beyond belief that Libya would have agreed to a
line when it did not know where that line was located and when France did not
wish to discuss this sort of detail and, during the negotiations, failed even to
produce a map on which the line appeared.
3.121 In January 1955, as Chad's own evidence shows149, the
parties had agreed to abide by the general provisions of these texts ("s'en tenir
aux sti~ulations généralesdes textes internationaux en vigueuà la date de la
créationde 1'Etatlibyen"). That hardly was a reference just t&.a The same
evidence reveals thain August 1955"[]lerèglement de cette question est précisé
par l'article 3 duTraité et par son AnneI"-obviouslya reference to the Annex
1 list that suddenly was added to the French draft of Annex 1 in August, just
before final agreement; but there was no disavowal of the general principle of
abiding by the "stipulations générales"of the agreements listed. As the
contemporaneous Foreign Office records confirm, the chief French negotiator,
Arnbassador Dejean, felt he had the southern boundary problem wrapped up at
the end of July-before the appearance of the Annex 1list. This is what he told
his British colleagues. Thus, he had exhibited full confidence, before the Annex 1
list was produced, that when the parties sat down to examine the provisions of
these texts, an agreed boundary would emerge for the southern sector. He was
evidently following the advice of the Governor General of the A.E.F.: to discuss
things in general terms and not to broach any specificlines or to cal1into question
the effect ofhese agreements.
149 CM. Annex 269.Emphasisadded. 3.122 Adding the Annex 1list to th1955 Treaty did not suddenly
insert a reference to & rather than to the "stipulations générales"of the listed
agreements. It was also not an agreement that they were "envigueur" if they were
not. A plausible reason why the list appeared at the last minute might be that
Foreign Minister Ben Halim had tumed to Ambassador Dejean and simplysaid:
"you have repeatedly mentioned 'actes internationaux en vigueur' that we must
examine to find a boundary, but you have not produced any. What are they?
Why not add a list to Anqex I?"'And M. Dejean obliged. Today, before the
Court, the Parties (although now Chad rather than France) are turning to this list
for the first time. What do they find? A good many surprises. Agreements
carelessly omitted. "Actes" on the list that should not have been, for they were
not "en vigueur" in 1951. Above al], they find that no agreed boundary for
southern Libya would result from the "actes" on the list for the parties to
"recognize". So the effect of Article 3 was to recognize one essential fact about
Libya'ssouthem boundary - that there was no existingboundary based on treaty,
and that it would have to be settled by negotiation in accordance with G.A.
Resolution 392 (V).
3.123 Aside from the travaux just mentioned, which reject the idea
of a reference to a& rather than to "stipulations générales"("generalwording"
is the way the French term is referred to in the Libyan travaux), the travaux on
the Libyan side, reinforced by the British record of what each side was reporting
to the British Govemment at the time, prove that the Libyans were not prepared
to accept agreement on the southern boundary as a condition of signingthe1955
Treaty or before they had had time to study the matter. The travaux also reveal
that no negotiations over such a boundary ever occurred; no line was shown or
drawn on a map during their discussions to illustrate France's position;no texts of
agreements said to be "envigueur"were exchanged or examined. The matter was
simplypostponed. In doing so, Libya nsked nothing. If a conventional boundary
existed in1951, so be it. That is in fact Libya'sposition today, although it believes
the Court cannot reach such a conclusion. For the French, it was in their opinion
a victory, for they were convinced of their boundary thesi-until possibly early
August and the discoverythat the 1935 Treaty was not the onlykey agreement not
"envigueur"in 1951. In any event,it seems highly likelythat the French reasoning
went like this: how would the Libyans ever know? Given time to let things settle
down after the evacuation of Fezzan, the Libyans in al1 probability would
eventuaiiy agree to accept the1919 line. For the reasons given above, however,that occasion never occurred150. Putting aside the speculation and guesswork,
Libya respectfully draws the attention of the Court to the fact thaiit is for Chad
to produce the evidence as to what occurred and why. For Chad bears the burden
to prove the existence of a conventional boundary, one based on its first theory if
theother theones do not hold water.
3.124 The supposed renv onArticle 3 is the key to Chad's first
theory; and the essential point aborenvheond.r the theory, is that it was to
a & not to the general vrovisions of the "actes internationaux en vigueur" in
1951. It has already beenen that the text of Article 3 givesno support at al1to
the suggestion that the parties so intended; and the travaux show they did not so
intend. But taking trenv thiory set ouinthe at face value, renvoi
was to which line? True southeast, as under the 1899 Declaration (ending at
15"35'N)? East-southeast, as on the map referred to in the 1902Ac-the
Non-Annexed Mau (ending at 19"N)? Or the 1919Line (19"30'N)?Over and
over again, tCM insists these were the same line; yet demonstrably they were
not. So therenv opiears to depend in the mind of Chad on estabiishing that
these lines are identical. On this ground alone the theory falls apart. This fact is
dealt with further in the foiiowingPart, which addresses Chad'ssecond theory.
3.125 The CM has anticipated this objection; it advances the
argument that therinciple posterior prion derogat should be applied in the
event of conflict15'(One can sympathize with Prime Minister Ben Halim's
insistence that delimitation be postponed until Libyachance to prepare
itself!) This pnnciple would lead tothe latest adopted line of th-theee lines
1919 line- the line (south-southeast from the Tropic of Cancer) described in
Chad's Submissions. The virtue of renv thiory is that it would then vault
clear over the problem that the Anglo-French 1919 Convention was not
opposable to Ital-and was vigorously rejected by the Italian Government up
until1935. But this would require Chad to prove that Article 3 of the 1955Treaty
was intended to mean this - in Libya's viewan insurmountable obstacle,
particularly in the light of the travaux.
3.126 Asa bare minimum, to sustain Chad's theory of the effect of
therenv oithe 1919Convention- regardless of whether it was a boundary or
150 S-, para.3.113,above.
151 Secpara.4.197,below.not or whether or not it was opposableto Ita-,it is necessary for Chad to prove
that such a result was placed squarely on the negotiating table and discussed. It
was not; and it was purposely not done because the French side did not wish to
open up the wlnerability of the French thesis to examination. The travaux make
this clear beyond any reasonable doubt.
CHAPTER III. CONCLUSIONS
3.127 Chad's first theos, is directly controverted by the text of
Article 3. The intendedrenv iothat Article was not to a but to the general
provisions of treaties "envigueur" in 1951. The travaux establish this point, and it
is confirmed by the British records. Furthermore, the agreements listed in Annex
1would produce three different lines, none of them boundas, lines.
3.128 The whole French strategy for dealing with the southern
boundary was to discuss a line but to make a general reference to the
agreements and accords in force in 1951. It was intended to be the strict
application of possidetisM. This was the strategy recommended in May
1955 by the A.E.F.; and the travaux show that the French negotiators accepted
this advice.
3.129 Had France really believed that Artic3eand Annex 1in fact
camed out a delimitation of the southern boundary as calied for by Resolution
392(V), the French Governrnent would not have failed to have the 1955 Treaty
registered under Article 102 of thU.N. charterlS2. The contrast between the
French Government's action to have the 1956 Agreement promptly registered
and its indifference over the registration of the 1955 Treaty is meaningful. For
the 1956 Treaty fix a boundas, - it rectified the 1919 western boundary of
Libya. The 1955Treaty onlyfiwedthe course of the boundary between Ghat and
Tournmo - also a rectificati-nby refemng to three points through which the
boundary should pass.
3.130 It was the 1956boundas, that was by far the most important
boundary sector for a number of reasons: (i)t concerned Algena -and hence, at
the tirne, metropolitanFrance; (ii) the war with Algeria had begun and, thus, this
152 Fromthe eridencegleanedbyLibyain the murseof its researchesinto the preparation
of this Counter-Memorialisclear tbat,if the Chadview of A3 iscorrect, the
tem of Article3wereagreedinerror. CHAD'SSECONDTHEORYIS RULEDOUTBYTHEAGREEMENTS
THEMSELVES ANDBYARTICLE3 OFTHE1955 TREATY
CHAPTER1. INTRODUCTION
4.01 According ta thea, Chad's second theory stands on its
own feet and does not depend on the 1955Treaty, although it leads to the exact
1
same line as the firstthe-it constitutes "untitre autono.e"
4.02 The second theory runs as follows2:
- The 1899 Declaration contained provisions concerning
boundary delimitation; and any doubt as to the meaning of
these provisions regarding the line intended is resolved by
the travaux and bythe conduct ofthe parties;
- These indicate that the direction of the southeast line
described in Article 3 of the Declaration was intended to
meet 24"Elongitude "nettementau nord" o15"Nlatitude;
- In the 1902Accord, Italy accepted the 1899Anglo-French
"partage"not byreference to the 1899Declaration's text but
to the map "quvétaitiointe";
- Since Italy thus knew of the details of the 1899line,that line
-completed by the Tripolitanian boundary appearing on
that map-became opposable to Italy;
- The Anglo-French Convention of 1919contained a written
description of the 1899line as it appeared on the 1899map
andas it had been accepted byItalyin 1902;
1 CM. p.377,par5.
2 Se, CM.p.375,Conclusion1(ni-xii). - The 1899 Declaration delimited only spheres of influence;
however, starting in1913, France exercised its sovereign
authority in a manner sufficient to permit it legally to
consolidate its title of sovereignty over territory up to the
line detining the respective spheres of influence of Great
Britain and France;
-
Thus, the aereed line o1899,accepted by Italy i1902,had
by 1919 become an international boundary opposable to
Italy;
- By signing the 1935 Treaty, Italy confirmed French
sovereigntyup to the1919line.
4.03 The exposition of Chad's second theory is to be found
principally,though not solelinChapter IV of thea. Asa result, the sequence
of that Chapter will generallbe foiiowed here, although it will be necessary to
make reference to other parts of tCM from time to the.
4.04 If Chad'sfirsttheory has the advantage of being simple -for
under it, Articl3 of the 1955 Treaty is construed to establish the precise line
whose status as a boundary line and whose opposabilityto the parties are thereby
automatically resolved- Chad's second theory suffers from its complexity. The
-M describes the 1955 Treaty as presenting "un caractère doublement
confirmatif': both as to the line resulting from the agreements and as to the
opposabilityof the agreementsto l,ibya3. Whereas under the first theory,Article
3 of the1955 Treaty itself accomplished that deed, under the second theory, it is
the agreements that accomplish it, and the Treaty's role is "confirmatif".
Nevertheless,although the second theory may have been constructed to stand on
its own feet without regard to Artic3, as between Libya and France (and now
Chad), Article 3 of the1955 Treaty is nevertheless controlling: if any boundary
opposable to the parties resulted from previous agreements, it was only
"recognized",under Article3,ifthose agreements were "envigueur"on the cntical
date, 24December 1951. That the1955 Treaty is said to play a confirmativerole
under Chad's second theory does not permit the theory to escape from that
ovemding condition of Article 3 - that the agreements on which the claimed
3 CM ..143para .. conventional boundary is based must have been in force on the citical date. It is
for Chad to prove that these agreements meet this cntenon.
4.05 The CM appears to attempt just such an escape from this
overriding condition of Article 3, for it declares that under the provisions of
Article 3Libya and France -
"..reconnaissent que les actes internationaux en vigueur à la date
de la constitution du Royaume Uni de Libye et définissant4. tracé
de la frontière entre les deux pays sont les textes sui....s
Then follow the six agreements listed in Annex 1of the Treaty. But it must be
noted that Article 3 did not say "les textes suivants" but rather "tels qu'ils sont
définisdans l'échangede lettres ci-jointes (Annexe I)"which is quite different.
The interpretation suggested in theabove passage is a distortion of the text in two
other respects, as well.In signing the Treaty, Libya did not thereby accept that
those listed agreementswere "envigueur" in 1951;it agreed merely that this was a
cnterion those agreements would have to meet. Nor did Libya accept that a
boundary did necessanly exist, based on those treaties. Had a boundary existed
there would have been little point in Resolution 392(V) callingupon France and
Libya to negotiate a boundary. And, given that France was not prepared to
disclose to Libya any boundary line, Libya was in effect agreeing only to examine
the double question - does a boundary exist, and, if so, where?-on the basis of
the enumerated treaties and any other such "actes internationaux", provided they
were "en vigueur" on the cntical date. AstheCM suggests,it was "la consécration
explicite de '1- possidetis de 1951"'5 - but the explicit consecration of
possidetism only.
4.06 IfChad senously maintains that the effect of Artic3ewas to
accept as in force the agreements on the Annex 1 list, whether or not they were
then in force, a senous question would anse as to the validity of hicle 3 and
Annex 1of the Treaty. For the CM has disclosed that two of the agreements on
the list were not in fact in force in 19516. Thus, Libya would have signed the
Treaty, if it haduch a meaning, on the basis of misrepresentations by France or
of a fundamental mistake.
4 CM,p. 142,para1.Emphasisadded.
5 CM,p. 142,para.2.
6 &, -g,para.1.34,above. 4.07 Stillanother distortion in the msinterpetation of Article
3, as set out in the passagejust quoted, is the statement that the parties in Article
3 recognized that these agreements defined the boundary line between them.
This is, in effect, an argument borrowed £romthe first theory and has been dealt
within the previous Chapter.
4.08 It is now appropriate to examine the relevant agreements,
both those relied on by Chad and those overlooked or deliberately omitted, in
order to establish whether or not the "actes internationaux en vigueur" in 1951
gave rise to a conventional boundary under international law. The burden is on
Chad to establish that these "actes"did have this effect. It willbe shown in the
followingChapters howcompletelythe failsto sustain thisburden of proof.
CHAPTER II. INTERNATIONAL AGREEMENT OSF RELEVANCE
OMIïTEDFROMTEEANNEX 1LIST
4.09 Both of the ms contentions concerning the Annex 1list,
that itwas an exhaustive("limitative")list and that it was "dresséeavecsoin",have
been shownto be incorrect in Part 1above. Certain omissionsfrom the listwere
mentioned there. There are listed below the principal omissions that have
undoubted or possiblerelevance to the present case:
1890Anglo-French Declaration;
1900Franco-Italian Accord;
1902Anglo-ItalianAccord;
1912Treaty of Ouchy;
Franco-Italian Agreement of 15October 1912;
1915SecretTreaty ofLondon (Articles 10and 13);
1924Anglo-FrenchDeclaration;
1924Anglo-FrenchProtocol;
1934Italo-Anglo-EgyptianAccord;
1935Treaty ofRome;
1947ItalianPeace Treaty.
7 S-, para.3.17,above.
8 S-,para.3.12,et%.,above, 4.10 France, and now Chad, have argued that the absence of the
1935Treaty from the list constituted a renunciation of that Treaty by Libya. This
is not accurate; at the very most, it was an indication that Libya, on the basis of
French representations and its own preliminaiy investigation, believed that the
Treaty did not meet the criterion of Article 3: that it was required to have been
"en vigueur" in 1951. However, it is apparent from an examination of the above
list of omitted agreements that absence from the list did not mean either that the
agreement was not in force in 1951or that the parties agreed that it was not in
force on that date. Conversely, presence on the iist did not mean that the
agreement was, infact, "envigueur" in 1951,or that the parties agreedthat it was,
irrespective of the facts.
4.11 It is understandable that the 1890Anglo-French Declaration
did not appear on the list9.side from everything else it concerned the limits of
zones of influence in a region far away from the Libya-Chad borderlands.
Nevertheless, the 1890Declaration is directly relevant to the present temtonal
dispute, although the CM skips over it quickly. Its relevance stems from the
following:
- It was a recognition by Great Britain of the hinterland nghts
of France's Mediterranean possessions (Algeria and
Tunisia) down to the Say-Barroua line (illustrated onMar>
LC-M 12)lO;
- Great Britain, in the 1890Declaration, explicitlyrecognized
a French sphere of influencedom tothe Say-Barroua line;
- By way of contrast, Article 3 of the 1899 Anglo-French
Declaration, subsequently entered into, estabiished, north of
15"Nlatitude, a line limiting French expansion toward the
Nile;
9 See, LM, par. .08for adiscussionof the 1890Declaration.
10 Lord Salisburydescribet exactlythatwayatthe time. LM,,para.5.08B. also
CM, Annex 330, a statement of the French ForeignMinister (Waddington)to the
Chambredes Députéosn 4 November 189inwhichhe referredto "cetteimmensezone
quiest pla& àl'arrierede nospossessionsalgbri, descriptioncomparableto the
termhinterland. - The territory over which France's sphere of influence (the
Algeria-Tunisia hinterland) was thus recognized in 1890
concerned lands where France had no presence whatsoever
and as to which it had virtually no knowledg- for Great
Britain and France it was incomita (but not
e);
- Along with the 1890 Declaration, both Great Britain and
France affirmed that the arrangement did not affect any
rights the OttomanEmpire might have in the "regionswhich
lie on the southern frontier of [its]Tripolitanian dominions",
thus anticipating a claimby the Ottoman Empire to the
hinterland of Tripolitania;
- The 1890Declaration provoked just such an Ottoman claim
in a protest made by the Porte to Great Bntain and France:
that the 1890 Declaration encroached on territories over
which the Ottoman Empire had rights as part of the
Tnpolitanian hinterland; the Ottoman claim was set out in
considerable detail at the time (Mau LC-M 12);
-
Thus, the 1890Declaration may be regarded as being atthe
ongin of this temtorial dispute, although the basis of the
Ottoman claim extended considerably further into the past.
4.12 These events in 1890 bring out the point that there was a
good deal more substance to the Ottoman hinterland claim than to France's claim
to a sphere of influence down to the Say-Barroua line at that time. This was
demonstrated in Part IV of them. Ottoman idluence and control emanated
from both Istanbul and Tripoli: from Istanbulin the person of the Sultan as
caliph and sovereign, to whom allegiance was rendered by the Sultanates of the
Sudan; from Tripoli, through its control over entry into the intenor and through
the protection of the trade routes upon which the economic life of Tnpoli
depended, and around which the Ottoman daim had been framed (Mau LC-M
12). Ottoman garrisons from Tripoli had been established in the western part of
this hinterland well before 1890:at Ghadamès in 1862;at Mourzouk in 1865;at
Ghat in 1875(Mau LC-M 13).SW1.11v D'eD.r*l for pi.unulim to lm Il.rnalional Cour3 0, lu.lica 4.13 By 1830, the Ottoman Empire had developed meaningful
links to the peoples and rulers of these regions; if the exercise of Ottoman
sovereigntywas incomplete in the region, the signsofFrench sovereigntywd.e
The Ottoman ties were of a religiousnature, linkingthe peoples and their rulers
with the Sultan in Istanbul, allegiance to wh-mboth religious and civ-was
widelyrecognized in the regionl1.In the context of the region at the time this
was a recognition of Ottoman sovereignty. There were also economic and
governmental ties to thvilaveof Tripoli,which wasunder Ottoman sovereignty.
The Ottoman hinterland claim embraced the Libya-Chadborderlands lyingsouth
of Tripolitania, which was part of the Ottoman EmpireA good portion of the
French sphere recognized by Great Bntain in 1890also lay south of Tripolitania
rather than Algena, overlapping the Ottoman claim,and it embraced portions of
the trade routes on which the economy of thevilave tf Tripoli relied heavily.
However, the French sphere recognized in 1890laywell to the south and Westof
the borderlands. So the pnor claimto the borderlands of any substance was that
ofthe Ottoman Empire.
CHAPTER ~n. THE1899 ANGLO-FRENCH ADDITIONAL
DECLARATION
4.14 The boundary line descnied and claimed by Chad in its
Submissionsis the exact same line that Chad contends Great Britain and France
intended as the line descnbed in Article 3 of the 1899Declaration. Thus, this
agreement isthe foundation ofhad'scase.
4.15 The CM makes a senes of important admissionsconceming
the Declaration:
- That it was designed to fix the limits of French expansion
toward the region of the Nile in the aftermath of the
Fachoda crisis12;
11 The Headof the Senoussi ina letter addressedto the EuropeanPower1911
specificallyacknowledged relsnd civil allegianceto the Sultanandthe Sublime
Porteand assailedFrancefor destroyingthe andkillingOttomansubjectson
whatwasdeclaredto betheOttomanterritoryof theborderlands.See.LM,para.5.222
andExhibit48thereto.
12 Se. CM, pp.144-14para.11. -. That, unlike Article2, Article 3 of the Declaration did not
concern a boundary;
- That the boundaq commission to be appointed under
Article 4 was charged with demarcation of the Article 2
boundary not the Article 3line13;
- That the area embraced by Article 3 (i&, north of 1S0N
latitude) concerned temtones over which neither Great
Britain nor France exercised effectivecontrol and in an area
that was "àpeu près inconnue" to Great Britain and France,
whowere ignorant ofthe geographyof the regions14;
- That no map was referred to in the text of the Declaration
and no map was annexed to the instrument signed by the
15
parties .
4.16 In order to prove that the line descnied in Article 3 of the
1899 Declaration is the exact same line as set out in Chad's Submissions,
transformed into a conventionalboundary opposable to Libya, Chad has several
problems to overcome, such as: (i)establishing the direction of the Article 3 line
so as to match exactlythe line inthe Submissions,given the assertion in the
that Article 3 was ambiguous or vague as to the line's direction16; (ü)
demonstrating how a line that in 1899concerned no more than zones of influence
became transforrned into a boundary line; (iiiestablishinghow the provisions of
Article 3 and theresultingline became opposableto Italy (and hence to Libya),in
view of the fact that the 1899 Declaration was an agreement between Great
Britain andFrance (res inter aliosacta).
4.17 How the has proposed to overcome each of these
hurdles willnowbe reviewed. However, the devotes a good deal of attention
to the 1899Declaration and, thus, in a sense, much of what the contends has
13 See,CM,pp.145-147,paras.16and 19.
14 See.CM,p. 148,para.24.
15 See,CM,p. 147,para.19,andp. 160,para.71.
16 See.CM,pp.145-149,paras.14-27. LC-M 14.4
Royal GeographicalSociety J~,:v.~~.:~~w~~~~~~~o~~~:~~
. . . .-. . - 1 26 AIJ61920 -q-a ..2---.-.--- ~
Royal GeogfaphicalSociety ~ - .-~ ----TT : --.LC-M-l5A.
l ; 1. '~ .-.. ...- .- . . - -- 1; ".,U -^83URU.diC*isU-iirialready been rebutted by Libya. Insofar as possible, Libya willattempt here to
avoidrepeating unnecessarilywhat was so fullyset out in itsMemorial.
Smo~ 1. The IntendedDirection ofthe Article 3 Line
4.18 In part because the bases its conclusion as to the
direction of the line on incomplete travaux, it has made a nurnber of mistakes
concerning what is certainly a key issue in Chad's case - the direction of the
Article 3 line. The argues that resort to the travaux is necessary because
Article 3 is ambiguous and vague. Libya does not agree. The Article 3 line
started at a precise point (Tropic of Cancer and 16"E)and then descended "dans
la direction du Sud-Est" ("shalrun thence to the south-east"). There is nothing
necessarily vague about these words; on the basis of such indications, a
geographer would draw a true southeast line (135") -and that is exactlywhat the
British Government did, for they regarded the line to be a southeast line. This
was demonstrated in the LM with reference to a 1916British War Office
Two more British maps appear here: a 1906British War Office Map (revised to
August 1913)Mau LC-M 14A;and a 1914British War Office Map, Mau LC-M
14~~~.The Article 3 line appearing on both maps is a strictsoutheast line. Two
other British maps appear here as well to demonstrate the evolution of the
Article 3 lineon British War OfficeMaps. Mau LC-M 15Aisthe same base rnap
as 14A except that it has been revised to February 1924; it reflects the 1919
Anglo-French Conventionline that modifiedthe Article 3 line. Map LC-M 15Bis
the same base rnap as 14B exceptthat it was revised in 1935; itreflects the 1935
Treaty line19. Thus the officia1British maps of 1906and 1914reveal that it was
Great Britain'sinterpretation of the direction of the line described in Article 3 of
the 1899 Declaration ("thence to the south-east") that it was a strict or true
southeast line. It would not have been possible to be more precise than this in
Article 3 and designate the exact end point of the line intersecting 24"Elongitude,
because the line was intended to join the Article 2 sector line, and that sector,
between 11" and 15"N latitude, had not yet been delimited when the 1899
Declaration was signed, although the Article 2 sector line was unquestionably
17 See, LM,para.5.182andMapNo. 63. The Articl3lineis shownon that1916rnapasa
strictsoutheastline. A photocopyof the entiwasfurnishedto the Courtwiththe
Memorial.
18 G.S.G.S.No. 2226(a);andG.S.G.S.No. 2720. A largerphotocopyof eachrnaphasbeen
furnishedto theRegistry.
19 A largerphotocopyof eachrnaphasbeen furnishedto theRegistry.goingto end very closeto 15'N. But its precise end point was not known in 1899,
onlyits approximate location.
4.19 The
devotes a lot of attention to what it terms the
histoncal context and the practice at that time, citing an impressive number of
contemporary agreements,to estabiish that such a description of the iine was not
intended to be precise. But this misses the oniy meaningful question to be
answered: what direction did thearties-Great Bntain and France - intend the
line to take? Great Bntain interpreted it to be a true southeast line, as Maus LC-
- 14Aand 14Bdemonstrate; and the evidence stronglysuggeststhat the French
Government did, too. For one thing, there is no evidence of any French protest
to these British maps. Further demonstration of this poiwiibe made in the
next Section, where the question of the famous 1899 map -the Non-Annexed
hJa~ -isdiscussed.
4.20 There is an important methodology to be foliowed in
consideringthis matter. Since the interpretation of the provisions of a treaty is
involved,the est task is to seek "the ordinary meaning to be givento the terms of
the treaty" (Article 31,paragraph 1,ofthe 1969Viema Convention on the Law of
Treaties). As pointed out above, the words "shallthencrun to the south-east"
("dans la direction du Sud-Est") in their ordinary meaning are clear and precise.
in such a case, to arrive at the meaning of Article 3, there is no need to consult
"supplementary means of interpretation" - that is, the travaux vréuaratoires.
According to Article 32 of the Vienna Convention, recourse to the travaux would
be justified oniyif the meaning of the words to be interpreted were "ambiguous"
or "obscure",orifthe result obtained were "manifestlyabsurd or unreasonable".
It is clear that here none of these hypotheses apply. Thus, the use of the travaux
préparatoires can have oniy one purpose (as the Vienna Convention
emphasizes): to ve* that the objective interpretation based on the ordinary
meaning of the text is confinned by the travauIn the foliowinganalysis,these
basic principles of interpretation must be borne in mind.
4.21 The mistakes made in theCM concerning the intent of the
parties to the 1899 Declaration largely stem £rom its reiiance on incomplete
travaux. Curiously, the CM resorts to certain travaux relevant to the Anglo-
French 1919Convention as substitute travaux for the 1899Declaration. Aswiiibe shownfurther on2', the viewsofthe Britishnegotiators in 1919ran contrary to
the direction of the Article 3 line shown on Great Britain'sofficialmaps of 1906,
1914and 1916,just discussed. Chad has produced no evidence to show that the
Britishnegotiators in 1919had made anyattempt to discem the intention of Lord
Salisburyand M. Cambon in 1899,which is the relevant question, not the Bntish
negotiators'assumptions in 1919on the basisof maps ofmuch improved accuracy
compared to the maps used during the negotiations leading to the 1899
Declaration.
4.22 The principal mistaken conclusionreached in tCM isthat
the end point of the Article 3 southeast iine was intended to intersect 24"N
latitude at a point "nettement au nord" of 15"~~' and, in fact, north of 18"N
latitude22. This is clearly wrong. The origin of this mistake is the ms
misunderstanding of documents that record what took place during the
negotiations after the British draftter-proposal of 18March 1899had been
prepared @utnot tab~ed)~~.
4.23 Chad's analysis of the travaux only starts with proposals
made on 17-18March, but the relevant exchangesbegan weiibefore, and as early
as ~anuary~~. The CM builds its argument around a draft British counter-
proposal of 18~arch~' and two supposed British draft proposals of 19~arch~~.
The British 18March draft was never tabled, as the copy of the document clearly
indicates ("not used"). The two British drafts of 19March are, in fact, the same
document, aswiU be explained. From this false start, thedevelops the theory
that, as a result of French insistence, the end point of the southeast iine was
pushed more and more to the north ("un 'déplacement' constant dela limite vers
le nord à la demande de la France")In fact, the reverse occurred. It was Lord
Salisbury who proposed pushing the line north to 18ON,to nin from there
20 Sec .ara.4.18g,=. ,elow.
21 SeeC.M,p.375, Conclusion(Mii);andp.165,para.83(iii).
22 CM,p. 165,para.83(iv).
23 See.M,pp.153-155,paras.41-48.
24 See .M. para.5.23,a.
25 CM, Annex52.
26 CM,Annexes53and54.northwest to the end point (Tropic of Cancer a16"E). It wasM. Cambon who
objected that the line proposed by Lord Salisbury started too far to the north.
This somewhat involvedbut important story can be followed byrefening tMar>
16.
4.24 Itwülbe recaUed, as spelled out in thm2', that at this
stage in the negotiations the Article3 line being discussed was to ascend
northwest from what is now the end point of the line, rather than to descend
southeast £rom what is now its starting point. This is shown on the mapM.
Cambon reacted strongly against the British proposal, tabled o19 March, to
start the Artic3esector atlgON,for he felt that it started too far north; and to
accommodate him Lord Salisburyagreed to return to the earlier starting point of
15"N, instead. This makes it apparent that the Arti3sector was not intended
to end (or begin) "nettement au nord 15"N and certainlynot north o18"N. At
the time Lord Salisburymade his proposai, the Artic2esector boundary was to
end at 14020'~~~; so 15"N was slightly to the north of that end point.
Subsequently,Article 2 was revised so that its end point be15"N. A precise
southeast iine under Artic3would,accordingto Chad, intersect24"E at1S040'N
(15"30'N according to the1919British negotiators1S035'according to thLM).
Al1of these points of intersection were "to the north of th15th parallel of
latitude",to quote fromArticl3.
4.25 The travaux show quite the opposite of what the CM
contends: the parties intended the line to start - and subsequently, when
directions were reversed in the last days of negotiations, t-very near, but
slightlynorth o15"N,where the first sector boundary under Arti2lwas to end.
Throughout the negotiationsit wasevident that the Arti2and Article 3sectors
were foreseen to end and start, respectively, at approxhately the same point,
which only made sense. The practical problem was that when the 1899
Declaration was signed the precise end point of the Articl2 sector was not
known, since it had yet to be delimited. It infact, for this reason tinthe
final draft the description of the line was reverseasto descend rather than
ascend; for the end point in the nort(16"E longitude-Tropic of Cancer) was
27 See,LM,paras.5.20-5.48.Athe relevant arecitedthereandannexedtothe
-M.
28 SeeLM. para5.30.preciselyknown, unlike the end point inthe south, and thus it was a better point
fromwhichto startthe description of the linein Article 3.
4.26 There is,however, another strand to the argument set out in
the as to the intended direction of the line. It isthat the parties from the very
start contemplated that the regions comprisingwhat Chad callsthe "B.E.T."were
to be on the French side of the line -or as the puts it,"laisser dans la zone
française la totalitédu Borkou, du Tibesti, de I'Ounianga et de I'Emedi et des
,129
oasisqui en dépendent ... .
4.27
It is quite true that the linewas contemplatedto be drawn in
such a mamer as to leave these regions on the French side of the line. Initially,
the line considered was not a singlestraight line,but several straight lines,as Lord
Salisbury'sdraft of 18 March, quoted from in the CM, shows3'. This draft was
neither referred to in nor amexed to the because, as just mentioned, the
document in the British Archives,which is this proposal, indicates that it was not
tabled; and this would explain why there was no French response to it. The
document has been amexedto the CM as Annex 52;the words "not used"appear
plainly on the first page. By the next day, the negotiators were talking about a
single straight linestill ascending rather than descending), but Lord Salisbury's
proposal of 19March, like his "not used" 18March draft, stiiihad the line starting
at 18"N. M. Cambon objected to this in the foliowingterms, according to his
report of the same dayto Foreign Minister Delcassé:
"..'ai fait observer qu'ilétaitimpossiblede pousser la délimitation
jusqu'au 18"parallèle,que ce serait nous enlever une partie yptable
des territoires que nous revendiquons au nord du Darfour... ."
M. Cambon used the word "pousser";and sincethe line contemplated at the time
was to to the north, it isclear that he meant that 18"Nwastoo far north for
the starting point of the Articlesector line. Lord Salisbu~yaccommodated him
and reverted to a 15ONstarting point (Mau LC-M 16).
29 CM .. 156,para 53.
30 CM .. 154,par44.
31 LM, FrenchArchivesAnnex,p.39. Emphasisadded. 4.28 Whydid M. Cambon react as he did? There are no travaux
that explicitlygivethe answer. But the reasons can be deduced from the evidence
available.
4.29 Inthis regard, the states that Lord Salisburytabled two
19 March drafts, which is incorrect. The reason for the confusion has already
been set out at paragraph 5.41 of tM. It is important to get this straight,
because the constructs an argument based on this erroneous assumption that
there were twoseparateproposais.
4.30 The has amexed two French versions of the same
British proposal: Annex 53,taken from the Livre iaune; Annex 54,from the files
of the Quai d'Orsay. The amexed stillanother version of same proposal,
a retyped version of the Annex 54, which may be found in the officia1
Documents Di~iomatiaues Francaises (DDF) published by the Quai d'Orsay.
The LM~ iaunedraft (CM .nnex 53) is an edited version of the same document
as Qf Annex 54; their texts are identical except for the fac15"has been
substituted fo18".The British archives contain a copy of the hand-written 19
March draft in English as actually tab~eAs~.explained in thLM. this draft
shows 18"scratched out and 15"written in above it. The Livre iaune, in editing M.
Cambon's 19 March dispatch setting out the British proposal, apparentiy
substituted 15"for 18",presumably because after M. Cambon's objection to the
line starting that far north Lord Salisbury had agreed to start the line at 15"N
latitude, as the insertion on the English draft would indicate. ThuLivree
published the British proposal of 19 March as it was modified at M.
Cambon'srequest,whereasthe DDF publishedM. Cambon'sdispatch as actually
tabled, initially,before Lord Salisburyaccommodated M. Cambon by making this
change.
4.31 The states that Chad has not found the Frenchresponse
to the £irstBritish proposal of 19March, which it identified as the draft in which
the line would start at 15' (the Livre iaune version)33. This is explained by'the
fact that there was only one 19 March British proposal, not two, and it was the
one inwhichthe linewasto start at 18"N.
32 LM,BritishArchivesAnnp.35.
33 CM, p.154para46. 4.32 The CM contends that the so-called first British draft of 19
March was the first time that 15"Nhad appeared in the negotiations, adding that
it appears in the manuscnpt version of this draft written in over 18" ("une
surcharge du 18ème parallèle"). The manuscript version, which Chad has
~u~~lied~~d ,oes not appear to show such a "surcharge",although the figure 18
appears written in on the right-hand margin oppositethe figure 15". Presumably
the CM interprets this as a "surcharge"indicating that 15"had been substituted
for 18". However, this manuscnpt version is not of the 19 March proposal but of
M. Cambon's20March dispatch to M. ~elcass.5~~;and it starts out thisway:
"Lord Salisburyaccepte, sivousyadhérez,la rédactionsuivante."
The text of Article 3 in this manuscnpt version contains the figure 15". Thus, this
manuscnpt evidence directly confirms Libya'sinterpretation of what occurred:
Lord Salisbury,at M. Cambon's insistence, haddropped the starting point of the
line south from 18"Nto 15"N.
4.33 In any event, this was not the first time that 15"N had
appeared. Contrary to the CM'S assertion, there had been several earlier drafts
mentioning 15"N. For example, M. Cambon submitted a draft on 16 February
that would have had the Article 3 sector line begin at 15"Nlatitude,the line being
descnbedas follows:
"A partir de sa rencontre avec le 15"degréde latitude nord, cette
ligne suivra ce parallèle jusqu'à la rencontre d'une ligne qui
gagnera la frontiere tripolitaine, de façonaisser dans la#hère
française la totalitédes oasisformant le Borkou et le Tib.sti
4.34 Taking the map prepared in 1899bythe Bulletin du Comité
de l'Afriquefrançaise (BCAF) to illustrate the 1899Declaratio-which theCM
uses as an illu~tration~~(Mar, LC-M 17-if15"Nisfollowedeast (asthe sentence
quoted just above from the 16 Februry draft can only be interpreted to have
meant) to the point fromwhicha second line couldbe drawn headed northwest to
34 CM. Production3.
35 This dispatc20fMarchwaspubiiihedin a printedversioniDDFheand appearsat
LM,FrenchArchives Anne, 43.
36 LM,FrenchArchivesAnnex,p. 17.the Tripolitanian frontier (and assuming this to be at the intersection of the
Tropic of Cancerand 16"E,although that point had not yet been identified bythe
parties), in such a way as to leave the oases of Borkou and Tibesti on the French
side of the line, such a line would start at the intersection of 1YN and
approximately 24"E, as shown on Mau LC-M 17. The direction of the line is
almost exactlynorthwest/southeast, in contrast to the dark line on the BCAFmap,
purporting to represent the Article 3 line, which crosses far to the north of
Tibesti.
4.35
At this point, it is necessary to consider why M. Cambon
vigorously objected to the 19 March British draft, which would have begun the
Article 3 sector line at 18ON. Under Lord Salisbury'sproposa1 set outinthat
draft, the Article 2 sector, which was to be a real boun-aalthough yet to be
delimited- would continue north to 18"Nlatitude; only after that point would it
have become a line limitingFrance's expansion to the north and east. Such a line
would have placed on the British side of the boundary a significant area to the
north of Darfour which, under M. Cambon's 16February draft, would have been
on the French sideof the line (Mau LC-M 16).
4.36 Of course, as the points out, the negotiators were
looking at contemporary maps whüe preparing these proposals38. Features such
as the Tibesti &f appeared on these maps very inexactly due to the limited
knowledge of the geography of the region in 1899. Chad has furnished
reproductions of the two maps that Lord Salisburyand M. Cambon had in front
of them: an 1892 Geman map (Justus ~erthes)~~ and the French 1895-1896
rnjlitary map of the region40. The BCAF sketch map referred to above (m
17)was an approximation of these two maps.A line drawn on these maps
running from the intersection of 24"E and 15"35'Nto the intersection of the
Tropic of Cancer and 16"E -that is, a true northwest/southeast -iwould have
left the regions of Tibesti and Borkou, and the major oases of Ounianga and
Ennedi, on the French side of the line (Maus LC-M 184 18Band 18C). This is
particularly clear on the French military map (Mau LC-M 18A).In contrast, the
east-southeast line shown on the Livre iaune map (the Non-Annexed Mau), as
these maps show,would have produced a boundary several hundred kilometres
38 Seeg.& CM. p.158para62.
39 CM. Production247.
40 CM .roductio248. LC-M 17
Convention franco -anglaise du 2 1 Mers 1899north of the Tibesti massif.as portrayed on these maps. Lord Salisbury's 19
March proposa1 to start the Article3 sector atlgON, on the other hand, would
have left these same regions on the French side but would have placed on the
British side of the line (whichwas tobe a boundaiy up t18"N) areas just to the
north ofDarfour offar greater interest to the French atthe time (Mar,LC-16).
4.37 This point deserves more explanation since one might have
thought that M. Cambon should have eagerly accepted Lord Salisbury'sstarting
point of the line, 18"N, rather than rejecting it, as he clearlydid. At this stage
of the negotiations, there had been no discussion of extending the French zone
east of23"E longitude. Thus, Lord Salisbury'sproposa1(of which no sketch has
been found in the British archives)would presumably have started the Article 3
sector at the intersection of 18"N and 23"E, as shown on Map LC-M 16.
However, the French were anxiousto extend the French zone, particularly in the
Article 2 sector, east 24"E. In this they failed, except that in the final days of
negotiation it was agreed that the end point of the Ar3iline in the south (the
dashed green line on Mau LC-M 16) would be at the intersection of the southeast
line at24"E rather than at 23'?Eas originally contemplated. This left a gap
between the two sectors, as was discussed and iiiustrated in tm41. This is
shownon Map LC-M 16.
4.38 If the Articl2 sector had been extended north to as
Lord Salisburyproposed, a boundary between the French and Bntish temtonal
interests would have been agreed as far north 18"N (the solid red line on
16). As the map shows, this would have left on the British side of the
boundary a triangular area north of Darfour that was highlyprized by the French
- much more so than the unexplored stretches of desert further north. In any
event, a linerawn under Article 3 from a starting point o18"N latitude-24"E
longitude would have crossed considerably to the north of the Tibesti massif
where this geographical feature was thought to be located at the time, as shown
on the contemporary maps. Thiswas not at ailin the contemplation of the parties
in 1899,as is clearlyindicated in a memorandum of WilliamEverett of the Bntish
War Office dated 14 March 1899 commenting on one of the French drafts that
would have left a "belt of sand of at lea10 miles width in the French sphere
measured from the foot of the m~untains"~~.He stronglyadvised againstit, and
41 SeeLM.para.5.42,andMapNo.47.
42 LM,BntishArchiveAnnex,p. 18,gseq.it was not accepted. So it is evident that the southeast line descnied in Article 3
was intended to cut across just north of the Tibemassif,not over 100miles to
the north as the east-southeast line on the Non-Annexed Mar,would have done.
4.39 It is, therefore, not possible to accept the manalysisof
the travaux relating to the intended direction of the liM.. Cambon rejected
18"Nas too far north; and the parties agreed on 1YN. A true southeast line
drawn on the contemporary maps in front of the negotiators would have left aUof
the regions France wanted to have on its sideof the line on the French side. Such
a line would have intersected 24"E at 15035'N-which explains the reference in
Article 3 to that line as ending to the north of 15"N. The line drawn BCAFhe
sketch map (Maus LC-M 17 and 18C) -which camed the Article 3 line a long
distance north along presumably24"E,and then at approximately 1YNturned the
line northwest to the Tropic of Cance- would have left an immense area to the
north of these regions on the French side of the line. Such a linnohrationale
at au. The linewasintended to be a strict southeast lasean examination of the
complete travaux shows.
4.40 Of course, the problem that became increasingly apparent
as the years wore on was that the maps in front of the negotiators in 1899were
not at al1accurate. A strict southeast line drawn on a map of today would have
divided Tibesti and Ounianga and would have left most of Ennedi on the Bntjsh
side of the line (Mar, LC-M 18D). The intention of the partiin 1899,however,
cannot be discerned on the basis of this kind of hindsight. It must be based on
what the maps showedthem in 1899.
4.41 The reaches quite a different conclusion,however:
en tête un tracé précis et n'ontnt robablement pas réalisé,auaient
moment de la signature u texte déLtif, l'ambiguïtérelative de la
lignehalement décrite 4j."
This iswrong. The only conclusionto be reached on the basis of the travaux and
the contemporaly maps consulted in negotiating the text of the 1899Declaration
was that the text of Article 3 expressed without ambiguity the direction that the
Article 3 line lirnitingFrench expansion northward was intended to take. It was
intended to be a southeast line, and the wordsence to the southeast" expressed
43 CM. p.160,para.1.LC-M 1.that accurately. The southeast line was intended to meet the end point of the
Article 2sector line oncethat had been determined followingthe delimitation of
that sector yet to take placeto the north of 15"N,but onlyslightlyso. Byending
a tme southeast line under Article 3 at its intersection with 24'N longitude, at
15"35'Nlatitude, a slight gap would be left between the two sector lines, to be
tidied up after the Artic2sector had been de~imited~~.
4.42 It is not clear from the just what is Chad's argument
based on the maps that were before Lord Salisburyand M. Cambon in 1899~~.
For the CM states that:
"...a ligne a pour objet d'inclure latotalitédu B.E.T. dans la zone
française, non de partager cette zone. C'estdonc en fonction de la
Tibesti sur les cartes [refemng here to the 1891-1892medi Justus
Perthes and 1896 French military mapsb8u'il faut interpréter le
paragraphe 3 de la Déclarationde 1899 ...!'
4.43 This statement seems correct: the line was intended to be
drawn so as to leave these regions on the French side; and where these regions
were located in relation to the intended line must be considered on the basis of
the maps that were in front of Lord Salisburyand M. Cambon in 1899. It iswhat
the CM then adds that isconfusing:
"ilsuffit de se reporter à ces cart..pour constater qu'une ligne
de direction Sud-Est, stricto sensu, ne pouvait avoir un tel effet et
auraitiqupé le B.E.T., contrairement à l'intention expresse des
Parties ."
4.44 SurelyChad has not faiied to draw a tme sou.theastline on
these two maps, copies ofwhich Chad produced with the CM. and to realize that
such a line would cany out the intention of the parties annet cut through the
"B.E.T." (Maus LC-M 18A,18B and 18C). This is particularly clear on the 1896
French military map: Zoghaou, Ennedi, the oases of Ounianga and aU of the
Tibestimassif n.ot to speak of Borkou further south, aUlie on the French side of
44 See.LM.para.5.42,MapNo.47,andMavLGM 16referredto atpara.4.23,above.
45 See, CM,pp. 158-159,paras.62-64.coursi e,1899 thewas noareadesignateas
the"B.E.T.".
46 CM. p. 159,para.63.
47 CM. p. 159,para.64.the line. So either Chad has incorrectlydrawn this line on these maps or else the
-M is saying something quite differen-that the effect oa southeast line ought
to be judged on the basis ofmodem maps, on whichthe "B.E. is.ndeed divided
bya strict southeast line,rather than on the basis of the maps that were in front of
the 1899negotiators. Such a proposition isflatly wrong. Andthere isno basis at
ail for suggestingthat Lord Salisburyand M. Cambonhad inmind the sort of line
depicted on the map (Map LC-M 18C),which runs paraiiel to, and some
200 kilometres north of,the Tibest=if.
4.45 What the parties in 1899 intended the direction of the
Article3 line to be must be determined on the basis of their objecti-eto leave
these regions on the French side -and whether on the basis of the geographical
information before them (based on the two maps referred to) such a line
achieved this objective. Clearly a strictsoutheast linemet this test and, thus, the
description of the line in Article 3 was not ambiguous; nor could it have been
made any more precise because the northern segment of the Article 2 sector had
not yet been delimited and, hence, the exact end point of the southeast line could
not be indicated exactlyuntil after sucha delimitation.
4.46 Thus, recourse to the travaux préparatoires directly
confirmsthe correctness of the interpretation of Article 3, based on the ordinary
meaning of the words "shallrun thence to the south-east" ("dans la direction du
Sud-Est"), that the parties intended to describe a strict southeast line. This
confirmation isseen from the fact that such a lin-strict southeast-camed out
their cornmon objectiveas established onthe basis ofthe geographical knowledge
existing at the time the 1899 Declaration was signed. The fact that this
geographical knowledge was found subsequently to be incorrect could have led
the parties to contemplate invalidatingthe 1899Declaration, or at least its Article
3, on the basis of an error relating to a fact assumed to exist at the time of their
agreement once the error was discovered and assuming that this fact formed an
"essential"basis of their consent (Article 48 of the Vienna Convention). Such a
hypothesis did not take place: the 1899Declaration was never annuiled. Asa
result, it retains its original contentscluding the key phrase conceming the
southeast direction ofthe Article 3line quoted above.
4.47 It goes without sayingthat Great Britain and France, once
the error had been recognized,couldhave corrected it byappropriately modifyng
Article 3bymutual agreement. But this hypothesisdidnot take place either. The unilateral "invention"of the Non-Annexed Mau by France could not have served
the purpose of such a mutual agreement, especiallysince the 1899 Declaration
had referred to noap.
4.48 As to the 1919 Convention, the does not argue that it
was aimed at amending the 1899 Declaration in order to correct an error,
although in reality this appears to have been the effect of what was done. No
doubt the CM has deliberately avoided advancing any such notion, for it would
destroy theCM'S fundamental thesis that the1899 line and the 1919 line were
identical. It would also destroy the contentions of Chad based on the 1902
Accord. For ifas Chad incorrectly maintains, Italy recognized th1899 line in
the 1902 Accord, such recognitionwouldlose all significanceonce it was admitted
that the1899 line wasjudged to be in error by the parties who had agreed to it in
Article 3 of the Declaration and that it was replaced in 1919 by an entirely
different lin-whichItalyhad indisputablyrefused to recognize.
4.49 In closing this Section, which has been devoted to the
intended direction of the Article3 line, it is appropriate to refer back to the
companson suggested earlier of Chad's second theory to a circus trapeze act8.
The direction of the Article 3 line is an essential element of the theory; ifthe line
intended by Lord Salisburyand M. Cambon is other than preciselythat depicted
on the Non-Annexed Mau - and a strictor true southeast linewouldbe an entirely
different line then Chad'ssecond theory falls apart, and the trapeze act hurtles
to the ground, bringingwith it the first theory as weU,for a true southeast line is
not at all the line described in Chad'sSubmissions. Thwiiibe demonstrated as
the discussionof the secondtheory progresses.
S~ON 2. The Non-AnnexedMap
4.50 Just as the direction of the Article 3 line is a pivotal element
in Chad's case, so also is the famous map, which may explain the quite
extraordina~yattempt in the to establish that the map hàd the same effect as
if it had in fact been annexed to the original99 Declaration, thus supposedly
justwng France's (and now Chad's)description of it asthe map "annexed to the
1899 Declaration", when itwasnot.
48 Secp.ara.1.3above. LC-M 25 Extrai[
r/c /a Carle anncrh ri /a de'c/aralion addilinnnc//c
du 21 Marx 1099 ij /J Convention fianco-Ao9/a;se du 14, .Jiiiti 1098
.............- .--A --
- ...... --- 1
O J- 15.*éK&t& W&t,.z'?. 2s'
-- - -- ...
L
,*'4
................-. . -- A&--;; ....... .L . . ..... . Ct!
nLB-Ad ---
. .
trrr .,L ,- - -.- - .- --. TIBESTI
Kaoisrr
I
IOUIIIINIO~M BORKO
D~~HCRGHOU
!
L 20' -:.--.-A
............. ..... ....
-r-...ru. rrirrx,,,,.. ... ............................ ................ _. ...
Rc.13c11".:'. ,=,,,,,,,,,,,"
-. si . 0.. S.. 3." Ir. 3.. Lm.
........................"?!~d,..,.,,..,,,",/;""r~s,,d'.,,:,/,,,..,-,."" ,,,,14.,;,,,*.Zr
- - - .d . . .. .'r.<l.IX??
L""* .;..///.,,,,.,".*d,"?.-.",.
l,<..,,d- ,...-,.,-, ", ,".- "..;-1
---- ---- ,.,-,,,.4*.,,..ir<i...,,..,,.., .r;,..,.,.i.........,...,.,.,...,., 4.51 This rnap isthe Achillesheel of Chad'scase. Yet it is a rnap
that theCM concedes was not annexed to the Declaration but only annexed by
the French Foreign Ministry shortly after signature to the version of the
Declaration published in the Livre iaune - unilaterally and without prior
consultation with the co-signatory, Great Britain, and thus without its consent.
Furthermore, as just demonstrated, the Article 3southeast lineshownon the rnap
did not accord with the intent of the parties since its end point intersected 24"E
longitude at approximately 1YNlatitudeinstead of 1S035'N.It portrayed an east-
southeast iine, not a southeast ii-ehardly a negligibledifference since the area
encompassed between a iine intersecting 24"Eat 1S035'N and one intersecting it
at 1YN amounts to some 155,942 km2 or the approximate size of Austria,
Switzerlandand The Netherlands combined (Mao LC-M 19).
4.52 In the analysisthat follows,what the has to say about
the rnap willbe considered first. Then the real facts and the improper use made
of the rnap over the years willbe examined, ending up with a demonstrationthat,
without the rnap to relyon, Chad'scase comescrashingto the ground.
4.53 It isuseful to begin bytaking a look at this map. A full-scale
colour reproduction of the rnap as annexed to the Livre iaune version of the 1899
Declaration appears in the as Map No. 40 (referred to at paragraph 5.16
thereof). The Livre iaune version of the Declaration is also annexed to the
together with the same map49. Chad, too, displaysa version of the map, at page
162of the CM. For purposes of comparison,these tworeproductions of the rnap
appear here, with Chad's version on the left (Map LC-M 25) and Libya's
reproduction of the actual rnap on the right as a fold-out rnap (Map LC-M 26).
This comparison reveals that the has included a rnap that has been modified
to support its contentions, whereas Libya has reproduced the exact rnap that was
annexed to the Livre iaune version of the 1899Declaration in 1899,a document
readily obtainable from the French archives. The Court will note that Chad's
version of the rnap-which appears furthest to the le-is a copy of a reproduced
"Extrait" of the Livre iaune rnap prepared by the "Gouvernement Généralde
l'Algérieu.It isentitled "Extraitde la Carte annexéeàla déclaration additionnelle
49 SecL.M,InternationalAtcordsandAereementsAnneNo. 4.du 21 Mars 1899à la Convention Franco-Anglaise du 14 Juin 1898"~'. No date
appears on the reproduction.
4.54 Companng this "extract"(Mau LC-M 25) to the rnap Libya
has reproduced in the as Map No. 40and again here as Map LC-M 26 - one
findsal1kinds of differences. But there isone difference that bears directlyon the
matter of the frontier of Tnpolitania. The Livre jaune rnap-which it will be
recaiied, according to both France and Chad, was the rnap referred to in the 1902
Franco-Italian Accord -contains a legend with a combination of different lines
and colours to identifythe meanings of the lines appeanng onthe rnap (Mao LC-
- 26). The blackwavy,dashed line drawn around 'Tripolitaine"on the rnap does
not match up with any of the symbols in the legend. In contrast, in Chad's
reproduction of the map, this line encircling'Tripolitaine" matches perfectly an
entry in that map's legend: "Limite des possessions françaises d'après des
conventions antérieures". As a result, the rnap produced by Chad identifies the
wavy, dotted line as an international boundary, whereas the original map, of
which it purports to be an "extract",clearly does not. The original rnap sketches
out what atthe timewasgenerallyregarded to be the frontier of Tnpolitania, only
a notional bounda$l; but south of Ghadamès no Tripolitanian boundary had
been delimited by 1899or by 1902. The first delimitation of any part of Libya's
frontiers was that accomplished by the 1910Convention between the Ottoman
Empire and France, delimiting the frontier between Ras Ajdir, on the Coast,to
~hadamès~~.
4.55 It must besaid that the rather academic discussionof maps
and their legal significancein CM, whichwas directed at this very map53, has
a very hollow ring indeed when the distortion of this rnap inCM'S "extract",
appearing exactly where this discussion occurs in thCM. is hilly understood.
This distortion-identifyingthe wavy,dashed line encirclingTripolitania on the
rnap as a conventional boundary - is clearly aimed at supporting two critical
elements of Chad's argument that Italy was barred from contesting on legal
grounds the 1899 Declaration as "interpreted" by the 1919 Convention. The
50 Theverytitleof thernapis obviouslymisleading,sincenornaphadbeenannexedto the
1899Declaration.
51 See,LM.para.5.95,g-q.
52 See.LM.para.5.111,o-q.
53 See,CM.pp.157-165,paras.54-84.elements were (i) that in 1902 Italy and France reached agreement as to the
boundary of Tripolitania; and (ii) that as a result, Italy renounced any right to
base a claim on the Tripolitanian hinterland inherited £romthe Ottoman Empire.
The flaws in these propositions are pointed out belod4; the distortion of the
Livre iaune rnap in the "extract" appea~g in thCM only adds "insult to inju~y".
The first time Libya's western bounday between Ghadamès and Toummo was
delimited was in the Franco-Italian Accord of12September 1919~~. It was the
first time that both Italy and France had the status to agree such a boundary.
Only after the 1912 Treaty of Ouchy did Italy acquire sovereignty over
Tripolitania-Cyrenaica and, thus, have the right under international law to settle
itsboundaries.
4.56 In its review of the 1899 Declaration's travaux, the
studiously avoids any mention of the fact that the British urged that a rnap
actually be annexed, but that the French were very much opposed, ostensibly
because to annex a rnap might have been to recognize in a formal way Great
Britain's position in ~ ~ ~ ~~n.his dispatch to Foreign Minister Delcasséo25
February 1899,Ambassador Cambon mentioned that, in their agreement of 15
November 1893, Great Britain and Germany had referred to the Justus Perthes
map; and he suggested that such a simple reference might be made in the
Declaration:
"Cette simple référence,nous évitant de joindre une carte à notre
accord, aurait peut-&tre l'avantage de ne pas annexer à un
document diplomatique un tracé 59, nécessairement, s'étendrait
jusque dans la régiondu Haut-Nil ."
The question of annexing a rnap had particular relevance to the Arti2lsector,
for the French military rnap and the Justus Perthes rnap would have led to
different results. The British pressed to have a rnap annexed; and at one point in
the negotiations the French were ready to cede the point provided France got
compensationfor doing so. As M. Cambon wrote to M. Delcassé:
54 Seeparas.4.123,gseq.,and4.126,gîu., below.
55 Seepara.4.245,below,foradiscwion ofthewords"nouvefronti&r",hichappearin
thisAccord.
56 SeeLM.para.5.29.
57 LM.FrenchArchivesAnnex,p.21. "Jeveux bien acore céder sur cepoint mais ilfaut absolumentune
compensation !'
At the end of the day, the Declaration neither referred to a rnap in its text no1
annexed a map.
4.57 It is an important point that the French prevailed in their
opposition to annexing a rnap to the Declaration, for to tum around and do so
right after signature, in the version of the document published byFrance, must be
taken either as a reprehensible attempt to gain something they were not able to
get during the negotiations concerning the direction of the line, or as a purely
illustrative act, intended to have no legal consequences at au. The available
records make it difficultto decide whichwas the purpose of M. Delcassé;but the
evidence suggests that it was intended at the tirne to be purely illustrative, and
that certainly is how the British perceived the map. It does not appear to have
been until around 1914 that the arguments built around this rnap started to
appear in publicstatements of the French Government 59.
4.58 The advances several not very convincingargumentsas
to whya rnapwasnot referred to in or annexed to the 1899~eclaration~':
- The map would have shown a gap in the line, since part of
the Article 2sectorhad not been delimited;
-
The negotiations were conducted in such a rush that there
wasnot time to prepare a map;
- Lnthe light of Great Britain'sinsistence on having a line in
Article 3,rather than refening specificallyto the regions to
be left on the French side of the line, it was only logicalto
emphasize the verbal description of the line in Article 3 and
omit a map.
58 LM,FrenchArchiveA s nnex,p.35.
59 Sec p.ara.4.248,below,wherethe 1914MarinReport,inwhichthisthoughtappears,is
discussed.
60 See.CM,p. 160,para.70:The first two arguments are easily answered by the fact that the Non-Annexed
had no difficultyin showing such a gap; and it was printed and pubiished at
the very time the Declaration's text was presented to the French Parliament, as
the CM points out, so the was hardly a factor. The last argument makes more
sense if it is reversed: in placing the emphasis on a line, it would have been al1the
more important to annex a rnapunle sesArticle 3 reference to the direction
("dans la direction du Sud-Est"halrun thence to the south-east") intended the
line to berecisely southeast in direction, in which event no illustration would be
necessary since it could easilybe calculated without a map.
4.59 The CM suggests that the negotiators were so steeped in
maps that it never occurred to them that the text they prepared for Article 3
might be ambiguous; and that once the Declaration had been signed, M. Delcassé
and his "services" on examination realized how ambiguous Article 3 was and
quickly annexed a map to correct this defectol. This is not very conviIning.
the first place there is evidence to show that M. Delcasséintended the map only
to be iiiustrative.Perhaps inadvertently, thCM refers to and annexes a
document that confirms that the map was intended by the French Government to
be illustrative only. This is a dispatch from M. Delcasséto M. Cambon dated 25
March 1899 informing him that the Livre iaune edition of the Declaration was
being distributed that day "avecune carte indicativewo2.Unless what M. Delcassé
did was intended to be purely iiiustrative, his action in annexing the map, without
consultation with the British, was in conflict with the agreed treaty and could be
given no legal effect.
4.60 The CM states that it is "évidemmentimpensable" that the
British authorities did not know about this map at the time. Indeed they did
promptly learn of the rnap, as the docurnentary evidence in the Foreign Office
archives reveals. This is estabiished by one of the most interesting and important
61 See.CM.pp.160-161,paras.71-72
62 CM. pp.161and163,para.75,andAnnex57.documents in this case - a document that Chad has not referred to. It was
annexed tothe LM. and the hand-written text is reproduced here:
This was a note, written on 27 March 1899 by Sir Thomas Sanderson, British
Ambassador in Paris, to Lord Salisbury, with which was enclosed a copy of the
Livre iaune version of the Declaration and the map annexed to it63. The initials
at the bottom -"TWS"- were those of the Ambassador. The "S'under these
initialswas Lord Salisbuiy'sway ofacknowledging that he had read something.
4.61 In the fïrst sentence'The French have drawn the line from
the Tropic of Cancer to E.S.E. [east-southeast] instead of.E.[southeast]"- the
Ambassador notes the discrepancy between the direction of the line on the map
(ESE) and the Article 3 line intended (SE), at least as seen by the British. There
could be no more telling evidence of the intent of one of the signatories of the
Declaration than this.
63 See,LM. BritisArchivesAnnexp.37. 4.62 The note then adds: "1do not know that it matters much".
Why wouid he say that? No doubt because the map was assumed to be
iiiustrative oniy, and without legal effect. Mer ail, it had not been referred to in
or annexed to the signed document; and the French Govenunent had entirely on
their own annexed it to the version they published, without consultation with the
British. There is a second reason as well. The southeast line of Article 3was not
a boundary line; it was oniya line limitingFrance's expansion toward the NilAs
both Lord Salisbury and Ambassador Sanderson were to emphasize later, in
explanations given to the Ottomans and the Italians, Article 3 was intended to
have only a negative character. Ambassador Sanderson explained this to the
French Ambassador in London on 4 April1899 in the followingway:
"..the paragraph of the declaration of the 21st March, 1899, which
related to the territory north of latitude 15",was carefullyworded
a negative sense, so that while it placed a limit on the eventual
advance of France to the eastward and of Great Britain to the
westward, it did not eognise or purport to pass judgment on any
other rights or claims ."
4.63 The attempts to make a major point out of the absence
of any British protest to the French map66; but there was nothing to protest
about, for the reasons given above, particularly since the line was not a boundary
line. It was not a situation of such a character as to cal1for a reaction from the
Bntish Govenunent within a reasonable the, in the absence of which acceptance
by Great Britain could be presumed67. Furthermore, official British maps
published not long after showed the Article 3 line as a strict southeast line; and
there isno evidence of any French protest68.
4.64 The final sentence in the Sandersonnote - "othenvise their
line seems fair"-suggests that the direction of the line shown on the French map
was not fair ("othenvise"). However, the Bntish Govenunent in the
64 As usedhere, "eventuahas the meaningof "possible"s,imilarto the meaningof the
Frenchword "6ventuel"a.ndnotthe Americanmeaningof "certor"inevitableasin:
"eventuau~whynotnow".
65 LM,BritishArchiveAnnex,p. 160.
66 Sec g, CM. p. 163para.77(iii).
67 Compare,Templeof PreahVihear.Merits.Judmnent1.C.JReports1962,p23.
68 Sec .ara.4.18,above,andMapsLCM 14Aand14B. Sec .lsoLM, para.5.182and Map
No.63.circumstances evidentlychose not to make a fuss over a line drawn inaccurately
on an illustrativemap that could have had no legal effect and which related, not
to a boundary, but to the lirnitsof French expansion at a time when the French
had only just reached Lake Chad, hundreds of miles away from the region
concemed.
4.65 The maintains that the southeast line on the Non-
Annexed Mau . represented what to the eyes of the French was the agreed line.
No evidence is offered to support this assertion; and the evidence from the
French archives suggests otherwiseog,as does an examination of the map
that appears at page 146 of the m70. The map (see Mar>LC-M 17
referred to in paragraph 4.33 above) portrays the southeast line in relation to
certain geographical locations and features: Tibesti, Borkou, Ounianga, Erdi
(spelled "Erdebe") and Ennedi. It is evident that this map is geographically
primitive and inaccurate71. For example, the configuration of the Tibesti&f
is not at aUas portrayed. But thiswas the state of knowledgeof the geography of
the area in Great Britain and France at the time. The southeast line shownon the
LAF rnap, lies almost 200kilometres north of the Tibestmassif .hich had no
justification in the travaux. Moreover, the lineisdrawn as a solidline,just likethe
southem sector line as far north as 1l0N,which was intended to be a boundary
line, the inference to be drawn being that the southeast line, too, was a boundary
line, which was not the intention of the parties in Article 3 of the 1899
Declaration,as the concedes.
4.66 Thus, unless the Non-Annexed M~Dwas intended by the
French Government to be purely illustrative("indicative",as M. Delcasséhad put
it), the publication of the map was a furtive attempt to move the agreed line
northward. Although the Non-Annexed Mau may have been widelydisseminated
with the Livre iaune text of the Declaration, the French Government's intentio-
if indeed it was to change the lin-was not; and the British Government had no
reason to suspect the French Government of any such a thing, particularly in the
light ofM. Cambon'sstrong objection during the negotiations to Lord Salisbury's
69 &, para.4.59,above.
70 &, para.4.34,aboveItshouldbe notethattheawas a publicatiof theFrench
colonialists,whichcloselyfollowedeventsaffectingFrenchcolonialinteItwasa
most effectiorganofawell-organizep,owerfulgroup.
71 &, also,MausLGM22;23and24,referred toatpara.4.71,below.proposa1 to start the Article 3 sector line at 18'N latitude (and presumably no
further east than 23"Elongitude).
4.67 The CM discusses at some length the legal implications of
the Non-Annexed Mar>. Citing a passage from the Burkina-Fasomali case in
which the Court described several different categones into which boundary maps
might fa11~~t,heCM admits that the Non-Annexed Mar>did not qualify as having
"unevaleur juridique intrinsèque"73. On the other hand, thCM arguesthat it is
not merely an "élémentde preuve extrinsèque",either. To quote from thCM:
"..établiepar I'une des parties à titre ill~stratif~largement diffusée
-notamment aux assemblées parlementaires -,et non récusée
par l'autre partie, elle traduitde manière convaincante leur
intention commune et présente à ce titre une valeur probante,
certespas irréfragable,mais considérable."
Of course, the important part of the above remark is that the map was intended
onlyto be "illustratif'(or as M. Delcasséexpressed it, "indicatif').
4.68 The then goes on to saythe following:
"L'attitude de la Grande-Bretagne à l'égardde la carte en question
rejoint celle de la France et leur attitude commune peut s'analyser
en un ac~çptd tacite, interprétation authentique de la
Déclaration .
The evidence directly refutes such a fanciful suggestion; and to summanze what
has been pointed out earlier to demonstrate how wrong this contention is, these
are the elements of evidence that contradict CM'S conclusions:
- The evidence establishes that the British Government -in
fact the British officiais directly involve- immediately
recognized the map as not reflecting the direction of the
Article 3 line intended bythe parties;
72 FrontierDispute,Judement,LC.J.Repo1986p.554.
73 CM, p.164para.80.
74 Only intheFrenchParliamenitt,mustbenoted:not theBritishParliament.
75 CM,p.164,para81. - Officia1 British maps issued after 1899 showed a strict
southeast line; and there is no evidence of any French
protest;
- There was no reason at al1for the British Govemment to
protest the rnap because: (i) it only indicated a luie beyond
whichFrance'stemtorial ambitionswere not to extend -and
the French at the time w.ere hundreds of miles away,having
just reached Lake ,chad $; (ii) the map could only have been
intended to be;illiistr&..e in a general way and certainly
could npt haie h&d.an'$ilegae lffect and, so far as the British
d.
could have ho&, must have been intended to be no more
'than. illustrative; (iii) the southeast line on the rnap was
unquestionably not the line agreed, as the a map
published at the time demonstrated; and the French
Govemment certainly was aware of this; and (iv) no rnap
had been referred to in the text of the Declaration or
annexed thereto, and this was due to French insistence that
no rnapbe annexed;
- Perhaps inadvertently, the Non-Annexed Mar, portrayed a
boundary (drawn as a solidline along 24"Elongitude) as far
north as 1YN latitude, since it in effect extended the Article
2 sector; this rnight have been seen on the British side as
advantageous since it pushed northward the boundary
between British and French temtories, at least inter se, and
thus insured against any future French moves toward the
region of the Nile. .,r. -
,;. t'j.?,.ii.;..
c /,
4.69 It remains .to .con'iidk?~!.&s hych an extraordinary effort is
.r ",
made by Chad to defend the.Frenchprosiiion conceming the Non-Annexed Map.
No doubt part of the reason stems from the fact that over the years the French
Govemment misled £irstthe Italians (1900and 1902),then the British on several
different occasions and, lïnally, the United Nations, repeatedly, about this rnap
and its status. After independence, Chad picked up the banner from France, and
continued to mischaracterize the map, no doubt in al1innocence, fullybelieving
that a rnap had been amexed to the 1899Declaration, just as Signor Visconti-
Venosta in 1900and SignorPrinetti in 1902had been led to believe. 4.70 Anothei reason that may explain the position taken in the
CM concerning the rnap is the heightened importance this rnap plays in
-
attemptingto establish that there is a conventional boundary. The cm of Chad's
first theory is the in Article 3 of the 1955Treaty to &he on this map, by
whichChad would hope to leapfrog the whole series of problems encountered in
Chad's second theory. Camed to its extreme, the first theory would obviate
consideringwhether the rnap was annexed or whether it was only iilustrative or
whether it portrayed the intended line. The would act as a sort of deus ex
machina. The CM even advances the argument, under the second theory, that
the to the 1899Declaration, in and of itself,was sufficientto establish the
boundary since,"àla connaissancede la Républiquedu Tchad, ce tracén'ajamais
étémodifiédepuis lors76". It is criti;Osuch an argument that the line shown
on the rnap be theame line as the 1919line and as the Submissionsline;and it is
equaily cntical that this line on the rnap represented the intent of the parties to
the 1899Declaration. Finally,the Non-Annexed Mau wasreferred to in the 1902
Accord - and it is upon that reference that the alleged opposabilityof the line to
Italy,and hence to Libya,relies. When a line on a rnap playssuch a key role, it is
not surprising that every effort has been made inCMheto present the rnap in
the best light possible. Thus, it is ail the more astonishing thatCMhehas
reproduced it as a tampered-with "extract".
4.71 In spite of such a heavy reliance on the Non-Annexed M~D
and on the other contemporary maps (the 1892Justus Perthes map, the 1895-
1896French militarymap, and the sketch rnap), tCM reflects a failure
to havereallylooked at them.A strict southeast line drawn on these maps would
have left on the French sideof the linevirtuallyailthe regionsnowcomprisingthe
so-cailed "B.E.T.", as these regions appeared on those maps. This is again
demonstrated on Ma~sLC-M 22,23 and 24,whichare overlaymaps on whichthe
topography set out on each of the three older maps just mentioned has been
placed over a1990 topographic map. The change in knowledgeof the location of
topographic features is startling. The line drawn by the French on thNon-
Annexed Mau (identified on each rnap as the east-southeast line accordingto the
Livre jaune map) was far to the north of the Tibesti as shownon the maps
available in 1899. It is inconceivablethat aline was intended by the parties;
76 Sec .., CM,p.166para.85.but so far as the British were concerned at the time, it was only an illustrative
sketch map and soit "didn'tmatter much".
4.72 Inthe light of the above, tCM'S conclusions concerning
thismap are conspicuously These are:
- The parties to the 1899 Declaration intended to delirnit
preciselytheir respective zones of influence;
Commenr Therewasno delimitation involved;a line wasdrawnto
limit the extent of France'stem'toria expansion toward the Nile.
Article 3 accordedno recognitionto any Frenchzone of influence;
Italiansand to theFrenchthemselve-thatno rightIOotenitorywere
recognizeà,or thelinehadonly anegativesense.
- The resultingtext,however,turned out to be ambiguous and
the words "en principe"in Article 3 showthat onlya general
indicationofthe direction of the linewas intended;
Commenc To the contra? the direction was preciseb stated;
representedon a map as a smctsoutheastline,the linecam'edout the
intentionsof theparties basedon thegraphyof the areaas it was
understoodut thetimeandshownon contem orarymaps. Thewords
lIoNainBthesegmentbetween1IoNand Cflm,e swhichcontemplatedto
an exactoundarydelimitation. InArticle3,the wordrdo not modifi
the directionof the line but relateto the limitationimposed on the
Frenchzone. AstheLx explains,t se wordsno doubt wereinserted
inanticipationof Ottomanconcern.
- The end point of the southeast linewas intended to intersect
24"E "nettement au nord" o15"N and necessarily north of
18"N,
Comment: The travaux establish quite the opposite: it was M.
point nt IgN, as ')ushing"thelinetoofur north. So thestartingpoint
was changed back to 1YN. The has discussed and annaed
incompletetrava anx hm, as a result,serious&misinterpretedthe
documentaryevidence.
77 See,CM. p.165para. 3.
78 SeeLM.para.5.39.AREACOMPARISON - The line.on France's map (the Non-Annexed Mau) had the
effect of leaving in the French zone al1of t"B.E.T.",as
shownon contemporary maps;
Comment: me; butsodoesasm'ctsoutheast linewhendrawnon the
mapswhichwerespreadoutbeforethe negotiatorsin1899.
- The end point of the line on this map was at the intersection
of 24"Eand 19"30'N,"au moinsapproximative";
Comment: False;the endpoint wasut about IPN, not a negligible
difference>theareafalling behveenthesehvo linescomprkes some
22,828hm , approximatelyhalf the siof SwitzerlandorDenmark
(Mav LC-M 20). OfJicialFrenchdis archesand illustrativesketch
maps 0% the years that followedRs owed these lines to be quite
different.
- The final paragraph of the Anglo-French Convention of8
September 1919 sets out a verbal description of the same
line ("une description littérairede la ligne figurant sur cette
carte~g");
Comment: Incorrect,for the reasonsgiven above;IPN is not the
same Iine as 1P30JN,just as a rnap that was not annaed to the
Declaration cannot be called the "annexed map" (as the
repeatedlyreferstothismap).
CHAPTER IV. THE 1900-1902 ACCORDS
4.73 Arnong the more conspicuous omissions from the list in
Annex 1of the 1955Treaty were the 1900Franco-Italian Accord and the 1902
Anglo-ItalianAccord (whichwassignedprior to the 1902Franco-Italian Accord).
4.74 It appears evident that the 1900 Accord was left out by
mistake -in the rush to prepare and table this listas part of Annex 1in the closing
hours of negotiations in August 1955. For the 1902Accord appears in Annex 1as
"les accords franco-italiens du ler novembre 1902, but there was only one
accord, expressed as an exchange of letters, just like the 1900Accord. The 1900
79 See,ex.,LM,para.5.271,whichdiscussesa 1930dispatchin whichFrenchAmbassador
Beaumarchaisdisclosesthathe hadbeen authorizedto reinfavourofItalythe
differencebehveenthe lineon theLivreiaunemapandthe 1919line.
80 CM. p. 165,para.84.and 1902 Accords have alwaysbeen considered together because the latter refers
to the former and explains and enlarges on it. It looks very much as if the "su
added to "accord was there because the 1900 Accord had been intended to
appear there but was omitted bymistake.
4.75 The reflects some ernbarrassment over this; for it
advances the rather weak explanation, seeminglyto cover up the mistake, that
although there was only one 1902 Accord it was made up of a series of letters
exchanged and it completed an earlier exchange (that is t1900Accord, which
was carelesslyoverlooked), and hence the use of the plural tenu "~ccords"~~.It
is indeed embarrassing that th1900 Accord was omitted; but it did not matter
much, since being on or off the Annex Ilist did not establish whether an
agreement was "en vigueur" in 1951,the ovemding criterion of Articl3 of the
1955 Treaty. Chad has produced evidencein theCM to establish that neither the
1900 nor the1902 Accordwas "envigueur" in 1951g2.
4.76 Accordingly,the 1900-1902 Franco-Italian Accords will be
considered together.
S~ON 1. Background of the Accords
4.77 It is important to understand the background of these
Accords, for the gives an inaccurate account, slanted to support its
interpretation of them. This background is initially discussed in theCM'S
Introduction, described there as being a situation where Italywas seeking English
and French recognition of an Italian sphere of influence in Tripolitania in return
for Italy'sacceptance of the Anglo-French"partage".
4.78 This is not at al1the case. Italydid seek to have its position
recognized as heir-apparent to Tripolitania in the event of the collapse of the
Ottoman Empire, but the proposa1was rejected out of hand by the British and
the ~rench~~. Furthermore, as Great Bntain repeatedly told everyone,the1899
Declaration did not involve any assertion or recognition of the acquisition of
rights by France north of15"N latitude; it was not a "partage" or a delimitation.
81 CM ..166,par88.
83 SeeLM,paras ..51and5.59-5.65.The CM consistentlydisregards the fact that, pnor to the 1912Treaty of Ouchy,
Italy was only a concemed bystander, anxious to preserve the QUOtinthe
Mediterranean and to have undertakings from Great Britain and France that the
1899 Declaration did not imply that either Power had designs on Tnpolitania.
But Tripolitania was then under Ottoman sovereignty, and Tripolitania's
hinterland rights were an Ottoman concern. Italy had no status to agree to
anything in respect to any boundanes or territorial claims inthe region; and the
1902 Accord was not at al1 the recognition by France of an Italian zone of
influencein Tripolitania, aCMthwronglycontendsM.
4.79 The CM attempts to develop two other themes: (i) that the
Italianovenunent disavowedthe Ottoman claim to a Tripolitanian hinterland,
thereby layingthe groundwork forwhat CMe claimswasa renunciation byItaly
in the 1902Accord of any claimto Ottoman rights in the hinterla(iit)at
slowlybut surely Italy came to recognize formaiiy the Anglo-French "partage".
These dual themes are expressed in thiswayiCM:e
"L'Italiea, par la voixde ses représentants les plus autorisés, fait
immédiatementsavoir qu'ellese désolidarisaitde la Sublime Porte
et, progressivement, elle%en9,nue à reconnaître formellement
le partage franco-britanniq.e
The support for these arguments is said to be found in three events: (i) a speech
of Foreign Minister Admiral Canevaro to the Italian Senate on 24 April 1899~~;
(iithe 1900~ccord~~;and (iii) a declaration of Foreign Minister Prinetti to the
Italian Parliament on 14December 1901g8. Each willbe discussedin turn below
in an analysisthat demonstrates that none had the meaning or effect ascribed to
them in thCM.
84 See. CMp.21,para.18.
85 CM ..167,para.91.
86 CM .nnex60.
a7 LM, InternatiAccord sndAneements Anne?.,5..
88 CM. Annex333; LM. paras.5.74-5.75. Smo~ 2. CanevamSueech (1899)
4.80 According to theCM. in this speech Admiral Canevaro
"implicitlyapproved" the 1899Declaration at the same time as he "denounced the
exaggerations"set out in the Ottoman protests against the Declaration. Chad has
only annexed short extracts from the speech taken froLAF~', although
the original text was deposited with the Registrar as a Production. Libya has
annexed heretothe text and a fulltranslationg0.
4.81 Admiral Canevaro's tour d'horizo- purely descriptive in
character-is taken by Chad to constitfir,aftr. a1recognitioin principle,
of the "bien-fondé"of the acquisition by the Powers of zones of influence in this
part of Africa; aseco tal.'srenunciation of posing as successorto Turkey's
claimed rights, "droitsqu'elleluiconteste formellement ...~~l. In its Introduction,
the describes the speech as an "implicitapproval" of the 1899Declaration
and a "denunciationof the exaggerations"contained in the Porte's against
the Declaration. The attempts to make these conclusions regarding the
speech appear reasonable byadding:
"Sans doute, ce discours ne constitue-t-il-ppas encore -la
reconnaissance expresse du tracé de la limite de l'expansion
fran se convenue entre la France et la Grande-Bretagne en
1899%B."
4.82 Of course, as to thefir psont, Chad's basic premise is
wrong. North of 1YN latitude, the 1899Declaration involvedno assertion of any
temtonal rights or interestsThe British insisted that the text of Article 3
reflected no recognitionon their part of French rights;the southeast line had only
a negative sense. Regrettably,CMhehas failed to refer to the evidence during
the period 1899-1902that reveals Italy'srealviewsg3. This evidence includes:
89 CM, Annex60.
90 Speechof ForeignMinisAdmira1Canevaroto the ItalianSenate on 24 April 1899,
LC-M11,hereto.
91 CM, p. 168,para.94.
92 -bid.
93 See.LM.para.5.5gtB. - British reassurances to Italy by Lord Salisbq in 1899and
Lord Cume in 1902~~;
- Italian statements to the Britishin 1898,1899and 1902that
so long as the 1899Declaration affected only regions south
of 15"Nlatitude it was of no concern to ~tal~~~i;n 1898
Admiral Canevaro had said, however, even before the
Declaration had been negotiated, that should itseffe-t
"...extend north of that parallel, so as to
include part of the Hinterland of Tripoli, the
status auo in the Mediterranean, which Italy
regarded a f such vital importance, would
be affected$8.
- The remonstrations made by Admiral Canevaro to the
British and the French immediately afier the Declaration
became known, prompting French Ambassador Barrère to
suggestthat he be authorized:
"..à déclarerle cas échéant quenous n'avons
aucune vue sur la Tripolitaine et $Y,,
hinterland légitime (puis-jedirecela?) .
Italywas in no position to make a formal protest; Tripolitania wasunder Ottoman
sovereignty,and it was up to the Porte to protest any violation of its hinterland,
which indeed the Porte did most vigorously at the time. So Italy's potential
interests were protected. Neither Admira1 Canevaro nor Messrs. Visconti-
Venosta or Prinetti expressed anyviewsthat could be interpreted as an "implicit
approval" or a recognition of the "bien-fondé"of an extension of the French zone
ofinfiuence into the area above 15"Nlatitude. Infact that would have been quite
94 SeeL,M.para.5.59.
95 SeeL,M, para..61.
96 LM. British Archivesnnex,pp. 73-75. It is interestingto note how carehlly Italy
expressed its interest.It was for the Ottoman Empireto protestintrusionson its
hinterlandrights;butItalyhad alegitimateinterest,gubyTreaty,toseethatthe
-tatusg- intheMediterraneawasmaintained.
97 LM,FrenchArchivesAnnex, p 9.impossible: the 1899 Declaration contained no assertion or recognition of
territorial rightsnorth15" atitude98.
4.83 As to the second point, relating to what is described
vanously in theCM as a denunciation of the Ottomans' exaggerated hinterland
claim or as renunciation by Italy of any claim to Ottoman hinterland rights, it is
tme that Admiral Canevaro, in hisspeech, made a fewdisparagingremarks about
the extent of the Ottoman claim. This was a rather harmless wayto cuny favour
with the French, from whom he was trying to get a declaration concerning
Tnpolitania, and to please Italy'spartner in the Triple Alliance,Germany; for the
1890Ottoman claimextended far south ofLake Chad into a region that Germany
and Great Bntain had only recently divided between them (Mau LC-M 12
referred to at paragraph 4.11above).
4.84 Italy'sconcerns wouldhave been aroused onlyif temtory to
the north of15"N latitude became involved;and Great Britain had assured Itaiy
that the Declaration had not affected any territorial nghts in that region. The
1890Ottoman claimhad a certain logic,for it was constructed around the trade
routes. However, its southem reach became unrealistic in the face of the fast-
movingevents occurring in the region south of Lake Chad. Admiral Canevaro's
remarks may have been cntical of the extent of the Ottoman claim; but his
position had been made clear that Italy regarded any assertion by the French of
rightsnorth of15" Ns threatening the status auo.
Smo~ 3. PrinettiDeclaration(1901)
4.85 Prinetti became Italian Foreign Minister not longafter his
predecessor, Visconti-Venosta, had completed the exchange of letters with
Ambassador Barrère that constituted the 1900~ccord~~. He wanted to make
public that part of the 1900Accord relating to ~ri~oli~~~.After a long period of
discussion,the text of what he mightsayregarding that secret Accord wasagreed,
98 "hasa negativecharacterand is bindingonly on the Wo countrieswho s...'.iton
LCM 11,heretop.4of theEnglishtranslation.
99 The1900Accord istakenupin Section4,below,siislinkedtothe 1902Accord.
1ûû See.LM.para.5.74,9 -q.word-for-word, with the French Government; and he included the agreed
statement in a speech to the Italian Parliamenton 14December 1901.
4.86 The CM contends that this statement confirmed the 1900
Accord concerning the limits of the French zone of influencelO'. Shortly after
Prinetti's speech, the French Foreign Minister Delcassé, in a speech to the
Chambre des Députéson 21 January 1902, also made a reference to the 1899
Declaration and itsrelationship to Italy.CMhe argues that the "parallélisme"of
these two statements and "l'identité des termes utilisés"were striking and
confirmed the agreement between the two countries as to the limit of the French
zone of influence02.
4.87 A comparison of the Italian and French statements reveals
thisis not so at al]. Signor Prinetti's carefully worded statement, in the translation
set out in thCM. advised the Italian Parliament that Franchad assured Italy
that the 1899Declaration:
".marquait pour la France, par rauuort à la réeionattenante à la
frontière orientale de ses possessions africaines et en particulier
ar rapport au vilavet de Tri~oli, province delgFmpire turc, une
fmite qu'iln'avait pas l'intention de dépa... .
The CM wrongly paraphrases this statement this way: that the assurances given
Italywere that the Declaration"marque la limite de ses possessions africaines par
rapport au vilayet de ~ri~oli"'O~. This paraphrase differs from Signor Prinetti's
statement in several respects:
- There was no reference by Pnnetti to the of France's
African possessions; he said that the Declaration marked a
limit that France had no intention of exceeding; there is a
world of difference between a recognition of a State's
possessions (which would imply recognition of the State's
effective occupation) and recognition of the fact that a State
131 See . M.pp.172-174,par?. 108-113.
102 See .M.p. 172,para.107.
103 CM, p. 170,para.103. Emphasis added.The textof thofthe speechasset out in
-M'SAnnex333 isincomplete.
104 CM, p. 171,para.104. had agreed that it would not seek to acquire sovereignty
beyond a certain limit;
- Pnnetti defined the limit that France did not intend to
exceed as being "par rapport à la région attenante à la
frontière orientale de ses possessions africaines et en
1O5
particulier par rapport au vilayetde Tripoli.
4.88 This difference can be seen on the map (Mau LC-M 27).
The French limitSignorPrinetti referred to onlyconcemed the region to the east
of the eastern frontier of France's Afiican possessions in 1899,which is shaded
red. At that time, France's Afiicanpossessionswere Tunisia and Algena; in the
south, the French were only just amving at Lake Chad. The map shows the
notional frontier of the vivi of Tripoli as it appeared on the Non-Annexed
&. Signor Pnnetti's statement could not have concemed any French temtov
east of Toummo, and probably not even so far to the south and east. The as
paraphrase of his statement obscures this fact and, as there summanzed, could
conceivablyhave embraced the entire area up to the southeast line show on the
map.
4.89 Tuming to M. Delcassé's supposedlyparallel speech using
identical terms, an examination of the text demonstrates that he did not Saythe
same thing at al1as SignorPrinetti. In fact, his speech greatly expanded the effect
of the Declaration, at least as conceivedand publiclyexplainedbythe BritisM.
Delcassé described the Declaration as "enveloppant définitivement" the
temtones of Borkou, Tibesti, Kanem, Baghirmi and Ouadaï. (It is interestingto
note in passing that missingfrom the listwere the regions of Ounianga,Erdi and
Ennedi, revealing that France's interests lay in the western sector of the
borderlands region.)M. Delcasséthen added that the Declaration:
"..forme ainsi pour nous,.par rapport aux autres pays et régions
attenant à la frontière onentale de notre domain el^, une
limite que nous n'avonspas l'intentionde dépasser.. ."
105 A more precisetranslationwouldreplace"atteby"wntiguEand"enparticulieby
"précis6mentr"notamment".
106 CM. Annex334.The "parallélisme"and "identitédes termes utilisés"are totaiiy missing. Signor
Prinetti'sspeechconcernedno region lyingeast ofTournmo.
SECTIO 4.N The 1900Accord
4.90 This agreement is carefully analysed in Libya'sMemorial,
whichemphasizes the important fact about this Accord: that the part of iting
with the 1899Declaration's effecton Tripolitania consisted of a purelv unilateral
statement made on behalf of rance"^ .his unilateral statement concerned
onlythe effect of the Declarationon Tnpolitania-qenaica in the light of the fact
that the Declaration had failed to mention the of Tripoli, to which was
joined the assurance that France had no plans to intercept "les communications
caravanières de Tripoli avec les régions viséespar la susdite convention", a
reference to the 1899Declaration.
4.91 The Accord consisted of a letter from Ambassador Barrère
to Italian Foreign Minister Visconti-Venosta dated 14 December 1900 and a
letter from the latter to the former of 16December that made no reference at al1
to the 14 December letter. Each letter dealt with different subjects. Barrère
explained the intended effect of the 1899Declaration. Visconti-Venosta'sletter
recognizedFrance's position in Morocco and reserved Italy'srights to develop its
influence in Tripolitania-Cyrenaica. Neither letter confirmed the statements
made in the otherletter. Both letters specifiedthat their contents were to be kept
secret.
4.92 The ms discussion of the 1900 Accord begins abruptiy:
"L'acceptation par l'Italie de la Déclarationde Londres de 1899prend un tour
pluspositif avec [the exchangeof letters constitutingthe ~ccord]~~~."Alread~,in
one paragraph, the effect of Admira1Canevaro's speech of 24 April 1899 has
moved from the alleged recognitionby Italyof the "bien-fonde of the French and
107 See.LM, para.5.67, seq. The lettersmnstitutingthe Accord annexedin the
InternationAmrds andAereements Annex,No.5.
108 CM. p.168,para.95.British zones of influence in Africa to the accevtance by Italy of the 1899
109
Declaration .
4.93 The CM tries to circumvent the strictlyunilateral character
of the 1900 exchange by mentioning that it was the result of long, difficult
negotiations and ended up as an "accordéquilibré",ut there isno getting around
the form and content of the letters exchang-it wasnot a bilateral agreement in
any sense of the term. The letters were unilateral statements of position. It is
therefore totallyincorrectto describe the Accord in the followingway:
"ilrésulte de cet accord que l'Italie reconnaît non seulement la
validitéde principe du partage opéré ar the1899Declaration] -
ce qu'avait déjàfait l'AmiraCANE SAR 6 l'annéeprécédente -,
mais égalementcelle de la limite de la sphèred'infiuencefrançaise
en résultant et qu'elle se satisfait de l'assurance donnée par la
France selon laquelle la sphère d'influence française déterminée
par [the 18RDeclaration] n'empiètera pas sur la Tripolitaine-
Cyrénaïque ."
4.94 Italyrecognized nothing at al1in thisAccord conceming the
1899Declaration; and France's unilateralstatement dealingwith the effect of the
1899Declarationreferred to the limitof the French sphere vis-à-visTripolita-ia
Cyrenaica as well as its effect on the trade routes running from Tripoli south into
the sudanlll. The reason for this is evident: the 1899Declaration had omitted
any reference to the of Tripoli (which embraced both Tripolitania and
Cyrenaica), and Italy wanted to understand what the consequences of such an
omissionwere. This was the subject M. Barrère addressed in his letter. There is
no basis at ail for the ms assertion that Italy had indicated that it was satisfied
by France's assurance, in any event; and Signor Visconti-Venosta did not even
acknowledgeit in hisletter constitutingthe exchange.
- -
109 Compare, CM,p.168paras.94and95.However, the makes an important admission
here: that the00 Accord wascertainly not a boundary delimitation tThety.
importance of this admissiointhe fact that it would not be possible to argue that,
even though the900Accordwas not "en vigueur"1951under international law as
reflectinArticle 11of t1978Vienna Convention on Succession of Statesin respect
of Treaties, the boundary establishe1900Accord, or the obligations and nghts
relating to the regime of such a boundary,were passed on to Libya,nevenheless. For no
boundarywasinvolved.
110 CM. p.169para. 99.
111 See.LM, p.47,fn53,where "the Sudan" is defined to mean the area lying south of the
Sahara. 4.95 The statement of M. Barrère as to the intent of the
Declaration lacked precision112. When Signor Prinetti made his carefully
worded, pre-negotiated statement on 14December 1901 disclosing ina guarded
fashion France'ssecret assurance, however,itwas clear that both France and Italy
-for this was a formallyagreed text, asCMhe points ou- considered France's
assurance concerning the effect of the Declaration on Tripolitania-Cyrenaica to
concern areas no further south or east than Toummo, as explained and illustrated
above (Mau LC-M 27). In contrast, the statement in M. Delcassé'sspeech was a
self-se~ng statement by the French Government that went well beyond the
agreement reached with Great Britain in the 1899 Declaration. It is
understandable that Italy should subsequently seek to clarify the meaning of
France's assurance in 1900. For one thing, as the LM demonstrates, the
boundaries of Tripolitania had never been ïked by any form of agreement3.
Thisled to the 1902Franco-Italian Accord.
Smo~ 5. The 1902Accords
4.96 It is the 1902Franco-Italian Accord to which the following
discussionwillbe pnmarily directed. But, first, a brief consideration of the other
1902Accord -the Anglo-Italian Accord-is in order; for there were two 1902
Accords entered into by Italy:one with France; and one with Great Britain, which
preceded the 1902Franco-Italian ~ccordll~.
(a) The 1902Anelo-Italian Accord
4.97 The CM states that Chad could hd no evidence of such an
agreement with Great Bntain, although it turned up documents indicating
discussionsbetween Italy and Great Britain in 1901-1902that show Italy seeking
from Great Britain assurances similarto the 1900Frencassurance^ O n^^e.
basis of these incomplete documents, theCM clairns to find evidence of the
"reconnaissance par l'Italof the 1899Declaration. TheCM goes further as to
the sigruficanceof thisincomplete evidence:
112 The British Foreignicat the timeexpresa lacof understandasto what M.
BarrkremeantithisletteSecpara.4.104,below,fifthitem.
113 See.LM,para.5.95.
114 See.LM,paras.5.103-5.110.
115 CM. pp.169-170,paras.100-101. "..cet échangede vues confirme de la manière la plus claire que
l'Italie, loinde contester la validité[of the Declaration], se
montre au contraire très soucieuse d'obtenir l'assurance que la
ligne convenue constitue une limite de leurs zones d'influence
respectives par rapportà la Tripolitaine quel."la France, ni la
Grande-Bretagne n'ontl'intentionde dépasser
Libya'sMemonal has fiiled this gap in Chad's research. There was indeed an
Accord reached, and it isof an importanceequal to that o1900-19 A02cords
and well deserved a place on t1955 Treaty's Annex1 list,since Great Britain's
interpretation ofth1899Declaration,prima facie,had a value equal to that ofits
CO-signatory.
4.98 The Anglo-Italian Accord does not support the CM'S
assertions quoted above. This passage from tCM impiies that it is meaningful
that Italy did not contest the validityo1899eDeclaration. Why would Italy
have wanted to? And on whatbasis could it have done so,giventhat the temtory
was under Ottoman rather than Italian sovereignty? Th1899 Declaration was
between Great Britain and ~iance. It is of interest that Germany did raise a
question concerning the Declaration 1899 -a fact the makes no reference
to at al], but which was discussed in full in&1117. The German enquiry
resulted in the German Government making plain that the Declaration was to be
regarded as res inter alios acta.However, Germany did have a legitimate
concern, forit had recently acquired possessionsadjoiningthe area of Lake Chad,
where French troops had just started to appeaIn contrast, Italy had no rights
whatsoever, in1899or in1902 in thispart ofAfrica; thearea waspart ofwhat the
Ottoman Empire claimed to be the Tripoiitanian hinterland. So Italy had no
standing even to make a forma1enqujS as Germany did, let alone challenge the
Declaration's validity, which neither Italy nor Germany had any reason to do.
However, Italy stronglyvoiced, privately, its concern to both the British and the
French,a fact reflected inAdmira1nevaro'sspeech discussedabove118.
4.99 As to the second part of the passage, Italy was indeed
anxious to obtain from Great Britain assurances comparable to the French
assurances; in fact, Italy had sought a tripartite agreement of some kind, but this
116 CM,p. 170,para.101.
117 LM.paras5.56-5.57.
118 Sec.ara4.80g S., above.had been rejected1l9. But the 1900French assurances had nothing to do with "la
ligneconvenue"between Great Britain and Francereferred to inthispassage - an
obvious reference to the Article 3 southeast line. The 1900 Accord only
concemedthe area no further south or east ofToummo, as explainedabove.
4.100 It is important at this juncture to grasp why Italy needed
assurancesfrom Great Britain as wellas from France concerningthe effect of the
1899 Declaration. The French assurances in 1900concerned oniy the western
frontier of Tripolitania and the trade routes on the West mnning south from
Tripoli, for that is where French interests lay and where France's possessions of
Algeria and Tunisia were. Indeed, it was to that sector of the Tripolitanian
frontierthat Signor Prinetti referred in his 1901speech. It was the British,on the
other hand, who were interested in the area to the east of Tripolitania-Cyrenaica
(see the area shaded blue on Mau LC-M 27referred to above at paragraph 4.88).
Accordingly,whilst the 1900Accord between France and Italy had nothing to do
withthe famous southeast line of Article3 ofthe 1899Declaration -for that layto
the east -,but oniy withthe western part of Tnpolitania as far as Toummo, the
1902 Accord between Great Britain and Italy was directly concemed with the
southeast iine, for it affected the eastern limits of Tripolitania-Cyrenaica. Here
the Britishwere interested. not the French.
4.101 Like the 1900Franco-Italian Accord, the 1902Anglo-Italian
Accord wascomprised of an exchangeofdocuments:
- A British Declaration dated 11 March 1902,referring to the
Article 3 southeast line and stating that (i) the 1899
Declaration did not purport to deal with the rights of other
Powers (res inter alios acta), and (ii) in particular, rights in
respect to the v> of Tripoli and the Mutessarifik of
120.
Benghaziremained unaffected ,
-
A further statement in the same British Declaration to the
effect that Great Britain had no designs on Tripoli and
wishedto maintain the status quo in the Mediterranean -but
119 See,LM, para5.103.
120 See.LM, para5.107. if that should be altered, it should, subject to certain
limitations, be altered in conformitywith Italian interests;
- A copy of Lord Lansdowne's dispatch of 7 March 1902,
which was a statement of Great Britain's interpretation of
the 1899 Declaration;
- A copy of the Barrère letter of 14 December 1900
comprising a part of t1900 Accord.
Lord Lansdowne's dispatch was handed to Foreign Minster Prinetti on1March;
on 12 March Lord Cume, the British Ambassador, handed Prinetti the
Declaration dated 11 March. At the same time, Prinetti handed Lord Cume a
copy of the Barrère letter that was part o1900eAccord.
4.102 So far as the present dispute is concerned, the Angio-Italian
Accord is in manywaysmore significant than the Franco-Itali1902 Accord that
followed it. For the latter was a clarification o1900eAccord with respect to
the meaning of the 1899 Declaration vis-à-vis ~~renaica-~ri~olitania'~'. The
importance of the agreement with Great Britain was that, aside from the
assurances covering Tripolitania, the British Government informed the Italians
what the British regarded thetent of the Declarationto be.
4.103 The dispatch of 3 February 1902 of Lord Lansdowne, the
British Foreign Minister, to Ambassador Currie in Rome is, thus, a key document
in this case122. This is so not only because of its expression of the British
Government's views as to the meaning and effect of the 1899 Declaration, but
also because it was formally handed to Italy as part of the exchange of documents
constituting the Angio-Itali1902 Accord.
4.104 Briefly summarized, this dispatch contained the following
important information and explanations:
121 Of course, the 1902 Franco-ItalianAmrd had considerableimporîancein other
respects.Clarificaof the1900 Accordsonlyone elementof thisagreemeS-,
LM, para.5.8g,a.
122 IttextissetoutinLM,British Archis nnex,pp.73-75. S-, aLM.,para.5.105,
%¶.- It had been prepared in response to Signor Prinetti's
complaints that Great Britain had not communicated with
Italy about the 1899Declaration;
- Italy's concem-was related to Tripolitania's "hinterland",
identified as the area north of 15"N latitude; if the
Declaration affected that area, it disturbed the status quo in
the Mediterranean in the eyes of the Italian Govemment;
-
Lord Salisbury had understood this in 1899, and as a result
the line in the Declaration (Articl3),to the east and west
of which Great Britain and France each undertook not to
acquire temtory or influence, was not drawn further north
than 1YN latitude:
'To the north of that degree the line
represents merely the limit beyond which the
French Government would not at any time
advance itspretensions";
- Article 3 of the Declaration was worded in a negative
manner and contained "no recognition of rights nor any
pronouncementson temtorial clairus':
- The British Govemment had been shown confidentially the
text of the 1900 Accord and could not understand the
bearing of this assurance by France on the of Tripoli,
which lay to the north of the Tropic of Cancer and, hence,
outside the scope of the Declaration;
Comment: Evidentb the BritishGovernmenthad overlooked the
westernboundaryof mpoli adjoiningFrance's possessionsof ïùnisia
andAlgena.
- The Declaration insofar as it affected the "Hinterland of
Tripoli",was entirely without prejudice to the rights of other
powers;
- The southern boundary of Tripoli did not appear to have
been very accuratelydefined - but al1of it lay to the north of
the point where the Article 3southeast iine commenced; Comment: ï2LTLTa refrenceto thenotionalfronderdepictedon the
N(MaoLC-Med 27,paragraphe4.88above).d line around "7Epolitania"
- Great Britain was not prepared to state that it would
remain, then and thereafter, disinterested in Tripoli for that
would, inter alia.iolate the spirit of treaty engagements
with the Ottoman Empire, as Lord Salisbury had pointed
out in 1899,when the same suggestion had been made by
Italy;
- The formula of the 11 March Declaration as an alternative
wasauthorized to be presentedto the Italian Government.
4.105 One final point about Ital1902 Accord with Great Britain
remains to be made. In the documents that were exchanged and that compnsed
the Accord, nowhere did Italy recognize, acknowledge, accept or approve
anything. Great Britain's aui'dpro auo lay elsewhere: this assurance to Italy
substantially lessened Italy'sdependence on the Triple Alliance and the tensions
it had caused and this was essentiaiiywhat both Great Bntain and France had
sought inthese1900-1902 Accords.
(b) The 1902 Franco-ItalianAccord
(i) Background
4.106 It was in th1902 Accord between Italy and France that the
Non-Annexed Mau was first formally acknowledgedby another Power; and for
that reason, just as that map ispivota1to both Chad'sfirst and secondtheories,so
is the1902 Accord. The CM claimsthat this Accord, whichwas preceded by the
Canevaro speech in 1899 and the declarations "croisées"of Prinetti and Delcassé
in 1901-1902, constituted the "recognition by Italy of the French zone of
intl~ence"~~~.The ms introduction States that by this Accord zone of
influence over Tripolitania was alsoognized by France. The second assertion
has already been shown above to be wrong; it may have been Italy's aim,but
Great Britain and France had flatly rejected such a proposition. So it is
123 CM.p.172,para.108.appropriate to tum to the first argumen-Italy'saileged recognition of a French
zone of ixüiuence.
4.107 Lord Lansdowne's dispatch of 3 February 1902, just
discussed, demonstrates that Great Britain considered at the time that no such
French zone of inûuence had either been asserted by France or recognized by
Great Bntain in the 1899Declaration (at least north of 15"Nlatitude). Since the
claim to a French zone reposes on the intended meaning of the Declaration, it
would appear difficultto argue that Italy recognized rights that are based on an
instrument which did not give rise to such rights, at least in the view of the co-
signatory,Great Bntain.
4.108 Yet the CM makes just such an argument, starting off by
saying that, in fact, the 1900Accord was sufficient in itself to constitute such a
recognition124. This is a strengthening of what thCM claimed for the 1900
Accord only a few pages back. However, the CM quite correctly bnngs out the
fact that the main concem underlying the conclusion of the 1902 Accord was
Italy's membership in the Triple Alliance, which was being renewed, and this
confis what wasjust said above conceming Great Britain'sguid uroq- in its
1902Accord with Italy.
4.109 In this regard, the refers to the 1912 explanatory
memorandum of M. Barrère in which he set out in great detail the background,
purpose and meaning of the 1902~ccordl~~. What isstrikingabout Ambassador
Barrère's1912report is that there is not a word in it about the Accord'seffect as
now alleged by Chad: that is (i) Italy's recognition of the French zone of
influence;(ii)Italy's acceptance of the boundary of Tripolitania shown on the
map referred to; (iii) Italy's acceptance of the southeast line; (iv) Italy's
renunciation of Ottoman temtonal daims. AsLibya observed in its Memorial, it
is inconceivable that M. Barrère, a person intimatelyconnected with this Accord,
would have failed to point out these effects in his report to Foreign Minister
Poincaré,who had cailed for the report at a time when abrogation of the 1902
Accord was seriously under consideration by the French Government, if such
124 SeeCM,p.172,para.109.
125 Thememorandum is discussedinandannexedto LM. paras.5.99-5.102aFrench
ArchivesAnnex,p. 134.effects were then believed by the French Govenunent to result from the 1902
Accord.
(ii) Fonn and Text
4.110 Tuming to the form and text of the 1902 Accord, the CM
concedes that the 1900Accord was not bilateral, in contrast to the 1902Accord,
which it claims confirmed the 1900Accord and was a new recognition by Italy of
the validity of the French sphere of influence established by the 1899
~eclarationl~~. The CM then launches into one of its many flights of fancy. It
asserts that the effect of the 1900 Accord was to "'légitimer'globalement la
Déclaration de 1899"; and that the 1902 Accord, in tum, brought to the
Declaration:
"..une précisionfondamentale concernant le tracéde 'lalimite de
l'expansion française en Afrique septentrionale' expression qui
renvoie non au texte de la Déclarationde 189-qui, pour des Etats
n'ayant pas participéàson élaboration,pouvait sembler ambigü..-
mais à la $aEfequiy est annexée dans tous les documents français
officiels.. ."
Though this analysis of the text is totally wrong, it is skillfulycrafted to fit the first
two theories of Chad's case.
4.111 The in the 1902 Accord referred to in this passage
was to the Barrère letter of 14 December 1900,comprising the first part of the
1900Accord, and to the explanation allegedlygiven to Signor Visconti-Venosta at
that time. Asalreadymentioned, the Barrère letter was not very clear; the British
had had difficulty understanding it, as Lord Lansdowne's dispatch revealed, and
Signor Prinetti wanted its meaning clarified. in his statement to the Italian
Parliament on 14December 1901,he had stated what it meant, and what he said
at that time had been carefully worked out and approved by the French
~ovemmentl~~, This was that the assurances given Italy M. Barrère's letter
concerned the limit of French expansion in the regions immediately to the east of
France's possessions of Tunisia andAlgena, which adjoined the western frontier
126 CM,p. 175,paras.116and117. Para.117issomewhatgarbled,so this descrofilsn
meaningisthe bestthatcanbedoneinthecircumstances.
127 CM. p. 175,para. 118.
128 Sec .ara.4.8Ga., above.of the vivi of Tripoli. Thus, the regions concerned extended no further south
or east than Toummo. However, the boundaries of Tripolitania had never been
defined. So Prinetti sought to clarifyby the 1902Accord where the Tripolitanian
frontier was regarded to lie for purposes of knowingwhere France regarded its
limit of expansion to be between its African possessions,Tunisia and Algena, and
the of Tripoli. There could have been no question of delimiting this
boundary at the the, for Italy had no standing to make such an agreement:
Tripolitania was a part of the Ottoman Empire. Of course, this was onlya rninor
aspect of the 1902 Accord, the impetus behind which had been the imminent
renewal of the Triple Alliance and Italy'srenewal ofitsmembershipin it129.
4.112 The 1902 Accord was indeed a bilateral agreement: the
letters exchanged were almost identical130. Its stated purpose was to "préciser
les engagements" resulting from the letters exchanged in 1900131. It will be
recalled that these undertakings concerned Italy's interest in Tripolitania-
Cyrenaica and France's interest in Morocco. The 1900 Accord had not been
even-handed, however: Italy'srights to develop its interests in Tripolitania arose
only ifFrance's position in Morocco was modified. SignorPrinetti sought in 1902
to correct this imba~ancel~~. The opening paragraphs of each 1902 letter
resolved this problem, leaving Italy free to develop its sphere of influence in
Tripolitania-Cyrenaica and France free to do so in Morocco. The French sphere
ofinfluence recoenized bv Italyrelated to Morocco alone.
4.113 The travaux show that the sentence in which reference is
made to a map was inserted at the request of Signor Prinetti. This reflects the
fact that he wanted to establish for purposes of the iimitsof French expansion at
least approximately where the Tripolitanian frontier lay on the side adjoining the
French possessions (not the entire French "domaine", as M. Delcassé later
described it)133. This concerned only the western frontier of Tripolitania as far
as Tournmo. That wasthe solepurpose of adding this reference to a rnap, which -
129 See.LMpara.5.100.
130 Theirtexismaybe foundin InternationalAmrds andAereementsAnnex,No.7.
131 The use of the word 'engagements"rather than 'accords"bears out the unilateral
characterof the 1900exchangeofletters.
132 See.LM,para.5.84.
133 Sec .ara.4.89,above.it is emphasized oncemor-wasincluded at the reauest of Italy. The text of this
sentence was this:
'' iétéexpliquéà cette occasion que,par la iimite de i'expansion
française en Afnque septentrionale visee dans la lettre précitéede
Votre ExceUencedu 14décembre1900,on entend bien la frontière
de laTri~oiitaineindiquéeparla carte annexéeàla déclarationdu
21mars 18984additionnelle à la Convention franco-anglaise du
14juin 1898 ."
4.114 This added sentence mentions tlir ofFrench expansion
referred to inM. Barrère's 1900 letter in describing the effect of the 1899
Declaration; and it says that tlir n isset by the Tri~olitanian boundaq
shownon the map referred to. AsSignorPrinetti's speech hadmade clear, it was
only the boundaxy between Tripolitania and the French possessions on its West
that were of concem. The advances an argument-never put forward before
by either France or Cha-that in the 1902 Accord Italyrecognized the French
zone of influence as extending to the wavy,dashed line shown on the map as the
Tripolitanian boundaxy, but that France's agreement with Great Britain to limit
French expansion to the ~rticle 3 southeast line prevented Fraice from taking
full advantage of the 1902 Accord.In addition, thCM concludes that this
alleged recognition by Italy of the French zone right up to the Tnpolitanian
boundaxyas shown on the map was a renunciation of any future reliance on the
Ottoman claimto aTripolitanian hinterland135.
4.115 This argument is completely wrong for al1sorts of reasons,
amongwhichare the following:
- The 1902Accord makes a renv o M. Barrère's unilateral
declaration of 14December 19Oûas to the limits of French
temtorial expansion imposed bythe 1899Declaration; it isa
bilateral agreement as to the meaning of a unilateral
statement whose unilateralcharacter it didnot alter;
-
A map is referred to for the purpose of indicating the
notional Tripolitanian frontier that supposedly was pointed
134 Emphasisadded.
135 See,CM,p.176para121. out to Signor Visconti-Venosta in 1900, presumably on the
basis of the same map;
-
The reference to the French limit of expansion reverts back
to M. Barrère's explanation in 1900 of the 1899
Declaration's meaning; there was no recognition by Italy of
anything in the 1900 Accord, and this part of the 1902
Accord is restricted to a clarification of M.Barrère's
explanation in 1900;
-
Signor Prinetti's statement, approved word-for-word by the
French Government, makes clear that the 1900Accord only
concerned Tripolitania's western boundary, which could not
have concerned areas south or east of Toummo;
-
The key sentence refemng to a map was added to the 1902
Accord at Italy's request; itis hardly plausible that Italy
added a provision that was intended to recognize a French
zone of influence north of 15"Nlatitude when Italy had so
clearly stated to Great Britain that if the Declaration
affected such a region it would be deemed to disturb the
status auo in the Mediterranean - and the British
Govenunent had assured the Italians that the Declaration
did not have that effect;
- In any event, Italy had no standing to agree where the
boundaries of Tripolitania were, for Tripolitania was under
Ottoman sovereignty; nevertheless, Italy was a concerned
bystander, anxious to maintain the status and hence
had sought this clarification in 1902 of M. Barrère's 1900
statement.
(iii) Reference totheNon-Annexed Map
4.116 The travaux of the 1902Accord reveal that the fïrst draft of
the text of this sentence tabled by Signor Prinetti referred to a map attached tothe 1898~onvention'~~. There had, in fact, been two maps referred to inthat
Convention and annexed to it137;but the reference obviouslywaswrong and was
corrected. In doing so, it can only be presumed that M. Barrère inaccurately
informed SignorPrinetti that a map had in fact been annexed to the 1899
~eclarationl~~. Perhaps M. Barrère should not be criticized too harshlyfor this
deception since the only line on the map of relevance to the Accord under
negotiation was the notional Tripolitanian frontie- the wavy,dashed line - and
this had not appeared before on any other map. Moreover, no Tripolitanian
frontier had been referred to or in any way involvedin the 1899Declaration; it
was a line gratuitously added by the French when they prepared the map for
attachment to the Livre iaune text. So this may have been a practical means of
iiiustratingwhat M. Barrère had meant in 1900in his reference to the of
Tripoli; and whether or not the map had actually been annexed to the
Declaration might reasonably have been regarded as a matter of no importance
for that reason.
4.117 An additional important point that emerges from the parts
of the CM analysed above is that Chad concedes that the line referred tointhe
1902 Accord was the line on the Non-Annexed M~Qdepicting the notional
Tripolitanian fr~ntierl~~.
4.118 After its completely flawed analysisof the text of the 1902
Accord, the CM tums to what Chad regards to be its signincance. Briefly
summanzed, this is thatinthe 1902Accord: (i) Italy accepted the 1899"tracé"
thus overcomingthe limitationsothenvise imposed bythe principle res inter alios
-cta; (ii) Italy accepted the Tripolitanian boundary aUegedlyshown on the Non-
Annexed Mau; and (iii) Italy renounced the rights claimed by the Ottoman
~m~ire'~'. Quite a tau order for the 1902Accordto fill! M. Barrèrewouldhave
been the firstto be astonished!
136 See.LM.para.5.91.
137 See,LM. para5.16,and MapNo.39.
138 Itdoes not appearthata copyof the Non-AnnexedMapreferredto in the 1902Accord
wasactuallygivenSignorPrinetti beforehe signedthe Accord,althoughhe mighthave
been shown themap; forhe subsequently sent offto his AmbainParisa request
for a copyoftheLivreiaunetextwith mapattached.See.LM.para5.93.
139 See, CM,pp.181-182,para.147.
140
See.CM.pp.176-184,paras.119-157. 4.119 It is here that one of the more inconsistent arguments in
Chad's case makes an unobtrusive appearance. It has just been noted that the
-M concedes that the line referred to on the map bySignorPrinetti wasthe wavy,
dashed line depicting the notional Tripolitanian frontier. That line had no
connection with the 1899Declaration and wasnot referred to in it. Suddenly,the
-M asserts that through the 1902Accord Italy accepted the "tracéde 1899".This
carionlybe a reference to the Article 3 southeast line.
4.120 The CM'S line of reasoning is the following. The
declarations of Admiral Canevaro and SignorPnnetti and ("de façon plus claire
encore") the 1900exchange of letters constituting that Accord had the effect of
making opposable to Italy the "tracé"of the 1899Declaration because (i) Itaiy
had recognized the "partage" between Great Britain and France resulting from
the 1899Declaration; (ii)as a result, the contents ofthe 1899Declaration became
opposable to Italy; and (iii) since the Declaration fixed the "tracédes zones
11141nis
d'irduence convenues, ce tracéest, du même coup,acceptépar [Italy] .
sort of reasoning bnngs to mind a rock tumblingdown a snow-coveredmountain
side, gathenng snow around it as it descends, growing into a bigger and bigger
snowball,until it comes to a stop at the bottom; and then the sun comes out and
in a short time it is only a rock again. Chad's argument is built on a series of
incorrect statements - as already demonstrated -which snowball into several
extraordinary conclusionseach ofwhichisas invalidas itscomponents.
4.121 In the 1902 Accords, a reference is made to the
'Tnpolitanian boundary" - a notional frontier as shown on the Non-Annexed
Mar, -,not to the "tracé"of the 1899Declaration. It was the 1902Anelo-Italian
Accord that took note of the 1899"tracé",but in the negative sense that it was a
limit to France's territorial expansion only and no recognition at al1of any nghts
or interests north of 15"Nlatitude.
4.122 Now it will be noted that the conclusions set out in
paragraph 4.120above are al1based on the 1899Declaration, the Canevaro and
Pnnetti speeches and the 1900Accord, al1of which preceded the 1902Franco-
141 CM. p.181,para.144.Italian Accord. So,by 1902,supposedlythe die had been cast. However, the
contends that the 1902Accord added "deuxprécisionssupplémentaires..9142.
- The 1902 Accord referred not to the text of the 1899
Declaration but to thenap annexed:
"C'est donc le tracé de la limite entre les zones
française et britannique figurant sur cette carte que
l'Italie reconnaît ainsi implicitement sans qu'il soit
utile de Ig,, préoccuper du texte de la
Déclaration ;
Comment:By refeningto the map, Chad argues,Ira&imulicitb
recognized therticle3southeast line.
- But the 1902Accord is not directed ('Gsé")at the Article 3
southeast iine but at the wavy, dashed line on the map
depicting the Tripoiitanian boundary (at least up to the
Tropic ofCancer and 16"Elongitude, the starting point of
the southeast iine).
(iv) Italv's Alle~ed Recognition of a Tripolitanian
Boundary
4.123 From these "précisionsemergethree conclusions144.
- Firs Ittl.formallyrecognized Tripolitania'sbounda~y,not
just itszone ofinfiuence;
Comment: Ira&had no standingnt the time torecognizeeithera
boundaryorazoneofinfluenceconcerning mpolitania,apart ofthe
OttomanEmpire.
-
Second,"dumêmecoup",the iinebetween Toummo and the
Tropic of Cancer, as show on the map, became formally
recognized;
142 CM. pp. 181-182,paras.145-147.
143 CM. p. 181, para.146.
144 CM. p.182,para.148. Comment: Theabove comment applieshereas well. It isherethat
the tampered-withversionof the Non-Annexed Mau appearing ut
page 162 of the mplays a role. Foras explainedabovestam'ngut
paragraph 4.53 (and illustratedon Mau LC-M 25), this "extract"
"fipolitania" as an international bounday, whereas the Non-ng
Annexed Mau, that is theLivrejaune map, of whichitpurportsto be
an "extractdid not. Thus,byrefemngto the map,Itaiycouldnot in
1902 have acceptedthe lineshown on that map as the Tripolitanian
boundary:no suchboundaryappearedon theNon-AnnexedMau that
Itaiywasshown,on&a wavy,dashedline,not identijîedin the map's
legerul, which represented a general or notional idea of where
Tripolitaniasontier wasconsideredtolie.
- Third. Italy admitted that France's sphere of influence could
extend up to the Tripolitanian boundaq;
Comment: Itaiy admitted nothing; the pam'es on& agreed to an
interpretationof M.arrére'1s900Ietter. In anyevent,nopart of the
Tripolitaniapontier beyondToummo wasrelevantto the 1900-1902
Accordî.
Then the CM adds this plaintive note:
"En réalité,la France se trouve empkchée, par son accord avec la
Grande-Bretagne, de s'étendreau-delà de la ligne de1899 -sauf si
les deux parties en convenaient autrement - si bien que son
expansion se trouve bornée au Nord-Ouest du Tchad par la
frontière de la Tripolitaine définie parthe 1902 A c dl et au
Nord-Est par la limite [agreed in t1899 eclaration]8 ."
4.124 Al1the flawsin this line of argument have been brought out
above. Most conspicuous among them is that Italy had no standing to recognize
any rights at al1 in the area, which were under or derived from Ottoman
sovereignty. Furthermore, the 1900-1902 Accords, insofar as the limits of French
expansion imposed by the 1899 Declaration were concerned, consisted of a
unilateral French statement and its interpretation. There was no Italian
recognition of anything at ail involved. Italian recognition concemed France's
position in Morocco. For these Accords, as to matters relevant to the present
case, were concerned with the meaning and effect of the 1899 Declaration on
Tripolitania. This is because Tripolitania had not been mentioned in the
Declaration, and Italy sought to be assured that this omission did not imply that
the statusQUO so far asTripolitania was concemed had been altered.
145 CM. p. 182,para.149. At p. 195,pa199,the refersto a mapto illustratethis
point,butapparentlyadhasoverlooked includingtsapinthem. 4.125 By this line of argument, the CM attempts to lay the
groundwork for the "interpretation" in the 1919nglo-French Convention of the
1899line that had the effect of movingit northward by some 4"of latitude (from
approximately 15"35'Nto 1Y30'N);and for Chad'scontentionsthat Italy had no
standing to protest this major shift in the direction of the line since in 1902it had
already agreed to aiiow France to extend its zone up to the Tripolitanian
boundary shown on the map. Asjust demonstrated, Italy did no such thing; and
the map portrayed no Tripolitanian boundary. Such a boundary isshown onlyon
the "extract" of this map that Chad placed at page 162 of the - an utter
distortion of the Non-AnnexedMao referred to bySignorPrinetti in 1902.
(v) Italv's Alleeed Renunciation of the Rizhts of the
Ottoman Empire: the CM'S Faultv Analvsis of
OttomanRiehts andClaims
4.126 So far, two effects attnbuted by Chad to the 1902Accord
have been examined and found to be incorrect - that Italy had forrnally
recognized the Tripolitanian "boundary"(the first conclusionset out in paragraph
4.123above); and that this alleged fomial recognition included the line between
Toummo and the Tropic of Cancer (the second conclusion). The third effect
claimed is Italy'srenunciation of the rights claimed by the Ottoman Empire. It is
here that the CM examines the Ottoman protests, contrasting the reactions of
Italy and the Ottoman Empire to what it callsthe "partage des zones d'influence
française et britannique [bythe 1890and 1899accords]":
"Contrairement àl'Italie,la Turquie, alors so v ainesur le Vilayet
de Tripoli,avait vivementréagiau partage..'l4y~
This passage contains its own answer to the argument: the Ottomans were
sovereign and protested vigorously; Italy had no legal standing to protest; and
certainly Italy had no power to "waive"any claims or rights belonging to the
Ottoman Empire. Certainly Italy wentasfar as it could inexpressingconcem and
getting assurances from Great Britain (in the 1902 Anglo-Italian Accord) and
from France (in the 1900-1902Accords). That is what those Accords were al1
about! In1912,when Italyinherited the Ottoman Empire's rights and titles in the
area, it inherited as well the strongrecord of Ottoman protests. It is noted, once
146 CM. p.176p,ara.122.again, that the&l makes reference to a "partage" of zones of influence. The
1890Declaration could fairly be said to have accomplished such a "partage"; but
the 1899 Declaration north of 15"Nlatitude cleariy was nothing of the kind, as
Great Britain expressly pointed out to France, Italy and the Ottoman Empire a
number of times147.
4.127 The British and French response to the Ottoman protests
cannot accurately be described as a "rebuffade" as &le maintain~'~~. Both
Great Britain and France initiaiiyreassured the Porte that no encroachments on
the temtorial rights of the Ottoman Empire were contemplated. Subsequently,
the French virtually ignored the protests, without making any serious attempt at
al1to respond to the carefully reasoned notes and memoranda sent by the Porte
in support of the Ottoman hinterland The British replies made the
point that the 1899Declaration did not affect anys other Powers might have
in the region (res inter alios acta); and of course the British view was that it had
not even recognized a French zone up to the Article 3 southeast line, in view of
the negative wayin which that Article had been drafted.
4.128 Just as France haddone, theCM bmshes aside the Ottoman
claim:
"La doctrine de 1%oque pas davantage pris au sérieux les
protestations de la urquie ."
Only two sources, both French, are cited, one of whom, Rouard de Card, hardly
qualifies as a neutral observer, for he had been instrumental in constructing for
the French colonialists France's subsequentlydeveloped legal theories conceming
Libya'ssouthern boundary. His work cited by Chad never attempts in any serious
way to examine the basis of the Ottoman claim151. This same imperious attitude
is reflecteinthe followingstatement in tCM:
147 See .aras.4.11and4.103,above.
148 CM .. 177,para.125.
149 See. LM, paras.5.77-5.79. CMe describesthe Frenchresponse in as'assez
sèche"CM. p. 177,para.126.
150 CM. p. 177,para. 126.
151 See.Rouard de Card,E.: LFrance et la Turauie dansle Saharaoccidental,Paris,
Pedone,1910. "Par elles-memes, les prétentionsde la Turquie à la souveraineté
sur la région située au Sud-Ouest de la limite fixée par la
Déclarationde 153 àla zone d'influencefrançaisesontdénuéesde
tout fondement ."
PartIV ofLibya'sMemorial demonstrated othenvise h considerable detail.
4.129 Characteristic of France's attitude in the past and of Chad's
attitude today as reflected iCM.heisthe use of a doublestandard, under which
the fact isignored that the supposed faults pointed to in the claims andactions of
the Ottomans - and later of the ItaIians and the Liby-when applied to the
claims and actions of France (and now ofhad) would often have had an even
more serious effect. France had not even the semblance ofa nght to claima zone
of influence down to the Say-Barroua line in 1890,much of which lay south of
Tripoli, not ~l~erial~~. When, in 1899,French forces started to arrive at Lake
Chad -hundreds of miles southwest of the Articl3 lime- Ottoman influence
(from Tripoli) and manifestations of allegiance to the Sultan (in Istanbul) had
longbefore existedinthe area;Ifneither claim to title was perfect, certainly the
Ottoman claim had far more substance to it than that of France; and this was so
before the Ottomans acquired effective control over the borderlands region
starting in 1908. Moreover, the Ottoman claim set out in 189notes to Great
Bntain and France included the areas now falling within the Libya-Chad
borderlands, whichFrance's zone of influence down to the Say-Barroua iine did
not. Thus, in thisrespect, the Ottoman claimwasa prior claim.
4.130 In its brief glance at the basis of the Ottoman-cinone
shortparagraph154 -the CM quotes at random a few passages from one of the
Porte'sprotests and dismisses them without any examination of the underlying
facts and evidenceor anyconsideration ofwhat basisat al1France had at the time
for asserting a contrary title. For example, the Ottoman protest of 13May 1899
(the full text of which is annexed to CMe as Annex 62) emphasized that the
area in question was not terra nullius;yet CMe fails to deal with this critical
point that goes to the heart of the French (and now Chad's) claim to title. The
152 CM.p. 178,para.127.
153 SeeLM, para.5.09,-q. Aspointed out thereandshow on MapNo.38,theextentof
the 1890Ottomanclah, descriaspreposterou.bythe Frenwas not muchmore
thanthatof France's1890zoneof influence.
154 CM.p. 178,para 128.CM treats the 1899Declaration as if it had settled the matter -but Great Britain
did not share such a view;north of 15"N,the Declaration had not settled anything
except to draw a line limiting France's territorial expansion towar'dthe region of
the Nile. PartIV of Libya'sMemorial setsout factsand evidence that support the
Ottoman claim and that demonstrate the absence of any basis for a French claim
in 1899or in 1902or in 1912.
4.131 The major argument put fonvard in the CM against the
Ottoman claim concerns the role played by the Senoussi in the Libya-Chad
borderlands (and beyond) at the the. Quoting from a document also referred to
in the and annexed theret~'~~ -a dispatch dated 5September 1899from the
French Consul General in Tripoli to Foreign Minister Delcassé -, the CM
describes the situation around 1900in the Libya-Chad borderlands to have been
the following:
"..[il]étaitsoumis àl'autorité,directe ou indirecte, de la Senoussia
qui, contrairement à la Sublime Po,95 51avait pas été'admise au
bénéfice dudroit public de l'Europe .
As the demonstrates, the Senoussi were indeed in control of the region; and
the Ottoman occupation of the region had not yet o~curredl~~.
4.132 This dispatch of 5 September 1899from the French Consul
General in Tripoli, M. Rais, deserves a few more word~l~~. It had been prepared
in order to comment on rumours that an Ottoman expedition was en route to
Ouadaï. Whiie doubting that such an expedition had been mounted, M. Rais
observed:
"..l n'en est pas moins certain que la Turquie est préoccupéede se
ménager, par d'autres moyens, une inûuence plus ou moins
155 SeeLM, para.4.69,~seq.a,dExhibi25thereto.
156 CM. pp. 178-179,para.130.
157 The Senoussi Order may not have been a sovereign Statebut it had many of the
attributesof one andwas-regardedand treatedbythe EuropeanPowersaasoif it
wereaSovereignPower.
158 On p. 178,para.129, -1erefersto another dispatchdated15 June1910,butit gives
no referenceto thedocumentanddoesnot annexit. effective dans la région que~9) Ambassadeur à Paris appelle
1"Hinterlandde la Tripolitaine' ."
Pointing out the weaknesses of the Ottoman position in the sudanlo0 and the
Porte's hesitation- and M. Rais was assessing the situation from the point of
viewof a French diplomat -the French ConsulGeneralwamed that:
"Même si la Turquie se reconnaît impuissanteétablirson autorité
dans le Soudan etày faire respecter l'ordre, ellene manquera pas
d'excitercontre nous le fanatisme des musulmans et de nous créer
desdifficultés.L'accord qui paraît s'êétablirécemmententre le
Cheikh Senoussi et le Moutessamf de Benghazi est un symptôme
des tendancesdesautorités ottomanes."
4.133 The Sudan and, in particular, Ouadaï, the areas which M.
Rais was writingabout, 1aysouth ofthe borderlands. The Ottomans had occupied
areas ta the north and east of the borderlands starting in 1862(Mar>LC-M 13
referred ta at paragraph 4.12 above), but they were not to start to occupy the
borderlands until 1908.Inthe meantirne, as M. Rais pointed out,control overthe
borderlands was in the hands of the Senoussi, and the Head of the Order had
already by 1898established hisheadquarters at Goura, just east of Tibesti. The
French, on the other hand, had only just amved at Lake Chad and were
consideringwhat their nextmove mightbe.
4.134 The CM then turns to the Ottoman move into the
borderlands, according it a certain recognition. Contending that by themselves
the Ottoman claimswere "dénuées detout fondement",the CM concedes that:
"..par son attitude ultérieure,la Turquie leurlol a donné,à titre
éphémèreu , necertainy#;sistance, dont sa défaiteface à l'Italie
les a ànouveau privées .
As the evidence discussed in the shows, however,and as will be mentioned
again below, the Ottoman occupation may have been somewhat short in duration
(1908-1913) but it was by no means "éphémère"; and Ottoman effective control
159 LM, Exhibit25,p. 1.
160 S-. LM.fn .3, p. 47, fora definitionof "theSudan",anarea lyingsouthof the Sahara.
Theareasouthoftheborderlandswouldbe consideaspartof "theSudan".
161 "Leurrefertothe Ottomanclaim("seprbtentions").
162 CM, p. 178,para.127.was recognized and respected at the time by the French authonties in the area
and by the French Govenunent in Paris. In comparison, the French incursion
into the borderlands was shorter (in the northern part of the borderlands13-
1916)and was not an occupation at al1but rather a ruthless rnilitaryexercise to
drive out the Senoussi and to provide a protective screen in the north for the part
of the region in the south inwhichFrance was intereste-what was later dubbed
by the French "le Tchad utile", that is the region lyingsouth of the borderlands,
and generallysouth of 15"Nlatitudelo3.
4.135 The ms discussionof the Porte's affirmation of Ottoman
nghts bythe Ottoman occupation of the borderlands asserts thatese rightswere
abandoned as a result of the Porte's defeat (in 1912) by Italy and its
"renunciation"of them; and a result, tCM suggestsit wouldbe a waste of time
to go into the subject more fully164. Of course, this missesthe whole point of the
effect of the 1912Treaty of Ouchy, as immediately recognized by Great Bntain
and France. The Treaty of Ouchy left untouched the nghts and titles of the
Senoussi peoples over this temtoty. The temtory did not suddenly become a
vacuum - terra nulliu-open to French occupation. Moreover, as successor to
the Ottoman Empire, Italy inhented the Ottoman Empire's sovereignnghts and
titles over Tripolitania (and its hinterland), subsequentlyreaffirmed in Article 10
of the 1915Treaty of London and in 1923by the Treaty of Lausanne. These
Ottoman nghts, titles and claims were not "renounced" and they were not lost;
they were passed on to Italy and given international recognition as having been
inherited by Italy. Contraty to what the CM says, it is indeed necessary to
consider the Ottoman claims and the Ottoman occupation -as the has done
in some detail.
4.136 Without attempting to demonstrate with facts and evidence
why it is so, the contends that the Ottoman influence exercised in the
borderlands around 1900was "fort ténue"and in any event far from being the
exercise ofterritorial sovereigntylo5. But it is adrnitted CM tthat since the
1890and 1899Declarationswere not opposable to the Ottoman Empire nothing
163 Thisianotherexampleof theapplicationofadoublestandard.
164 SeeCM, pp.178-179,paras.127 and130.
165 CM, p. 179,para.130.barred the Ottomansfrom establishingsuch nghts and titles, and indeed that they
attempted to do so. However,thCM describes thisattemasan "échec"166.
4.137 The CM mentions a rav~rochement between the Ottomans
and the Senoussi,followedbythe appearance of the Ottomans at Bardaï and Ain
Galakka. It descnbes this presence as "trèsiimitée";and yet at the same time
describes it as involving"troupes très nombreus..quelques fonctionnaires
civils". What thCM apparently considers made this occupation limited is the
rather strained and separate coexistence of the Turks and the Senoussi,
particularly at Ain Galakka.
4.138 No doubt relations between the Ottomans and the Senoussi
were not clos- and the Senoussi certainlyhad the upper hand in the sense that
they controlled and led the peoples of the borderlands in their bitter fight to
prevent the French invasionof their lands and the destmction of their civilization
and economic life. But by 1908 the Senoussi and the peoples of the region
welcomed the civiland military presence of the Ottomans in the borderlands in
the common fight against theench. And this point deserves special emphasis:
the Ottomans came in peacefullyand were welcomed by the indigenous peoples
and their leaders, the Senoussi;the French wereilyopposed. The Ottoman
presence had a special advantage: the French Government felt compelled to
amve at a modus vivendi and to halt the French military advance short of the
borderlands occupied by the Ottomans and the Senoussi, side by side.An
"arrangement passager" came about; and Pans issued strict instmctions not to
advance into the borderlandsA de facto line, roughly along 15"Nlatitude, was
respected byboth sidesuntil 191316'.
4.139 The CM professes to find some confusion among vanous
commentatorsas to where the Ottoman occupation of the borderlands occurred.
However, there is adequate evidence on this point; and the set forth and
iiiustrated the extent of Ottoman occupation on a map168. This is again
iiiustrated here on MLC-M 28.There isno confusionabout the facts,although
there may have been some confusiointhe minds of some authors writingon the
166 CM. pp.179-180,paras.131-139.
167 SeeLM, paras.4.108and4.14g,a., for fuUdiscussionof these evenu andthe
evidencetosupporSee,also,para.5g2a., below.
168 ThemapwasMapNo.53,referredtoatpara.5.116om.hematter later who either had a bias or else did not conduct an adequate
investigationinto the matter. Part IV of the provides the facts and evidence
to support the dates shown on this map. The Ottoman move began in 1906,in
regions Westof the borderlands; in 1908theyoccupied Bardai in Tibesti; and the
Ottomans did not withdraw from the borderlands until 1913,after the Treaty of
Ouchy. This occupation was of a longer duration and of a considerably more
substantial andquite different character than the French incursionsinto the area
starting in 1913and ending in the northern borderlands by 191- a purely military
foray, with no civil component at ail, using largely camel-mounted Senegalese
troops.
4.140 What is even more significant is that the effective
occupation by the Ottomans was givenrecognitionby~rancel~~. For in 1911the
Ottoman and French Govenunents had agreed to meet and negotiate the
delimitation of Libya's boundanes. The of Tripoli had prepared a
proposal to reduce appreciably the 1890Ottoman claim to reflect the realities of
the time170. The French Government's explicitinstructions to the local French
authorities headed by colonel Largeau were to avoid any disturbance of the
status q-, for the matter was to be resolved at the negotiating table. The
Ottoman defeat at the hands of the Italians put a halt to these plans; and the
rights,titles and claimsof the Ottoman Empire were inherited byItaly.
4.141 One other matter remains to be cleared up, which concerns
the Ottoman-Senoussi relationship. The Senoussi were in control of the
borderlands when the Ottoman occupation began, as the admits; and the
Senoussi remained in control after the Ottoman occupation had ended. As the
-M illustrates,during the penod 1902-1913sovereign power wasshared between
the indigenous peoples led by the Senoussi and the Ottoman ~m~ire'~'. The
Ottoman assertion of sovereigntywas not opposed bythe Senoussipeoples; itwas
a bulwark in the fight against the French. At the end of 1912,the Ottoman rights
and titles were passed on to Italy, but the Senoussi peoples' rights and titles
remained untouched. At the time Libya was created an independent State as a
169 The contendsthatthe Ottoman occupationas"contestéevigoureusemepntrla
France"citing a letter of Colonel Largeau(Annex83). mis was a formalprotest
rese~ng France'srights,butitwasfollobyan"arrangementpassagewr",ichif nota
recognitionofOttomantitlesanacknowledgmeno tfeffective Ottoman occupation.
170 Sec . auLC-M 42,referredtoinpara.5.28,below.
171 See,LM,paras.5.116Gaeq.Senoussi monarchy, it inherited the titles of these peoples as weli as the Ottoman
rights and titles that had been passed to Libyaby Italy.
(vi) The Invaliditv of the Renunciation Areurnent
4.142 The final argument of Chad as to the signincance of the
1902 Accord isthat it constituted, along with the Canevarospein 1899and the
1900 Accord, a renunciation by Italy of claimed Ottoman rights. It is put this way
in thea:
"Par son attitude constante et par des déclarations expresses, ce
pays [Italy]a en effet renoncé, en tout étatdemse,à se poser en
successeur desprétendus 'droits'de la Turquie .
According to the CIM, the 1900-1902 Accords had confinned what Admiral
Canevaro was claimed to have said -that Great Britain and France attached no
importance to the Ottoman claimsand that iwas onlynatural that France should
seek to extend its influence into the Tripolitanian hinterlanThese Accords
supposedly confirmed AdmiralCanevaro's statement "en acceptant formellement
le tracé résultant"from the 1899 Declaration. To this theCM adds a second
proposition:
"A aucun moment, elle [Italy] ne s'est posée en successeur des
droits de la Turquie, que ce soit dans la pé*qui a suivi1919...
ou durant la négociation[ofth1935 Treaty] ."
4.143 Both propositions are wrong-in fact they are sa completely
wrong that they bring out once more, with great clarity, that Chad's case is not
directed at establishing the basis of France's claim to title over the borderlands
but rather at trying to make out a case based on Italy's claimed renunciation,
recognition,acknowledgment, and the like, none of which the comes close to
establishing.
4.144 The f& proposition - that the 1900-1902 Accords
confirmed Italy's "distancesà l'égard des revendications de la Turquie" as
expressed in Admiral Canevaro's speech - even if it were so, which it is n-t
proves nothing. As obsewed earlier, what Admiral Canevaro had to say
172 CM. p. 180,para.140.
173 CM. p. 181,para.143.concemed the fact that the 1890Ottoman claimprojected far south of Lake Chad
even into temtory which subsequently Germany (Italy'saliy) and Great Britain
had carved up between them174. In any event, his speech was a dispassionate
tour d'horizon withouta trace of renunciation in it; at the time, Italyhad no status
to either claimor renounce territorial rights inthe area.
4.145 What is intriguing, however,is that the significanceof the
1900-1902Accords has been discreetly pushed another notch fonrrard: now the
CM contends that the Accords confirmed the Italian positionset out by Admiral
Canevaro "en acceptant formellement le tracé résultant" from the 1899
Declaration. Asidefrom failingto explainhowsucha result follows,this assertion
of a formal accevtance byItalyof the Articl3southeast line had upto this point
in the CM never been made; it is the final stagein the "snowbalimethod" of
argument employed by~hadl~~.
4.146 As for the second proposition - that Italy never posed as
successor to Turkey'srights-it is not onlycompkteiy wrong,it is irrelevant. The
Treaty of Ouchy established th& Italy succeeded to the Ottoman Empire's rights
and titles in the area, as Great Britain, France and other European Powers
recognized on a number of occasions. Hence, Italy had no need to pose as a
successor- it was the successor.
4.147 Examples of recognition by other Powers of Italy's
inheritance, as well as is its own reliance on the Ottoman claims, include the
following:
- British and French Declarations in 1912,recognizingItalian
sovereignty,and the absence of any reservations by France
or Great Britain as regards the 1912Treaty ofOuchy;
-
Article 10of the 1915Treaty of London, whose signatories
includedRussia, aswell:
174 Sec .ara.4.80g a., above. The Canevarospeeiappendedheretoas LC-M
11.
175 Sec .ara.4.120,above. "Al1rights and privileges in Libya at present
belongingto the Sultanbyvirtue o19 neaty
ofLausanne are transferred to Italy.
- The programs formulated by the Italian ColonialMinistxyin
1916,the "maximum"program being modelled on the 1890
Ottoman claim, adjusted to take into account the
superveningAnglo-GermanAgreement 177,
- Italy's1926 maximum program, which very closely
178.
resembled the1890 Ottoman claim(M~DLC-M 1) ,
- The 1927 article written by former Italian Foreign Minister
179.
Tittoni, reprinted in the ,
- Lord Curzon's letter of 16 May 1922 to the French
Ambassador in connectionwith the attempt of Great Bntain
and France to coordinate their replies to Italy'sprotest of
the1919 Anglo-FrenchConvention 180,
- The Britishnote verbale to the Italian Ambassador of 5
Februaxy 1923 asserting that any rights of sovereignty that
Italy might have in the area "can only have been inhented
from the Turkish Govemment"181,
- The 1923Treaty ofLausanne 182.
176 LM. InternationalAccosndAereernentsAnne&No. 12.
177 Se, LM.para.5.158and MapNo.54appearingthere.
178 Referredto at para.1.07,abThisillustrationappearediLM,hasMapNo. 69,
referredIoai para.5.252.
179 LM, Exhibit43.
180 See,LM.FrenchArchiveAnnex, pp.348-350.
181 Se, LM, para. .212-5.2Secalso,LM, ItalianArchivesAnnex,pp.38-40.
182 Se, LM.para.5.145.-, alsLM. International AccsndAmeernenüAnnex,No.
20. -
The 1934 negotiations between Italy and Great Bntain,
leading to the 1934 Italo-Anglo-Egyptian Accord, during
which Italybased its claim on its Ottoman inhe~itancel~~.
4.148 The other European Powers formally recognized Italy as
inhentor of the nghts of the Ottoman Empire on a number of occasions. After
the 1912Treaty of Ouchy -to which France made no resewations - Italy had the
nght to assert claims to areas to which the Ottoman Empire had or claimed nghts
and titles pnor to the Treaty; and it is of no consequence whether, or how often, it
mentioned its Ottoman hentage.
4.149 The concludes that the 1902Accord was "un instrument
de référence fondamental" in view of the to it contained in Article 3
(Annex 1)of the 1955Treaty; but it adds that it was an "instrument autonome" as
well, opposable to Libya as successor to Italy. The CM does not trouble to
explain on what basis, under international law, Libyawould succeed to the 1902
Accord -leaving aside for the moment the fact that it was not notified by France
to Italy under the 1947Peace ~reaty and, hence, had been abrogated. Under the
rules of State succession, even if the 1902Accord had been "en vigueur" in 1951,
Libya would not have succeeded to it unless it could be characterized as a
boundary treaty or boundary régimelg4. Even accepting, areuendo, aii the
arguments of Chad concerning the effect of this Accord, it was political in
characterand did not establish a boundary or obligations and nghts relating tothe
régimeof a b~undary~*~. The southeast line shown on themap concemed a iimit
to French expansion, not a boundary. The wavy, dashed iine on the map,
purporting to define the limits of Tnpolitania, could not have been a boundary of
Tnpolitania, for it was part of the Ottoman Empire in 1902,and Italy and France
could not have settled that boundary even had they attempted to do so; and there
had been no agreement fixingthis boundary up to that time, and, indeed, until
1919. The "extract" of the Non-Annexed M~Dappeanng at page 162of the CM,
183 See.LM,para.5.284g seq.
184 Sec.the exception set outin Article 11 of the 1978 ViennaConvenU.N..Doc.
AICONF.80/31,adopted23 August 1978; reprintedAm. J.IntL.,Vol. 72, 1978, p.
971.
185 It is admittedin the that the900Accord was not a boundatydelimitationtreaty.
S-, fn.109, above. The 1902Accord was, with respectto the effect of the 1899
Declaration onTripolitania-Cyreno,nlyaclarificationof the 1900Accord.whichindicates thiswavy,dashed line to be a boundary, has modified the original
map, whichclearly didnot showthe lineto be a boundary6.
CHAPTER V. THE1912 FRANCO-ITALIAN AGREEMENT
4.150 The points out that the 1902Accord was confirmed by
Italy on 28 October 1912inthe Agreement entered into with France on that day.
This is correct; the Agreement, which refers specifically to the 1902 Accord,
confirmed the mutual intent of the two Powers not to place any obstacles in the
way of the realization of al1 measures judged opportune by each concerning
Morocco (as to France) and Libya(as to Italy). This Agreement was entered into
10 days after the Treaty of Ouchy; at that point, Italy was dealing with Libya as
subject to its ~overei~ntyl~~.Given the importance of this Agreement to Chad's
legaltheory ofthe case, it isanother strikingomissionfrom the Annex 1list.
4.151 The CM does not bother to examine the background of the
1912Agreement, as the &l doeslS8. This evidence destroysChad'stheory as to
the meaning and effect of the 1902Accord.
4.152 In 1912, while the war between Italy and the Ottoman
Empire was stiü going on, France and Italy had a falling out; and the French
Government seriouslyconsideredrepudiating the 1902Accord. It willbe recalled
that the important provisions of the Accord, which reflected France's concern
that Italy was renewing its membership in the Triple Alliance, related to matters
of neutrality in the event of attack as wellas the recognition of each State's rights
to develop its influence in Morocco and Libya, respectively. It was in the light of
these developments that Ambassador Barrère had been asked by Foreign
Minister Poincaré to prepare a report on the 1902 Accord, which has been
referred to earlierl-a comprehensive report in which there was not one word
about the supposed effects of the Accord upon whichChad's case now so heavily
relies.
186 &, para.4.5g,m., above.
187 Italyproclaimedils"fullandentiresovereignty"over Trmdenaica byRoyal
Decreeo5 November1911See , M.para.5.128.
188 SeeLM, paras.5.117-5.121.
189 Sec.ara.4.109,above. 4.153 Italy, on the other hand, with the ink barely dry on the
Treaty of Ouchy,wanted urgentlyto have its sovereigntyoverLibyarecognized by
Great Britain and France, and the Italian Govemment approached both
Governments asking for a declaration of recognition. France's Minister of
Colonies saw this as an opportunity to inject the boundary question into the
discussions,but M. Barrère tended to side with Italy,which opposed any such
linkage; and he so advised Foreign Minister ~oincaré'~~. M. Barrère was
concerned that such a step might cal1into question the effect of the previous
agreements, notably the 1899Declaration.
4.154 M. Poincarédid not share thisview. SinceItalyhad become
France's neighbour, he thought it only right to "préciser letemtoire" over which
Italy's sovereignty was to be recognizedl9l. He pointed out that the starting
point of the 1899 Declaration at the Tropic of Cancer left "indéterminéela
frontière sur plus de douze cents kilomètres". He was clearlyrefemng to the part
ofthe boundary of the starting point ofthe Article 3southeast line.
4.155 Chad maintains, however, that the 1902 Accord had the
effect of fixing that boundary - shown as the wavy, dashed line on the map
referred to in the Accord, the Non-Annexed M~D. It is evident that this is not
what the French Foreign Minister thought in October 1912. The evidence shows
that such an interpretation of the 1902Accord had not occurred to M. Barrère
either, for he does not mention it in his report, which he certainly would have
done considenng the fact that the French Government was activelyconsidenng,
in early 1912, denouncing the 1902 Accord. A map published by the SeMce
Géographique des Colonies on January 1912 reveals that in 1912 the French
Government did not regard the Tripolitanian boundary to have been fixedin the
1902Accord (Map LC-M 28~)~~~. On this map the Article 3 line of the 1899
Declaration is shown as drawn on the Non-Annexed M~D - an east-southeast line
ending at 1YN latitude. It isshown as a solidyeiiowline,whichthe map's legend
identifieswith "frontièresactuelles". This,of course, was incorrect but it revealed
what was the position of the French Government at the time. The southern loop
of the notional Tripolitanianfrontier shown on the Non-Annexed M~Dis drawn
190 SeeLM, para.5.117.
191 m.
192 A largerphotompyofthismaphasbeenfiledwiththeRegistry.on this 1912 map as a dashed line, indicating that it was not a boundary in the
opinion of the French Govemment in 1912.
4.156 Asit developed, the idea of iinkage was dropped; Italy was
given a simple declaration recognizing its sovereignty; and the Agreement of 28
October 1912was entered into, which included not only a provision confirming
the interests of France and Italy in Morocco and Libya, respectively, but also a
reciprocal "most-favoured nation" clause conceming Morocco and Libya 193.
France and Italy then agreed to meet to discuss the boundary question; and in
fact the opening of negotiations was scheduled to be held in Berne on 20 July
1914, but was cancelled due to the outbreak of World War I~~~. It should be
pointed out that the unsupported statement in the that the boundary
negotiations were undertaken "suite à une proposition italienne de juin 1913"is
not correct195. They were the result of the business left unfmished in 1912,which
M. Poincaré wanted to get on with. Chad's own evidence reveals that Italy's
proposal in 1913was to "hâter" these negotiationslg6.
4.157 The &l riaches precisely the wrong conclusion from what it
callsthese travaux, claimingthat:
"...ces travaux préparatoires établissent l'adhésioncontinue de
l'Italie à l'accord de 1902et au tracéd frontière résultantde la
carte annexéeàla Déclarationde 1899 f9'."
The background of the 1912Agreement reveals that M. Poincaréand M. Barrère
had no such view concerning the wavy,dashed line indicating the notional limits
of Tripolitania on the Non-Annexed Mau, a line, it will be noted again, that on
that map does not purport to be a boundary. In his 1914report (which the CM
193 The text of the Agreementappearsin LM, Intemational Accordand Aereements
Annex N,o. 11.
194 See,LM, para.5.120,gt%.; also,CM,p. 183,para.152. Iwas in 1914thatthe
Frenchthesis concemingthe effectof the 1902Accord withrespeclto Tripolitania's
"boundary'n,owespousedby Chad,wasfirstpubliclyvoicedin a repon by M. Louis
Marinto the French Parliament.hathe said was not consistentwith the concems
expressedbyForeignMinisterPoincaretwoyearsearlier,as mentionedabove,owith
the 1912FrenchColonialMinistrymap.
195 CM,pp.182-183,para.152
196 CM,Annex336.
197 CM,p. 183,para.153.quotes a part of), M.Marin only- and wrongly -talked ofItaly'srecognitionof the
limitsof the French and Italian zones ofinfluence,not a boundary line8.
4.158 The mentions another event -Foreign MinisterTittoni's
speech to the Italian Parliament on 27September 1919 -as additional evidence of
Italy's confirmation or acceptance of the alleged boundaty shown on the
Annexed M~D. This speech followed the execution of the 1919Anglo-French
Convention, a review of which follows next. Accordingly, the speech will be
considered in that context.
4.159 The CM underscores the importance of the 1912
Agreement in its final conclusionsconceming the 1902Accord, sayingthat it:
"... anifeste la reconnaissance par l'Italiedu tracé,non seulement
de la limite de la zone d'influence française, mais aussi de la
frontière méridionalede la T~"taine dont elle est devenue le
souverain temtorialen 1912 ... .
Such an assertion would have come as a surprise to Messrs.Banère and Poincaré,
and even to M. Marin (whoonlymentioned -wronglyat that -zones of influence).
There was no miraculous conversion in 1912of the wavy,dashed line shown on
the Non-Annexed Mau into an agreed boundaty for Tripolitania, which is what
the CM claims,when the map itself indicated no such thing. For reasons having
nothing to do withboundaries, the 1912Agreement mayhave reaffirmed the 1902
Accord; but it is goingto truiy extraordinary lengths to try to make out of that
instmment an agreement binding on Italy conceming a Tripolitanian "boundary"
that is not even shown on the map refened to in the Accord. Chad's theory is
flatly repudiated by Mau LC-M 284 issued in 1912 by the French Colonial
Ministry. In any event, as fully discussed above, the 1902 Accord involved no
recognition by Italy of any line, except as an interpretation of M. Barrère'sletter
198 See. CM. p. 183,par152.M. Marin committed another mistake in asserting that the
"carte annexee", that is the Non-Annexed Ma& refleItal tioanof influence.
Italy had no standing at in the region in 1902:Tripoliwasiunder Ottoman
sovereignty.In addition, the Marin Reportwas not "travaux preparatoires".
"Prkparatoires"ta what? It wasa report to justify appropnating hinds for the boundary
commission's work,whichin the eventeverundertaken.
199 CM, p. 1û4,para. 156. This 1912Agreement servesthe useful purpose in Chad'stheories
of providing a rationale for that portion of Libya'sboundary between Toummo and the
Tropic of Cancer, which otherwise did not emerge £romChad'stheories. The rationale
fails, howevsinΠit depends on the faulty supposition that the Non-Annexed Mav
referred to in the 1902Accord indicated a boundary for Tripolitania, which it did not.
Thisiclearlyshownon Mav LC-M28kin 1900,which in turn was only a unilateral French statement as to the intent of
the 1899Declaration.
4.160 AU that emerges from the "snowball" effect of these
arguments as set out in tCM iswhat was the starting point1900: a unilateral
French declaration that the 1899 Declaration meant that France had no
ambitions to the east of its then African possessions of Tunisia and Algeria
beyond a wavy, dashed line referred to on a map, which served the practical
purpose of illustrating the line, but which had not been annexed to th1899
Declaration, and the wavyiine of which wasnot an agreed boundary and was not
indicated on the map as being a boundary.
CHAPTERVI. TJ3E1919ANGLO-FRENCHCONVENTION
J8 SEPTEMBER)
4.161 This agreement, the £irstof two entered into by France in
1919 - on 8 September, with Great Britain; an4 days later, on12September,
with Italy, both having been signed on behalf of France by Foreign Minister
Pichon - must be considered in context. Its background is particularly relevant,
for the strange paragraph inserted at the end of the agreement is largely
unexplained in anytravaux Libyahas been able to turn up; and tCM indicates
that Chad has experienced the same difüculty. However, the asserts that the
textisclear:
"..il s'agitbiesurce poin%& confirmer, et non de modifier, la
Déclarationdu 21mars 1899 ."
And the CM addsthat the iine ("cetracé") resultingfromt1919Convention -
".est identique àceluiretenu par la *ne et la Grande-Bretagne
en1899 et acceptépari'Italieen1902 .
4.162 These, then, are the fkst&O propositions about the1919
Convention that Chad has the duty to prove: (i) that it confirmed but did not
modify the 1899 southeast line of Articl3; and (ii)that the 1919 line was
identical to th1899line. To this, the advances a third proposition, one that
200 CM,p. 185,para.163. Itisdescribas"depourvud'ambigulté".
201 CM. p184,para.159.Chad also must prove: even though the 1899 line concemed zones of influence,
not boundaries, by 1919the 1899linehad become a boundary line'-and one that
wasopposable to Italy. Just on the face of it,thiswouldappearto be a dauntingif
not impossible task -firs tt ,rove that a southeast line202, which in 1899
intersected 24"Elongitude at 15"35'Nlatitude, was identicalin 1919to a line that
intersected 24"E at 19"30',magically swallowingup 178,651 km2 of temtory
(about the size of Switzerland,The Netherlands, Belgiumand Austria combined)
(Mau LCM 21); second t, prove that this 19030'line was opposable to Italy
because a southeast line endingat 15"35'Nallegedlyhad been accepted by Italyin
1902 as a limit to France's territorial aspirations;thir td .rove that the
19030'line was opposable to Italy as a boundary line, which it had not been in
1899or in 1902.
SECTIO N. TheConvention'sText
4.163 Before tuming to the abracadabra by which theCM claims
to prove these three propositions, the text and background of the Anglo-French
Convention of 8 September 1919 will be examined203. The title of the
Convention descnbes it as "supplementary"to the 1899Declaration and the 1898
Convention. (It willbe recalled that the 1899Declaration was itself "additional"
tothe 1898Convention,and the twoinstruments were ratified as one agreement.)
As the CM acknowledges, the 1919 Convention was commonly known as the
"Ouadaï -Darfour Convention"for it cameabout in order to complete the part of
the boundary left undelimited by Article 2 of the 1899Declaration, that is the
boundary separating Ouadaï and Darfour and lyingbetween llON latitude and
15"Nlatitude (M~DLC-M29)204.
4.164 The opening paragraph of the 1919 Convention, in its
English text,providesas foilows:
202 A strict southeastline becasdemonstratedearlier,the Ar3iline of the 1899
Declaratiwasintendedto bea southeast,notaneast-southeaSecpara.4.18g
-q.,above.
203 The fultexmaybefound atLM.International AccordsdereementsAnnexNo.17.
204 See,LM.para.5.174, -q. It is of interest thatthe Emod des motifsaccompanying
the draftlaw presentedto the FrenchParliamentto authorizeratificationof the 1919
Conventiondoes not mentionthe final "interpparagrapatall;it onlydescribes
the Convention'seffect in delimiting the Ouadalroundary. This maybe one
reasonwhy Italydidnotgetndof it until1921. "Articles 2 and 3 of the Declaration of 21st March, 1899, are
am~iifiedas follows ..."
The French textreads:
"Lesarticles 3 de la Déclarationdu 21 mars 1899sont modifiés
comme suit ...6'5!,
The CM ignores this rather important difference between the two texts, saying
that the Englishterm "amplified"was -
"...à vrai dire plus exacte car2d6 s9,git plus de préciser que de
modifier àproprement parler ... .
Of course, this is an important proposition to be proved and not merely stated by
Chad: that the Convention was not intended to modiSreither the provisions of
Article 2 of the 1899 Declaration - which it undeniably did, as a simple
cornparison of the texts reveal-or the provisionsof Article 3, concerningthe line
of separation north of 15"N latitude, which only the final paragraph of the
Convention dealt with.
4.165 The English .text of the last paragraph of the 1919
Conventionisas follows:
"It is understood that nothing in this Convention preiudices the
intemretation of the [1899 Declaration], according to which the
words in Article 3 '..shall run thence to the south-east until it
meets the 24th degree of longitude east of Greenwich (21°40'east
of Paris)' are accepted as meaning '..shali run thence ina south-
easterlv direction until it meets the 24th demee of loneitude east of
~reenhch at the inters26tjon of that dëgree of lchgitude with
parallel 19'30'of latitude' ."
The French text for the words underiined above reads: "ne modifiera en rien
l'interprétation"and "elle prendra une direction sud-est ...".It is clear that this
finalparagraph was the onlypart ofthe Convention that "amplified"or "modifiedu
Article 3 of the 1899Declaration; al1that precedes it concerned the Article 2
boundarv delimitation. in fact, the last paragraph seems to have been tacked on
205 Emphasisadded.
206 CM. pp.185-186para.164.
207 LM,internationalAccordsandAmeementsAnnex, No. 17.Emphasis added.to the end of a treaty intended to deal onlywith the Ouadaï-Darfour delimitation.
Exactly how or why this came about remains a myst'ery;and followingsignature,
the Convention remained unknown to Italyuntil the French law promulgating the
Convention was published on 14 April 1921. The Italian Government promptly
made enquiries in London and Pans to find out what had occurred behind its
back208.
4.166 Before tuming to that story, a further analysis of the
Convention's text is in order, with iwo questions in mind: (i) was the last
paragraph a modification of Article 3 of the 1899 Declaration in terms of the
direction of the line; (ii) did that paragraph transform the nature of the line into a
boundaty?
4.167 In spite of having sided with the English text of the opening
paragraph of the Convention, which used the word "amplified" rather than
"modified", the goes on to concede that the intention of the opening
paragraph was "clairement modifïcative", with respect to Article 2 of the
Declaration, in contrast to the final paragraph ("l'interprétation donnée à la
Déclaration n'est en rien modifiée"),which only concemed Article 3 of the
Declaration. Such an argument is unjustified: the opening paragraph réferred to
So it was contemplated by the
Articles 2 3 of the 1899 Declaration.
Convention that Articles 2 and 3 of the Declaration might be modified or
amplified, and the last paragraph of the Convention, therefore, could be a
modification or amplification.
4.168 The last paragraph of the Convention needs to be looked at
closely. It concerned an "interpretation" of Article 3 of t1899 Declaration. It
did not say that the "interpretation" set out in the paragraph did not modify
Article 3; rather it said that nothing in the Convention modified that
interpretation ("la présente Convention ne modifiera en nen l'interprétation
donnée à la Déclaration"). It has already been demonstrated that, immediately
following ratification of the 1899 Declaration, France had published a map,
described then by Foreign Minister Delcassé to Ambassador Cambon as
"indicative", on which the southeast line of Article 3 was shown as an
east/southeast line; and this shift in the direction of the line was immediately
208 InthelightofArticl13of th1915 TreatyofLondon,Italy heveryreasonto expectto
befullyconsultedonany treaty thartelatedtoareaswhoseboundwereof interestto
Italy.perceived by the ~ritish~'~. The finalparagraph of the 1919Convention had the
effect of accepting such an interpretation given' to the Declaration - an
interpretation that had already substantially modifiedthe direction of the Article
3 southeast line -but moving it a notch north of the line show on the
Annexed Mau: from 19"Nto 19"30'N,a shift that involved some 22,828 km2 of
temtory (the size of half of Switzerland or half of Denmark; see, Mau LC-M 20
referred to in paragraph 4.72 above). This difference between the direction of
these lineswillbe dealt withmore fullyfurther on.
4.169 The language of the finalparagraph of the 1919Convention
demonstrates on itsface that it modifiedthe text ofArticle 3 as to the direction of
the Article 3 lineIn Article 3, the line was descnbed in the followingway:"shall
nui thence to the south-east";"descendra dans la direction du sud-est". The final
paragraph of the 1919Convention "interprets" Article 3 so as to read "shallrun
thence in a south-easterly direction"; "prendra une direction sud-est". The
English phrase "to the south-east"is quite different from the phras"in a south-
easterly direction";and "descendra dans la direction"is not the same as "prendra
une direction". A geographer would immediately know how to draw a line
descending"to the south-east";he would need guidance as to howto draw the line
"ina south-easterlydirection". Had a modificationnot been involved,there would
have been no reason to alter the text of Article 3; the end point of the line at
19"30'Ncould simply have been added as a "précision",as the claims the
paragraph was intended to be.
4.170 Thus, the 1919Convention contemplated modifications (or
"amplifications",which came dom to the same thing) in both Articles 2 and 3 of
the 1899Declaration,and its finalparagraph not onlyexpresslymodified the text
of Article 3 but did not, contrary to what the argues2'', provide that the
"intemretation" that it descnbed was not a modification of the 1899Declaration;
what it said was that nothing in the 1919 Convention prejudiced such an
interpretation-whichmeans something quite different.
4.171 The text of the other paragraphs of the 1919 Convention,
relating to Article 2 of the 1899Declaration, contained elements relevant to this
discussion,as weii. They delimited the Ouadaï-Darfour boundary between 1l0N
209 See,para4.50g sa. a,bove.
210 See,CM.p. 186,para164.and 1S0N,a sector that the Declaration had left to be dealt with in the future. A
comparison of the text of the fourth and fifth paragraphs of the Convention with
the text ofArticle 2 of the 1899Declaration reveals substantial amendments. The
remainder of the paragraphs conceming the Article 2 sector spelled out in detail
the delimitation in accordance with the principle of dividingthe area accordingto
where certain tribes lived. This was a new principle not set out in the 1899
Declaration. These paragraphs of the Convention made it clear that they
concemed a boundary delimitation - the word "boundary"was used repeatedly in
these paragraphs. Thus, the Convention accomplished a major amendment to
Article 2 of the Declaration, modifying its text and establishing certain new
principles to govem the demarcation to follow; and it explicitly concemed a
boundary line, as had the 1899Declaration in respectto the Article 2 sector.
4.172 When the line delimited under these paragraphs of the
Convention (whichas it approached lSONfrom the south followedapproximately
a north/south direction)reached the Wadi Howa (at approximately 1S045'N)t ,he
boundary was to continue on in the followingway:
"Afterjoining the Wadi Howa the boundas, shaii followthat Wadi
in principle eastwards as far as the eastem limit of the French
sphere, namely, the 24th degree of longitude east of Greenwich, so
as to separate in principle the temtories of the Bedayat and
Guraa~~tribes to the north from those of the Zaghawa to the
south ."
As shown on Mau LC-M 29 referred to in paragraph 4.163 above, this point of
intersection of Wadi Howa and 24"E longitude described in the quoted passage
would be almost preciselythe end point of a true southeast line under Article 3-
the line intended by Great Britain and France in 1899. Without the last
paragraph of the Convention,thiswouldhavebeen the end point of the boundary
of the Article 2 sector of the Declaration as modified by the Convention. The
effect of the last paragraph of the 1919Conventionwas to shift the end point of
the Article 2 sector some 4" to the north (to lY30'N) and, thus, substantiaiiy to
modifythe Article 3 line'sdirection.
4.173 There is one other paragraph of the Convention relating to
Article 2 that is of interest here.In pertinent part, it States that Great Britain
recognizedthat -
211 LM. International AccoasndAereernentAnnex,No. 17. "..in order to exercise an effective control over the Bedayet and
Guraan tribes, it might be necessary for [France] to extend its
sphere of control eastwards beyond the 24th degree of
longitude..."
And the paragraph continued that Great Bntain had no objection to such an
extension provided it did not go beyond the limits of the country actually
inhabited by these tnbes or prejudice the absolute British rights to certain named
oases; and provided further that it did not exceed24"30'E. This brings out the
main preoccupation of the British in1919 concerning the region in questio- the
control ofunruly tribes; and it is reasonable to conclude that this was why Great
Britain had no difficulty in agreeing to the change brought about by the last
paragraphs of the Convention, for it left most of this headache to the French.
The same paragraph refers to the Boundary Commissionnamed in Article 4 of
the 1899 Declaration. It will be recalled that Article4 limited the task of the
Commissionto the demarcation of the Article 2,not the Article3,sector of the
boundary. The final paragraph of the Convention follows the paragraph just
referred to above; but it relates onlyto the Article 3 sector,nor1S0Nflatitude,
an area not embraced withinthe mandate of the Commissionunder Article 4 of
the 1899 Declaration.
4.174 Although the 1919 Convention itselfmade no reference to a
map, what appears to have been an agreed map, prepared by the Geographic
Section of the Peace Congress, was annexed (M~DLC-M 30)~'~. The dividing
line on this map is shown at times as a solid line and at other times as a dashed
line,both in the area south of Wadi Howa (1So45'N)and to the north of the Wadi.
The line descendingin a "southeasterlydirection" to interse24OE at 19030'N isa
dashed line. From there south to Wadi Howa and Westalong the Wadi until it
meets the linecomingfrom the south,it is a soiidline;from there to the south, the
iine is sometimes dashed, sometimes soiid. It would be a reasonable inference
that the dashed syrnbolreflected either that the sector was only approximately
delimited and required to be more precisely determined by the boundaiy
commissionduring the demarcation phase, or that it did not concern a boundary
at aii (which is tme of the southeast line ending at 19030'N). What is most
212 Thissamemap wasincludedin the asMapNo. 60andis referreto thereatpara.
5.176,s9. LC-M 30
WADAI - DARFUR significantabout the map isthat it seems to have interpret1919hConvention
to have moved the Articl2 sector, which under th1899Declaration concemed
a boundary, north some 4"to lY30'N (which is shown as the end point of the
Articl3 sector, the dividinglineofwhich didnot concema boundary).
4.175 It will be recalled that,19nMarch 1899, Lord Salisbury
tabled a drafl whose line bears some resemblance to t1919 line, for it would
have started (at this point the Art3sector line was ascendingnot descending)
at18"N213. Since at that stage of the negotiations there had been no discussion
of extending the French zone east to24'E longitude, Lord Salisbury'sproposa1
wouldpresumably have started the Articl3 sector at the intersectio18"N and
23"E, as shown on Man LC-M 16~'~. It is helpful to mention again here why
Ambassador Cambon flatlyrejected the proposal, with the result that the starting
point reverted to 15"~~~~. There were two reasons. Firs Lord Salisbuv's
proposal, by extending the starting point of the Art3csector to18"N,would
have moved the Article2 boundary up to the intersection of that point23"E;
and the French were hopeful of movingthe sector further east (whichultimately
happened when, in the final days, the negotiators pick24"E longitude as the
point at which the southeast line wouid intersect). Second, on the basis of the
geographyas itwas then understood from such sourceas the1892 JustuSPerthes
and 1885-1886 French military maps, the line Lord Salisbury proposed wouid
have drawn the boundarv in such a way as to leave on the British side areas just
north of Darfour that the French considered shouid remain in their z(we
31A and 31B). These areas close to Darfour shown on the map were of
much more interest to the French and the British than the unknown, unexplored
regions to the north, which Lord Salisbury'sproposal would have placed on the
French side.
4.176 In its final version, Arti3lof the 1899 Declaration had
moved the end point of the Articl3 line from23"E to 24"E,partially satisfying
France'saim to move further east,although the French desire to move the Article
2 sector east t24"Ewas not satisfied in t1899 Declaration.In the meantime,
after1899, the region began to be more intensively explored and mapped, the
leadingfigure engaged in this workbeing ColonelTilho,whose map was prepared
213 See,para.4.23,a., above.
214 Referredtoatpara.4.23,above.
215 Thismatterhasbeendealtwith in fullat..184.49above.during the mission of the Institut de Fr(1912-1917) and appears hereas Mar,
LC-M 32216. On the basis of the more up-to-date kn'owledgeof the geography of
-
the area, and the shift eastward to 24"E of the starting point of the Arti3le
sector, which had not occurred when M. Cambon refused Lord Salisbury's
proposal of 29 March to start the line at18"N,the line to which M. Cambon
strongly objected i1899 had by 1919 become not only quite an acceptable line
from the French standpoint but a much improved line, especially as a boundary.
4.177 The final paragraph of the 1919 Convention made no
mention of a boundary line; it referred back to Article the1899 Declaration,
which clearly did not concern a boundav. Soit is not clear if the map annexed to
the 1919 Convention was intended to be interpreted to show a boundary north of
the Wadi Howa, in effect extending the Article 2 sector nort19°30'N latitude.
Thus, contrary to the ms assertion that the last paragraph of the 1919
Convention is "dépoum d'ambiguïté", itis in fact shrouded in mystery. The
archives to date have not yielded up any documents that provide a complete
answer to what the parties intended. So, it is not at al1surprising that when the
Italian Government in1921 learned of the1919 Convention and saw the annexed
map it reacted immediately withvehement protests to the French and British and
continued todo so up until1935.
Smo~ 3. Backmoundand Travaux
4.178 This leads to the background of the1919 Convention and
certain of the documents thatChad has produced from the British archives that
supplemented what little Libya was able to find. The stnking thing about the final
paragraph of the Convention is the odd manner in whichitaccomplished such a
major amendment to Article 3of the 1899 Declaration-through the recognition
of an "interpretation" of Article 3. It is also strange that no mention of this final
paragraph of the 1919 Convention found its way into the French Government's
Emosé des motifs217; and that neither Great Britain nor France had consulted
with or informed Italy about their agreement, even though it related directly to an
area of the Tripolitanian hinterland to which the Ottoman Empire had asserted
nght and title, inherited by Ita1912. One possible explanation is that Great
Britain and France sought to evade their obligations to Italy under Ar13cof
216 LM.para.5.250andMapNo. 67.
217 Sec .i.04,above.the 1915 Treaty of London by concealing this agreement from Italy. From Italy's
standpoint it was reprehensible conduct, for Arti1'3of that Treaty provided, in
pertinent part, that Great Britain and France agreed:
"..in principle that Italy may claim some equitable compensation,
particularly as regards the settlement in her favour of the questions
relative to the frontiers of [Libya] an&he neighbouring colonies
belonging to France and Great Britain ."
The 1919 Convention brought about a modification in Article 3 of the 1899
Declaration that was advantageous to France and, arguably, disadvantageous to
Italy, and was contrary to the spirit of Art13,at the very least. In1928,the
French Ambassador in Rome brought up this very point with the French Minister
of Colonies219.
4.179 The unresolved questionsrelating to Libya'sboundaries had
been tabled for negotiation between the Ottoman Empire and France in 1911-
1912, but abandoned after the defeat of the Ottomans and the 1912 Treaty of
Ouchy. They were then scheduled for discussion between France and Italy in
1914, but abandoned due to the outbreak of World War 1. So in 1919 it was
notonous that there were boundary questions to be resolved with Italy. Thus,
Italy had every reason to be deeply offended by this action taken behind its back
conceming areas to which it had inherited rights, titles and claims from the
Ottoman Empire.
4.180 It could indeed be maintained that any effect on Italy
stemming from the 1919 Convention was invalidated ipso facto since this
amendment to Article 3 of the 1899 Declaration, accomplished without Italy's
consent or even its knowledge, was in violation of the obligations of Great Britain
and France under Article 13 of the1915 Treaty of London. But this is not at ail
how the views the Convention. The CM contends that the1919 Convention
was opposable to Italy and that, as a result of the 1902 Accord, Italy was
precluded on legal groundsfrom objecting to th1919 Convention.
4.181 Before turning to these arguments that appear in theCM.
certain documentary evidence produced by Chad from the British archives that
218 SecL.M. InternationalAccordsandAmeementsAnnex,No. 12, andthe discussion at
LM,para.5.150,gseq.
219 See.LM,para.5.262.shedslighton the intended direction of1899southeast line and the reason for
the major shift in its direction brought about by1919 Convention will be
examined.
(a) BritishTravaux
4.182 The CM refers to a letter written 7March 1919 by a
member (MacMichael) of the Britishteam negotiating the1919Convention to
another colleagueon the team (~ansittart)~~'. Although thismaybe regarded as
part of the travaux of t1919Convention, it is used in CMe as a sort o-
post facto travaux for 1899 Convention. Accordingto a1922 Bntish Foreign
Officenote (referred to in m221), written in the context of preparing Great
Britain'sresponse to Italy'sprotest agains1919Convention, the Convention
wasnegotiated,on the Bntish side,bythe BritishPeace Delegation, relying onthe
adviceof SiR. Wingate and Mr.MacMichael ofthe Sudan Govenunent Service.
The note contains these interesting obse~ations:
"...there is no record in the department to show whether any
account was taken of the effect it would have upon Italian temtory.
responsibility and control certain turbulent tribewho wereer their
hitherto masterless."
4.183 Mr. MacMichael's letter addressed certain revisions
recommended to be made in the maximum and minimum proposals being
prepared by the British team for the forthcoming negotiations with the French
that led to t1919 Convention. In hisletter, he proceeded to interpret the intent
of the parties 1899 in describingthe direction of the Article 3 line. However,
these officialsof the Sudan Govemment Se~ce were not looking at the same
maps that Lord Salisbury and M. Cambon had before them in 1899. Mr.
MacMichael quotes SirR. Wingate as sayingthat "the spirit of the Convention of
1899 certainly pointed to a French occupation of Tibesti and Ennedi". Such a
view is very different from what Lord Salisburyhad in rnind, as he explained at
the time and later. The parties1899 were only concerned with drawing a line
to limit French expansion toward the Nile. Great Britain opposed any
recognition of rights on either of the line; and Article 3 avoided any claim or
recognition of a French zone of infiuence, as the travaux show. What R.r
220 CM,p. 152,pa37.TheletterwasfurnishedasProduction12.
221 Sec.M, para.5.184.LC-M 33Wingate and Mr. MacMichael had also overlooked in tiying to interpret the 1899
Declaration was that a strict southeast line drawn on 1899vintage maps placed
the regions of Tibesti, Ennedi, Ounianga and Borkou on the French side of that
line (Maus LC-M 31A and 31B referred to above at paragraph 4.175). As has
been demonstrated earlier, on the much improved maps available in 1919,which
had the benefit of a major advance in knowledge of the geography of the region,
in large part the result of Colonel Tilho's work, a strict southeast line had a very
different result. This point has been fuUydiscussed and illustrated above, starting
at paragraph 4.71.
4.184 In hisletter of 7 March 1919, Mr. MacMichael explained
why he considered a line drawn due southeast from the Article 3 starting point at
the Tropic of Cancer to be "ridiculous". This passage and accompanying footnote
are quoted in full in the2 Al1the reasons he gave, however, were based on
hindsight: on the geography as it was known 20 years later and set forth on far
more accurate maps223. Hisreasons were these:
- A due southeast line would intersect 24"E longitude to the
south of the northern boundary of Darfour contrary to the
wording of the 1899Declaration;
Comment: Therewasno agreednorthem boundaryfor Darfour,ar
best anotional one. The 1899Declarationdid not referto such a
bounda ;theArticl3 sectorwas describeon&inrem ofstartingto
thenon2 oflYN latitude.Am'cle2 of theDeclarationwasconcemed
withthedividingline betweenOuadaïandDarfourbetween 21°Eand
23"E. Thenorthem boundariesof rheseregionswerenot dealt wirh;
theon&indicationwasthat theArticle 3sectorwouldstartnorth of
IYN.
-
A due southeast line would intersect 24"Eat 15"30'N,that is,
south of Wadi Howa:
Comment: Thecalculationis correct;however,thJustu serthes and
1895-1896French milifay maps,introducedin evidencebyChadand
correct&identifiedas the two maps consulted by the negotiatorsin
222 CM. p.152,para.37.
C&f, pp. 148-149,paras.23-26, whereChad emphasizesthe same point
223 concerningthelackof accurateknowledgeofthegeoin 1899Sec .au LC-M 33,
ColonelTilho'smap(1917)witha strict southeastlinedrawThisillustratesthe
advancemadeinknowledgeof thegeograpof theregionovertheperiodfoliowingthe
1899Declaration. 1899,showthutpoint aslyingn& of WadiHowa,in the caseof the
French rnap, and almost exactlyon the Wadi, in the case of the
Germanrnap (MarisLC-M 31A and 3iB). WadiHowa k identified
on thesemapsbyitsolderArab name "OuadïAbouHaras': The1899
BaF rnapako identifiesth&xzture as 'jlbou Haras" and placesit
wherethe Germanrnapdoes .
- A due southeast line would cut off half of Tibesti and
Ennedi from the French and give to the British the site of
the French post of Ounianga;
Comment: On the 1895-1896French rnapa due southeast linecuts
acrossto the north of Ouniangaand the Frenchpost ut Ounianga
Kebir,leavingit on the Frenchsideof the line(Thk k hue, infact,
even on modem maps.) Of course,the 1919 Frenchpost had no
bearing on the situation in 1899. At the time, the French were
hundredsof miles awayto the southwest,having on&just begun to
reachLake Chad
So the reasons why a strict southeast line appeared "ridiculous" to Mr.
MacMichael in 1919 did not exist i1899,so far as the British and French were
aware; and consequently to them a strict southeast line camed out their intent at
the time. However, it becomes increasingly clear in examining t1919 evidence
that the parties agreed to shift the4"to the north as a result of what the more
accurate maps available to them revealed.
4.185 Mr. MacMichael goes on to saythat:
"inal1but Ourmost recent maps we used to follow the spirit of the
1899 agreement and have this S.E.& drawn not & S.E. but
roughly in a southeasterly direction (as on the tracing 1 sent
you) so as to leave Tibesti and Ennedi to the French and join
meridian 24"soon enough to follow it southwards as it ought to do
in the wording of the Declaration. What it comes to is that al1
concemed must admi$&e Declaration as worded in this respect
means nothing at al...
Mr. MacMichael might have had a good point if he had witten to his British
coileague that a due southeastline i1919 seemed to make no sense and should
be modified, but only because in 1919 the parties may no longer have been
considering the linin the limited negative sense intended by Lord Salisbury and
- -
224 SeeM.ar,LC-M18Creferredtoatpara.4.36,above.
225 Thesearetheprecisewordsthatappearinthefinalparagof the 1919Convention.
226 CM. Production12. M. Cambon in 1899,as expressedinArticle 3. In 1899,Article 3made good sense
and it. made good sense to interpret the line as a true southiast line.Mr.
MacMichael'sreference to "our"most recent maps mayhave been to maps of the
Sudan Government Service;but officialBritish Government maps of 1906,1914
and 1916showed a true southeast line. Thisisillustrated byMa~sLC-M 14Aand
14B(referred to at paragraph 4.18above) and on Map No. 63in thm.
4.186 Yet, in spite ofhis mistaken analysisof the 1899Declaration
in the light of hindsight in 1919Mr. MacMichael's recommendation to Mr.
Vansittart is interesting, for he suggested a revision in Great Britain's maximum
claimthat would read as follows:
"..the line drawn, in accordance with the literal interpretation of
the Declaration of 1899,dueouth-east from the intersection of the
Tropic ofCancer withthe 16thmeridian, or (supposing theaid line
to have been drawn, not due S.E., but in a roughly southeastern
direction inuch a manner as to include in the French sphere the
parts of Tibes&+nd Ennedi lying West of the 24th degree of
longitude) [to] the 24th degree of longitude at or near the
intersection of that parallel with the 17thdegree of latitude,but, in
anycase,in such a manner as to lea...(etc., as in memo)."
The two interesting points arfir that the contemplated end point of the south
east line was 17"N not 19'30'N; and second, that Tibesti and Ennedi were
described as lyingin the French "sphere", and there is nothing to suggest that a
boundaryline wascontemplated in that sector.
4.187 As noted above, the negotiation of the 1919 Convention
invoived, onthe Britishide,the Sudan Government Service. The interest of the
Sudan at the time was to have a clearlydefined boundary between the Sudan and
French Equatorial Africa, particularly as between Ouadaï and Darfour. The
Convention did not concentrate on the northern part of the boundary but rather
on the boundary between Ouadaï and Darfour south of the Wadi Howa
(15"45'N),which concerned the Anglo-Egyptian Sudan. This no doubt explains
why the two principal British negotiators were from the Sudan Government
Service. According to the intemal Foreign Office note of 13 January 1922
referred to in paragraph 4.182 above, it appears that the British negotiators
apparently took no account of the effect which the 1919Convention might have
on Italian temtory, and that the object of increasing the French Sudan by fixing
227 Addedto thetextof theletThiswordappearsto havebeenaccidentauyomitted.the point of intersection of the southeast line in the 1899Declaration at 1g030'N
latitude was to place under French responsibility and control ceftain turbulent
tribes whowere hitherto masterless.
4.188 This same Foreign Officenote sheds light on the intent and
effect of the 1919 Convention. The note was prepared in connection with
responding to the first Italian protest lodged against the 1919 It
starts offthisway:
"In thislongand very complicated note the Italian Ambassador has
put his fin er on a certain discrepancy between Our Conventions
8 rench of March 21st, 1899 and September 8th, 1919
...th.
The note goes on to summarize the Italian complaint, particularly as regards the
direction of the Article 3 line, which the Italians maintained was intended to be
exactly southeast. It confirms the accuracy of the Italian reference to British
maps of 1906and 1914as showinga strict southeast In the course of its
analysisofthe Italian position, thisnote makes the followingobservation:
'The effect therefore of the Convention on September 8th, 1919is
to swing up the frontier in a norîhernly direction through-a
considerable arc, thereby givingto the French an extensivearea of
the Anglo-Egyptian Sudan whose northem frontier as defined by
the Boutros-Cromer Convention of Janua~y19th, 1899followsLat.
22N. It alsogivesto the French a smaller portion of the hinterland
of Tripoliand assuch,Italian temtory ...."
4.189 This Foreign Office analysisproceeds to say that, although
the Italian protests "more intimately concern the French", nevertheless, since
Great Britain was also a party to the Convention, "the Italians have a right to
protest to us". It goes on to consider how to coordinate the British and French
replies to Italy, comingup with the followingidea, though noting that it would
probably not prove acceptableto Italy:
228 See,para4.204ett., below.
229 LM. BritishArchives nnex,p138.
230 The 1916BritishWarOffic map,showinga strictsoutheastUne,wascitedinthe at
para.5.182where areprodunionappearsasMapNo. 63.A largercolourreproduction
of that mawas fumishedbyLibyato the Court. The 1906and 1914maps appearas
MausLC-M 14Aand14Breferredtoal para4.18,above.A largerreproductiof each
of these mapshas also been himishedto the Registry. Libyahas no evidenceof any
Frenchprotesttothesemaps. "If the French agree we could, of course, contend that the [1899
Declaration] only indicated the general direction of the frontier...
and that the maps published between 1899and 1919were merely
rough indications of a frontier which had never been delimited,
whereas the [1919Convention] gave a more precise interpretation
of thisvaguelydefined frontier.'
This would not have been a forthright position for the British Govemment to
take, and as will be shoy below, the British Govemment did not follow the
suggestion.
4.190 As was the practice of the Foreign Office, this note was, in
tum, commented on by other interested offices, and these notes appear in the
same file. One hand-written note observesthat:
"The Italians have alwayshankered after a lin55nning down south
as far as latitude 16"north or even 15"north ...
Another note starts offthisway:
'Thisisa dreary question -as drearyas the desert ofwhichit treats.
...[The Italians] make the claim with just enough semblance of
justification to beiresome."'
This note goes on to suggestthat it might be argued that the wording of Article 3
didnot excludethe possibilitythat -
"..either signatoryto it might have claimed, in the course of years
and with the increase of geographical knowledge,a rectification of
the frontier to suitlocalconditions."
However, the ensuing analysisof this commentator is fullof flaws. For example,
it constructs an argument around the failure of the Ottoman Empire to protest
the 1899Declaration, when in fact the Ottoman protests to both Great Britain
and France were in the Foreign Office Mes. It was the comment of the Legal
Adviser's Office that carried the day and became the officia1position of the
Bntish Govemment. This comment by H.W. Malkin, who later became Legal
Adviser of the Foreign Office, was surnmarized and discussed in Libya's
Memorial at paragraphs 5.202and 5.203.
231 LM, BntishArchivesAnnex, p.142. 4.191 The essential points made in the Malkin note, written in
May 1922,were these:
- The 1899and 1919agreements were between Great Britain
and France and, hence, could not dispose of territory
belongingto a third Power;
-
To the extent they purported to do so, their provisionswere
void;
- Hence such nghts as Turkey originallypossessed, and Italy
might then possess, could not be affected by these
agreements;
- The 1899Declaration involvedno recognition of sovereignty
over anytemtoryat al]:
'The upshot of it a11is that to my mind the two
Anglo-French agreements did not and could not
affect the rights of Italy in any temtory which
belonged to her. The question whether any of the
temtory to which those agreements applied is
temtory now belongingto Italy de ends of course on
thequestB of fact as to howfar f .rkish sovereignty
extended !'
(b) TittoniSwech
4.192 Another Strand inChad's argument is a speech made by
Italian Foreign Minister Tittoni on 27 September 1919. It comes up in tCM'S
discussionofthe 1902~ccord'~~,but ismore appropriately dealt with here in the
context of the two 1919 agreements. It was a statement made to the Italian
Parliament a few weeks after the Convention of 8 September 1919 had been
concluded, a fact about which the Italian Government wouldbe kept in the dark
until early 1921. Its purpose was, in part, to explain the Franco-Italian (or
Pichon-Bonin) Accord of 12 September 1919,which concerned Libya'swestern
frontier, and to which Italy was a Party, unlike the Convention of 8 September.
When Italian Ambassador Bonin signed the 12September Accord, he was totally
î32 LM. BritishArchivesAnne&p.149.
233 CM. p.183para.154.unaware that his CO-signatory M. Pichon had, four days earlier, signed the
Convention of 8 September 1919 with Great Britain, which directly concerned
Italy's temtorial interests in the Libyan hinterland to the south of Libya, as the
British Foreign Office had noted. Foreign Minister Tittoni was similarly in the
dark when he addressed the Italian Parliament.
4.193 Signor Tittoni remarked that the cession of temtory by
France in the 12 September Accord, carrying out a French commitment made
four months earlier during the meetings of the Colonial Commission to discuss
Italy'scompensation under Article 13 of the 1915 Treaty of London, was useful
but "en somme peu de chose": it certainly had not fulfilledFrance's obligations to
Italyunder Article 13in the viewof Italy. He told the legislators that:
au lieu de 55\régions, reste ouverte et sera l'objet de négociations
ultérieures ."
In his brief résuméof the Colonial Commission negotiations, he mentioned that
the subject of Tibesti, Ennedi and Borkou had been raised at that time. And then
he took the Italian public (and legislators) lightheartedly to task, saying that in
Italywhen one could not obtain something, it excited a great desire to have it; but
when something was obtained, very little satisfaction was expressed. He gave this
example:
"Je me rappelle qu'au commTfment de la guerre de Libye,
lorsque le public italien sut que ,dans raccord Prinetti-Barrère
du ler novembre 1902, nous avions reconnu la frontière de la
Convention franco-anglaise du 15 juin 1898,assignant à la France
le Tibesti et le Borkou, il n'y eut qu'un cri dans les journaux,
brochures et conférences: nousdevions à tout prix exiger le Tibesti
et le Borkou qui constituent I'hinteLjgndnécessairede la Libye-Et
aujourd'hui, àpeine a-t-on su que nous étionssur le point de les
avoir, un cri s'est éleen sens contraire pour protester contre une
acquisition dénoncée commeinutile et onéreusepour nous."
4.194 Even if it were to be granted that Signor Tittoni might have
chosen his words more carefully - for example, he referred to the 1898
Convention instead of the 1899 Declaration, and totally misstated its effect, for it
234 ThetranslationintoFrencistakenfromtheBCAF. See,LM,Exhibit42.
235 Thewords in Itaiian weseppeche".
236 Thewords in Itaiiusedwere"&saputochen.did notassig tne regions mentioned to the French-it is remarkable what an
important place this supposed admission on his part was later given to support
the thesis, subsequently advanced by France, that Italy in the 1902Accord had
recognized the Article 3 southeast line. When such weak evidence is paraded to
support an argument, it immediately castsdoubt on the validityof the argument.
In this regard, theCM appears to have given the speech somewhat less
prominence than did the French.
4.195 Ifthe speech is examinedwith care, what the Italian Foreign
Minister was sayin- using exaggeration to put across his p-was that when
the secr 19t02 Accord became known in Italy (around 1914), there was an
outcry,particularlyin the press, that in the Accord Italyhad wronglysurrendered
its position regardingese regions. SignorTittoni does not say he agreed with
that interpretati-but thiswaswhat wasbeing bruited about at the time. When
subjected to calm analysis,it became evident that in the 1902Accord Italy had
done nothing of the kind, as the Italian Colonial Ministxypointed out at the time
and subsequently. The main point made in this speech concerning Tibesti and
Borkou was that the question of to whom they belonged was open and remained
to be resolvedbynegotiationswithFrance in the future.
Smo~ 4. Other Contentionsof Chad
4.196 Most of the CM'S contentions regarding the 1919
Convention have been mentioned above: those prirnarily concerned with the
interpretation of its text.
The QvJ makes three other arguments. Firs it.
contends that the final paragraph of the Convention did not modify in any way
Article 3 of the 1899Declaration; it was an "interprétation authentique" by the
originalparties to the ~eclaration~~~. It has been shownabove that this iswrong;
the finalparagraph was an amendment ofArticle.3that brought about, inter alia.
a significant alteration in the direction of the southeast line by moving its end
point north by 4"of latitude, as the Foreign Office had recognized. Second, the
-M repeatedly Statesthat the southeast line shownon the map referred to in the
1902Accord -the Non-Annexed Mau - was identical to the line that would result
from the final paragraph of the 1919 This is demonstrably
wrong; the map's line intersected 24"E at19'N, as the French Governrnent
-
237 CM, pp.185-181p,aras.164-165.
238 See,e.e.,CMpp.184-185,para.159. LC-M 39
1:14,715.WO
---------_.__..._..-.-- ____..._---------
-------...-.--.--admitted on many occasions and iliustrated on its maps. Two lines starting from
the same point and intersecting 24"E at two different po-19"Nand lY30'N -
are not the same line, as Mau LC-M 34 demonstrates on a one degree (1") grid
superimposed on the Non-Annexed Mau.
4.197 The suggests a fall-back position: even if the 1919
Convention should be considered to have modified the 1899Declaration-which
the two parties had a perfect right to d-,it would not alter the result. For
Article 3 (and Annex 1) of the 1955 Treaty made a tobath instruments;
and by virtue of the principleposterior priori deroeat (codified in Article 30 of
the 1969 Vienna Convention on the Law of Treaties) the provisions of the 1919
239
Convention would take precedence in the event of con£üct between them .
This argument, however, makes sense only in the context of Chad's first theory:
that in Article 3, Libya and France determined the boundary by renv toia
specificline, whichwould have effect even if the 1919Convention between Great
Britain and France remained res inter alios acta for Italy at the time Italy had
sovereignty over Libya. That such an argument is not valid has been fully
demonstrated ab~ve~~'. in Article 3 of the 1955Treaty, under any or all of the
appropriate canons of interpretationiteral, contextual, in the light of its purpose
or in its histoncal context), the parties cannot be said to have expressed their
intent to create boundaries through the operation of Article 3 itself even though
such boundaries had not theretofore been establishedIn Article3,the parties,
instead, recognized alreadyexisting boundaries, which they undertook not to
contest(utipossidetism).
4.198 in the context of Chad's second theory-that international
agreements in effect in 1951 had pnor thereto already delimited a boundary
between Libya and Chad -the 1955Treaîy only served to recognize and confirm
such boundaries. Of course, the second theory is sustainable only to the extent
that it can be demonstrated by Chad that such pnor agreements had validly
established this boundary. The 1919Convention cannot meet this test. It -as .
---er alios acta for Italy and the subject of repeated Italian protests. Asa result,
Chad's second theory falls apart if it is established that the line established by the
1919 Convention is not the same line as that contemplated by Article 3 of the
239 SeeCM.p. 186, paras.166-167. -1econtendsthatthe finalparagraphof the 1919
ponrayedon themapreferredinthe 1902AccordCM.p. 187,para.169.ct same line
240 See ,g, para.3.11et%.,abwe.1899 Deciaration, for it is only the 1899 line - not the 1919 lie - that could
conceivablyhave been the object of recognition by Italyin the 1902Accord. The
principle posterior priori derogat provides no help to Chad here: a subsequent
agreement (in 1919) between Great Britain and France could not modify the
juridical situation of Italyresultingkom the 1902Accord (pacta tertiis nec nocent
-ec prosunt241) without Italy'sconsent. Great Britain and France could freely
modify their previous agreement reached in the 1899Declaration, inter se; but
without Italy'sconsent they couldon no account accomplishthe transformation of
the alleged (and entirely fictional) recognition Italyin the 1902Accord of the
1899line to an Italian recognition ofthe 1919line.
4.199 The CM presents a argument, which is another
essentialcomponent ofits second theory: the transformation of the southeast line,
which in 1899,in 1902and in 1912was, as Lord Salisburyhad said, a line having
only the negative effect of limiting France's temtorial expansion - not even a
sphere of influence line- into a boundary iine opposable to Italy (and hence to
Libya). Thispart of Chad'scase isbrand new.
4.200 The course this argument takes isas foUows:
- The 1919 Convention fkmed up the language of the 1899
1,242.
Declaration byrepeatedly usingthe term "boundary ,
Comment: Theterm"boundary" appearsoniyintheparagraphs ofthe
Convention relating to the Am'cIe 2 sector, which rn both the
Declarationand theConventiondid concem a boundary. Theterm
doesnot appearinthefinalparagraph,whichconcemedArticle3. So
theLMs observation isnot at al1relevant.
- Admittedly, there was a divergence in view between the
British and the French as to whether the final paragraph of
the 1919 Convention concerned a boundan, rather than a
suhere ofinfluencedelimitation 243,
241 ' Art.34,1969ViennaConvention.
242 See,CM, p. 187,para.170.
243 See.CM.p. 187,para.171. differencebetweenthemastoe itsintent.describedas afundamental
- However, Italy sided with the interpretation of Franc.
absurd new canon of treaty intetpretation:where a fundamental
divergencein viewastothe intentof a treatyexistsbetweentheparties
to it, the vieofa thirdState may be invoked to resolveit.In any
event,thoughItalywasfearfulthatthe1919Conventionwasintended
to delimit a boundary,and advanced argumentsto show whyit had
these fears, the Italian Government strongv, repeatedly and
comistentlyprotestedthe1919Conventionandrelecteditsapplication
to Ztaly.
"Ce caractère définitif est accentué par la
démarcation sur le tewude la limite, précisemais
théorique,ainsi définie .
Comment: This is a refeence to the demarcationapprovedin the
nd Declaration,twoagreementsnot appearingon the
1n naPZlisOtO$B
4.201 Aswillbe seen shortly, Great Britain assured Italy that the
1919 Convention did not affect at aii any rights Italy might have over the territory
in question. However, if France's interpretation were correct, it would mean that
the 1919 Convention had accomplished a major modification of the 1899
Declaration -not oniy as to the direction of the southeast line but in its intended
effect, tuniing what 1899 was a line limitingFrance's temtorial aspirationsinto
a boundary opposable not oniyto Great Britain and France but also to Italy.
4.202 Another ingredient has been added to Chad's contentions as
to the transformation of the 1899 southeast line into a boundary in1919. It
appears in Chapter V, Section III, starting at pag241,and concerns what the
CM calls the dual importance of French effectivités. Since this subject is dealt
with in its factual and legal aspectin Part V below, it is suf6cient here to
247
surnmarize this argument as it applies to the second theory of Chad's case .
244 See.CM.p. 188,para.172.
245 CM.p. 188,para.172.
246 Itsnot clearwhatthe meansby"théorique"T.he sametermappearson Colonel
Tilho's 1917 M(Mao LC-M32 referredto at para.4.176, ahove) writtenalong the
southeast line:"Fronthéorique".
247 Itillbe recalledthatChad'sthirdtheoryisbasedentirelyon effectirith.This may be accomplished simplyby quoting from the conclusionsset out at the
end oftheCM:
"..à partir de 1913, la France exerça son autorité.souveraine de
manière suffisante pour lui permettre juridiquement de consolider
son titre de souveraineté sur unmtoire allant jusqu'à la ligie
définieavec la Grande-Bretagne en tant que limite de sa sphere
d'influence. Ainsi, la ligneconvenue, accep5$l!alie en 1902
était, en1919,devenue une frontièreinternationa."
Thus, theCM advances a second basis for the transformation into a boundary
that it claims the southeast line undement by 1919:French effectivités;and it
argues that these effectivitéswere recognized by ~tal~~~~.Moreover, this
argument based on effectivitésis used to rationalize the diametncally opposed
views of the French and British Governments as to the intent of the 1919
Convention: for France, which allegedlyhad effectivelyoccupied the area up to
the southeast line, the line had become a boundary; for Great Britain, which had
not, it was not viewed asboundary. However, the CM never addresses the
question of howa lineergingfrom a treaty canbe regarded as an international
boundary for one of the signatones but not for the other.
Smo~ 5. Aftermath of the 1919Convention: the 1924Demarcation;
Italian Pmtests: French and British AttemtoReconcile
Their Entirelv DifferentViewsin Re~lvtoItaly
4.203 The Boundary Commissionprovided for under Article 4 of
the 1899Declaration finallygot downto work after al1the years that had elapsed,
completingits task in 1924. It was noted earlier, as welm250in th,t the
Commission'smandate under the Declaration was restricted to the Article 2
sector (up tlSON ),ich concerned a real boundary delimitation. However, as
the 1924Protocol reveals, the Commissioncontinued its work of delimitation al1
248 CM, p.376,Conclusi1(di).
249 See,CM,p.256,para.190a.
250 SeeL,M,para.5.21ga.the way north to 19"30'Nlatitude2''. Did the Boundary Commission exceed its
jurisdiction? Or was itjustified in continuing on north because the area being
delimited up to 19"30'Nhad become part of the Article 2 sector, and hence
concerned a real boundary? The travaux turned up so far in the archives do not
directly answer these questions.
4.204 Shortly after the Italian Government became aware of the
1919 Convention, it wrote to France and Great Britain for information252. The
British Government supplied a copy of the Convention and advised the Italian
Arnbassador in London that the Convention had not been notified to Italy
through an oversight. Quite an oversight, from the Italian point of view! The
Italians addressed a similar enquiry to the French Govenunent (on 9 September
1921), which was answered by the French Ministry of Foreign Affairs on 8
October 1921. This letter and subsequent exchanges between Great Britain and
France in their year-long struggle to coordinate their positions, as well as the
official replies of each to Italy, are of unique importance to this casCM This
notably incomplete in its discussion of these exchanges and in the documents it
has furnished, claiming in some cases not to have been able to find them. In
contrast, these exchanges are examined in detail in the and the complete
evidence is annexed theret~~~~. The French not veerbale of8October 1921is a
case in point: it is not even mentioned inCM.e Its text may explainwhy254.
4.205 This 8 October not e as inresponse to Italy'senquiry of 19
September conceming the 1919 Convention, which Italy had onlyjust found out
about. In itsnote.Italy brought out the fact that it had been notified of the 1899
Declaration (and its meaning had been explained in 1900 by the French
251 CM, Annex 84, wntains the instmctions givenbythethe French Minister of Colonies to
the French Commissioners. Without elaboration, they were directed to wntinue on to
19'30'N. These instmctions contain an interesting remark wncerning the map annexed
to the 1919Convention. Sinceno map wasreferred to in the Convention,the Minister of
Colonies said: "ledocument gkographiqueaAnl'accordne pouvait êtredonn6 qu'A
titre indicatif". This was the exact adjective applied by Foreign Minister Delcassk, in
forwardingthe Livre iaune edition of the 1899 Declaration to M. Cambon, to describe
the famousmap annexedto it, the Non-AnnexedSee..ara. 4.59,ahove.
252 See,LM.para. 5.188,
253 See, LM, paras. 5.188-5.214. Thseems even to imply that Italy waited hvo years
before protesting the 1919 Convenasif Italy had ben made aware of the 1919
Conventionwhen iwassigned,whicwasnot the case. See,CM,p. 190,para. 180.
254 See,LM,Exhibit46.Arnbassador in Rome,M. Barrère); in contrast, Italyhad not been informed at al1
about the 1919 Convention. The French not ef 8 October, seeking to find an
excuse for not having informed Italy, started off by saying that the 1899
Declarationand the 1919Convention "nesontpas en contradiction". It continued
that the expression "dansla direction du Sud-Est"in A3twas "assezvague et
n'impliquenullement un tracéde frontièred'uncaractèreabsol-"
"...d'autant que la dite déclaration, contre l'usage, n'est pas
accompagnéede carte ou de croquis."
The not edded that French maps had shown a line that crossed to the north of
Tibesti and Borkou and that Italian maps also did not show the end point of the
linebelow 18"N(refemng to a map in an Italian unofficialatlas).
4.206 Leaving aside for the moment the erroneous statement
about the line shownon Italianmapsa remark the Italianswere soonto corre-t
what is of special interest is the statement in the officialFrench response to Italy
that the 1899 Declaration was not accompanied by a map or sketch.In other
words, in 1921, the official French view was that the map annexed to the 1899
Livre iaune-the Non-Annexed Mae - was not a map intended to accompany the
Declaration so as to represent thetent of the parties as to the direction of the
southeast line. At most, in the words M. Delcassé in1899,it was only "une
carte indicative".
4.207 The introduces its short and conspicuouslyincomplete
discussion of the Italian protests and the British and French responses with two
remarks. Firs t,asserts that in spite of the Italian Government's protests, Italy
had no legal right to refuse to recognize ("récuser")the 1919line255. Second, it
admits that Italy'sprotests were constant right up until 1935,although "sesmotifs
le furent moins"256. The then attempts to showa lack of consistencyin what
Italysaid in its protests. HoweverCMthdoes not applythe same test to French
dispatches andnote vsrbales during the period 1921-1935;in additionCM.he
aside from ignoring certain of the key documents, such as the verbale of 8
October 1921 just discussed,has mixedup datesand annex references.
255 CM,pp.189-190para178.
256 CM.p.1W. para182. 4.208 To take one example,the refers to a document dated 12
December 1921 as being France's official reply to Italy's protest257. That,
however, is the date of Italy'sformal protest to France. It is important to correct
this seeminglyminor error in dates, for the officalFrench verbale was dated
8 February 1923(and the British note. 5 February 1923~~~).The correction of
the dates reveals that it took Great Bntain and France over a year to coordinate
their replies to Italybecause of the widelydivergentviewseach Govemment had
as to theeaning and effect ofthe 1899Declaration and the 1919Convention.
4.209 The omits the senes of exchangesbetween France and
Great Bntain in their unsuccessful effort to resolve the fundamental differences
between them in order to present a common front in replyingto Italy'sprotests.
These are among the most important documents in this case, for they show the
differing interpretations given the 1919 Convention in 1922-1923by its two
signatones, as well as their interpretation of the 1899 Declaration, which the
Convention amended. The &l dealt in ful with these documents259.
4.210 The CM covers thisAnglo-French divergence by repeating
the French Government's arguments in its reply of 8 February 1923. It does not
givethe Britishposition, except to saythis:
"Sans entrer dans cette discussion, le Foreim Office s'abrita
demère le fait que les accords de 1899 et 1919 se bornaient à
délimiter des zones d'irdluence en faisant valoir que, si l'Italie
estimait avoir des droitssur cette région,c'estsur elle que pesait le
fardeau de la preuve, tout en relevant que, pour sa part, le
Gouveament français avait d'autres arguments à opposer à
l'Italie ."
This summary hardly does justice to the basic differences of interpretation that
existed between the French and the British, differences that go to the heart of
Chad'scase. Chad appears to overlook -just as France di- that Great Bntain's
interpretation of the 1899Declarationand the 1919Conventionhad, prima facie.
as much validityand weight as that of France; and the fact that Great Bntain had
no interest in the temtory concemed in Italy'sprotests givesthe British view the
257 CM,p. 190-191,para.184.
258 CM,Annex101.
259 See,M, paras.5.192-5.214.
260 CM,pp.190191,para. 184.Emphasisadded.added virtue of being unbiased and disinterested. Furthemore, the Bnotesh
of5 February was not just the view of the Foreign Office, as the passage quoted
above seems to imply,but that of the British Government after careful study, as
the record discussedbyLibyainits Memorial dernonstrates261.
4.211 The summarizes the positions of Italy, Great Britain
and Francein the followingmanner62:
"(L)a Grande Bretagne s'entient à i'affïrmationselon laquelle tant
en 1899qu'en 1919,ils'est agide délimiterdes zones d'influenceet
contestée,cequ'euene peut fair...e droits acquis sur la région
."
Comment: Thisisincorrect andmisleading.
(i) The British repiy did not say that the 1899 Declaration
the intetpretation stated in 1899 by Lord Salisbury andto
consirtently followed thereafter: Am'3leof the 1899
Declarationmereb laiddown a linelunitin Frenchtemiorial
apansion. Thiswasthe "negativeseme"Oi Am'cle3 to which
Lord Salisbury hadrefered, in respect to tenitory nonh of
ISONlatitude. Itdia'not impiy that the sovereigntyof either
Stateatended uptotheline. As waspointed outearlier,itwas
not a delimitatiOnexistingspheresof influence(or'partage"
asthe open caf iF.
GreatBritain'noteadded that th1919 Conventiondid no1
(ii) changethat situation,itssole effectbeing"euherto define in
greaterdetailorto rnodifythe linein question". Thur,it may
havealteredthedirection oftheline but notitsnature.
(iü) The BrihShnoted that the Italian Govemment acquiescedin
theBritishintetpretation.
(iv) TheBritishotestatedthatanyrights ofsovereigItalymight
have could oniy have been inherited fiom the Ottoman
rightsin the area. Obviou, rancehad an equal burdentoshits
establishsrights,sinceno rights hadbeenrecognizedbythese
agreements.
(v) The misleadingaspect of the LMs summary i~ that Great
Britaindid not comment negativeiyon the me& of Itaiyk
claim as the Statesin a pureiygratuitouscomment ("ce
qu'ellenepeutfaire").
261 See,LM,paras5.192-5.214.
262 CM. pp.190-19para184,andAnnex101.
263 CM.p. lm,para191. (vi) The ms summary overlookvthe basison whichthe Britrrh
and French decidedto reconcile their entirely different
the French hadadditional particularreasonsfor regardingthe
Italian standpointas untenable. Thisr(a veiledreferenceto
the 1900-1902Accords,and bringsout their crucial roin the
French-chudian positionastotheboundary.
- The French line of argument was "plusnuancée": - the1899
Declaration "se bornait en effet à délimiter des zones
d'influence dans une région que l'Italie avait, en 1902,
expressément reconnue comme étant située au-delà des
frontières de la Tripolitaine"; the 1919 Convention
"consolidela ligneconvenuevingtans plust6t en faisant une
véritablefrontière internationaleet l'Italie,quin'avaitaucun
droit particulier sur cette région avant que la Grande-
Bretagne luicèdeles siens,n'estpas fondéeà en contester le
*##264
trace .
Comment:
(i) Thissummary is not of France's"argumentation"ut the time
but of Chad'sline of argumentnow, and it even refersto an
event occum'ngafter 1923 - the 1934 Italo-Anglo-Egyptian
Agreement.
(ii) bothenotesoverbalesaddressedto Italy, dated 8 October1921
and.j6february1923,thejïrstof whichwasnot annexedtothe
-M . Thefirstnot easjust been discussedinparagraphs
4.204-4.206,above.
(iii) Thems summaryof theFrenchargumentsbearsno relation
at al1to the FrenchGovemment'soficial replyof 7February
1923,as willbeshownbelow.
- The Italian position "se borneà affirmer que le tracé de
1899, qu'eue admet, après une hésitation,avoir accepté en
1902, diffèrede celui d1919, amputant ainsi son temtoire.
Par ailleurs,ellereconnaît la présenceeffectivede la France
dans la régionet, de ce fait, la transformation de la zone
264 CM, p. 193,para. 191.
265 CM. Annex 102andProduction 19.Bothnoteswereannexedtothe asExhibi46
theretoandasItalianArchivesAnnex, p. 4r1e,spectively. d'influence initiale en temtoire colonial doté de frontières
au senspropre du terme."
Comment:
(i) Italy'sformalprotestof 12December1921did not mentionut
al1the 1902Accord northe French presencein the "contested
region': It did not referin any wayto Frencheffectivités.It
refùsedtorecognizethe1919Convention.
(ii) following phrase to describe the 1899 line: "lesfronti2res
ktabliespar ladkclarationdu21mars1899".However, France
and GreatBritainhad takenthe officialpositionthat the1899
linewasnot a boundaryline;hence,the mistakecouldhardly
be accepted asacquiescencein a ositionthat had not been
taken byeitherof thesignatoriOftheDeclarationor,indeed,
by Chad in the m. Italy'sprotest was not directedat the
nature of the 1919 line, which Chad claims had been
tran.$ormedinto a boundary;it objectedto the changein the
line'sdirection
(iii) The Italian observed that any ma that might have
caractt?ree démonstrationet non depreuve': Irthus rejected
any suggestionthat ItaS ha$gzcepted in any way the map
refered tointhe1902Accord .
4.212 The officialFrench reply of7Februaiy 1923descnbed the
lie shown on the Non-Annexed Map as "provisoire" and admitted that it
intersected 24"E "auxenvirons du 19èmedegré"while the 1919Convention line
intersected at 19"30'N,adding:
1899,élargitlégèrementlafl,f:sd'infiuencefrançaise au préjudicee de
du domaine anglo-egyptien .
The French & argued that the Article 3 line of the 1899Declaration was not
intended to be definitive for it concerned regions "pas encore entièrement
explorées";thus, the went on to say, the 1919modification of the 1899line
(as it was shown on the Non-Annexed Map) had respected the spirit of the
266 At p.190,para183,the completelydistortsthemeaningof thii pan a. the
Italyhadnotrejectedthejurivalueofmaps;it hadmerelysetout thenormalmleas
tothelegaleffectofmaps,suchasthe Non-AnnM~Ea, ndtheevenlowervaluetobe
ascribedtoprivaissuedmaps.
267 LM. ItalianArchivAnnex,p.44.Declaration. Both of these arguments are adopted by Chad in ta268.
are an admission that the two iines were not the same and that the line was
modified in 1919. As noted earlier, this change occurred due to the greatly
increased knowledgeofthe geographyof the regionby 1919.
4.213 The distorts the meaning of the French note of8
February 1923 in claiming that France had contended there that "l'Italie ne
saurait protester" against the southeast line because it had allegedly agreed in
1902 that Tripolitania's boundary was as shown on the map referred to in the
1902 Accord. France's point in the note was different: it sought to explain why
France had not felt obliged to inform Italy of1919 Convention. For, as the
French note said, France's only obligation under t1902 Accord was not to
extend its zone so as to cross the Tripolitanianfrontier; and it even suggestedthat
the undertaking in the 1899 Declaration not to exceed the iines described in
Articles2and 3 -whichhad nothing to do withthe Tripolitanian front-applied
onlyto the Articl2 sector line,not the Arti3lsoutheast iine, an interpretation
clearly at odds with the British view. The French officia1response was not
directed at Italy'sright to but at France's obligationto have informed Italy
about the1919 discussionswith Great Bntain.
4.214 As the points out, Italyprotestedain to France o27
March 1924~~~ (it had already sent a similar protest to Great Britain28n
February 1924)~~'. The says that the Italian protest ignored what France
had said about the1902 Accord and the map there referred to. This is not so;
Italy took issue with whatFrance contended t1902 Accord meant, although its
complaint focussedon the change in direction of 1899Declaration'ssoutheast
line, which Italy insisted was intended to be a strict southeast line terminating
some 4" south of the end point 1Y30'N specifiedin th1919 Convention. The
Italiannote disagreed with France's position that the only obligation France
undertook in the 1902 Accord was not to exceed the Tripolitanian frontier as
portrayed by the wavy,dashed iine on the map. Italyasser-for the first ti-e
that, aside from the change in direction of 1899 Declaration line, th1919
268 CM. p. 191,para.185. Theditferencebetweenthe1899and1919linesisreferredto asa
"dkcalae inime".
269 See,CM. p. 191,para.187.
270 TheseItalianprotestswereannexedto LM,asBritishArchivesAnnex,pp. 178and
186.Convention was feared to have resulted in another change. Italy protested that
instead of concerning zones of influence, as t1899 Declaration did, the line
described in the final paragraph of the 1919 Convention "est une véritable
délimitation de frontière", especially "après l'exploitation et l'occupation des
nouveaux temtoires autant du c6téde l'Angleterre que de celui de la Fra...".
What Italy was sayingwas that the spirit and intent of the two agreements were
different: the change i1919 had modified the status auo estabiished in1899
without Italy being informed. Italy was expressing a fear, not recognizing or
acquiescing in a result, and jt vigorouslyprotested1919 Convention right up
until1935.
4.215 The CM interprets the Italinote as rejecting the British
thesis asto the effect of 1899and 1919 agreements and sidiig with the French
point of ~iew~~l. This, of course, refers to the fundamental divergence in the
views of the two Powers that had made the coordination of their replies to the
initia1921 Itaiian protest so difncult. However, the fails to mention the
important event that took place i1924prompting Italy to again lodge a protest
that year: th1919 ~onventio; line had been demarcated up to19"307N latitude,
and this demarcated line had been agreed between Great Britain and France in
the 1924 Protocol and Declaration. Quite correctly,Italy felt obligedto renew its
protest. Whatever interpretation Great Bntain may have given the 1919
Convention in 1921 in it1923not eerbale to Italy,it wouldbe hard to deny that
the 1924 demarcation up to 19"3û'N looked like an extension of the Artic2e
sector north to that point, and hence that the boundary had been moved north.
So Italy was compelled to protest again rather than to rely entirely on the
principle res inter alios acta, under which even if the boundary as between the
British and French had been moved north, any rights Italy mighthave could not
have been affected. Italy'sprotest did not waivethe application of that pnnciple,
in anyevent.
4.216 In its1924 note to France, Italy certainly did not recognize
"la présence effective de la France dans la région". Italy'sreference to the
exploitation and occupation ofhese temtones wasdirected at both Great Britain
and France, and as theCM points out, the British had by no means occupied this
temtory or claimed to have done so. The Italian note merely obsewed that
important changes had occurred since 1899,when French forces had barely
271 CM,p. 191para187."ventable boundary"; and by claimingthat this boundaly was opposable to Italy.
In forcefuiiy setting out its fears in order to support its protest, Italy certainly
cannot be accused of having recognized the actions that had given rise to those
fears.
Smo~ 6. Chad's Contention that the 1919 Line Was Ooposahle to
m.
4.219 in its Memonal, Libya noted the inconsistencies in the
position France adopted in connection with the Italian protests. On the one
hand, the French Government denied any obligationto have informed Italyof the
1919 Convention on the grounds that its undertaking in the 1902 Accord
concerned only the Tripolitanian fr~ntie?~~; on the other hand, France
subsequently maintained that the Article 3 southeast lie, modified in 1919, was
opposable to Italy by virtue of the 1902 ~ccord~~~. Chad has adopted both
French positions, and with them their inconsistencies. This problem of
inconsistencyfirstbecame apparent in the Frencnot eerbale of5 March 1930,
a document the CM neither refers to nor annexes275inthat note.the French
Government informed Italy thatinthe 1902Accord it considered Italy to have
recognized not just the Tripolitanian frontier figuring on the map, but also the
1899southeast line appeanng there, as subsequently "interpreted" by the 1919
Convention.
4.220 The arguments now deployed by Chad to establish the
opposabilityto Italyofthe 1919linefollowthiscourse76.
- At no time did Italy explicitly pose as successor to the
Ottoman nghts - no doubt because it would have been
contrary to prior undertakings (referring particularly to the
1902Accord);
273 TheFrenchGovernmentatfirstflirweththenotionthatin t1902AccordItalyhad
renouncedanyTripolitanianhinterlandclaimthiwasonly in a 1922diipatchto
Great Britain;and in iu officialresponsesto Itays protests,this argumentdid not
appear.ee.LM,para.5.205g seq.The has nowmadethisrenunciationargument
acornestone itscase.
274 See.LM.para.5.270.
275 See.LM.para.5.269,g seq. The 5 Marchnote wasannexedCOthe as
Archivesnnex,p.70.
276 CM. p. 19,ara192,o W. Comment: Thi s incorrect and irrelevt,sshownear~ie?~~.
- Italy'sposition was entirely negative; and a State's protests
may stand inthe way of a situation becoming opposable to
it,but they do not create rightsin itsfavour;
Comment: After 1912, Italystood in the shoes of the Ottoman
Empire; its inherited rights were recognizedby Great Britainand
France.
- On itsface,the 1919Conventionwasnot opposable to Italy;
Comment: Correct.
- Italy had no standing to question the Anglo-French
agreementsfor Italyhad not supplanted Great Britain in the
effectivecontrol ofthe region to the northeast of the French
possessionsuntil longafter 1919;
Comment: Thk Frrnirtoken:
(i) GreatBritaindidnot have,and didnot claimtohave,effective
connolof theadjoiningarealyingnorthof thesoutheastlinein
1919or thereafter.
(ii) Italy's title was not based on its fiecrivitRF but on ifs
inheritancefrom the Ottoman Empire. It had standing to
questiontheseagreementsafterthe1912Treatyof Ouchy.
- Asa result of Admiral Canevaro'sspeech of 24 April 1899,
Italyaccepted the "partage"in the 1899Declaration;
Comment: Wronginal1respectsasaplained above 278 .
- Thiswas conkned repeatedly by Italy:by the 1900Accord;
by Signor Prinetti's speecin1901;and even by the Italian
protests themselves against the 1919 Convention, in which
Italystruggled("s'efforcer")to distinguishthe 1919linefrom
the 1899line;
277 Sec .aras.4.146-4.abo0,e.
278 Sec .ara.4.8g,a.. above. The fit two examples have already been refuted
above . Thethirdexamplei. astounding. It wasno smcggleat al1
todemonsrratethatthe 1899and 1919linesdifferedto the runeof 4"
of latitude. The 1899 Line (me southeast), the line on the Na
Annexed Mau (ending ut 19"N), and the 1919 line (ending at
19"jJ$#) wereon theirface differentlines.(MaosLC-M 19, 20and
21) .
- In fact, however, the 1919 Convention did not modify the
1899Declaration's southeast line;
Comment: The French Government repeatedb admitted the lines
weredifferent:one ending at 19"N latitude, the other at 19"30JN.
conte& the 1919line was. Thisin itseifwouldhave beenine; batmajor
modijicationoftheDeclamtion.
- In the 1902Accord, SignorPrinetti:
"...se fonde non sur le texte de la Déclaration,mais sur la
l'interprétationde 1919e,;.. est en tous points conforme à
Comment: This has alreadybeen shown to be wrong. The 1902
Accord "sefonde"on the 1900Accord. Thesoutheast linesdiffered:
19"Nand 19"301N.In any event, the F~ch Government,until its
note of5 March 1930,dkcussed above , had taken the position
depictingthe mjwlitanianfrontier.ot thesoutheast linebut theline
- The 1902Accordhad an even greater sigruficance:Italy not
only recognized the 1899 southeast line but also, by its
recognition of the Tripolitanian frontier line as the lirnit of
French expansion, indicated Italy'sdisinterest in the region
and its recognition of it being within France's sphere of
inûuence.
279 Sec .aras.4.8et=., and4.90,ett.,above.
280 Referredtoin paras.4.51,4.72and4.162,respect,bove.
281 CM. p. 194,par197.
282 Sec .ara.4.219,above. Comment: 7% iYwrongand has beenrefuted~bove~~~.The1902
Accord referredock to the 1900 Accord in order to clarify the
unilateralFrenchtatemenrmade there. Itaiy recognized nothing
eitherthe 1900 or the 1902ordr. Moreover,the wavy,dashedline
encirclinfipolitaine" on the Non-AnnexedMarireferredto in the
1902Accord wasnot pomrryedasa boundaryonthatmap.
4.221 The "snowballeffect" of the argument, piling one layer of
incorrect contention upon another as it roiis along, reaches its climax in the
proposition that "les protestations italiennes n'avaient aucun fondement
juridique" (refening to a map that apparently was to have been placeCMin the
but wasnotp4. The CM arguesthat this isso,even ifit isnot accepted that Italy
recognized the 1899"partage",and even if it is granted that the 1919Convention
modifiedthe 1899line. For the Italian Governme-the argument goes-washed
its hands of the regions beyond the confinesof the Tripolitanian boundary shown
on the Non-Annexed Mau, and thus declared itselfto be indifferent asto howthe
British and French cawed up between them al1of these regions up to that wavy,
dashed line.Inother words, in 1902,Italymade a legallybindingrenunciation. It
must be noted, straight off, that the map on which Chad relies portrayed no
Tnpolitanian boundary; it is only the tampered-with version of that map
appearing as an "extrait" on page 162 of the CM that portrays such a
b~unda$~~.
4.222 France, on the other hand, according to tCM, had by
1919occupied the entire region in question and had it under effective French
control; the 1919Conventionwasan affirmation of that fa~t~~~.France'szone of
influence, recognized by Great Britain (in 1899)and by Italy (in 1902), thus
became "consolidated as a French colonial possess-described by thCM as
typical of the way in which a sphere of influence became transformed into a
colonial title, citiM. F. Lindley. This transformation or consolidation
the^$^^ however, depends on three propositions, none of which CMe has
proved. Great Britain denied that the 1899Declaration recognized an existing
French sphere of influencein 1899,and its Article 3wascarefullydrafted to avoid
283 Sec .ara4.14g,a.. above.
284 CM,p. 195,par199.
285 Sec .ara.4.5sa., above,andM~DSLC-M25and 26.
286 CM. p. 195,pa200.
287 See,generally,PanVIII,below,foradiscussionofthistheory.anysuch thing, as the travauxshowzg8. Italyrecognizednothing at allin 1902. As
will be demonstrated in Part V below, France had not come even close to
establishing effective control throughout the Libya-Chad borderlands by 1919,
quite aside from the absence of anylegal right for French troops to be in anypart
ofthe borderlands at the the. Nevertheless, the claimsto have a tmmp card
to play: that Italy itself, in its verbale of27 March 1924,discussed above,
considered that a 'kentable boundary"had come into existence,as well as noting
France's "effectiveoccupation"289. Thus, that boundary became:
"..opposable à ce pays qui, en 1902, a reconnu les droits de la
France à6fjtablir dans cette zone et n'yest,pour sa part, nullement
présente ."
4.223 Aside £rom the defects in this conclusion already noted, it
ignores the fact that after 1902 the Ottoman Empire did indeed occupy and
control the borderlands, in conjunction with the indigenous peoples under
Senoussi leadership, and together they bitterly foughtFrench attempts to invade
these regions; and that until 1913, a modus vivendi existed under which the
French respected a de facto ine, north of which wasterritory under Ottoman
control. By the 1912Treaty of Ouchy, Italy inherited the Ottoman nghts and
titles; and it was only thereafter that French troops entered the area, destroying
zawivas,slaughtering the indigenoustnies and forcingthe Senoussiheadquarters
to move north again to Koufra. These facts showing the Ottoman Empire's
occupation and control over the borderlands are the coup de m5ce to a theory
that, in anyevent,rests on a seriesof incorrect and unproven propositions.
4.224 The continues, undeterred by al1 these problems, to
reach itsultimate goal:
"Latriple reconnaissanceitalienne
- de la validitéde la Déclarationadditionnelle
de 1899,
- de la frontièrede la Tri olitaine indiquée par
la carte annexéeàcette b éclarationet,
288 See.LM.para.5.20gtS.
289 Sec .ara.4.21gtS., above.
290 CM. p.195,para.201. - du droit pour la France d'étendre son
influencejusqu'àcettefrontière,
empêchel'Italie de protester contre la modification
de la limite g$$vue en 1899 et, a fortiori, contre sa
confirmation ."
4.225 It has been mentioned several times that the second theory
advanced in support of Chad'scaseislikea trapeze act:ifone thinggoeswrong,it
al1 comes tumbling down. This is iiiustrated by Italy's so-called "triple
recognition". For it is dependent on an interconnected and very fragile structure
made up of some 10 or more elements. If any one is invalidated or even
damaged, the argument collapses. It isparticularlyinteresting to note how cntical
a role is played by the1902 Accord and the map referred to therein. Al1three
elements of Italy'salieged "triple recognition"anse initial'yfrom that Accord, as
weUas a fourth strand in Chad's argument, left out of the "triple recognitio-"
what Chad claimswasItaly'srenunciation of Ottoman nghts and titles in th1902
Accord. So the might have said Italy's "quadruple recognition", to be
complete. If just one fact supporting this elaborately structured argument is
wrong -take, for example, the assertions that in t1902Accord Italy accepted
the 1899 line and that that linewasthe same asth1919 Line (whichthe CM caUs
"laligneconvenue") - the entire argument faUsapart292. Chad might argue thisis
not so, pointing to the fourth "recognition"of Italy, its alieged renunciation of
Ottoman rights and titles. But this, too, relies on t1902 Accord and on the
proposition that the map referred to there portrayed the Tripolitanian boundary,
which Italy therefore accepted in the Accord. But this proposition can only be
sustained by accepting the "extract"of that map set out at page of theCM. a
distortion of the map, instead of the map itseif, which portrayed no such
boundary, as demonstrated by Maus LC-M 25 and 26 referred to at paragraph
4.53 above. Furthermore, it ignores entirely the consideration that1902,Italy
was whoUyincapable of renouncing Ottoman rights and titles, Italy having no
legalstatus in, or in relation to, Tripolitania at the time.
4.226 It may also be noted that when France recognized Italy's
sovereigntyin 1912 over this part of the OttomanEmpire, foUowingthe Treaty of
Ouchy,it did so without the slightestreservationInso doing, it revealed that in
291 CM. p.195para.202.
292 Secpara.4.198,above.1912France either entertained no such repudiation theory or, if it did, France
renounced it.
4.227 The CM. in setting out its three-part, or even four-part,
theory of Italy'srecognition, iiiustrates the point made in the Introduction to this
Counter-Memonal. At the end of the day, Chad's case is based on a theory of
acquiescence, recognition and estoppel: first, against Italy; and then, against
Libya. It might appear tobe absurd to contend that Italyhad in effect acquiesced
in the 1919 line when it so vigorouslyprotested against and rejected the 1919
Convention; but the claims to have a ready answer: ignore the protest, Italy
had no right to protest.
4.228 At the end of its discussionof the 1919Convention, the
attempts to dispose of the embarrassrnent to its various contentions created by
the fact that Great Britain held an entirely different view of the meaning and
effect of both the 1899 Declaration and the 1919 Convention, and had so
informed the Ottoman Empire, Italyand even France. It willbe recalled that the
outcome of the discussionsbekeen the two Governments during 1922over how
to reconcile their irreconcilable viewsin order to respond to Italy'sprotest was to
relyon the 1902Accord. Great Britain, thus,couldadhere toits previouslystated
(and correct) analysisof the situation created by the 1899and 1919agreements
while leaving France to say whatever it wished -for Italy and France, (Great
Britain wastold) had a specialrelationship as a result ofthe 1902Accord.
4.229 This, indeed, is the first reason the advances to
differentiate between the French and British positions293. However, once again,
Chad has overlooked the fact that Great Britain and Italy entered into a secret
Accord in 1902also, which infact was signed before France's 1902Accord with
~tal~~~~. In this pnor Accord with Great Britain, Italy received explicit
assurances that the 1899 Declaration neither meant nor had the effect that
France was later to claim. The whole theory of Italy's so-called "triple (or
quadruple) recognition" is invalidated by this 1902 Accord between Italy and
Great Britain alone.
293 See,CM, p.196p,ara204.
294 Sec .ara4.96,above. Smo~ 7. Chad's Contention that in 1934. as Successor to Great
Britain's Temtorial Interests in the Region of the Sarra
Trianele, Italv BecameBound bvthe 1919 Convention
4.230 The argument is advanced in the that, byvirtue of the
Italo-Anglo-EgyptianAccord of 20 July 1934,relating to the Sarra triangle, Italy
had, as a matter of law, succeeded to British rightsand obligationsunder earlier
,11295. hi^
Anglo-French treaties "en vue de la délimitationdu temtoire céde
argument ismanifestlyunfounded.
4.231 A fullaccount of the Anglo-Italiannegotiations on the Sarra
triangle (drawn from primary sources) is set out in t&1296. It is amply clear
from this account, and indeed from the text of the 1934exchange of notes itself,
that this agreement did not involveanytrue "cession"of temtory byGreat Britain
and Egypt, in nght of the Anglo-Egyptian Sudan, to Italy. (As already shown,
successiveBritish Govenunents had, from 1899onwards, taken the £kmposition
that the southeast line in the 1899 Declaration as "interpreted by the 1919
Convention, merely limited temtonal aspirations and did not constitute a
territorial boundary dividing temtones under the sovereignty of Great Britain
and France, respectively.) More specifically,Great Britain had assured Italy in
the secret 1902Accord between them that the 1899Declaration simplylaid dom
"a line to the east and West of which respectively [France and Great Britain]
bound themselves not to acquire temtory or political influence in the regions
traversed by the said line, but that the Agreement 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 it297." Furthermore, Great Britain had consistently taken the
position,vis-à-visthe Ottoman Empire, France and Italy, that, at least as regards
temtory to the north of 15"Nlatitude, the 1919Declaration had been carefully
worded in a negative sense so that, whileplacinga limiton the advance of France
to the eastward, it did not recognize or purport to pass judgment on any other
rights or c~aims~~~.
295 CM. p. 1%,para.207.
296 See,LM,paras.5.284-5.302.
297 SeeLM, para.5.107,quotingfromtheBritishDeclarationto Italyof 11March1902.
298 Se,LM,paras.5.59,5.60,5.195,5.202-5and5.212-5.213. 4.232 The British position was and remained based hly on the
consideration that the 1899Declaration,as "interpreted" bythe 1919Convention,
had net established a temtonal boundary as between British and French
possessionsin this part ofAfnca, at least as regards temtory to the north of 15"N
latitude299.
4.233 It is true that the 1924Declaration confirmingthe Protocol
of 10 January 1924, signed by the Boundary Commissioners appointed under
paragraph 4 of the 1899 Declaration, established a Iine between the Anglo-
Egyptian Sudan and French Equatonal Africa extending as far north as the
intersection of 19030'Nlatitude with 24'E longitude as a consequence of the 1919
Convention, which had "interpreted" the southeast line of Article 3 of the 1899
Declaration as taking a "southeasterly direction"so as to meet longitude 24"E at
its point of intersection with latitude 19030'N.
4.234 As has been discussed abo~e~~~,either the Boundary
Commissioners appear to have exceeded their mandate under Article 4 of the
1899 Declaration in continuhg the delimitation north of 15"N latitude; or the
effect of the 1919 Convention was to extend the Article 2 sector of the 1899
Declaration north to 19030'Nand, hence, the line continuing north along 24"E
longitude to that point became a boundary line. If,armendo, the second
alternative is accepted as correct, there is no doubt that that intersection could
not be taken as an agreed tnpoint between Great Bntain, France and Italy. Italy
had vigorouslyprotested against the 1919Convention to both France and Great
Bntain and had £rom 1921 onwards refused to recognize that Convention. In
particular, Italy had, ins protestnot o the Foreign Office of 18 December
1921,asserted that the line descnbed in Article 3 of the 1899Declaration was a
strict southeast line intersecting24"Ejust north oflatitude 15"N,and that the 1919
Convention of 1919had modifiedthat line,not "interpreted" it, byfixingthe point
of intersection at 19"30'Nlatitude. Thus, Italy was specificallyprotesting against
the fixingof the point of intersection at la1g030'N.
4.235 Accordiigly, even if, despite what may well have been an
excess of powers by the Boundary Commissioners in fixinga boundary between
299 & in panicular,thesecondexiractfromLordCurzon'snoteto the FrenchAmbassador
inLondonof21August1922,citeatLM. para5.60.
300 Secp.ara.4.20gg., above. the Anglo-EgyptianSudan and French Equatonal Aiiica north of latitude 15"Nas
far as 19"301Nt,hat sector of the northlsouth lineis to be taken as a true bounda~y
between Great Bntain and France, it is amply clear that had not accepted
the intersection of 24"Ewith 19"30>N as marking the northern lirnitof anyFrench
sphere of irüiuence to the prejudice of Italian claims (in nght of Libya) to these
territones.
4.236 The Bntish negotiators of the 1934Accord relating to the
Sana triangle were well aware of al1these complexities. In particular, they were
aware that Great Bntain had consistently represented to Italy that the 1899
southeast line, even as "interpreted in 1919,at the most merely dividedspheres
of influence (in a negative sense) and could not affect any Italian nghts in the
area. They were also aware of the vigorous Italian protests against the 1919
Convention.
4.237 In the event, it was possible so to formulate the agreement
between Great Bntain and Italy as to avoid prejudicing the position of either
Italy,France or Great Bntain. So far as Italywas concemed, the perceived need
was not to utilise wording that could be constmed as involving, directly or
indirectly, Italian recognition of the 1919 Convention and particularly of the
terminal point of the southeast line at 19"3WN.This was achieved by ananging
that the step in the line (from 25"Eto 24"Elongitude) should be at 20°Nlatitude
(rather than 19"30'N,whichwould have coincidedwith the terminal point of the
1919line), and byspecifyingthe southern limitof the line along the 24thmendian
as "itsjunction with the frontier of French possessions"(Mau LC-M 35). The use
of this vague and indeterminate language was designed not to prejudice the then
ongoingFranco-Italian negotiations on the southem boundary of L,ibya301.
4.238 Sofar as France wasconcerned, the perceived need wasnot
to put in issue the "interpretation" which the 1919Convention had given to the
southeast line; and to refrain from basing any concessions to Italy on
geographical, economic, political or histoncal arguments which could strengthen
Italian claims against French positions in Central Aiiica. These desiderata were
brought byFrance to the attention of Great Bntain at an early stage of the Anglo-
301 See.LM,paras.5.247-5.283.Theextensionof thelineof22"Nlatitudewestwardso asto
fom the "SamTriangle" was entirelyhypothetical,for westof 2longitudethisline
hadnostatusasaboundaiy.Italian negotiations302. The British negotiators had them firrnly in mind
throughout the negotiations; and it wiii be seen that the final text of the 1934
Accordrespects them. Sofar as Great Britain was concerned, the perceived need
was to avoid any implication that the agreement relating to the Sarra triangle
involvedthe "cession"of British (or part-British) temtory in right of the Anglo-
Egyptian Sudan, since this would have given rise to Parliamentary difficulties.
This was achieved by so wording the final text as to make it clear that what was
involved,on the British-Egyptianside,was a simplerenunciation, on behalf of the
Sudan, of aiiclaimsto temtory to the Westandnorth ofthe agreed frontier line.
4.239 The careful wording of the 1934Accord, particularly when
read in the light of the travaux vréparatoires of that agreement, sufficiently
dispels any argument that Italy thereafter succeeded to British rights and
obligations under earlier Anglo-French agreements, if only for the following
reasons:
- Great Britain did net cede the Sarra triangle to Italy by
virtue of the 1934 Accord. Neither Great Britain nor the
Sudan had ever asserted any claim to title over the temtory
comprised within the Sarra triangle. Great Britain might
have had a potential inchoate claim to title over that
temtory in right of the Sudan by virtue of the 1899
Declaration as "interpreted" in 1919, and it was that
potential inchoate claim (and no more) that was renounced
in 1934(nemo dat auod non habet);
- Itaiy was careful to ensure that the text of the 1934Accord
in no way prejudiced the Italian position of non-recognition
ofthe 1919Convention;
- IfFrance had reaUythought that by concluding this Accord,
Italy had succeeded to British rights and obligations under
earlier Anglo-French treaties, it is astonishing that France
did not argue, in the then ongoing negotiations with Italy
over the southern border of Libya, that Italy was now
precluded from contesting the 1919 "interpretation" of the
302 See.LM, para.5.294. 1899 southeast line. Instead, within six months of the
conclusion of the Sarra triangle Accord, France had
concluded with Italy the 1935 Treaty establishing, for the
iïrst time, a boundary between Libyaand French Equatorial
Africa departing materially from the 1899 line as
"interpreted" in 1919. It is submitted that the conclusionby
France of the 1935 Treaty estops Chad from maintaining
that, by concluding with Great Britain the 1934 Accord
relating to the Sarra triangle, Italy had accepted the 1919
Convention.
4.240 If this were not enough, there remains the more basic
questionwhether the régime established byan agreement such as that constituted
by Article 3 of the 1899 Declaration as "interpreted" in 1919,faus within the
category of "boundaryrégimes"or "other temtorial régimes't'o whichthe rules set
out in Articles 11or 12of the 1978Vienna Convention on Successionof States in
respect of Treaties might apply. Even Chad concedes that, at least initiaiiy,the
1899Declaration did not deli&t territories over whichFrance and Great Britain
already exercised territorial sovereignty;the CM statesthat the Declaration went
no further than effecting a dMsion of spheres of inûuence that the two parties
mutuaiiy re~o~nized~~~.So also Chad admits that a treaty establishing a sphere
of innuence was insufficient to establish a "colonial title",which could only be
acquired by the conclusionof agre-ments with local chieftains or by the effective
and continuous exercise of acts of sovereign$04. So there is ample reason for
303 See, ex., CM.p. 148,para23. inthis, the iswronginsofaras Articl3 is mncerned:
Article 3 onlyindicateda üne limitingFrench temtorial expansiontoward the Nile.
304 CM. p. 61, para. 55. In this regard, a 1934opinion of one of the Legal Advisers to the
Foreign Office in mnnection with the negotiations mncerning the Anglo-Saudi frontier
is of interest LC-M 12,hereto). In it, MI. Beckett (Second LegalAdviser)made
these remarks:
"Spheres of influence in international law,whatever their political significance,
mean nothing at au. If astate admits it has not sovereigntyover a temtory, but
only claims a sphere of influence over it, then apan from treaty obligations
binding panicular powers not to enter the sphere of influence, etc legallyany
other power cango there and take steps to make itselfsovereign."
in the same opinionMr.Beckett goeson to say:
"Sovereigntyoveremtoiy cannot mnsist in a mere right to keep other states out
when the soi disant sovereignexercisesno authority whatsoever Ifthis is
the position, then even if the soi disant sovereignhad originallya perfectlysound
title, he will lose it if another state enters the temtdey andexercises
authoritythere for a sufficientperiod, and thu. acquiresa prescriptiveright."regarding the 1899 Declaration, insofar as it concerned areas n15"hs a
"political"understanding, an agreement over the extent of the politicalaspirations
of the two parties, rather than a treaty establishing a boundary or territorial
régime.
4.241 From the Britishtravaux of the 1899Declaration, it isamply
clear that the line described in Article 3 of that Declaration was viewed simplyas
a line limitingthe political aspirations of France as regards future acquisitionsof
temtory and was, in any event, res inter aiios acta as far as Powers other than
France or Great Britain were concemedInthe 1899exchange ofnore setween
Great Britain and Germany, the principle of res inter alios acta was affirmed by
the German Government as applying to the ~eclaration~'~; and this was not
contested by Great Britain. This also appears to be the position of Chad, at least
in principle306. It is a hall-mark of a true temtorial, or boundary, régimethat it
becomes validerga omnes-quite the reverse of a politicalarrangement-that is
inter aliosacta.
---
4.242 In the light of these considerations,it maybe concluded that
the 1899Declaration only had a legal effect inters(that is to Say,between
France and Great Britain); that the final paragraph of the 1919 Convention,
whichpurported to "interpret"paragraph 3 ofthe 1899Declaration, similarlyonly
had a legal effect inter vartes; and that neither of these instruments established,
or purported to establish, a "boundaryrégime"or "other temtorial régime" within
the meaning of customarylawor the rules set out in Articles 11or 12of the 1978
Vienna Convention. Accordingly,and as atter of international law,Italy could
not, by reason only of concludingwith Great Britain the 1934Accord relating to
the Sarra triangle, have "succeeded to British obligations under earlier Anglo-
French treaties that did no more than divide spheres of influence in the region
(that is to Say,the 1899Declaration as "interpreted" by the 1919Convention),
these obligations, by the very content of the instruments in which they were
embodied, existingonlyinter vartes.
305 See,LM.paras.5.56-5.57.
306 See.CM,p.80,para111.CHAPTER VII. THE 1919 FRANCO-ITALIAA NCCORD
/12 SEPTEMBER)
Smo~ 1. Bac-und and Text
4.243 The CM begins its discussionof this Accordwith a touch of
sarcasm:
"Quellesqu'aient pu@treles réticencesde l'Italieà l'encontre de la
Convention supplémentaire du 8 septembre 1919, celle-ci n'en a
pas moins conclu avec la France, quatre jours plus tard, dans le
cadre des négociationsde paix de Versailles,un accordefemng
tot&j 12 September Accord also on the 1955 Treaty Annex 1
list] ."
This is quite uncalled fin;fact, the irony of the situation is quite the reverse.
How could the French Govemment, in the light of its obligationsto Italy under
Article13 of the 1915Treaty of London, have clandestinely entered into t8e
September Convention with Great Britain, directlyand adversely affectingItalian
interestsinthe Tripolitanian hinterland inherited from the Ottoman Empire in
1912 -ten years after th1902Franco-Italian Accord on whichtheCM confers a
seminal role-without the slightest disclosureabout the Convention to Italy four
days later, on the occasion of the signingo12tSeptember Accord concerning
the western boundary of Tripolitania? Both agreements were signedon behalf of
France by its Foreign Minister, M. Pichon. The passage quoted above states that
the 12 September Accord fell within the scope of the post-World War 1 Peace
Congress. So did the8 September Convention: the source attributed to the map
308
annexed to itwas the "GeographicalSection,Peace Congress,No224" .
307 CM. p.197para.210.
308 Sec . auLC-M 30referredtoat p4.174above,andLM,MapNo. 60,at par5.176. 4.244 The analysis of the 12 September ~ccord~'~ in Libya's
310.
Memorialbnngs out severalpointsinadditionto the onejust made .
LC-M 36
309 Annex 1 of the 1955 Treaty refers to the Accord in a slightly derisive way: as
"l'arrangementhanco-italien du 12 septembre 1as9if it were not to be taken too
seriously: it was an "arrangement", no1 a "convention"or "accord". The French title
reflects the fact that France modifiedthe Ghat-Toummo sector of the boundary, agreed
in 1919,in Annex 1 of the 1955Treaty; awas planning to do sinrespect to the
Ghadamès-Ghat sector,whicwas accomplishedbythe 1956Agreement insisted upon by
Franceasa condition of ratifyingthe 1955Treaty.
310 LM. paras. 5.168-5.173and Maps Nos.58and 59. The text of the Accord aLM.ars at
International AccordsandAereements Annex,No. 18. -
The Accord established, for the first time, the western
boundary of Libya as far south as Toummo, modifyingthe
notional frontier shown on the Non-Annexed Mau (m
36)311;
- The Accord delimited an agreed temtonal boundaiy and
called for its 'kérincationsur leslieux":
-
This resolution of the boundary question between Italy's
colony of Libya and French Algena was expresslynoted in
the Accord as not completing the obligations France owed
to Italyunder Article 13of the 1915Treaty oond do (ntout
en réservantd'autres points pour un prochain examen");the
Italian Government so asserted at the time312;and the
acknowledgesthisfact313.
4.245 It isworth notingin passingthat the boundary resulting frorn
the 12 September Accord is discribed therein as "la nouvelle frontière entre la
Tripolitaine et l'Algérie1'emphasis added). Such a description was later
employed in descnbing the southem boundary of Libya resulting frorn the 1935
Treaty; and Chad rnakes the argument that by calling it a "nouvelle frontière",
Italy explicitly recognized that pnor to 1935 the temtory affected, under the
supposed old boundary, was under French sovereign$14. The 12 September
Accord confirms that the use of the words "nouvellefrontière"does not lead to
such a conclusion,and that such a description does not necessarilyirnply that a
prior conventional boundary existed. What was modified in the 12 September
Accord was the western side of the Tripolitanian frontier depicted on the map
(the Non-Annexed Mau) referred to in the 1902Franco-Italian Accord. Thiswas
not an agreed or conventionalboundary -itwasa sketch ofwhere the frontier was
generally considered to lie, a notional frontier. In 1902,Italy had no temtorial
311 Asa result,Ghadamè., hat, theoasesof Fehoutand El-, nalandToummoand
the principacaravanroute between Ghadamès. anGhat, as weU as the direct
communicationines betweenGhatandToummo, wereal1rewgnizedas withinLibyan
territory.
312 Ss forexample,ForeignMinisterTittoni'sspeechof 27 September 1919to the Italian
Parliamentdiscussedatpara.4.1a., above.
313 See. CM.p. 199,para.220.
314 Seepara.6.20,below.rights in respect to Tnpolitania, which was under uncontested Ottoman
sovereignty. Thus, Italy could not have bed that boundary with France in the
1902 Accord. The wavy, dashed line on the map served as a convenient
illustration of whatM. Barrère meant in his unilateral declaration to Signor
Visconti-Venosta in 1900 as to the meaning of the 1899 ~eclaration~l~. The
phrase "nouvelle frontière"was a short-hand way to describe a new boundaryin
the sense that no agreed boundaq had existed pnor thereto. The Non-Annexed
Mar, referred to in the 1902 Accord did not identify the wavy, dashed line as a
bounda$16.
4.246 in its account of the background of the 12 September
Accord, the makes a slip that must be corrected. In refemng to the
agreement between Italy and France in 1914 to convene in order to resolve the
question of Libya'sboundanes with France's possessions negotiations that never
took place due to the outbreak of World War 1-,theCM uses the expression "en
vue de procéder à la démarcation de la frontière orientale de la ~ib~e"~~~.The
appropriate word is "délimitation"not "démarcation":there was at the time, until
the 12 September Accord was signed and ratified, no delimited international
boundary between Libya and Algena.
(a) Marin Reports
4.247 Admittedly, a contrary view had been expressed in French
circles, notably by M. Louis Marin. In his report to the French Chambre des
Députéson 22 December 1913,there appears what seems to have been the first
public utterance of what was to become France's theory as to the effect of the
1902'Franco-Italian Accord. In mentioning the preparations being made to
delimit the boundanes between Libya, on the one hand, and Tunisia, the A.O.F.
and the A.E.F., on the other hand,. Marin asserted that Italy had:
315 Itwillberecalledthat 1899Declaratiomitt aeyreferenceto Tripolitania. Itwas
thisomissionthat gaverisM.oBarrère'sexplanatotydeclarationin,hichin the
ment wassufficientlyambiguousas to cal1for a clarificatis to just wM.t
Barr6remeantwhenhe referredIothe "VilayetofTripoli".me rnapservedthispurpose;
but itwas no1 intended to be, and muld have not ben, pan of an international
agreement asto the Tripolitanianboundary.
316 Sec .ara.4.5g,a., above.
317 CM. p.198,para214.Thequotedpassagecontainsa secondslipaswell:clearlythe
meantto referto Libya's boundary(fronti6reoccidentale). "..reconnu les limites des zones d'influencefrançaise et italienne,
telles qu'elles ont étéindiquées sur la carte annexée à la
déclaratjpgfranco-britannique du 21 mars 1899 relative au centre
akicain ."
Thus.he continued:
"Ilne s'agitdonc [que] de marquer sur le terrain la frontière qui a
étéainsifixéedans sesgrandes lignes ..."
4.248 M. Mann could only have been talking of the notional
Tripolitanian frontier as shown on the Non-Annexed Mau down to Toummo;
nevertheless, his analysis was incorrect because Italy in 1902not only did not
agree to anykind of boundary -none was show in respect of Tripolitania on the
map referred to - but also had no status to do so, sincethe temtory was subjectto
Ottoman sovereign$19. In the following year, M. Marin again submitted a
report to the Chambre des Députés(on 12 July 1914),this time directed at the
delimitation operations contemplated for the boundary between Libya and
Algeria,the A.O.F. andthe A.E.F.~~~. His report started out thisway:
"Messieurs, dès le mois de juin 1913, le Gouvernement italien
demandait au Gouvernement français de vouloir bien hater la
réunion d'unecommissionde délimitation ayantpour but de fixer,
d'une façon récise,les frontièresentre la Libye et les possessions
françaises. lia suite des pourparlers qui se sont poursuivisdepuis
lors entre le Gouvernement français et le Gouvernement italien, la
date du commencement des opérations a étéfixéeau mois de
décembre1914,et il a étédécidé que les deux chefsde missionse
réuniraient à Berne, le 20 juillet 1914, à l'effet d'étudier la
préparationtechnique des travaux."
318 CM. Annex335. Sec .lsoCM. p. 183,para. 152.
319 In the same report, M. Marin mentioned Borkou and Tibesti, but not in relation to the
1902Accord. Whathe saidwasthe following:
"LesTurcs occupaient cenains points du Borkou et du Tibesti. A la suite du
traite de Lausanne, ils ont déclarequ'ilsabandonnaient toute precention sur
pays. Le Borkou et le Tibesti se trouvant dans la zone d'influence française,
d'aprh les indications de la cane aAnla déclaration franm-anglaise du21
mars 1899, leur occupation par les troupes françaises présentera, le moment
venu, le caractere d'unesimpleopctrationde police."
Of course, M. Mann made the mistake ofrlooking the effectof the Treaty of Ouchy
bywhich Italyinherited from the Ottoman Empire its territorial nghts and titles.
320 CM. Annex336.He then went further back in history,referring to the negotiations that had been
planned in1911 to be undertaken with the Ottoman Empire:
"En occu ant la Tripolitaine, l'Italie a succédéà la Turquie et a
recueilli héntage des questions qui intéressentla détermination
des frontières communes à nos colonies et à la jeune colonie
italienne.
Toutefois, avant que la guerre italo-turque n'ait étédéclarée, les
gouvernementsfrançais et turc, aprèsavoir envoyédes déléguésur
la frontière tuniso-tripolitaine, avaient signéipoli, l19 mai
1910,un accord fixantdénnitivementla frontièredanscette région.
Le.snégociationsengagées,àcette époque,laissaientmêmees érer
le règlement rapide des uestions Concernant l'Algérie,IYAque
et la Tripolitaine, d'autre part, àtel point u'une commissiondevait
se réunirTripoli le 11décembre 1911. 9Rs événements que vous
connaissezremirent tout en question.
Cependant, I'Italieavait adhéréà la déclarationd21 mars 1899,
additionnelle à la convention franco-andaise d14iuin 1898,q.i:
par la carte annexée à cet accord, fiXe varie&> mais aussi
théoriquement, les zones d'influence respectives des puissances
europeennes dans l'Afriquedu Nord."
4.249 This interesting bit of history reveals, as thdescribes,
that negotiations to delimit Libya'sboundanes were planned in 1911 between
France and the Ottoman Empire, butwere cancelledfollowingthe 1912 Treaty of
Ouchy. M. Marin'sreport concerned the rescheduled negotiations, this time with
Italy;but in the case of Italy,he advanced the viewthat Italyhad "adhered to the
1899 Declaration and that the map "annexed to the Declaration "fixed"the zones
of influence of the European Powers, includingIta-yan incorrect interpretation
of the effect of t1902 Accord, but perhaps useful as a bargaining positionwith
the forthcomingnegotiations with Italy insight. The more significantpoint isthat
M. Marin was onlytalking about Libya'swestern frontier as far as Toummo. This
was the same sector that Foreign Minister Poincaréhad wanted to have fixed
back in 1912~~'. M. Marin didnot dealwith the southern boundary at al].
4.250 The Marin report went on to describe the western sector of
the boundary in detail: "telle qu'elleest définiepar les accords ant...This
was certainlypresumptuous, for Italy had not agreed to anywestern boundary of
Libya - the 1902 Accord merely clarified, by reference to a map, the unilateral
declaration ofM. Barrère in1900 as to what the limitsofFrance's expansionwere
321 Sec .ara..150g -q., above.between France's possessions to the Westof Tripolitania and Tripolitania itself.
M. Marin's description ended at Toummo, however, making it once again clear
that the 1902Accord only concerned that sector of Libya'sfrontiAs.to that
frontier, M. Mann outlined France'sviewas to the limited task ofthe deiimitation
commission scheduled to meet in Berne on 20 July 1914,only a week after his
report:
"I le s'agitpas Ourles commissionsde délimitationd'engagerdes
pou~arlers dipiomatiques, mais de matérialiser sur leterrain une
frontière déjàexistante. Sans doute, toute théorique et tracée à
une époque où les nécessités géographiquest les intérêlocaux
étaient complètement ignorés dans les régionsqu'elle traverse,
cette frontière devra subir certainesfica' j,mais, du moins,
cesdernières seront ellestrèspeu importantes.
4.251 It is certain that Italy would not have agreed with the
suggestionthat the boundary had already been decided in earlier agreements and
merely required to be demarcated, for that was not the case. The outbreak of
World War 1caused the meeting to be cancelled. But it should be noted that both
the Ottomans, in 1911,and the'Italians, in 1914,had in mind to delimit the entire
Libyanboundary. France, on the other hand, at least in 1914,was onlyconcerned
atthe time with fixingLibya'swestern boundary. The 1915Treaty of London was
subsequently entered into to coax Italy to enter the war on the side of Great
Bntain and France. At the meetings of the Colonial Commission in1919,France
agreed to modify what it considered to be the western frontier of Tripo-itania
shownby the wavy,dashed line on the Non-Annexed Mau - under the provisions
of Article 13 of the Treaty of London, events which both the and the
~ove?~~. This led to the Accord of 12September 1919. But France'sagreement
was to delimit this boundary for the first tirne, not to rectify an existing
conventionalboundary -for there wasnone south of Ghadamès.
(b) An Im~lementation of Article 13 of the 1915 Treaîv of
London
4.252 The report of the Colonial Commission referred to the
proposal made byFrance as a "rectification"of Libya'swestern b~unda$~~; and
322 CM. Annex336.
323 &LM, paras.5.150-5.CM.pp. 198-199.
324 See.LM. para.5.165.this certainly was the way the French regarded its proposal and the resulting
effect of the 12 September Accord that camed out the French proposal.
However, such a conclusion assumed that the wavy,dashed line on the map was
an agreed boundary between Italy and France, which it was not and could not
have been, as pointed out above, contrary to the distorted version of the map
appearing as an "extrait"at page 162ofB~~~. As Mao LC-M 36shows,the
effect of th12September Accord was to modifythe western side of the frontier
of Tripolitania as shown on the Non-Annexed M~Qin favour of Italy. However,
the text of the 12September Accord did not refer to a pre-existingboundary; nor
did it state that the "nouvellefrontière"was a modification or rectification of an
existingboundary. It provided that certain designated oases and caravan routes
"sontégalementattribuéesàl'Italie,nd that from Ghat to Toummo:
"..la frontière sera déterminéed'aprèsla crete des montapes qui
s'étendententre ces deux localités,en attribuant toutefois a l'Italie
les liw6 de communications directes entre ces memes
localites ."
4.253 As was pointed out in the LM. the fact that the 12
September Accord was in implementation of Article 13of the Treaty of London
did not imply that it concerned the modification of a pre-existing boundary;
Article 13provided for the settlementin Italy'sfavour of "questionsrelative to the
frontiers" of the Italian colonies and the neighbouring French and British
colonies.Thismight concern the attribution of temtory to Italy or modifications
or rectifications of boundanes, depending upon whether the question being
settled related to a frontier where no conventional boundary did exist or to an
existingconventionalbo~nda$~~.
SECITO2N. Chad's Contentions as to the 12 Se~tember Accord's
Significance
4.254 The CM hds in the 12 September Accord two points of
specialsigniiicance,even though the boundary agreed under the Accord stopped
at Toummo and, thus, did not concem temtory falling within the Libya-Chad
borderlands.Fir itts.rgued that this Accordconfirmed the western segment of
the boundary that Chad claimsin its Submissionsto lie between the intersection
325 See,para.4.53,above.
326 LM.International AccsndAgreements Anne, o. 18.
327 See,e.&LM. paras.5.151-5.156.5.169and5.172.of the Tropic of Cancer and 16"Ealong a straight line connecting that point with
Toummo (although stopping at what Chad regards as the Liby-Niger- Chad
tnpoint) (Mau LC-M 37). The CM reaches this conclusion by following this
unfounded line of argument8..
- The 12 September 1919 Accord boundary ended at
Toummo; and this oasis wasalso the starting point of the
1935Treaty line;
Comment: Tue.
- This "fixation à Toummo ...constitue la confirmation de
l'accordintervenu sur ce point entre la France et l'Italie en
1902...";
Comment: The 1902Accord contained no agreementconceming
Toummo.
- The map ieferred to in the 1902Accord (the Non-Annexed
&&y) indicated the Tripolitanian boundary as it was
acceuted byItalyand France at the time;
Comment: Itaiydià not and couldnot haveagreedany boundaryfor
ïiipolitania in 1902,for it was Ottoman tem'tory;and the Non-
Annexed Mao indicated no ïiipolitanian bounda justa wavy,
dashedline,not iàentifiedon the map'slegenda'rundaryof any
thetimetobethe ïiipoiitanianfron%ie .ascommoniyregardedat
- Italy"a constammentaccepté"the southeast line of Article 3
of the 1899Declaration and, hence, its starting point at the
Tropic of Cancer;
Comment: Totaliyfalre.
- Hence, Italy never contested the two extremities of the
western part of Chad'snorthern boundary and:
328 See,CM,pp.200-201,par222-229.
329 Secpara.4.5g,=. bove. "...l'on peut en déduire logiquement que cette
portion est constituée par une ligne droite liant ces
deux points, ce que confirme le3F&~éporté a
carte acceptéeDarl'Italieen 1902 ;
Comment: Aside from its other defects, the assertioncontainsthe
mly remarkablestatementthatItalyacceutedtheNon-AnnexedMau.
Inreaching this conclusion,the is not detened by the fact that Toummo lies
wellto the west of the northwest corner of Chad'sputative boundary (Mau LC-M
37). A glance at the famous map on which this entire argument depends reveals
that the wavy, dashed line does not in fact pass through Toummo at all. The
entire argument is constructed out of a senes of assertions, none of which is
accurate or correct; it is artificiallycontrived and has no validity at all. So the
second part of the line descnbed inad's Submissions -south and west of the
intersection of 16% longitudeand the Tropic of Can-has no support at all.
4.255 The ms secon point regarding the special significanceof
the 12September Accord -what it descnbes in cornpanson to fir point as its
"portéeplus vaste-isexpessed thisway:
"Ilmontre en effeg,contrario mais clairement que,au moment de
sa conclusion,'Italie acceptait en drc~j$~lestatu quo temtonal,
mêmesiellele contestait politiquement ."
In this way, the claims to find a second reason -denved from the 12
September Accord -why Italy's vehement protes& against the 8 September
Convention should be ignored. The first reason, already discussed,is that by the
1902Accord Italy supposedly forfeited any legal right to object to the 1919line;
the second reason is that the Accord of 12September 1919 confirmed this, for
under that Accord,Chad contends, Italyaccepted the temtonal statusquo.
4.256 Bearing in mind the fact, already mentioned, that the 12
September Accord boundary lay outside the area in dispute here between Libya
and Chad, it isrevealingto examine the sequence of propositions advanced in the
-M leading to thissecond conclusion..
330 CM.p.201,para2î7.Emphasisadded.
331 CM.p.201,para.230.
332 CM. pp.201-203,paras.230-236. - The 12 September Accord was a consequence of France's
cornmitment to Italy under Article 13 of the 1915 Treaty of
London:
Comment: Correct;but thatdoesnotmean it involveda modification
of anyenrhng boundary -and hence a "cession"-for there wasno
suchconventionalboundary.
- The Accord expresslyrecognized that the concession to Italy
it provided did not exhaust Italy's "créance"against France
under Article 13;
Comment: Correct.
- "Bien entendu", France's failure to fulfiits Article 13
obligations gaveLibya no right to claim this "créance"that
had been owed Italy: (i) the promised "rectification" could
have been made in other areas of Africa, not just in Libya's
southem boundary; (ii) in Article 23 of the 1947 Peace
Treaty, Italy renounced al1 rights and titles to its African
colonialpossessions;
Comment: Both argumentsarerefuted in Parr M below wherethe
1935 Deaty k dkcussed.
- In 1919,Italy based its temtorial ciaims to the Tripolitanian
hinterland on Article 13rather than on -ga! grounds, using
words like "céder"and "cession" that clearly implied the
recognition of French sovereignty; arguments to
sustain Italy's claim did not start to appear until 1921; the
circumstances in which the 8 September Accord was
concluded "établissentque l'Italie n'avait, à l'époque,aucun
doute sur la légitimitéde la présence française dans
l'ensemble du B.E.T.331,.
Comment: The wrong&contendsthatclaimsmade underAm'cle
13 had no legal bask and wer n& political& inspire4 a point
extensive(vdealt with in tm53! In Ariicle10 of the 72eotyof
333 CM.pp.202-203,paras.234-236.
334 Seefn.308,aboveforreferenm to tm. London, GreatBritainand FranceexplictlyrecognizedtherightsItaly
inheritedfromthe OttomanEmpire;Italyhad no obligationto couch
itstem'toriclaim inlegalIanguageandArticle13 embracedclaims
to resolvebounday questionswhatever theirbask. The CM fails
totally to show how an Am'cle13 claim, satisfied with respectto
temtory outside the Libya-Chad borderlandsin the Accord o12
France'ssovereigntyover the borderlands-awhat thegrCMntcalis
"l'ensembledu B.E.T.". Tha's argumentsbasedon Italy'suseof
termssuch as "ckd and "cessioaredealtwith belowintheconcert
ofthe 1935ïkeaty55.
4.257 In its conclusions,the comments that the 12September
Accord, though referred to in Annex 1of the 1955Treaty, was not really a "texte
de référence"since the resulting boundary did not concern the Libya-Chad
borderlands in dispute here. This overlooks the fact that the 1955Treaty was
between France and Libya, and the 12September Accord iked what to France
was the most important part of that bound-the Algerian sector. Yet France
sought to modify this boundary in Annex 1 of the 1955 Treaty and in the
subsequent 1956Agreement. The CM also avoidsrevealingwhether the Accord
of 12September 1919was,in itsview,"envigueur"in 195in consideration of the
fact that it had not been notified to Italy under Article 44 of the 1947 Peace
Treaty.
CHAPTER W. CONCLUSIONS
4.258 The second theory of Chad, as set out in the conclusionsto
the CM, isfirs th,t the line described in Article 3 of the 1899 Declaration,
agreed between Great Bntain and France, was accepted by Italy in 1902;second,
that this linewastransformedinto an international boundary as a result of French
effectivitésby 1919;tJ& that the line resultingfrom the 1919"interpretation" of
the Article 3 line is the exact same iine, onlyexinwords,just as this same
line was shown graphicallyon the map annexed (tau intents and purposes) to
the 1899Declaration; andfourt hat this line was thus opposable to Italy (and
nowto Libya) as confirmedbyItalyin signingthe 1935Treaty.
4.259 Chad's second theory is unfounded for the following
reasons, inter alia:
335 Sec .ara6.30g m..below. PARTV
CHAD'STHIRDTHEORY.BASEDONFRENCHCOLONIAL
EFFECiïViTES. IS RULEDOUTBYARTICLE3 OFTHE 1955 TREATï
ITSELF:IS INVALIDINLAW:ANDIS NOTSUPPORTEDBYTHEFACïS
CEAPTER1. THE THIRD THEORYIS NOTLEGALLY
SUPPORTABLE
5.01 The elaborates in considerable detail, and with ample
citations to authonty, on the point that Articl1955oTreaty was an expiicit
recognition of the principle opossidetislIrfact, Article 3 has been cited in
2
the literature as an example of the acceptance in a treaty ofthi.principle
5.02 Article3 does indeed constitute the recognition by Libya
and France, respectively, and of course their successors,that certain boundanes
dividing Libya £rom the adjoining French temtones were boundanes resulting
from the "actes internationauxen vigueur" iisted in Annex 1. It has been shown
above that this does not irnply the recognition that the full extent of the
boundanes separating the temtones of the two States necessarilyresulted from
these "actes".
5.03 Article 3 of th1955 Treaty was not simply limited to an
affirmation o~ possidetis; it did not merely effect ato that pnnciple of
international law. Article 3went fùrther; it identifiedthe contents ofthe pnnciple
as it was to be applied by the parties, luniting it to the formula in Article 3: that
the boundanes to be recognized were those that resulted from the "actes
internationaux en vigueur", and only those boundanIn.other words, by the
very fact of basing the recognition of the boundanes on "actes",Artic3e
clearly indicated,contrario, that the parties to the Treaty agreed not to be
bound to recognize boundanes that rnight be found to result from the conduct of
the Colonial Powersas opposed to the agreementsentered into between them.
5.04 Such a conclusionis not based on the text of Article 3 of the
1955 Treaty alone; it is directly cohedby the travaux ~réuaratoires,which
reveal that, on the Frenchide, the clear purpose was to avoid any possible
1 S-,ex.,CM,p.142;para.2.
2 S-. CM,p.76paras99and100.recourse to the legal effect the activities of the Italian authonties in the
bordeilands might have hadAs a result, the carefully planned French tactic was
to-
"...poser le principe d'une délimitation sur le terrain à
entreprendre dans l'avenir, mais en Drenant pour seules bases les
traitésenvigueur àla date de la créationde I'Etat libven"'.
5.05 In accordance with this tactic, the French negotiators
advanced just such a proposal in the Januaty phase o1955negotiations; and
it was accepted by thebyan side4.As a result, t1955Treaty referred only to
the "actesinternationaux en vigueur" and excluded any accountbeing taken of the
possible effects of colonialeffectivités,whether Italian or French.
5.06 Hence, Article 3 provides an essential element in the
settlement of the present dispute, requiring the outright rejection of Chad's third
theoty under which, eveifthe "actesinternationaux" referred to in A3tdide
not delimit a boundary east of Toumrno, such a boundary would result,
nevertheless, from the French presence in the area; and, thus, that the boundary
in dispute has already been fixed as a result solelyof French colonial effectivités.
As just seen, such a result was mled out by Article 3 o1955Treaty, which
provided that the boundaryetween Libya and France would be determined, in
accordance with theprinciple of possidetiiun soely on the basis of "actes
internationaux en vigueur" on the date of Libya's independence, thereby
excludingthe criterion of colonialeffectivités.
5.07 This leads to a number of other observatiFirs ete.if
this view of the meaning of Article 3 is not accepted, it is evident that the conduct
of the Colonial Powers in violation of international law could, in no event, be
taken into account or given any effect. The fully developed this point in its
Part VI'and it is again takeninPartM below.
5.08 Second, the has, in any event, failed to advance
evidence to prove French effectivitésthroughout the borderlands up t1919e
3 Letterfromthe Govemor-GeneoftheAE.E to the Ministrede la France d'Outre.
Mer,2May1955,LM,FrenchArchiveAnnex,p. 169. Emphasisadded.
4 -e,para.3.121,above,LM, para.5.442m.
5 Se,LMd para.6.a4S.iine,which is the boundary line claimedby Chad. This failure is demonstrated in
detail in Chapter II,whichfollows.
5.09 Finallv. in the circumstance that, as Libya has shown, the
"actes internationaux en vigueur" referred to in Article3 of the 1955Treaty did
not determine a boundary and that, furthermore, as just shown, Article 3 ruled
out the taking into account of colonialeffect~tés in order to remedy this failure,
the conclusion to which the Court would inevitably be led is that there is no
existingboundary between Libya and Chad. inthese circumstances, the Court's
mission is not to "déclarer"or "constater" where the boundary lies between the
Parties,as Chad maintains; it isto estabiish that boundary hic et nunc, for the first
time, on the basis of the competing claims of the Parties to temtorial title in the
borderlands.
5.10 Since this will involve determining the temtorial extent of
these claims, it is evident that effectivit-the situation on the ground and the
related conduct of the various participants: the indigenous peoples, the Senoussi
Order, the Ottoman Empire, France, Italy and Great Britain - considered in their
broadest aspect, willhave an important role to play, although one quite different
from that suggested by Chad. That is to say that while Article 3 of the 1955
Treaty ruled out colonial effectivités as a cnterion for the settlement of the
present temtorial dispute, the Court isnot restricted £romconsidering,in carrying
out its task to determine the boundary in the absence of a conventionalboundary,
any document, event, fact, agreement or conduct that might have pertinence in
establishingthe legal titles of Libya and Chad to temtory within the borderlands.
Aswillbe taken up belowin Part IX, it is through identifyingthese legal titles and
weighingal1the relevant facts in order to determine their temtorial extent within
the borderlands that the Court will be able to resolve satisfactorilythe present
dispute. in this context, effect~tés is a factor to be weighed. But it concerns
factual elements that must be proved bythe Party relyingon it. It isto thissubject
that this pleading now turns.CHAPTER II. THELIMITEDNATURE ANDEXTENT OFTHE
FRENCH PRESENCEINTHEBORDERLANDS
SECTIO 1. Introduction
5.11 It wiii be recaiied that Chad relies on aiieged French
colonial effectivitésin the Libya-Chad borderlands for two separate reasons.
FLrs under Chad'ssecond theory of the case, it is contended that sucheffectivités
performed the miraculous task of transforming, pno1919,what Chad admits
was no more than a French sphere of influence into temtory over which France
had legal title, with the result that1919Convention line agreed between
Great Britain and France became, it is argued, an international boundary
opposable to Italy(and hence to ~ib~a)~.The legalflawsin thisline of argument
have been set out above, paramount among which are, first, that rinithis
way on colonial effect~tés is excluded by Arti3lof the 1955Treaty7 and,
second, that the nowhere attempts to explain on what legal grounds French
colonial effectivitéscould have been established over temtory that was not
8
m.
5.12 The second use to which effectivités havebeen put is that
they constitute, accordingto Chad'sthird theory of its case, an autonomous basis
of French title torritory up to t1919 line9.As Libya has pointed out, this
second use of effectivitésisas legailyflawed asthe firstlO.
5.13 In this Chapter, the factual aspects of French colonial
effectivitéswill be examuied. It WUbe show that thCM has failed to prove
such effectivitésand that, in fact, such French militarypresence ainthested
borderlands feil far short of the kind of occupation that would be required to be
show in order to support either of Chad's theones that depend on French
colonial effectivitéIn setting out these facts, the parailel activities of the
Ottoman Empire, the indigenous peoples and their Senoussi leaders, and the
relationsbetween them and the Frencwiibe discussedaswell.Itmust be borne
6 Se,ex.CM,p.378,para.10.
7 S-, para.5.etiq.above.
8 S-, para.9.a=., below.
9 SeeCM.p. 379,para.16.
10 S-, para.5.06,above.in mind, in considering the facts, that the concept of effect~tés includes the
conduct of a State in al1its aspects relating to temtonal occupation; it is not
narrowly focussedonjust the establishment of militaryposts.
5.14 The analysisthat followsis based on evidence produced so
far by Chad and on such additional documents as Libya has been able to hd,
some of which are either annexed to thLM and discussedthere or annexed and
referred to here. The followingare some of the principal conclusionsto whichan
analysisof this evidenceleads:
- Pnor to 1913,no French miiitary forces were stationed in
the borderlandsnorth of 15"Nlatitude;
- Starting in 1908 and ending in late 1912 - early 1913,
Ottoman civil and military forces effectively occupied the
borderlands north of 15"N;and a modus vivendi came into
being between the French and Turkish forces until the 1912
Treaty of Ouchyrequired the Ottomansto withdrawin early
191311;
- Oniy after the Treaty of Ouchy and the final Ottoman
withdrawalin March 1913did French militaryforces start to
penetrate the borderlands;
- Unlike the Ottoman occupation that preceded it,whichtook
place at the urging of the indigenous peoples and the
Senoussi, the French rnilitaryadvance was bitterly opposed
by the peoplesunder Senoussi leadership with great loss of
lifeand the destruction oftheir zawivas;
- North of 15"N latitude, French forces had, even in 1930,
established military posts at oniy a few widely-scattered
places in Borkou and Ennedi, comprising oniy a small part
of the borderlands; and their presence in Tibestiwas limited
to the years 1914-1916,after which they withdrew entirely
fkomTibesti until1929-1930;
11 See.LM, para4.121, - Pnor to 1929-1930,no French posts were established north
of a strict southeast line under Article 3 of the 1899
Declaration:
- There was continua1 armed resistance to the French
between 1913 and 1935; at no time was the French
occupation other than military in character with the
declared objective of protecting Chad lyingto the south of
the borderlands ("leTchad utile").
5.15 It is for Chad, not Libya, to establish the facts concerning
the presence of French forces in the borderlands, for much of Chad's case relies
on alleged French effectivités. Chad is obliged to prove the facts on which
depend these legaltheones that are denved from aiieged effectivitésIn point of
fact,however,the has advanced arguments relating to French activitiesin the
borderlands that are in some cases wrong, in other cases unproven, and in still
other cases contradictory, requiring Libya to set the record straight in this
Counter-Memorial.
5.16 To offer a few examples here, the ms opening Chapter
contains the assertion that:
"En 1913,la France procédaitàl'occupation effectivedu B.E.T., où
elle établitune administration coloniale trèsse enteur le terrain
jusqu'en 1960,date de l'indépendancedu ~ch'adl~."
A similar assertion is made further on in theCM. in the context of suggesting
certain"dates cruciales",in these terms:
"1913: la France exerce à partir de cette date toutes les
prérogatives de la souveraineté sur l'ensemble du B.E.T.
colonialeyy. ainsi sa zone d'infiuence en véritable possession
5.17 These statements contain two factual aiiegations: (i) that
French colonial effectivités existed without discontinuiwithin the part of the
12 CM. p. 19,para.13.
13 CM,p.43,para.123(iü).borderlands comprising Borkou,Ennedi and Tibesti from1913until1960; and (ii)
that the entirety of these regions was effectivelyoccupied and adrninistered as a
colonyby the French between these years. Neither proposition iscorrecInfact
the Chi!itself, in its extensive discussion of effectivités,reveals the errors and
exaggerationscontained inthe statements just quoted.
5.18 For example, after stating, correctly, that the "pénétration
française dans ces trois régionsremonte aux année1913-1914"14 the CM adds
this:
"L'occupationdu Borkou-Ennedi n'a pas connu d'inte tion. En
revanche, l'occupationdu Tibesti s'interrompi1916Vr!.
The CM goes further than this, admitting not onlythat there was an interruption
in respect to Tibestibut also that until1930 there had been no French effectivités
in Tibesti:
"..n 1930 la France réoccupa d'une manière stableet permanente
le Tibesti parce queItalievenait d'achever saconquêtedu Fezzan
et ena ait d'envoyerses troupes au sud pour s'emparer du Tibesti
... . ç
Even this statement is an exaggeration since,wiU be demonstrated, there was
continued resistance by "dissident"tribes to French attempts to exerciseauthority
even after1930.
5.19 Thus, contrary to the CM'S earlier statements, the same
situation did not prevaiin each of the three regions after1913. The initial
militaryincursion intoTibesti was interrupted in6;and Tibesti was thereafter
not occupied by French forces until1930,and then only because of the threat
that, otherwise, the Italians might preempt the French. Moreover, the second
proposition-that the entirety of the regions was effectivelyoccupied 1913r-
is thus not only wrong as to Tibesti, but is misleading even as to Borkou and
Ennedi, for the CM itself admits the very limited nature of France's military
presence there:
14 CM. p.246,para.146.
15 CM. p.248,para. 149.
16 CM. p.248,para150. "Les Français concentrèrent leurs troupes dans quatre oasis
rincipales: celles dl'Ai du l$l!ado-Kaouar, du Borkou (Faya-
&rgeau) et de I'Ennedi(Fada) .
As Mau LC-M 38shows,the lïrst two oases -Djado and Aïr -are well to the east
of the borderlands; Faya, in Borkou, liesjust south of 18"Nlatitude (and well
south of the eastem edge of the Tibestmf; Fada, in Ennedi, isjust north of
17"Nlatitude. Thus, French troops were concentrated in a narrow band in the
borderlands roughly between 19'E and 22"E longitude and 1TN and 18"N
latitude. The northem borderlands remained under the control of the Senoussi
whofound themselves wedgedinbetween the French forces advancing northward
and the Italians descending towardthe south.
5.20 The goes on to contend that French authority extended
beyond these principal oases, however, claiming the situation on the ground to
havebeen the following:
"Cesquatre oasis devinrent le siège principalde l'appareil étatique
et militaire de la France. De chacune de ces oasis irradiait
l'autoritéfrançaise sur toutes les régions avoisinantes.De plus, la
France établit des postes et des détachements militaires sur les
points névralgiquesde chaque route caravanière, de manière à
pouvoir contrôler le passage par ces routes et s'opposer
efficacement auigbandes de pillards et à d'éventuelsagresseurs
venant du Nord .
The details as to these alleged posts and the dates of their establishment are not
given. Aswillbe seen, the additionalposts establishedwere alsoverylimited,and
some were transitory; the caravan routes were not effectively policed by the
French at all; such a post as Tekro, truly located at one of the "points
névralgiques",was not established until 1934; and until the 1930s there was
constant fighting between the French and the indigenous peoples, at times
directlyled once againbythe Senoussi.
5.21 in the ms conclusions the same inconsistencies and
confusionreappear. Once again, an overlybroad and inaccurate claim of French
occupation ismade:
17 CM. p251,para.161.
18 -bid. "Depuis 1913, la F nce a effectivement occupé le Borkou,
1'Ennediet le TibestiY.t
This is not supported by the evidence. Then, just a fewlines further on, CMe
adds:
"..il y eut relativement peu d'actes d'autorité souverainependant
les années 1920. ..En 1930,et au-delà, les effect~tés françaises
dans le B.E.T., y compns la bande d'Aozou, devie~e9~très
importantes et n'ontpas seulementla formed'actes législatifs."
5.22 Given the heavy reliance of Chad's case upon French
effectivités,especially pnor to 1919, this sort of imprecision and contradiction
does not sufnce. Inthe discussionthat follows,the facts that emerge from the
evidence willbe set out. Thews concept of "datescruciales"isusefulin making
this analysis21. What the situation was on the ground will be examined under
four consecutivepenods:
-
1899to 1912:the "date cruciale"being the Treaty of Ouchy
of 15 October 1912 when Ottoman nghts, titles and claims
were passed on to Italy; and, thus, the situation on the
ground at that the has special meaning;
- 1913 to 1919: the "dates cruciales" being 1913, when the
French milita~yinvasion of the borderlands began; and 8
September 1919,the date by which, according to the CM.
French colonial effectivités extended throughout the
borderlands all the way to the 1919Convention line (which
by that time, due to such effectivités, had supposedly
become an international boundary, temtory to the south
and east of it having become, according to Chad's second
theory, transformed into areas overwhichFrance had title);
19 CM ..378,para.10.
2û CM. p.378,para.12.
21 Theterm"crucialates"ito bedisthguishedfromtheterm"critilate",which inthis
caseithedateof independenceof Libya,on 24December1951,a matteron whichthe
rwoPartiesappeartobeinagreement&, para.1.54,et$.,above. -
1920-1935:the crucialdates here being 1929-1930,when the
French Government determined to occupy Tibesti in the
light of the Italian threat from the north; and 1935when, in
the Treaty of Rome, in the context of a general settlement
of African problems, Italy and France reached an
agreement on Libya's southern frontier, the agreed
boundary line never becoming a conventional international
boundary solely due to the failure to exchange ratifications
ofthe Treaty for quite unrelated reasons;
- Post-1935: certain dates of particular significance being
March 1941(the firsttime the borderlands were a theatre in
World War II),15 December 1950 (adoption of G.A.
Resolution 392(V)), 24 December 1951 (Libya's
independence), 1960 (Chad's independence), 1965 (the
formal withdrawal of French forces ftom the borderlands-
and the start of rebeliion and civilwar in Chad), and 1973
(the presence ofLibyainpart of the borderlands).
The post-1935 penod is dealt with in Chapter III below since most of the events
do not properly fallwithin thescope ofFrench colonialeffectivités.
S~ON 2. ThePeriod1899-1912
5.23 At the time of the signing of the 1899 Anglo-French
Declaration, French military forces had barely reached the region of Lake
~had~~. The 1899 Declaration, and subsequent statements of the Bntish
Govemment concerning it, emphasized two lines: 14'20'Nlatitude and 15"N
latitude. The first lin- an extension eastward from Lake Chad of the Say-
Barroua line of the 1890Anglo-French Declaration -marked the northem limits
of the commercial arrangement between Great Bntain and France established by
the final paragraph of the 1899 Declaration: this had the effecof extending
eastwards, al1the way to the Nile, the commercial arrangements in the earlier
1898Anglo-French Convention (Article 9). Asthe map shows,the commercial
arrangements under the 1899Declaration operated in the zone between 5"Nand
1420'N (Map LC-M 39). Infact, at the outset of the negotiations leading to the
22 ThehistoncalfactsofthispenodareexamiindetailinPanIVofthem. LC-M 39
1:14?15,W INTO THE LIBYA-CHAD
BORDERLANDS: 1913
Lambert Confoimal Conic Proieclion
Scale accurate al 2O.N.
1:14,715,000
Kilomelerr
Inc.inicionbaundaiio dc.'!d .r. ,or iIl".i~.pu,-
+ ire mtncrnuiliriuchuti.iive ~noi~,- i8ari.
8"-m. ai..,.na boundaiin Ai. show"; in Wh., Irelr,
Lmi.ilv gr.v.r.dio. Di.unl.la Io mi InlirnilioniCouri ol Justice1899 Declaration, 14"20'Nwas proposed as the northem limit for the new
Declaration's Article 2 provisions. This was ultimately changed to'15"Nlatitude,
the second line referred to above. The important point here is that the Article 2
sector concemed a boundary between Great Bntain and France; whereas, north
of lYN, the line descnbed in Article 3 of the 1899Declaration onlyestablished a
limit to French expansion in the direction of the Nile. Great Bntain assured Italy
in the 1902secret Anglo-Italian Accord that north of 15"Nthe 1899Declaration
had no effect on existingnghts or claimsof other Powers and did not disturb the
status quo. Similarassuranceshad already been givento the Ottoman Empire.
5.24 In 1902,French forces moved northeast from their existing
bases on the south shore of Lake Chad, attacking and occupyingthe at Bir
Alali. The Senoussi Order had before then moved its headquarters from Koufra
in Cyrenaica to Gouro in Ounianga, and zawivas had been established much
earlier (in the 1870s) in the region of ~unian~a~~. The brutal attack on the Bir
Alalizawiv however, served to coalesce the indigenous tribes and the Senoussi
Order into increased efforts to resist the French invasionof their lands. By 1910,
French forces had advanced somewhatnorth and considerablyeast of Bir Alaliby
establishing military posts in Kanem and Ouadaï. This advance foUowedthe
defeat ofRabbah at Koussen on 22April1900 and the entry of French forces into
Abéché on 2June 1909after the long, difficultwar against the Sultan of Ouadaï,
who had been supported by the Senoussi.InKanem, there were French posts at
Zigueï and Mao; in Ouadaï, French posts were established at Ati (in the Batha
county), Abéché,Bir Taouil and Arada (Mav LC-M 40). The most northerly
French post was at Arada, lyingalmost exactly on15"Nlatitude.
5.25 The French military moveseast fromLake Chad occurred at
the same time as the Ottoman Empire moved its military forces and
accompanying civil authonties into the borderlands north of 15"Nlatitude in a
reassertion of theirvereign nghts over the Tripolitanian hinterlanAs Mar,
-C-M 41 shows, Ottoman civil and militas, forces established control, in
conjunction with the indigenous Senoussi tnbes and the Senoussi zawivas,over
Tibes (t irdak 1908-1909;Aouzou: 1910; Zouar: 1910; Yao: 1911), Borkou
(Yen: 1909;Aïn Galakka: 1911-1912;Faya: 1913),and Ennedi (Fada and Baki:
1912); and went as far south as Oum Chalouba (south of 16"N)in 1912. The
Ottoman forces did not occupy theregions of Ounianga and Erdi. These were
23 See.LM. para3.60GE¶.already under firm Senoussi control, the headquarters of the Order being at
Gouro.
5.26 This situation on the ground rernained unchanged untilarly
1913, when the French forces moved north of 15"N latitude to occupy Oum
Chalouba and then invaded Borkou attacking and destroying the za~~& at Ain
Galakka on 27 November 1913. Thus the line of lSON,which had been given a
specialmeaning in 1899, was respected bythe French and Ottomans as a de facto
dividing line between them until after the Treaty of Ouchy and the Ottoman
withdrawal,whereuponFrenchtroops movednorthward.
5.27 The Qj describes and illustrates thmodus vivendi that
came into being after 1910 between the French forces south of 15"Nand the
Ottoman forces and the SenoussiOrder to the north of that ~ine~~.The Histoire
Militaire de l'Afrique Eauatonale Francaise pays considerable attention to this
episode, which it refers to as "[uln arrangement passager ...bien conclu avec
l'officierturc d'Aïn-~alakka~~.
5.28 As the Histoire Militaire recounts, the question of moving
north of 15"Ninto Borkou came up in 1911when news reached the Frénch that
Ottoman installations had been established at Bardaï and Zouar, and shortly
aftenvards at Aïn Galakka "où le pavillon Ottoman fut hisse ,112, Strict
instructionswere issued from Pans that the status quo not be disturbed, for it was
expected at the time that the boundary question would be settled between the
French and Ottomans by diplomaticmeans. In anticipation of this, the of
Tripoli had made a proposal to the Porte ofwhere the boundary proposed bythe
Ottoman Empire should be drawn -a drastic reduction in the 1890 Ottoman
claimthat reflected the situation on the ground in 1911~~.This proposal isshown
on Mau LC-M 42.
5.29 With the Treaty of Ouchy, the situation changed abmptly.
Asthe Histoire Militaire summarjzesit:
24 SeeL.M.paras.4.121-4.165,andMapsNos33.34and35.
25
HistoireMilitaideL'AEriaueauatonaleFrancaise,Paris,ImprimerieNation1931,
p.243;LM, rxhibit26.
26
m., p.391.LM. Exhibit26.
27
See,LM.paras.4.140-147andMapNo.35. "Par le traité de Lausanne, signéle 18 octobre 1912, les Turcs
abandonnèrent aux Italiens leur souverainetésur la Tripolitaine et
la Cyrénaïque. La Senoussiyarestait seule maîtr se au Borkou et
l'attitude déjàssez froide d'Abdallah ~ooueur~ ne tarda pas à
devenir hostile.
Fin octobre, Abdallah Tooueur fit roclamer par le ka'ïmakanla
nouvelle d'un protectorat turc s1' snedi et de 1" tallation d'un
poste ottoman à Baki. Le plan des IChouansyljise dévoilait
nettement. il s'agissaitde relier Koufra par Oueyta au Dar Four,
au Massalit, auila et u Rounga en contournant la zone française
d'occupation effective.v9
The French foresaw a new Senoussi offensive, and felt called upon to take
additional measures of security at once to protect the installations already
established south of 15"N. The resulting developments are set outin theLM,
including the interesting exchanges between the Ottoman Kaimakam at Aïn
Galakka (a civil official appointed by aMudir to conduct the affairs in each
district under the Mudir's administration ), and the French Commander at
~béché~~.In the event, the Ottoman civiland militaryauthorities felt compelled,
in the light ofthe Treaty of Ouchy,to withdrawfrom Borkou and Ennedi in early
1913. French military forces thereupon occupied Oum Chalouba (just south of
16"N). This was the start of the French offensivenorth of 15"N. One noteworthy
aspect of this episode is that, unlike the French, whose representatives were
military officers, the Ottoman Empire's local authority was the Kaimakam.
Another aspect is that, with the Ottoman withdrawalfrom Borkou, the Senoussi
"restait seule maîtresse", as the Histoire Militaire puts it, and it was against the
inhabitants of Borkou ledby the Senoussi that the French mounted their 1913
28 TheSenoussshei ofhhe& atAïnGalakka.
29
Asdefinedinthe HistoireMilitairedel'Afrique~uatoriale Fr239,Ene.:.
"OnappelleMiouanslesmembres d'uneonfrériereligieuTchad,ce terme
aprisunsensplus restreet désignensenoussiste,nonseulementaftalad
conhdriedelaSenoussiya,mais draceayandu prestige."
(Acopyofthis pageisattachedat LC-M13.)
30 m., p.424. (Acopyofthis pageisattachedat LC-M13.)
31 & para.3.39,above,andrelafnsfordefinitionsofthesecivilianpositions.
32 See,LM,paras..1484.150.offensive and invasion of Borkou. Set out below, in summary form, is the
structure of the Ottoman rule in Libyaand the structure of the Senoussi~rder~~.
Ottoman Rule in Libva
Sultan
SublimePorte
of thevivi Tripoli (Governor ofLibyawith title of Pasha),
The vivi was divided into districts, or each district
beingheaded bya District Governor or Mutassarif.
The Districts were grouped into counties (Nahias), with a County
Administrator (Mudir). The sub-districtswere run by a district officer
(Kaimakam).
Staffof the
Deputy Govemor M: Senior person afrer Vali:
concernedwith religiousmatters and the overseeing
of the religiousShar courts.
Head ofAccountsand FinancialAffairs.
General Secretary.
Head ofForeign Affairs.
Head of Education.
Senior Engineer.
ChieiofDocuments.
Managerof State Property.
Manager of ReligiousEndowments.
Chiefof Police.
SenoussiOrganisation
Head ofthe Senoussi(the Grand Senoussi).
Senior brethren or (12 persons who trained students and
supervisedthe runningof affairs).
Sheikhofzawiva.
DeputySheikh ofzawiv (upervisedits affairs).
Councilor Board of of the tribes of a region (solvedtribal and
ordinaryproblems).
33 14sets out and describesthese organisational structures in greater detail. It was
prepared bytheJIHAD Center in Tripoli. 5.30 The CM covers the important events involvingthe relations
and arrangements between the localOttoman and French militaryauthorities in a
cursory way, if at all. It acknowledgeswhat is described as "un bref 'intermède
turcm03,4.nd it describes in several paragraphs what it pretends this "intermède
turc" to have consistedof3'. The CM mentions a ravvrochement between the
Ottomans and the Senoussi in the penod 1906-1909and that the Turks were in
Bardaï and Aïn Galakka in 1911. (Asalready noted, the Ottoman occupation of
Bardaï occurred earlier, in 1908i1909.) There then appears this interesting
paragraph:
"Sansdoute, cette présenceturque est-elle limitéeet se traduit-elle
seulement par l'envoide trouves très nombreuses et de quelaues
fonctionnaires civils qui semblent plus soumis à l'autoritéde la
Senoussia qu'ilsne sont en mesure de lui imposer la leur.ln'en
reste pas moins que, compte tenu des circonstanceset du caractère
peu hospitalier de la région,cette présenceeffective aurait pu être
de nature,confo-t au droit de l'époque,àconstituer un titre
temtorial suffisant.
5.31 The paragraph contains three important - and correct -
admissions:(i) the fact that the Ottoman troops sent to the borderlands were "très
nombreuses"; (ii)the presence of a civilcomponent-whichwas totally lackingin
the case of the subsequent French forces; and (iii) that the Ottoman presence
would have been sufficientin the circumstances to "constituun titre temtorial
suffisant". But, tCM argues, the Ottoman occupation fellshort of the required
standard of effectivitésunder international lad7Curiously,although citi'ngthe
Island of Palmas Case, theCM ornits the well-knownstandard set out by Judge
Huber there: the "continuous and peaceful display of the functions of a State
within a givenregion"38. Yet it was precisely t-the element of peacefulnes-
that was one of the critical distinctionsbetween the French military invasionof
the borderlands and the pnor Ottoman occupation. The Ottoman forces had
been requested by the Senoussi peoples to assist in the common objective of
resistingthe French invasionof their lands. Although tCM playsup the rather
34 CM. p. 19,para.13.
35 CM,p. 179,para.13et%.
36 CM,p. 179,para.135. Emphasisadded.
37 SeeCM, p. 180,para.136.
38 Island of Palmas Case.oow of InternationalArbitrAwards,Vol IL,p. 840.
Emphasis added.(copyof thispaisattached as LCM 15.)strained, arms-length relationship between the Senoussiand the Ottomans,there
is no avoidingthe fact that the Ottoman occupation was peaceful and the French
occupation that succeeded it was not. There is no evidence that the Ottoman
militaryengaged in anyfighting. Moreover, the Ottoman civiland militaryforces,
combined with the Senoussi, maintained effective control throughout the
borderlands and not at a fewscattered postIn particular,as shownon Map LC-
M 41 referred to at paragraph 5.25 above, Ottoman forces occupied posts
throughout Tibesti.
5.32 The &i suggests that the period of Ottoman occupation
was too short, too "éphémère"t,o have established a valid title to the territory
occupied; and it claims there are confiicting views among "authors" over the
length of this period: fiveyears, three years or one year39. While it rnaybe that
French authors and officia1 spokesmen sought to disparage the Ottoman
occupation in later year- and passed their views on to the Britis- the facts
speak for themselves. The Ottoman occupation, combined with the Senoussi
presence, was totally effectiinthe entire borderlands area. Ottoman control
began in 1908and ended in early 1913. This was evidentlylonger than France's
two-year,trulyephemeral, presence inTibestibetween 1914and 1916.
5.33 Another essential point concerns the effect of the Treaty of
Ouchy,which occasionedthe Ottoman withdrawal. The CM makes this assertion
concerningthat event:
'souveraineté'turque a disparu et la situation antérieure s'est
trouvée rétablie,la régionetant, au regard des normes de droit
intematiw! prévalant à l'époque, susceptible d'appropriation
coloniale .
This is incorrect on several counts. The Ottoman nghts, titles and claimsdid not
disappear; they were passed on to Italy in the Treaty of Ouchy, as France and
Great Britain recognized, without resemation, imrnediately after the Treaty was
39 CM. p.180,para.137.
40 CM. p.180para138.signed in1912~'; and as they again did in Artic10of the Treaty of ond don^^.
No concrete assertion of these rightsby Italy inthe borderlands would have been
possible with the onset in 1914 of World War 1, not to speak of the great
difficulties Italy was having at the time even to remain in Tripolitania and
Cyrenaica proper in view of the resistance of the Libyan peoples assisted by the
Senoussi.
5.34 A second mistake in the quoted passage is that thstatus
quo ante was not what theCM perceives. The borderlands were occupied by the
Senoussipeoples, the indigenoustribes holding allegianceto the Senoussi Order.
Their title remained unaffected. The region wasnot terra nullius,as Chad admits,
and hence not "susceptible d'appropriation coloniale" in the absence of
agreement with the peoples having sovereignty. Far from agreeing to French
acquisition of their lands, these peoples fought desperately to keep the French
forces away. Thus, at the end of the perio1899-1912,with the Ottoman forces
withdrawing - as they were obliged to do by the Treaty of Ouc-ythe Senoussi
remained "seulemaîtresse"in the borderlands, as the Histoire Militaire expresses
it43.
SEC~O N. The Period 1913-1919
5.35 As just mentioned, France's initial move north of 15"N
latitude occurrein early1913,when French forces occupied Oum Chalouba, just
abandoned by the Ottomans on the order of the Kaimakam of Borkou. The
French forces were under the overaii command of Colonel Largeau, who had
gone back to France in 1912 to review the developing situation with his
govemment. On 23 June 1913,the French Govemment took the decision to
authorize the invasion of Borkou, and Colonel Largeau returned in September
1913 to cany out this mission.
5.36 It is important to understand why this military move
northward was felt necessary. Borkou and Ennedi -and Tibesti to their nort-
41 See.LM, para.5.11g,seq.
42 See.LM, para.5.150,gtq.Artic10 provideasfollows:
"Al1rightsandprivilinLibyaat presentbelongingto the Sultanbyvirtueof
theTreatyof Lausannearetransferredto Italy."
43 See,para.5.29,above.were regarded in militaryterms as the "northernfront"that had to be secured in
order to protect Chad, which was part of the aut'onomousFrench colony of
Oubangui-Chari-Tchad. It isstrikingin the officialFrench account in the Histoire
Militaire (published in 1931)how Chad (or 'Tchad") is consistentlyreferred to as
lyingto the south ofthe "frontnord",the borderlands. The purpose of movingthe
French military forces north was not to occupy the area; it was to secure the
northern front, from which attacks were being launched against Chad, as the
French military then conceived of it-the area generally in the vicinity of Lake
Chad and to its east and ~011th~~T. his region had been conquered in the long
and difficultstniggles against firstRabbah and then the Sultan of Ouadaï. It had
also been there, in 1902,where the French forces had their first major victory
over the Senoussi -at Bir Alali. The purpose of the French military move north
of 15"Natthe time iswellsummed up in a French studyfurnishedby Chad:
"En résumé,par ses avant-postes du Tibesti, du Borkou et de
I'Ennedi. notre colonie du Tchad est admirablement ~rotéeéeet
sespopulations sédentairespeuvent vivreet travailleef paix"-sans
ces avant-postes c'estla situation de 1911qui renaît, c'est leTchad
ouvert àtoutes les agressionspossibles.
Et ce n'est qu'au prixdes plus sanglants sacrifices, après avoir
abattu les uns apres les autres les grands nomades affiliés à la
Senoussia, dont les crimes en ce pays ne se comptaient p&s, que
nous avons enfin réussiyfaire régnerla sécuritéet la paix ."
5.37 When Colonel Largeau was authorized in June 1913 to
launch his forces northward into Borkou, widespread resistance to the French
once again prevailed in the region between Kanem and Borkou. While the
Ottoman forces were in occupation north of 1S0N,they and the Senoussi had
maintained order to a substantial extent; and the French commander and his
Turkish military counterpart in Borkou got on well together. According to the
Histoire Militaire, the situation had much improved after the Turks had
established control in Borkou, and the forces of the two States were cooperating
to try to eliminate the re~zous~~,whichmenaced the French presence in Kanem.
44 See n thisregarLM. paras.4.115-4.119.
45 CM. Production44, "Etudesurl'occupationTurque auBorkou, dansle Tibesti& dans
VEmedide 1911 à1913'. Emphasisaddedto drawattentionto the term"avant-postes".
46 The tenu"m" is definedin the HistoireMilasa'ungrouped'hommesarmes".
HistoireMilitaire deI'AfriaueEquatonaleFran9.ia,, p. 23LM. Exhibit26.In
fact, the term mvers any active resistancemountedby the indigenoustnbes against
French attempts at occupation, including actnities that the French might have
characterizedas'banditry".With the Ottoman departure, the rezzous resumed, for the Senoussi had no
further incentiveto prevent these acts,confirmingColonelLargeau'searlier Mews
that Borkou and Ennedi would have to be secured if Chad to the south was to be
protected. But the French military forces in the "circonscription de Tchad"
sought, nevertheless, to avoid further confiict with the Senoussi, if at all
47
possible .
5.38 During 1913; there were a number of scattered battles
before and after the mainaultonAÜI Galakka in November of that year:
- On 13May 1913,at the Oum-el Adam wells(18"N),a major
battle took plainwhichAbdallah Tooueur was killed;but
the French failed to pursue the enemy due to the policy
restraints fromParis stillin effe~t~~;
- On 6 June 1913,a group of 60 Bideyat attacked a French
patrol near Oum~halouba~~;
- On August 1913, the Senoussi launched a raid from Aïn
Galakka, across the Bahr-el-Ghazal, on Ati (13"N
~atitude)~';
- On 22 November 1913, a caravan between Tekro and
Mahamidwasattacked;
-
On December 1913, another attack was made on Oum
Chalouba.
These militaryevents are iiiustrated on Mau LC-M43.
47 See,correspondencebetween theChefde circonscriptionde OuadaIandthe Kaimakam
at Ain Galakka. See,HistoireMilitairede I'AfriaueEauatonS.ea,app.ise,
427-431(Acopyof thesepagesisattacExhit bi M13.)
48 m., p.427Exhi bi t 13.
49 m., p.431, LGM 13. 5.39 In November 1913,Colonel Largeau led a large columnS1
northward into Borkou. Commandant Tilho was battalion commander, and had
under him the 7th and 8th companies and supporting artillery. On 27 November
1913,the at Ain Galakka fell to the French and was destroyed. Faya fell
on 3 December. Colonel Largeau at this point made an overture to the Senoussi
for a peaceful settlement, sendiig the widow of tshei kfAïn Galakka to
Gouro as emissaS2. The Head of the Senoussi had by then left, moving the
Order's headquarters north once more to Koufra. In any event, the Order
showedno interest in anyagreement withthe French.
5.40 Colonel Largeau's column moved north to Gouro (14
December 1913), the recently abandoned Senoussi headquarters, and then to
Ounianga Kebir. At Gouro, the French column encountered resistance. After
trying once again, without success,to contact the Head of the Senoussi, Colonel
Largeau ordered the destruction of tmS3. To this day, Gouro remains a
major Muslim shrine, a symbol of resistance against the colonial forces that
destroyed thisholyplace.
5.41 The French established a post at Ounianga Kebir on 26
December 1913. From there a reconnaissance of Tekro was made - but no post
was established at this veritable "point névralgique"on the main caravan route
south from ~oufra~~. Colonel Largeau then turned his column back to Faya.
The French militaryorganization created in the borderlands was clearlyaimed at
the perceived Senoussi threat kom Koufra. BataUion headquarters was
established at Faya, where the 7th company was stationed, to which posts at Aïn
Galakka and Gouro reported (M~D LC-M44). Its objectivewas the protection of
Kanem. The 8th companywas stationed at Fada, with the objectiveof protecting
0uadaïS5. The post at Ounianga Kebir (manned by some 25-30 méharistesor
51 33 Europeans,73Afncans(mainlySenegalese troops,wmprising 407 riflemen), 35
horses,1089cameis.
52 See,Histoire Militairede I'Afriauehuatonale 9. c&,pp. 450-451.
LC-M 13.
53 The domedceilingstructureconstitutingthe most holypartof the mosquewithinthe
m.
54 See,para.5.20.above.
55 CM,Annex112. STRICT SOUTHEAST LINE;
1935 FRANCO-ITALIAN TREATY LINE;
1919 ANCLO-FRENCH CONVENTION LlNE
Limbe,,Canfc,"" conir Proinibn
*.,. i<rura,ai 2D.N.
1:10.40.m
Ki,omri.r<camel-mounted troops) reported to Fada. That was the situation on the ground
at the beginningof 1914,described in thiswayin the Histoire Militaire:
"UNITES (ET REPARTITION) MISSION
7e compagnie Centre à Faya ... Occupation
Postes àAïn-Galakka ... et défense
et Gouro. du Borkou.
8e compagnie Centre àFada Police ds6
Poste àwga I'Ennedi .
Kébir ... .
5.42 In April 1914, Colonel Largeau sent Lt. Fouché from
Ounianga Kebir to theSarra Wellsto studyhow they might be destroyed5'. This
mission (6-26 April 1914)took the French forces well to the north of what was
later to be the 1919Convention line. The Sarra Welis were the only important
source of water between Koufra and Tekro and had been dug, at extreme cost,as
recently as 1898,under the instructionsof the Senoussiat Koufra. Clearlysuchan
objective as the destruction of these wells ran counter to prese~ng and
protecting this major northlsouth trade route and to the peaceful occupation of
the region south of the Sarra Wells. The entirely defensive character of Colonel
Largeau's establishmentof posts inthe borderlands couldnot be better illustrated
than by this incident5'.This destructive policy of Colonel Largeau is al1too
typical of the purely negative attitude which the French adopted in their move
into the borderland-with scant regard for the interests of the inhabitants.
5.43 Consulting the map, it is interesting to note the limited
extent of the French presence in the borderlands at that time (Mau LC-M 45).
The twoprincipal French militaryinstallationsat Faya and Fada were below 18"N
latitude. The post oAïn Galakka lay almost exactlyon 18"N. Gouro, the most
northerlypost (in Ounianga), liesbelow 1YN;and Ounianga Kebir isjust north of
1YN. AU these military installations lay between 18"Eand 22"E longitude. As
shownon the map, the area embraced bythese posts comprised onlya minor part
56 Iisto be notedthat"occupa"f Ennedwas notpan of the 8thmmpany'smission.
57 HistoireMilitairedeAfriauEuuatorialeFranca9.&, p. 458. Emphasisadded,
Frenchnamesforpostsornitted.(A copyof this pageis at&!&& LGM 13.)
58 m., p.456andhiL.M.Exhibi26.
59 Sec . M.para.5.116.of the borderlands. None of these posts lay even close to the so-called "Aouzou
Strip",a term that of coursewas unknown at the timèand onlygained currencyin
the 1970s. Also of interest is the fact that al1of the French posts established by
the end of 1913 lay to the south of a tme southeast line under Article 3 of the
1899Declaration.
5.44 The post at Gouro - lying to the southeast of the Tibesti
massif-,which Colonel Largeau first entered in December 1913,was established
on 18 November 1914. It willbe recalled that, at the end of 1914,Colonel (by
then a General) Largeau made a proposa1 concerning Gouro, described in this
waybyFrench sources:
"[Lle GénéralLargeau avait envisagéla possibilitéde la remise
volontaire de Gouro aux enoussistestraitant aveceuxcomme avec
une puissanceorganisée4 ."
This idea was revived in 1916in the Iight of the French fear of Senoussi attacks
from Koufra; and it was augmented byincludingthe oases of Ounianga Kebir and
Ounianga Saghirin order to lightenthe load ofdefending~orkou~l.
5.45 The fact that in 1914, and again in 1916, the voluntary
renunciation of Gouro and the two Ounianga oases was seriouslyentertained by
the French commander and, in 1916, by the Administrateur du Temtoire du
Tchad (Merlet) illustrates the limited French interest in areas north of the main
bases of Faya and Fada, as weiias the difficultiesencountered in maintaining
these posts. The proposal, however,was rejected by the French Government in
Paris for the reasonsset forth inthis abbreviated cable:
"Gouverneur Généralcâble Ministre Colonies a transmis avec avis
favorable proposition évacuerGOURO. Ministres Guerre et
Affaires Etrangères ont fait objections. formelles outre intérêt
maintien pour négociationsultérieuresavecTALIE tout abandon
poste en pays musulman serait suceptible [&] de produire
actuellement effet fhchew et être envisagé com T! v!ictoire
senoussiste. Indispensable maintenir occupation Gou.o
60 SeeLM. para.4.165.
61 Dispatchesfrom Merlet, Adminiitratorof the temtory of Chad,dated 24 December
1915,20March,17Juneand1Jul1916Exhib LC-M 16.
62 Dispatchof 17June 1Exhib iC-M 16. 5.46 Thus, with an eye to future negotiations over Libya's
southem boundary with Italyafter the War, and feanng that sucha move would
further encourage Senoussi resistance, the French Govemment rejected the
proposa1received from Merlet and Largeau. The officia1French thinking at the
time was expressedbyMerlet in hisdispatch to General Largeau of 1July 1916:
"D'après information du CAIRE, MOHAMED EL IDRISSI
comme première uestion ses pourparlers avec Italiens et Anglais
abandon OUAD À lar Français. Dans ces conditions évacuation
D'autre part abandon partiel BORKOU et TIBESTI pourraitse.
provoquer revendication sans contre-partie Italiens se substituant
après guerreà Senoussistes. Pour concilier intOrêtosésen
cause, Guerre suggèreconfiergarde postes BARDAI et~ à0
détachementpartisans indigènes sous lesordres [d']unchef choisi
par commandement territoire recruté danslan pouvant nouer
intelligence avec populations etvitaillé penodiquement par
colonne méhariste qu'on a proposé former FAYA Fin citation
Estime a non avec Commandant militaire que GOURO et
que par garnison tirailleurs et que dans étatactuel des choses ne
pourriez trouver dans population BORKOU partisans et chefs
indigènes suffisamment braves etyaux pour qu'on puisse leur
confier postes français.Serais ob é nous faire connaître
télégraphiquementvotreavisàce suje.
This dispatch points up the difficultiesbeing encountered by the French in mid-
1916 to maintain posts at Bardaï, Gouro and Ounianga Kebir. The principal
reasons against abandoninghese posts, as the local authorities wished.to do,
concemed maintaining a strong position in the light of the negotiations envisaged
to take place with Italy as well as not to betray a sign of weakness to the hostile
indigenous peoples and the Senoussi, who were clearly not interested in
cooperating with the French.
5.47 The French militarymove into Tibesti started at the end of
1913,with a French column under Commandant Lofler, which departed from
Bilma (in Kaouar), amving at the plain of Zouar on 9 December, where a post
was established. It willbe recalled that until 1930the administrative dividingline
between the A.O.F. and the A.E.F. left a large part ofTibesti t(mthe A.O.F.
63 Dispatcho1Jul1916. LCM 16. 46)64. Thus, unlike the French move into Borkou and Ennedi, which was
accomplishedbyColonelLargeau, reportingto the A:E.F.,Tibestiwas considered
administrativelyto fall within the responsibilities of the A.O.F. It will be noted
that Zouar lies on the southwest edge of the Tibesti massiE so the first real
incursion of French forces into the heart of Tibesti occurred on 23 July 1914,
when French forces moved into Bardaï, a move descnbed in the followingfashion
byan officialFrench source:
"Après des hésitations, le Gouvernement français donna enfin
l'autorisation de poursuivre et le 23 juillet 1914,6pos troupes
hissaientnos couleurssur l'ancienfort Turc de Bardai ."
5.48 Just as had occurred in 1914in respect to the part of the
borderlands comprisingthe regions of Borkou, Ennedi and Ounianga, so here at
Bardaï in Tibesti, the local French authorities proposed almost at once (on 13
August 1914) to abandon Bardai. The same French source, cited in the CM.
described the situation asfoilows:
"Le 13 Août 1914, les autorités de I'A.0.F. songaiont [&] à
abandonner Bardai. Mais les instructions du Gouvernement
français étaient formelles: 'Ne rien abandonner dans le Centre
Africain'. Bardaï resta donc occupé. Malheureusement en Août
1916, devant les menaces d'attaques senoussistes qui lui
parviennent très grossies, le commandant local au Tibesti évacue
sans ordre nos postes, découvrantainsi Bia. Le Gouvernement
français proscrit aussitôt la réoccupation de Zouar qui était en
cours au momesdes affaires d'Agadir (décembre 1916)mais qui
ne se réalisepas ."
So it appears that, pnor to August 1916,Zouar had been abandoned, and Bardai
wasthen vacated, ending the "éphémère"Frenchpresencein Tibesti.
64
The transfer of Tibesti tAE.Eewas a wnsequence of the French military movesinto
Tibesti anwas made for tactical reasons in the iight of Italian pressures from the nonh
and the presence of a substantial number of Arab refugees îïeeing south from the
ItaliansSec.Histoire Militaire de l'Afrique Eauatoriale FraS.aia,, p. 485.
LCM 13.
65 CM, Production 47. It isnoted that the last page of thisdocument isMnuaUyillegible.
66 CM, Production 47. In a Dispatch 30July 1929,the Minister of Colonies gave an
additional reason for thisuation of Tibesti:
"[Pleurdes raisons matkrieUes, difficultt3 de relève et de ravitaillement des
postes installh."
CM,Annex 114. InProduction 25 (th1928Saint Report), the long distance between
Bardaiand Biima isindicatasa cause of abandonment. 5.49 It isregrettable that the ms account of thisTibesti episode
isso disingenuous:
"Comme on I'a déjà noté, le caractère montagneux du Tibesti
amena la France &retirer ses garnisons de cette régiondans la
période1917-1929 ."
The problem had nothing to do Withmountains. A prime cause of the French
withdrawal was the resistance of the local tribes under Senoussi leadership.
There was also a notable lack of support at the local French military level for
maintainingthese posts,whichwere so far from Bilma.
5.50 Thus, the situation on the ground in the borderlands at the
time the 1919 Convention line was agreed between Great Britain and France
(modifymgthe lineset out inArticle 3 of the 1899Anglo-FrenchDeclaration) was
the following (M~DLC-M 44 referred to at paragraph 5.41 above). The only
substantial French military installations were at Faya and Fada, with a post just
Westof Faya at Aïn Galakka and two posts in Ounianga (Gouro and Ounianga
Kebir), whichthe local French authorities wanted to abandon. The contention in
the CM that, starting in 1913 and prior to 1919, French effectivitéshad been
established within the borderlands up to the 1919line has no basis infact. At the
very most, the French had established military bases within only a small part of
the borderlands,as shownon Mar>LC-M44. No French presence existedin 1919
withinthe part of the borderlands that in the 1970swas giventhe name "Aouzou
Strip"; no French forces had established a military post of any kind north of a
strict southeast line under Article 3 of the 1899Declaration.
5.51 The limited French presence in the borderlands brought no
peace to the region. The French continued to encounter the armed resistance of
the indigenous peoples68. The Histoire Militaire descnbes the 1914-1915period
in thisway:
"Sur le front nord la propagande allemande chez les dissidents
tripolitains et les excitationsturquesadresse de la Senoussiya,la
proclamation de la guerre sainte et la formation de bandes armées
senoussistes hostiles la France n'avaient pas encore fait sentir
67 CM. p.251para.162.
68 Thevariousmilitarbattlesfougby theFrenchintheborderlandfrom 1914onwards
aredepictedonMau LC-M 48,referredtoatpar5.60below. leurs effets. Par contre les Toubbou pillardsétaientsingulièrement
tentés par les convois de ravitaiiiement du Borkou ainsi que la
reprise du trafic caravanier. Les opérationsmilitaires sur ce front
en 1914 et 1915 prirent la forme de contre-rezzous souvent
heureux 69.00
5.52 The leader of the Toubou peoples in the region of Gouro,
Mohammed Erbe'ïmi, wasone of the prime movers inthe struggle against the
~rench~~. In the wake of an expedition by Captain Lauzanne into the region
south of Emi Koussi, inflictinglosseson the local tnSheik hrbe'ïmiattacked
the French post at Gouro on 18 November 1914. On 12 March 1915 "un fort
m" comingfrom the Abo region WestofTibesti attacked a convoyin the area
of Yékiain Borkou just Westof the caravan route between Borkou and Zigueï
(Mau LC-M 47). Senegalese soldierswere reported to have acquitted themselves
well on this occasion71,but as that route represented the unique crucial line of
supply for the advance posts in Borkou, such an attack std offered grounds for
serious concem. Asthe Histoire Militaireput it:
"Malgré l'activitédes méharistesR, la sécurité deslignes de
communications restait précaire. Les pillards trouvaient dans les
populations dissidentes de la régionmontagneuse de'EmiKoussi
un milieu favorable pour la formationdeslfezzous et un refuge
pour refaire les animauxet abriter les prises
5.53 During April-June 1915, Captain Lauzanne led another
foray from Faya passing through Gouro and attacking the camps of the local
"dissidents". The French column continued on north to Ouri and then, on the
retum trip to Faya, passed by Emi Koussi, where other dissident camps were
attacked with apparent success, although the Histoire Militaire reports rather
short-livedeffects:
"Cesbrillantsrésultatsgarantirent la paixpour quelques moi.!
69 Histoire Militderl'Afriqhuatonale Francaise9. &, p.460. (Acopyof this
pageisattachedExhi b itM13.)
70 -bid.
71 m., p. 461. LC-M13.
72 Camel-mountedtroops,normallySenegalese.
73 Histoire MilitdeI'Afriahuatoriale Francai,J.a. p.462.Exhib iC-M 13.
74 m., p.464. LGM 13. 5.54 This prediction proved to be accurate: fightingcontinued in
the borderlands, and rumours of fresh rezzous were circulating. Commandant
Tilho, in Faya, decided to take action.In September 1915,he led a column of
some 60 African troops to Emi Koussi and the Miski valley - "place de
rassemblement naturelle des rebelles" - and "dissidents"were dispersed leaving
behind prisoners and ~ounded~~. It was during this expedition that
Commandant Tilho prepared the first accurate map of ~ibesti~~. Fighting then
broke out to the east ofTibesti at Tekro where:
"..un rezzou de 120 fusils venu à Tékro fit indre I'amvée
prochaine de forces senoussistes plusimportantesI.
5.55 That the French were at this time very anxious - no doubt
because of the continuingevidence of the resistance of the indigenouspeoples to
the minimal French militarypresence in the borderlands -not to start any direct
conflict withthe Senoussi is confirmed by the action taken by Merlet (the French
Administrator in Fort Lamy -now N'Djamena) on 29 December 1915. On that
date, Merlet instructed the French military commander (Commandant Tilho)
strictly to interpret standing orders dating from 10 September 1915, to &
provoking.conflict withthe Senoussi. In particular, he wasnot to advance into the
region of Ouri to punish "dissident"Toubou, for then he wouldbe in the north of
Tibesti, almost on a levelwith the Sarra Wellsand too far awayfrom the post at
Gouro 78 .
5.56 Merlet's nervousness about the exposed French position in
the borderlands is further conEirmedby the warning he gave to the Govemor
General of the A.E.F. (in Brazzaville)in March 1916,that an "attaque du Borkou
par troupe organiséeet bien arméedoit êtreenvisagée"79.He reported that the
two companies at Faya and Fada had been reinforced and indicated that under
current instructions Gouroand Ounianga Kebirwere to be evacuated in the event
75 -bid.
76 SeeLM. para.5.250andMapNo.67.
77 HistoireMilitaire del'AfriqueorialeFrancaiS.,a, p.466. LC-M13.
78 See,DispatchfromMerletdate24December 1915. LGM 16.
79 TelegramfromMerletdated20 March1916.(A copyof the telegramappearsat
LC-M16.)of attack by supenor forces. He also noted the difficulties of reinforcing the
isolated garrisonsat Faya and Fada from Kanem:
"D'autre part Faya est séparédu Kanem par zone absolument
désertique de cinq cents kilomètres avec une seule route par
YEKIA. point. [&] Les puits du Bahr el Ghazal creusés
hativement se sont effondrés."
5.57 The incidemat Tekro and fear of an imminent attack by
Senoussiforces caused the French to take the offensiveoncemore and attack the
stronghold of Mohammed Erbeïmi.Shei krheüni evaded the attackingFrench,
but a Senoussifrom Koufra was capturedlekhouan Bou Gheit venu de Koufra
prêcherla résistanceaux rebellesw80.The situation issummarized thiswayin the
Histoire Militaire:
"Dans les mois qui suivirent, les coups de mains des dissidents se
forienne se précisait.)unit.sse rassemblèrent pour faire face
aux fortes8pkas signalées, les patrouilles de police furent
suspendues ."
Reinforcements £rom Ouadaï and Kanem were dispatched to Faya. In Ennedi,
meanwhile, "les dissidents rendus plus agressifs par les bruits tendancieux
répandus" were keepingthe méhariste troops busIn July1916,a camp near
Faya was attacked. Then, in Octob1916, Erbe'ïmireappeared at the head of
800 men. The French 7th Company destroyed part of the band, wounding
Erbeïmi, whobarely escaped. Bythe end 1916the situationwas the following:
"En résumé,fin 1916,la situat'sur cette frontière restait sinon
grave tout au moinsinquiétant.
5.58 While this fighting wasgoing on in the borderlands, well to
the south (around12"N latitude) the Sultan of Sila and the Sultan of Darfour
revolted against the French, having been "[slecrètement travaillés par les
80 HistoireMilitairede 1'Afriauehuatonale 9.a&.,ip. 467(Acopyof this
pageisattachedat LGM 13.)
Ibid.
81 -
82 -bid.~enoussistes"~~. During 1916,both the French and British had their hands full
trying to restore order in this region far to the south of the borderlands.
5.59 During 1917-1918, Faya and Fada were again reinforced,
and the French once more went on the offensive; Commandant Tilho "pensa le
moment venu d'assainir les Another attack was launched against
Mohammed Erbeïmi in the Tekro-Arouelli region, culminating in a bayonet
attack in which "lesToubbou perdirent des tués,des blesséset presque tous leurs
chameauxug5. But the troubles in the borderlands were hardly over:
"Lasécuriténe pouvait êtrecomplètetant que des chefs dissidents,
comme Mohammed Erbeïmi, pouvaient espérer la venue
prochaine d'une force senoussiste. Un contingent d'une
cinquantaine d'hommes venait encore d'amver de Koufra sous les
ordres du chef khouan Rheit Bou Kreïm et restait en observation
dans i'Erdi-Ma. Avec la complicitéd'un chef félon duMortcha qui
avait donné les renseignements nécessaires,Mohammed Erbeïmi
attaqua un convoi de mil dirigéde Oum Chalouba sur Faya et
escortépar quinze tirailleurs sous les ordres d'un sergent indigène.
Surprisa Goumeur le 7 mars à l'aube, les tirailleurs se défendirent
bravement. Douze d'entre eux dont le sergent furent tués et le
conv8j;fut enlevé.Le coup fait, Erbeïmi se retira en hâte vers le
nord ."
5.60 This attack on a French convoy occurred south of Faya and
Fada, illustrating the isolation of the French forces and their inability to control
the borderlands around their gamson(Mar, LC-M 48). The incident was also an
illustration of the continuing involvement of the Senoussi with the peoples of the
borderlands. For followingthe battle, Erbeïmiheaded north for Ennedi and Erdi,
to rejoin the Senoussi forces there. The French 8th Companymoved north in an
attempt to cut off the Senoussis' return route to Koufra, and French attacks
inflicted serious losses on the dissident tnbes. Erbeïmi sought assistancefrom the
SenoussiOrder in Koufra,but this was denied by the Head of the Order, who the
French believed feared an attack on~oufra~~. The Senoussi concern over a
83 m., p466. LC-M13.
84 m., p476. (Acopyothispagis attached at LC-M13.)
85 m., p477.Exhi bCitM13.
86 -bid.
87 m., p479.Exhi bGit 13.French attack on Koufra is borne out by contemporary British documentsg8. It
led the British Government to confirm in 1914 the'assurances gken to Italy in
1907that Great Britain consideredKoufra to lie in Libyan territo~~~~.
5.61 Despite the losses inflicted on them by the French, and the
refusal of overt Senoussi reinforcements from Koufra, whose security was
considered to be threatened, the indigenous peoples continued their resistance in
the borderlands, even though the'strength of their attacks had diminished. For
example, in 1918,rezz fomu Tibestipenetrated the region of Egueï in Kanem
(Map LC-M 48). In April 1919,according to the Histoire Militaire. a méhariste
section of the 7thmpanyin Faya ventured to the southem edge of the Tibesti
massif and pursued the avant-garde of a Tuareg rezz andu "fit avorter les
agressions combinées de cinq re~zous"~~. It is noteworthy that resistance
continued longafter the end of World War 1:still further evidence that this was
indeed spontaneous, indigenous acti-nnot simply the strategic manipulation of
disaffected individuals by the Central Powers attempting to create an
embarrassmentfor France during the European War. InJuly 1919,other attacks
were conducted by French troops from Faya against "dissidents" in the
borderlands. Inaddition,attacks occurreinthe Abo region west of Tibesti "où
la surveillance étaitdifficiledepuis i'abandon du ~ibesti"~~.
5.62 Thus, at the end of the period 1913-1919, when Great
Britain and France entered into the Convention of 8 September 1919,swinging
the end point of the 1899 Declaration line (under Article 3) 4" of latitude
northward, the foilowingwas the situation on the ground:
- French forces had gamsons or advance posts in only a small
sector of the borderlands (Map LC-M 44);
-
None of these posts extended north of a strict southeast line
under Articl3 of the 1899Declaration (Map LC-M 45);
88 Sec .oreignOffidocumentsfromtheBritisharchisate1914. 17.
89 -Ibid.
90 HistoireMilitairede1'AEquatorialeFrancaa,.a. p.483. LC-M 13.
91 -Ibid. - The French were in no way in control of the borderlands
region extending up to the 1919Line;
- Such French "occupation" as existed in the area was
anything but peaceful, and it was entirely military.
5.63 In the part of the CM that deals with French colonial
effectivitésbetween 1913and 1919'~,no attempt is made to demonstrate that the
French military invasion of the borderlands constituted, by 1919,the "continuous
and peaceful display of the functions of State" up to the 1919line. Chad's case in
this respectrests onuch unproven assertions as this:
"La France, quant à elle, occupa B.E.T. en 1913-1914,et depuis
lors--sauf une brève parenthèse pour c~pi est du Tibesti--ne
cessa pasd'yexercer son autoritéeffective."
It has been demonstrated above, relying on the official French military history of
relevant events and on documents introduced by Chad, that this assertion is
incorrect in many respects. Furthermore, while tCM ignores this aspect of the
activities of the French military in the borderlands during this period, it certainly
cannot be said to have been a peaceful display of the functions of State. There
was continuous fighting from the start to the end of this period and even beyond
(Mau LC-M 48). The indigenous peoplesand the Senoussi Order never accepted
the French presence in their lands.
5.64 Rather than addressing these sorts of factsCMthrelies on
other elements: (i) French legislation; (ii) French civiland military administrative
acts during the period (to which only four lines of CMe are devoted and for
which no evidence is produced); and (iii) the aileged confirmation of French
effectivitésby Italy. The last point has been dealt with e~sewhere~~.Only French
legislation during the perwiiibe considered here.
92 CM,pp.254-261,paras.175-203.
93 CM,p.254,para. 178.
94 See,para.4.199a., above. 5.65 The first French legislative enactments affecting the areas
south of the Libya-Chadborderlands were discussed.inthe wg5. 'The CM does
not mention at al1the basic French decree of 5 September 1900establishingthe
''circonscriptionspéciale"called the "tem.toire militaire des pays et protectorats
du Tchad". The significantthing about this decree is that it bears out what has
been said above -that what was considered to be "Chad" lay south of the
borderlands, whichwere regarded in military terms as the "northem front". The
1900 decree mentions no regions to the north of the Chad basin and its
tributaries, other than Baguirmi, Ouadaï and Kanem, as fallingwithin "lespays"
placed under alleged French domination under the 1898 Anglo-French
Conventionand 1899~eclaration'~.
5.66 The alsoignores the subsequent 1902decree, beginning
its discussion only with the 1906 decree. (The relevance of the other decrees
issued between 1910and 1915mentioned in the is not explained.) Included
withinthe "militarytemtory of Chad"under the 1906decree were:
"..au nord de l'Oubangui-Chari l'ensemble des rémonsvlacées
sous l'influence de la France en vertu de, conventions
internationales et ne dépendant pasde[the A.O.F.Iy'."
This definition excluded, first of all, most of Tibesti, which had been
administrativelyallocated to the A.O.F., until 1930(Mau LC-M 46 referred to at
paragraph 5.47above). Secondly,on no account could anyregion north of 15"N
latitude be considered to have been "placedunder the influence of France" under
the 1898and 1899Anglo-French agreements,as has been amply shown above in
Part IV aswellas inthe LM, Part V.
5.67 Thus, the decreesadopted by France pnor to 1919,on their
face, failed to embrace the borderlands, and they confirmed the rniiitary
conception at the tirne of this sector being a northern front whose role was to
protect "leTchad utile". Even had the decrees embraced what the callsthe
"B.E.T.",itdoes not follow that such an assertion of authority could have been
binding on the Ottoman Empire (pnor to the 1912Treaty of Ouchy) or on Italy
95 See ,M. paras.4.115-4.119
% Of course, the decree was wrong in referringIo these lands as within French
"domination"nderthesetreaties.Se,M,para.4.117.
97 CM. p.256,para.188. Underlinedintext.(after 1912). The CM suggests these legislative acts constitute "une preuve
éloquentedu fait que la France considéraitleB.E.T.comme un des territoires
africains soumis à son autorité so~veraine"~~;but the 1900, 1903 and 1906
decrees were al1issued at a time when it was the Ottoman Empire, not Italy,that
had sovereigntyover Tripolitania-Cyrenaica and hence held any rights and titles
over their hinterland. The Ottoman Empire had vigorouslyasserted these rights
and titles and repeatedly disputed any French claims in the area. The decrees
mayhave "eloquently"expressed France's aspirations,but they were not matched
byaction on the ground. For it wasnot untilthe Ottomanthdrawalin 1913 that
French forces movednorth of 15"Nlatitude, the de facto linebetween their forces
in the meantime being respected bythe localFrench and Ottoman authorities.
5.68 The onlyother argument left to Chad is that Italy confirmed
the French effectivitésin the borderlands. Aside from the defects in this
contention, dealt with e~sewhere~~,it is evident that Chad cannot evade the
burden of proving the basis of French title, on which it relies, by the indirect
means of contending that Italy recognized such title. There was no such Italian
recognition, as has been shownabove; but the basic premise advanced by Chad is
false. Italycould not recognize a state offacts that did not exist,particularlywhen
the Italians had verylimitedknowledgeof the French activitiesin the borderlands
in the penod duringWorld War 1andjust after it.
SECTIO 4. The Period 1920-1935
5.69 Until 1929-1930, the situation on the ground in the
borderlands did not appreciably change, although the Histoire Militaire reveals
that by 1930the post at Gouro, previouslymanned by the 7th company at Faya,
had been eliminated and replaced by one at Oum Chalouba (400 km further
south, below 16"N). As to the 8th company at Fada, the onlypost it manned to
the north wasOunianga Kebir. This post had ceased to serveits originalpurpose
of controiiing the caravan trade, for the indigenous peoples had rerouted the
caravan traffic from Cyrenaica to Ennedi and Ouadaï through Ounianga Saghir,
where there was no French postlOO. This led the French authorities in 1933to
98 CM. p.256,para185.
99 Sec .ara4.199gta. ,bove.
100 -, Histoire MiliteeI'AfriaueEquatonaleFranca,.a. pp.486-487(Ampy
ofthesepagesis attachedat LGM 13.)decide to establish a post at Tekro, an event that led to the Tekro incident with
ltalylO1,whichwillbe dealt with below after consideringthe intervening French
occupation ofTibesti.
5.70 Tuming again to Tibesti, it has been seen that the twoposts
of Zouar and Bardaï, unenthusiasticallyestablished and manned starting in 1914,
were abandoned bythe French in August 1916. Until 1929,there were no French
rnilitaryinstallations in this part of the borderlands. The only French activityin
Tibesti consisted of occasional "tournées"through the region by camel-mounted
méhariste troops from Bilma under the command of Captain Rottier and,
apparently, similar "tournées"into Tibestiemanating from Faya as well (Captain
Aubert). The situationwas authoritatively describinthese words ina "Note du
Secrétariat Généraldu Conseil Supérieur de la Défense Nationale" of 12
December 1928:
"LeTIBESTI n'est pas actuellement occupéen permanence, il est
parcouru de temps en temps ar nosunites méharistes,notre ligne
de couverture englobant le8 orkou, laisse le Tibesti en deho-s
Toutefois sur les demandes réitéréesdu Gouverneur Généralde
Zouarka au sud de Bardaï f~.pagnie doit &treinstalléen 1929 à
5.71 The CM presents the situation in Tibesti differently:
"Comme on l'a déjà noté, le caractère montagneux du Tibesti
amena la France à retirer ses garnisons de cette régiondans la
période1917-1929. Pendant ce laps de temps, le Tibesti ne fut pas
occupé par la France d'une manièrel@ntinue, mais parcouru
régulièrementpar des unitésméharistes ."
This gives a misleading impressionlo4. The reconnaissance and surveillance
missionswere intermittent, not regular. There is a record of only a handful of
such missions during this 13-14year period. The lkst reported mission was a
contre-reuous expedition by Captain Rottier (from Bilma) in February-March
101 The French post at OuniangaKebiwas evacuate& 1940. The post at Tekro,
establishedin December 1wasabandonedin Aprii 1941. LC-M 18contains
anextractfromthe"HistoridupostedeTekro".
103 CM, p. 251,para.162.
104 Sec,para.5.4g,a.,above,fortherealreasonswhytheTibestipostswere evainated
August1916,whichhadnothingto dowith theregion'smountainousterrain. 1922into the Abo region Westof the Tibesti &flo5. The troops under French
command camed out reprisals against the "irréductibleof Abo, passingthrough
Wour and Bardaï on their return to Bilma (Mau LC-M 48). This was not a
regular "tournée"at all, but the taking of reprisals against "dissidents"in the
region of Abo. The incident brings out the fact that resistance by the indigenous
peoples and fightingbetween them and the French had not ended.
5.72 Dunng JuneiSeptember 1923, a second French expedition
under Captain Couturier visited Guezenti and Aouzou, returning Ma the Miski
valleyto Faya. The long report of this trip is fullof sketches and data comprising
geographical observations, but there is no mention of the indigenous peoples or
the politicalsituation in Tibesti at a111°6.Evidentlythiswasessentiallya scientific
undertaking. Then in January 1929,Lt. Mear led a patrol through parts ofTibesti
givingparticular attention to the Bard-Koufra route and immigration along it.
The only other documented military missions were the separate "tournées"of
Captains Rottier and Aubert in 1929, mentioned above. The purpose of the
overlapping missionswas expressed as followsin a dispatch of 17April 1929from
the French Minister of Coloniesto the Minister of Foreign Affairs:
"Ces tournées doivent avoir pour résultat de nous mettre en
possession de renseignements précis sur la répercussion des
opérations italiennes sur nos temtoires et de penqfiyre une
organisationplus serréedela surveillancede la frontière."
The does refer to a scientific mission proposed to be undertaken in the
Tibesti area in 1929. Once again,the reasons behind the missionrelated to Italy's
moves in the regions north of Tibesti. As expressed in a dispatch of 22 July
19291°8from the Minister ofForeign Affairsto the Resident General ofTunis:
"L'activirécente desItaliens en Tripolitaine et les revendications
formuléespar certains de leurs organesme[&] paraissent accroître
encore l'utilité]&l;ence d'unemissiond exploration scientifique
danscette région .
105 See ,M. Productio18.
106 SeeC,M. Production21.
107 CM .roduction27.
108 See .M, p.248para .49.
109 CM. Production29. 5.73 Thus, several conclusions emerge from this evidence
concerningTibesti in the period from 1919to 1930:
- The several "tournées" were motivated by reasons other
than the occupation of the region, such as retaliation for
rezzous and anxiety over the effects of the Italian moves
southward; their purpose was reconnaissance and
suiveillance,not peaceful settlement, nor any concem for
the protection or enhancement of the indigenouspeoples;
- Fighting between the indigenous peoples and the French
continued (M~D LC-M 48);
- As1930approached, the French grew mindful of the future
negotiations to be undertaken with Italyover the boundary,
and French moves were carefully calculated in relation to
these negotiations.
The minimal contacts with the local peoples of Tibesti during this time and the
continuing unrest there are brought out inCaptain Aubert's 1929report, where
he refers to the region ofAouzou in these terms:
"..régionqui, depuis l'évacuationdu Tibesti, n'a étvisitéequ'une
seule fois en 1923.dont les habitants n'ontamais étésoumis à la
moindre action politique et d'où sont sort&. surtaut en 1926 et
1927.de nombreuxrezzous sur le Nord de 1'EnnediUu."
5.74 The Qj attributes the French decision to occupyTibesti to
the fear that after Italy conquered Fezzan it would send troops south "pour
s'emparer du ~ibesti""~. But the decision was also taken in the light of the
umesolved question ofLibya'ssouthern boundary, as weiiasthe immigrationinto
Tibesti of large numbers ofpeoples fleeingfrom the Italian forces that had rnoved
south to the area of Koufra in qenaica and to Fezzan. It willbe recalled that
from 1919onwards, Italy and France had been engaged in negotiations over this
frontier. In 1928-1929alternative proposais had been formulated and even
formalty exchanged. France's move into Tibesti was directly related to these
110 CM. Production45.Emphasisadded.
111 CM. p.248,para.150.circumstances; and Italy protested the French move, as the evidence showsand as
Chad concedes112.
5.75 Chad has produced with its Memonal a number of
documents that bear out what has just been said above.Inan impassioned appeal
of 9 March 1929 to the Govemor General of the A.E.F., the Lt. Govemor of
Chad sounded the alarm over reports that in conversations with Italy, in return
for concessions to be made to France in Tunisia, there was being considered "une
rectification de la frontière'du Sud de la ~ri~olitaine"~~'In a statement that
clearly distinguished betweenChad and Tibesti, he wamed:
LI'Italie sait qu'occuper le Tibesti, c'estfiffarl'occupation du
Tchad, et que le Tchadvaut d'ktre occupé .
This dispatch argued that the unity, security and future of France's colonial
African Empire was threatened byproposals, then current, to recognize Tibesti as
part of Libya.
5.76 The French Ambassador in Rome (Beaumarchais) advised
in a dispatch of 20 February 1930 that in order to blunt Italian claims to the
borderlands -
"..nous devons actuellementfaire acte de présence dans les points
avoisinant la frontière des temtoires libyens de manière à enrayer
toute velléitéitalienne d'occuper, en notre absence, des parcelles
des temtoires jadis soumis a la domination turque et où les
coloniauxl&a!iens se prétendent appelés par droit de
succession .
Ambassador Beaumarchais was at the time in the centre of the Franco-Italian
negotiations concerning Libya'ssouthem boundary, and he weii appreciated the
interconnection between moves on the ground arid the on-going negotiations116.
So did Italian Ambassador Manzoni in Pans, who advised Rome to express
112 Sec .i124,below.
113 CM. Production26.
114 m. Ekewhere in this same dispatcisnoted that"La route desen~hiSSe~rsdu
Tchada toujourspasseparle Tibesti."
115 CM. Production35.
116 See,x..LM, para.5.271.reservations concerning reported French Government instructions following
Captain Aubert's expedition into Tibesti, to occupy three centres in Tibesti:
Bardai',Wour and sherda117.
5.77 On 29 April 1930,the Minister of Colonies requested the
Govemor General of the A.E.F. to come up with a plan before some mishap by
the Italians should "affirmerla précaritéde notre occupation ."Il8. What the
French authorities had inmind - and this was issued as an order to the military
commander of chad119 -was to create a "zone à sweiller" consistingof a "ligne
de surveillance"120(Mar, LC-M 49). Where the line intersected the northlsouth
routes it was to be manned by a half-section of méharistesl2l. Behind this line,
posts were to be established at Wour, Bardaï, Aouzou, Gouro and Ounianga
Kebir, backed up by posts at Sherda, Faya and Fada. The French military
instructionsof 1930contained these interesting directions and remarks:
"Pour le cas où la ligne de surveillance quivous est indiquéene se
prêteraitpas à une occupation, vous déterminerez d'entente, avec
le Gouverneur du Tchad, la ligne des premiers points d'eau
au sud de la frontièretripolitainepour barrer toute infiltration .
The French instructions addedthat:
kilomètres. ...La frontière elle-mêmen'a iamais étedélimitéeet,
partant, soqjlacé n'est signalé par aucun repère géographiqueou
géodésique ."
5.78 The implementation of these orders resulted in French
militaiy posts being established north of a strict southeast line under Artic3eof
the 1899 Declaration. This provoked an immediate Italian protest on 19 May
~- -- -
117 Se, CM.Production36.
118 SeeCM.Production 46.
119 Bythistime, Tibesi adben switcbedadministrativelfy&mtheA0.F. to theAEF.
120 Michitaba,kdri,KayougukdeTardoBO , yowrou,Ouri,Tekro.
121 CM. Annex 128,a reporton the Frenchoccupationof Tibesti 1930-1931& also,
Productio46,whichistheexactsamedocument.
123 m. Emphasisadded.1930'~~~ and protests from the Italians were to continue. Nevertheless,CMhe
attempts to make out a case of Italian confirmation of French effectivitésfrom
the vanous dispatches and the notes verbales exchanged in 1930 and 1931,
including those relating to the incident created by General Balbo's overfiight of
part of the borderlands 1931.An analysisofthese documentsreveals there was
no suchItalian recognition at all.
5.79 To pickjust one example, at page270-271 (para. 241),the
quotes from an Italian to the French Government of 11July 1931 in
which the Italian Foreign Minister made this statement in discussingthe Balbo
overflight:
'This being so and since the frontiers in these regions between
French E uatonal Africa and Tripolitania have not vet been
delimited?ne sont Dasencore delimitées), itwould be diffïcult to
ascertain precisely whetheris Excellency General Balbo always
stayed wityip limits of Italian temtory during his £iightas was
hisintention ."
The CM sets out a portion of an interna1 French dispatch, in which the Quai
d'Orsay indicated that Italy's response in this note of 11 July 1931 was
substantially acceptable:
"Laréponsede M. Grandi, d'ailleursconçue en termes trèscourtois
et conciliants, ne contient aucune affirmation qui appelle la
contradiction. 11est exact notamment que les frontières entre
l'Afrique Equatoriale Française et la Tripolitaine n'ont pas été
'délimitées' sur terrain bien qu'elles aient étédéfiniespar les
accords franco-anglais de1899 et 1919. Dans ces conditions, je
,.. crois qulilyaurait plus d'inconvénientsque d'avantagesàprolonger
la disfygp avec le Gouvernement italien au sujet du raid
Balbo .
If the underlined portions of the extracts quoted above are compared, it can be
seen that the Quai d'Orsay'ssummary totally changes the meaninof the Italian
note ":ave not yet been delimited" ("ne sont pas encore délimitées")is quite
different from "n'ontpas été'délimitées' lr terrain". This incident reveals the
124 See.LM.para.5.273,et-q., andFrenchArchivesAnnex,p.393. At p.269,para.236,gt
a. ,he acknowledgeItaly'sprotests.
125 See.CM, pp. 270-271,para.241. The English transof the 11July 19not es
attachedat LGM 19,p.7,alongwithothercorrespondencrelatingto the Balbo
wertlightincident.
126 CM. p.271,para.242,andProduction49. Emphasisadded.contrary of what theCM claims;the incident ended in a backdown by France to
avoid a confrontation with Italy over Libya's southern boundary. The Quai
d'Orsaychanged the meaning of Italy's note to mean, in effect, no "demarcation"
existed; and on this basis the French Government convenientlyfound the Italian
-ote sati~factoryl~~.
5.80 A second aspect of the French military occupation of
Tibesti, startiin 1930,relates to the flightsouth into the borderlands of peoples
escaping from the Italian armiesin Fezzan and southern Cyrenaica. It appears
that these refugees started arriviin Tibesti in early January 1929and included
members of the Warfeila and Qadhadfa tribes128. This was not unknown
territory to these peoples, for members of both tribes had nomadised with the
Awlad Sulaiman in the countnes north of Lake Chad from the 19th Century on,
aswitnessedby~achti~all~~.
5.81 The first objectiveof the French was to settle these peoples
far away from the line of the 1899Declaration. The instructions were to "[lieur
assignerrésidence surveilléeet'placéeloin de toute frontière"130. The Qadhadfa
were ailowed to settle between Aïn Galakka and Faya, in Borkou; but the Orfella
were sent to Kanem. ByApril 1930,a number of the Qadhadfa had left Borkou
to return to Cyrer~aical~~.The second objective-alsobased on securityreasons -
was to disarm them132.
127 To mention another example,at pp. 265-266,paras. 222-22quotes hom what is
ddbed asa of15May 1% hom the Italian Embassyin ParisNo indication of
the address is givenor any citation to an amexed or fiunished document- and Libyahas
not found such a document among Chad'sAnnexes and Productions or elsewhere. Yet
this mysterydocument is saidto have this significance:'[plar cette note, i'ltalie admettait
donc que la bande d'Aomu etait sous l'autorite militaire effective de la France.' Of
course, inter alia, the tenu 'Aoumuwasrnot invented until the 1970s;and Italy's
firm protests against French moves into Tibesti refute such an undocumented
contention.
128 See, CM, Production 27and Annex 11InApril 1929,the size of this immiwastion
estimated at 200tents and 1,100people.
129 Se, LM. para. 4.86.
131 See.CM.Annex 119.
132 Sec,Histoire Militaire de l'AfriquehuatFrancaise9. a. 486. LGM
13;andCM. Annex 121. 5.82 The important point about this exodussouthward in the face
of the Italian advance is that it was a major factor in provoking the French
occupation ofTibesti.As the HistoireMilitaireexpresses it:
"Pour éviter la formation au Tibesti de ras blements non
contrôlés,l'occupationde ce massiffut décid... .
It was thiinfluxof peoples from the north that led to the establishment of the
line of surveillanceand the militaryposts in Tibestijust mentioned above in order
to -
".n.eutraliser le plus rapidement poss& lesbelligérantsindigènes
quipourraient se réfugierchez nou... ."
5.83 This description of French military activity, whose object
was to disarm the groups or tribes fleeing southwards from the Italian forces,
leads theCM to conclude that Italy acknowledged that the "Aouzou Stnp" was
under the effectivemilitaryauthority of ~rancel~~. This conclusionapparently is
based on the allegation that the Italian authonties had approached France with
the request that the people fleeing southwards be disarmed and, thus, prevented
from organizing attacks against Italy from within the area controlled by
France 136.
5.84 As has already been noted, the CM has not provided
acceptable documentary evidence of statements attributed to Italy. This same
failure applies to the principal French documents cited here by(CM, Annex
. . 119). They consist.of-texts of telegrams, or extracts therefrom,.whose source is
unidentified and whose authenticitycannot be verified.
5.85 However, even setting aside this point, which Libya regards
as of major importance, it must be noted that other defects existconcerningthese
documents. For example, there is no indication where the events they describe
occurred. The French documents speak of refugees "amvés en temtoire
133 HistoireMilitairede l'AfriqueEquatorialeFra9.aa,ep. 485.(A mpy of this
pageisattachedat LC-M13.)
134 CM. Annex128.
135 SeeCM,pp.226-227,paras.223and228.
136 See.CM,pp. 265-26para.222.type of control over a temtory, even though it has no valid legal title to such
temtory 139.
'The fact that South Africa no longer has anytitle to adrninister the
Temtos, does not release it fiom its obligationsand responsibilities
under international law towards other States in respect of the
exercise of its powers in relation to this Temtory. Physicalcontrol
of a temtory, and not sovereipty or le 'timacyof title, is the basis
of State liabilityfor acts affectmgother8 ttes."
LC-M Y)
5.87 On 17January 1931,Italian troops occupied ~oufral~O. On
20 June 1931, the Italians started work on the repair and maintenance of the
Sana wellsl4l. In 1935,an Italian patrol paid a visit to Tekro. This led the
139 Legal Consequences for Stateofthe Continued Presence of SoutAfricain Namibia
(South West Africa) notwithstandine Semritv Council Resolution 276 (1970). Advisoiy
Ouinion, I.CJReports 1971,p. 54,para. 118.
140 The Italian occupation of Koufra provoanew influxof peoples into the borderlands.
Se, CM, Production 28.
141 This Italian activity to restore the Sarra Wells mntrasts sharply with the French
expedition in 1914to the Wells to study howto destroySece.ara. 5.42,above. French to decide to establisha post in Tekro, leadingto theTekro incident,which
is dealt with brieflyin the The location of Tekro in relation to the strict
southeast line under Article 3 of the 1899Conventionisportrayed on Mau LC-M
50.
5.88 The incident over Tekro was the culmination of the
exchanges of notesbetween Italy and France, brought on by the Anglo-French
Convention of 8 September 1919,and of the continuousnegotiations between the
two Powers over Libya'ssouthern boundary that had been in progress ever since
the end of World War 1. The Italian not oef 9 June 1934protesting France's
establishment of a military post at Tekro was also the last of a series of Italian
protests against the movement ofFrench forcesinto Tibesti and other parts ofthe
borderlandsnorth of a strict southeast line143.
5.89 This protest was,in fact, directed at newFrench posts at two
locations north of a strict southeast iine:Tekro and Nadi Agdebéin the region of
Erdi, just north of the MourdiDepression near the plateau of Erdi Ma (Mau LC-
- 50). Both locationslaynorth of a strict southeast iine and, hence, in the viewof
Italy,layuncontestablyin Cyrenaica. At the end ofitnote. Italypointed out that:
"...dans l'attente que la question rélative aux frontières
méridionalesde la Qrenaique puisse &tre réglée [sic]entre les
deux Gouvernements, le Gouvernement Italien, de son &té, s'est
abstenu de IBte occupation de localitéssises dans la zone en
contestation ."
5.90 With France's occupation of Tekro in 1934, the great
.. . easteG trade route from ~;&a_ was finaiiy placed under attempted French
control. Occupation of Gouro and Yebbi Bou inTibesti after 1930had the same
effect as to the western trade routes to Fezzan and ~ri~olitanial~~. The post at
Tekro was nevenheless abandoned by French forces on 28 April 1941'~~. (The
post at Ounianga Kebir had alreadybeen abandonedon 13July 1940.)
142 See.LM.para5.283 andMap No. 81.
143 Se. CM, Anna 142, for the French text of the Itnoteof 9 June 1934.This
document iamexed heretoasExhi bCi-M20.
145 See,ExhibiLGM 18hereto,anextractIromthe"Historiquedupostede Tekro" 5.91 Even after 1930,however, French forces did not effectively
control the borderlands; and their occupation was protested by Italy, which
refrained from attempting to occupypart of this region until the matter of Libya's
southe~mboundaxywas settled diplomatically147,an event about to take place.
5.92 Furthermore the attacks by the indigenous tnbes on the
French dunng thisperiod did not onlyemanate from Tibesti. The evidenceisthat
they came from the region of the Erdi and the Tekro wells,aswell:
"Le passage obligédes caravanes au puits de Tékro,attira vite en
cet endroit isoléde nombreux bandits et pirates qui, leur coup
accompli,jouissaient d'une impunité absolueen enfonqant dans les
étendues désertiquesqui entourent cette région, soiten direction
d'Oui, soit en direction des Erd...Ces actes de piraterie étaient
encore assez fréquentsen 1927,19f&insi que le signalele Chef de
Posted'ounianga dans sonjournal ."
Evidenceproduced by Chad in the form of a 1931politicalreport reveals that the
resistance of the indigenouspeople had onlyrecently started to be brought under
some form of control:
"..une grosse améliorationvient d'êtreap ortéeà la sécurité des
confins nord-est de la Subdivision du Borfou. Les indigènes du
Koussi, qui jusqu'à présentvivaient peu prèsen dehors de notre
contrôle ..viennent d'être incorpores dansle groupement des
Ouriaslw[;e qui] marque un pas décisifvers la pacification du
Koussi .
Even at that, large areas of Borkou and Ennedi stilllaybeyond French authority
and control in 1931:
"0 existe cependant encore dans la circonscription du Borkou-
Ennedi trois régionsoù notre autorité est discutée,voire même
contrecarrée. Ce sont: la région de Modra et Tarso Chi, le
Mortcha et la pointe norjpt~t de la Subdivisionde ]'Ennedi, dans
1'Erdiau sud d'ElAouinat ."
147 Secpara.5.89,above.
148 LC-M 18,hereto.
149 CM. Production48.
150 m. The various places where armed battles were fought are shownon MaDLC-M 48
referred to at paragrap5.60 above. Accordingto this 1931report, in this region
were assembled:
"...a plu art des Toubbous rebelles et dttpdigènes qui veulent
vine au # i.estien marge de notre autorité ."
5.93 Infact, resistance bythe Senoussipeoples in thisregion was
reported in 1931 to be on the increase. Several examples are cited in the1931
report, naming the Toubous as culprits, who were able to escape pursuit by the
French forces. Police action in Tibesti had reportedly becomeless effective due
to force reductions.Inthe region of Mortchka (Oum Chalouba is inthis region),
there were manyacts ofviolenceagainst convoysto supplyFrenchtroops inFaya.
The French wereforced to fumish protectionto the convoys,as they had in 1916.
Further north, in Erdi, the "bande de Gongoï à cheval sur les temtoires français,
anglaiset, italien"had become uncontroilable, callingforjoint action of the three
European Powers.
5.94 Thus, in 1935 when Italy and France finally sat down to
settle Libya's southern boundary, the situation on the ground in Borkou and
Ennedi was not much different than it had been in1916. Two new posts (Tekro
in Ounianga and a post in Erdi Ma) had been established,but onlyunder Italian
protest; and the area was the scene of frequent raids by Senoussi tribesmen.
Tibesti had been occupied afte1930, but again under Itaiian protest.
5.95 The A.E.F. went through the motions of conductinga census
...
in Boikou'and Ennedi, but the ine.ffectivenessof this actiity is revealed at the
end of thissame officia1931 report:
"Le recensement de la population européenne et indigène de la
Circonscription du Borkou Ennedi aura lieu le Iojuillet1931 en
exécutiondes prescriptions de M. le Gouverneur Général. Dès
recensement des nomades pour lesquels les chefs de Subdivision le
sont laplupart [sic]du temps obligésde se er sur les rôles
d'impôts quisontencore forcément incomplets 19 ."
151 W.
152 CM. Productio48.The French forces in militaryoccupationwere in temtoq where theyhad no nght
to be, against the wishes of the indigenous peoples, and the occupation was
provingto be extremelydifiïcultand not at ailpeaceful.
5.96 The general settlement arrived at in 1935in the Treaty of
Rome resulted in a compromise boundary line that bore little relation to the
negotiationsproposaisand the situation on the ground during the period after
Italy,foilowingthe Treaty of Ouchy,became the Power with whichFrance had to
deal over Libya'sboundanes. The he envisaged was roundiy criticized by the
French experts at the tirne. For example, General Tilho, who had been so
intimately involved in the French invasion of the borderlands, the mapping of
Tibesti and surrounding borderlands, and who had served on the French
delegation negotiating the 1919glo-French Convention, made his dissenting
views known shortly after the Treaty was signed to the French Académiedes
Sciences,of whichhe wasa member153. M. Louis Marin, then senior Minister of
State without Portfolio,addressed hjs criticismsdirectlyto Foreign Minister Laval
on 19 February 1935,offering at the same time certain suggestionsto guide the
French team that wouldbe assignedthe task of demarcation.
5.97 The French travauxvrévaratoiresof the 1935Treaty reveal
that, at the outset of negotiations, the French Ministry of Colonies anticipated
that the least Italywould settle for as to the southem boundary of Libyawouldbe
a strict southeast lintheu view:
"...e moins que puissent réclamerles Italiensen ce qui concerne la
fixation de la frontière de e serai..l'acceptation par nous de
leur interprétation de la ligne ontièredécriteau paragraphe III de
à l'Italie un temtoire sans doute déshéritédu point de vueeffet
économiquemais représentant une assez grande superficie ce qui
it d'afficher un succès pour les négociateurs de
pI"t;:l!59:*
153 NotefortheMinisterofForeignAffairs.29Ja1935Exhi bit 21,hereto.
154 A copyoftheDispatisattachedExhi bGit 22
155 Note of 4 Septemb1934,WiibitLGM 23, hereto. OtherQuaid'Orsaynotein
preparationfor negotiationsof the 1935Treaty,and a Quai d'OrsayReporton the
resulsofthe1935 Treyavealsobeenattachedat LGM 23.The Quai d'Orsay, in preparing for these negotiations considered that Italy's
demand "ne paraît pas inacceptable";but it pointed to the disadvantagesof giving
in to Italy:
"La principale objection qui pourrait y êtrefaite est que nous
occupons actuellement ces régionssemi-désertiquesavec de très
faibles effectifsetn minimum de frais, séparés quenous sommes
des Italiens par une vaste étendue de désertscomplets. Une fois
les Italiens installéssur la mêmerive du Sahara que nous, nous
subirons la comparaison peu flatteuse de nos miserables moyens
avecleur puissante organisation etnous en coûteratrès cher pour
faire beaucoup moins bienqu'eux. Toutefois, le tracéactuel de la
frontière n ous défend pas complètement contre cet
inconvénient583.
This comment points up the French Govenunent's awareness of the
ineffectivenessof the French occupation of the borderlands at that time and ofits
desire to keep it that way.
5.98 The French Govenunent was relieved that Italy soon
dropped its initial proposa1to hold France to its 1928offer of the Djado salient
south of ~oummo~~~;moreover, Mussolini had been impressed by General
Badoglio's view that it would be more in Italy's interest to seek temtorial
advantageselsewherein Afnca rather than in the Libyan hinterland. Thus, ltaly
proposed a line east ofToummo that would (i) onlyeliminate the angle caused by
the hypothetical line connecting Toummo to the Tropic of Cancer and (ii)
compromise the differences over the direction of the Article 3 southeast line by
amving at a median line between the French and Italian interpretations of the
1899~eclarationl~~. In the end,.the line agreed was the foiiowing,as described
in a report date24 January 1935prepared bythe Quai d'Orsay:
''La ligne définie par le Traité du 7 janvier dernier coïncide
sensiblement, sauf dans la régionde Tummo, avec la ligneranco-
anglaise, telle qu'eljf5ge comportait avant d'avoir étémodifiéeà
notre profit en 1919 ."
156 NotefortheMinister,1October193Em LC-M 23,hereto.
157 SecL.M.para.5.26a,seq.
158 Se LM.para.5.31a=.
159 Repon of the Quai d'Orsayon tresultof the 19Treatydated24 January1935.
LGM, 23,hereto.Thiswas clearlya reference to the line as shownon the Non-AnnexedMav; and it
is of great 'interest to note the Quai d'Orsay'scandid admission that the 1919
Convention modifïed to France's advantage the 1899line as France had depicted
it on that map. This viewof the French Government at the time is flatlycontrary
to Chad'sposition today, for Chad maintains the linesare identicalloO.
5.99 The Quai d'Orsay'sdescription of the 1935line goes on to
explainthe rationale behind line:
"Elle abandonne à l'Italie les contreforts nord du Tibesti peuplés
par des tribus qui sonttBten relations avec Koufra et le Fezzan
qui nomadisent régulièrementvers le Sud, les sommets culminantsibus
du massif,lesgrandes voiesde communicationuile desservent, les
centres d'habitation principaux etest les7'esqui ravitaillent
toute la région du Tchad. Elle donne à SItalie une bonne
palmeraie, celie d'Aozou, et qu&ues points d'eau secondaires,
Guezenti,Ouri et Yebbi-Souma !'
Libya does not consider that the French analysisconcerning the tribes in Tibesti
was correct; but the important point here is that no mention is made at ail of
French effect~tés as one of the factors that might or could affect the course of
the boundary line.
5.100 Ashas been pointed out in Part III above as weli as in the
Libyan Memorial, in agreeing to this line Italysacrificedin a major wayits claims
regarding Libya's southem boundary in order to obtain France's agreement
conceming Ethiopia. The French Government conceded at the time that Italy
had made a major concession to France in its agreement as to the southern
boundary of~ib~a'~~.Toward the end of the negotiations, Mussoliniasked for a
minor modification so as to add a fewmore inhabited points to the Italian side of
the line. The French agreed. Then, near the very end of the negotiations, the
Italian team attempted to change the line. The Quai d'Orsay summarydescnbes
this developmeninthese words:
"Les négociateurs italiens avaientparu, jusqu'auxs jours de
l'année dernière,devoircce ter nos pro ositions sans difficulté.
Mais, en dernière heure, le stèredes8 oloniey a fait une très
160 See.M, p.376conclusli(on).
161 LC-M23,hereto.
162 SeeL,M,para5.339. vive opposition. ilse faisait l'écho duGouverneur Généralde
Libye, le Maréchal BALBO, qui prétendait d'ailleurs,
contrairement à la réalitéque le temtoire cédéne permettrait pas
àl'Italieun établissementpermanent. Les négociateursitaliensont
donc insistétrèsvivement pour obtenir l'amélioration dutracé par
la cessiond'AFAFI, posd'eau situéau sud-est de Tummo, de
BARDAI et deTEKRO ."
The French negotiators flatly rejected the proposal, and Mussoiinidid not press
the issue,soitwas dropped. Asthe same document observes:
"..il n'est pas douteux que les milieux coloniaux de la Péninsule
conserveront de ce résultatune déceptiondurable."
5.101 In Part VI below, a number of conclusions are set out
conceming the 1935 Treaty and related accords. These relate primady to its
significancein revealingthat as of1935 there was no conventional boundary east
ofToumrno and to the fact that, sincethe line agreedin 1935never took effect as
an international boundary, France's obligationsto Italy under Article 13 of the
1915 Treaty of London were never fully discharged. To these conclusions,
another shouldbe added concerningFrench effectivités.
5.102 The situation on the ground in 1935was not invoked in any
way by the French Governent either as a basis for the boundary it onginally
proposed or as ajustificationfor that finallyresultingkorn the TreatIn fact,the
travaux reveal France's awarenessof the kagility of the French presence in the
area164. Ifthe supposed French effectivitéson which Chad's case relies in
substantial part were not significantn 1935 during these negotiations, how can
r -,a *they suddenly-bëcomë simcant now? French effectivitéspnor to 1935 can
hardly be allowed to play a role in determining the boundary in the borderlands
now when they were not advanced by the French Governent as a basis for the
1935 line, France being well aware then that French effectivitéswould have
provided a very fragile argument if advanced in the negotiations. Thus, the
addition to be made to the list of significant conclusionsemerging kom the1935
Treaty is that,inagreeing the line, France and Italy took no account of colonial
effectivitésinthe region.
163 FrenchArchivesAnnex,p.429.Citedalso,aLM. para.5.322
164 S-, para.5.93,above.CHAPTER m. TBE POST-1935PERIOD
Smo~ 1. General Observations
5.103 When the post-1935 period of over 55years is considered in
the context of the eventstaking place, it is evident that colonial effectivitésno
longer had a meaninghil role to play in establishing title to the borderlInds.
the years 1935-1938,the French and Italian act~ties on the ground were taken in
anticipation of the 1935boundary goinginto effect. Although the has tned to
make much out of the "Jef-Jef incident",it is shown below that this was a trivial
matter - uniike the 1934 Tekro incident - and in fact demonstrates quite the
reverse ofwhat the contendslo5.
5.104 Less than a year after Italy announced its decision in
December 1938not to exchange ratifications of the 1935Treaty, World War II
broke out. Libya was ovenun by foreign military forces, who were to remain in
occupation of Tripolitania, Cyrenaica and Fezzan until weil after Libya's
independence in 1951, the critical date in this case166. The Libya-Chad
borderlands were occupied byFrench militasr forces until1965.
5.105 Libyamaintains that between 1935and the critical date in
1951 nothing that took place on the ground did or could have affected the claims
to title in the borderlands as they stood in 1935. French forces were not only in
the borderlands but also in Fezzan and Cyrenai-aeither in support of the Allied
forces in the War, or as occupyingforces after the War in accordance with the
Italian Peace Treaty and with the authority of the United Nations. French
effectivitésduring this period cannot be regarded as relevant to a French claimto
title that had not already been established; and the discussion of French
effectivitésin the duringthese periods has no bearingon the resolution ofthe
present dispute.
5.106 Accordingly,from the time of the 1947Italian Peace Treaty
to the evacuation of French forces from Fezzan (in 1957),the French (as well as
the British and Amencans) continued to occupy parts of what was indisputably
-
165 Sec.ara.8.2g,a., below.
166 TheFrenchwithdrewfromFezzan at theendo1957;British aU.S.forceshadbeen
withdrawnfromTripolitanandCyrenaicbyearly1972 Libyantemtory, initiallyon the basis ofArticle 23of, and Annex XI to, the Italian
Peace Treaty and, subsequently,on the basisof temporary miütary,economicand
aid agreements between the independent Libyan Government and the Powers
concemed. The status of French forces in the borderlands remained wholly
equivocaland undetermined throughout the whole of thispenod and indeed until
the evacuation of French forces from the borderlands in 1965. The continued
French presence in the borderlands could, throughout the whole of this period
and indeed until1965, onlyhave been based on Article 23(2) of the Italian Peace
Treaty, since the final disposition of the borderlands could not be determined
until the boundary east of Toummo between Libya, on the one hand, and the
A.E.F., on the other hand, had been delimited in accordance with G.A.
Resolution 392(V)of 15 December 1950. As hasbeen demonstrated, thiswas net
achievedby the 1955Treaty between France and Libya. Thus,the vanous French
administrative and legislative measures dunng the penod from 1945 to 1965
recited in the as evidence of French effectivités in the borderlands onlyrelate
to how France was administering the disputed temtory of the borderlands
pending their final disposal; theycan no more be regarded as manifestations of
French sovereignty overthe borderlands than the corresponding French activities
in Fezzan from 1945 to 1957 could be regarded as manifestations of French
sovereignty there, irrespective of French aspirations at the time conceming
Fezzan.
5.107 What the situation was on the ground, followingthe 1947
Italian Peace Treaty, must be considered in the iightof certain keyevents:
L.'>- ~.,. ...- .
G.A. Resolution 392(V) of 15December 1950,'whichcalled
on France and Libya to negotiate to delimit that portion of
the Libyan boundary with French temtory not already
deiimited; thismeant the Libyanboundary east ofToummo;
- Libya's independence on 24 December 1951, the cntical
date for determining the claimsto title in the borderlands of
Libyaand France;
- The 1955Treaty, Article 3 of which set the ground rules for
the subsequent delimitation of Libya'sundelirnited southem
boundary and which deliberately omitted effectivitésas a
factor to be consideredbythe parties; -
The incidents occurring between France and Libya along the
Algenan boundary between 1956 and 1960, the Algerian
war, lasting from1954 to 1962,and the 1956 Suez cnsis,
which made it impossible for Libya to contemplate entering
into any kind of negotiations with France;
- Chad's independence in 1960,but with French forces still
occupying the borderlands unt1965;
- in 1965, the outbreak of rebeiiion in the borderlands
followed by civil war in Chad, with the penodic return of
French forces;
- in 1973the Libyan presencein part of the borderlands;
-
in 1974,1980and 1981,the entering into of treaties between
Libya and'Chad;
- in 1983-1984, the establishment of the "lignes rouges" at
15"N and then 16"N latitude by the French military forces in
Chad as a sort of cordon sanitaire.
5.108 An oveMew of the way in which the CM deals with the
matter of French effectivités bringsout the apologetic wayin which Chad so often
' suggests that the test of the effectiveness of the French occupation of the
borderlands must be relaxed or adjustedto take into account the special nature of
thearea. The CM puts this poininthis way:
"il en découle que lorsqu'on a affaire à des régionsdésertiques au
caractère inhospitalier, difnciles d'accès et avec une faible
population, il est admissible que l'exercicede la souveraineté
1" puisse &trediscontinu dans le temps et
2" puisse s'étendre à certaines parties de la
région, sans qu'il soit nécessaire que
l'autorité souveraine effectiv16fttuvre
chaqueportion de ladite régio... .
167 CM. pp.242-243para.132s-,also,p.305,para.46.The basic legal premise behind this statement, which finds support in the Award
of Judge Huber in the Island of Palmas Case, is not disputed by Libya; the
difücultyisin its applicationhere both in the pre- and post-1935penods.
5.109 Even ifthe geographical character of the borderlands and
the nature of their peoples are taken into consideration and compensated for,
French effectivitésfeu far short of meeting the required legal standards as
expressed by Judge Huber. For it is evident fiom the discussion inthe previous
Sections that France was not interested in peaceful occupation at all; its purpose
was to control the "northernfront" soasto protect "le Tchad utile"The special
nature of the geographicalsettingand circumstanceshardiy explains,for example,
why two postswere established by France in Tibesti in 1914,abandoned in 1916,
and then reestablished, together with a number of new Tibesti posts, in 1929-
1930. The harsh conditions of the region had not changed; nor, indeed, had the
hostile reaction of the inhabitants. What had changed were French perceptions
and priorities.
5.110 The CM attempts to offsetthese shortcomingsof the French
occupation with an imposinglist of legislativeand administrative enactments and
decrees of the French Government between 1920 and 1940. But surely Chad
does not contend that such measures, taken in the more comfortable settings of
Brazzaville or of Pans, are a substitute for actual physical occupation and
administration of the area.An examination of these measures reveals that they
were general in nature and had no specificapplication to the so-called "B.E.T.".
The has suggestedthat:
.. ...-
. -
"..c'est la promulgation des lois, décrets et règlements régissant
I'oreanisationet la vie du B.E.aui doit &treconsidéréecomrnerla
pre&ère manifestation de sowerheté française sur la régionlb"."
But the legislation cited in tCM was oniy of general application and does not
itself constitute evidence of effectivitésiborder land^ L'na^y.event, such
measures of the French Government could hardiy have been opposable to Italy,
168 CM, p.255,para184.
169 As to civil administrnuringtheperiod1920-1940,tCM (p.262,para2.07States
thatTibestiwasdividedintothree cantons. (ThecnfAouwu wasauegedlycreated
inMarch1938buteliminateda fewmonthslater.) Thethreecantons mentionin the
temtoryofTibesti;andonewveredtheareafallingwithinthesoalled "AouwuStrip".which had al1along protested France's claim to sovereignty. Similarly,heras
elsewhere, the QJ alleges Italian affirmation of French effectivasif such an
act -even had it occurred- could have remedied the lack of effectivités.There
was no such Italian recognition or acquiescence; but, evifthere had been, it
wouldnot have cured the absence ofFrench effectivités.
Smo~ 2. CertainEventsof SomeRelevance
5.111 Several events that bear on the situation on the ground after
1935 are, nevertheless, singled out for discussion below for they might have a
certain relevance in evaluatingthe claimsto title of the Parties.
(a) French-ItalianArmisticeCommission
5.112 Less than a year after Italy, inDecember 1938,made known
its intention not to exchangeratificationsof the 1935Treaty, World War II began,
although Italy was a full belligerent for a relatively short time (June 1940 to
September 1943). Mer the fall of France in 1940,Italy chaired the Armistice
Commissionto deal with colonialquestions, and in 1941an important event took
place during the discussionsabout a demilitarized zone through the borderlands.
As discussed in theLM. the French took the position that the zone should be
calculated taking as the starting point the 1899-1919line,which they viewed as a
conventional boundary binding on 1taly170. The Italian negotiators rejected this
view, considering that portions of the borderlands occupied by the French were
Italian and maintaining that, in the absence of a conventional boundary,the 1935
line was the only appropnate starting point for calculating such a zone. The
factor of colonial effectivitésnot mentioned at all in the available records of
these negotiations as having played any part in the discussions. This was a
manifestation in 1941 of the view of the Italian Government that no agreed
boundary existed as a result either of existing conventions or of colonial
effectivités. It shouldbe added that it waspartly as a result of concern that Italian
effectivitésmight be advanced by Libya in the 1955 negotiations that the
Governor General of the A.E.F.,in his famous letter of 2 May 1955 to the
Ministre de la France d'Outre-Mer, urged that the French position be based
solely oninternational agreements inforce at the the ofLibya'sindependence:
170 SeeLM, para5.360g,q. "...n prenant pour seuiefw les traitésenvigueur à la date de la
créationde 1'EtatLibyen ."
(b) The French Post atAoumu
5.113 The extraordinaryemphasisgiveninthe to the "Aouzou
Strip"and to the French post at Aouzou (Mau LC-M45referred to at paragraph
5.43above) has alreadybeen mentioned. It willbe recaiied that the French post
at Aouzou was more an installation on paper than in rea~ity'~~.The evidence,
including that produced by Chad, shows the followingconcernjng the French
occupationofthat post:
- During the first French "occupation"of Tibesti (1914-1916),
French posts at Zaour and Bardai onlywere estabiished;no
post wasset upat Aouzou;
- A French post at Aouzouwasfirst establishedin April1930
bya detachmentstationed at Erbi 173.
,
- 1931-1933:theAouzou postwasunder construction;
- January 1935:the boundary under the 1935Treaty placed
174.
Aouzouon the Itaiiansideofthe line ,
- Between March 1935 and February 1937 the post was
apparentiynot mamed 175.,
-.=.' . :.A. -..,- ..- . . . ,~ '..
- June 1935:a pre-announced Itaiianmissionvisitedto discuss
the details of turning over the post to Italypursuant to the
1935Treaty;
171 S-, para.3.43,above,andLM, FrenchArchivesAnnex,pp.169-171.
172 S-, para.3.34,et%., above.
173 See.CM.p.268,para.231,andProduction 122.
174 A strictsoutheastlineunderArticle3 of t1899 Declaration woulhaveleh Aouzou
on theFren ciheoftheline.
175 CM. Production122 - 26July 1936:an Italian overfiightof the post;
- Febmary 1937: an unannounced Italian mission visited;
April 1937:another Italian overflight;
- 1 January 1938: the post at Aouzou was vacated by the
French; this occurred before the Italian decision not to
exchangeratifications of the 1935Treaty was announced (in
~ecember 1938); the post remained vacant for the next 13
years, until 1June 1951;
- 1 Apd 1954: the post was vacated again "en raison d'une
176.
crised'effectifs" ,
- December 1954:
"..éoccupédefinitivement ..aprèsque les autorités
du Tchad eussent reçu i'inforw que les Libyens
avaient l'intentionde s'yrendre ";
- Early 1973:Libyanpresence inthe borderlands.
- On 3 November 1991, in nearby Ammou, members of the
mies of Aouzou participated in a meeting in the courtyard
of the mosque attended by 4,000 members of the tribes of
Tibesti, at which resolutions were unanimously adopted to
present a petition to 'the International Court of Justice
proclaiming the affiliation of the peoples of the area with
l.ibya1'18.
5.114 The 1962 "Historique du poste d'Aozouvcontains several
additional notations of interest1'linwinter, the Toubou inhabitants of Aouzou
went north to Fezzan to exchange goats for dates and other items. Immigration
176 CM,Annex262. ('Asaresultofacrisisinstafhg the post.")
177 CM,Annex262.
178 Thisdocumentisattachedheretoas LC-M 3.
179 CM. Production 122.toward Libya was "favorablement accueillie";and Libya was having considerable
success in recruiting the local Toubou for service in the Libyan army. The
peoples'indifferenceto govenment isreflected in this entry:
"Le Toubbou ne semble [que] eu se soucier du gouvernement
actuel de laRépubiipue du TCPHIAD,dont ilignore souvent k
Président."
5.115 What the evidence comes downto, concerningthe post rnost
emphasized and discussedin the CM. is that in the 42years between the French
invasion of the borderlandsin1913and 1955,the time of the "Aouzou incident",
the French post was activeiymamed for less than 10years. The evidence brings
out two other things: dunng rnost of the years 1935-1937, whilewaiting for the
Treaty of Rome to take effect, the post apparently was not manned by the
French; and it was abandoned on 1 Januaiy 1938,before the Italian Govemment
announced its decision not to exchange ratifications of the 1935 Treaty, for
another 13years (until1June 1951). The reason for the "dennitivereoccupation"
in December 1954of the Aouzou post, as stated in the officialFrench records
furnished by Chad, was that the French authonties had picked up rumours of the
intention of Libya to move into Aouzou. This is strongly reminiscent of the
reason the French occupied Tibesti in 1929-1930:to head off the Italians. This
lackof French effectivitésat Aouzou cannot be excused onthe bais of the hostile
geographicalsetting and population.
5.116 The "éphémèrep "resence of the French in Aouzou matches
the story of the French presence in the considerably more strategically located
posts of Gouro, Ounianga Kebir andTekro. Itwillbe recalled that'the firsttwoof
these oases were proposed to be abandoned by France and handed over to the
Senoussi (in 1914and, again, in 1916),a proposal rejected in Pans for political
reasonsand in the lightof the prospective delimitationnegotiations with ~tal~l~~.
in 1919,the French Govenment at the Peace Conference proposed that Bardaï
be "ceded"to Italy. The post at the key oasis of Tekro, only established (under
Italian protest) in 1933,was abandonedin1941. The post at Ounianga Kebir had
alreadybeen abandoned bythe French in 1940.
5.117 Hence, the claimof French effectivitésadvanced in theCM.
insofar asAouzou isconcerned, relies primarilyon French decrees and legislative
180 Sec .aras5.44-5.4above.measures and on such episodes as the "Aouzou incident",which are exaggerated
in order to try to show Italian recognition181. It is no wonder that the civilian
missionwassent bythe Cyrenaicanauthoritiesto Aouzou in 1955to instaiiLibyan
governmental officials (and to take a census); based on the record of French
effectivités,there was no reason to think there was anyFrench militarypresence
there at alllg2.
(c) Libva's Assum~tion of Administration over Parts of the
Borderlandsafter1972 .
5.118 Libya'spresence in a part of the borderlands, at the end of
1972and start of 1973'*~,occurred in the context of the reconciliation between
Libya and Chad that took place in April 1972 and the reestablishment of
diplomatic relationslg4. President Tombalbaye made an officia1trip to Libya;
and on 23December 1972a treaw was signedbyLibyaand Chad: the 1972Libya-
Chad Agreement ofFriendship and ~oo~eration'~~.
5.119 It was at that time that President Tombalbaye wrote Colonel
Kadhafi a letter, dated 28 November 1972,the second and third paragraphs of
whichread as follows:
181 Itisparadoxical that tCM. while assening that aiieged French effectivitésin Tibesti
were the most signifiant (p. 278, para. 266), reveals that waseabandoned by
French military forces hetween 1916and 1929. Funhennore, even had there been
French effectivitb in Tibestiisno proof of French effectivités inBorkou or Ennedi.
A 1954document produced by Chad (Production 95) reveals that, up to then, there had
been no "infirmerienomade"inEnnedi and that the population had to go to Sudan for
hûalth are-hardlyan indication of French effectivitésin Ennedi.
182 The cM aiso reveais the absence of any political party activity in Tibesti (p. 297,para.
11). As a result, elections held in January 1956witnessed massive abstinthats
region on the order90%.
183 The cM has attempted to move this date backwardsto 1971in order to precede Chad's
statement before the General Assemblyon 6 October 1971and thereby to suggest that
Chad protested Libya'spresenin1971. See.LM. para. 5.549g a., regarding Chad's
statement. This invalid attempt to move the date backwards only emphasizes Chad's
failure to have protested against Libya'spresence in the borderlands for over four years,
while in the meantùne entering into treaties with Libyathat failed to register any such
objection.
184 Sec .eneraUy,LM, paras. 5.549-5.557.
185 LM.International Amrds and Ameements Annex,No. 34. "Au moment où j'exprime le désirde voir se développer notre
coopération, permettez-moi de vous inviter à bien vouloir faire
cesser le soutien que vous apportez aux hors-la-loi (le soi-disant
FROLINAT) qui portent les armes contre le pouvoir légaldu Pays
et essayent de difhiser des rumeurs selon lesquelles notre
Gouvernement a des ambitions sur Aouzou, dans le but de nuire à
notre rapprochement et de porter atteinte ànotre coopération.
En ma qualitéde Président légaldu Tchad, je tiens àvous a££irmer
que la bande d'Aouzou a étéet sera, sans aucun doute, partie
intégrantedu Temtoire Libyen."
The refers to thisetter and annexes a copy - which appears to be a copy of
the same document that Libyafurnished the O.A.U.Subcommitteein 19871g6.
5.120 The Libyan Memorial did not mention or annex the
Tombalbaye letter for the simple reason that Libyahas been unable to locate the
originalof this document. Libyaconcludedthat it couldnot rely onthe document
in anywaysince Libyawasunable to furnish the Court withadequate proof of its
existence. As the CM brings out in explaining that Chad has had difficulty
obtaining documents in the lightof the civilwar conditionsthat prevailed in Chad
over a number of years187, newly emergent African States have commonly
experienced the difficulty of records being lost and destroyed. It is hoped,
nevertheless, that an authentic copymayyet turn up in the Libyan filesor among
Chad'sofficia1papers.
5.121 Another related event to occur during this period was the
1974 Protocole d'Accord between Libya and Chad signed on 12 August 1974,
Articles 1and 2 ofwhichprovided as foiiows:
'The two sides emphasise their intention to maintain full
cooperation in the light of the historical connectionsbetween their
fratemal people, and to frustrateal1attempts to hinder this mutual
cooperationand closeness.
~- -
186 CM, p. 35, paras. 82and,p. 343para.194. The mpy of the lettappearsasCM,
Annex343.
187 CM. p.319,para.111. The frontier between the two countries is a colonial creation in
which the two peoples and nations had no hand, and this
shouldnot obstruct their cooperationand fratemal relations HYe.
It should be bome in mind that this Protocole was signed well over a year after
Libya'spresence in the borderlands wascommon knowledge.
5.122 Contraryto what Chad appears to have anticipated - for the
CM devotes a section to the proposition that "l'occupationmilitaire ne confère
-
pas de titre"lg9-,Libyadoes not maintain that its claimto title in the borderlands
is based on its presence in the borderlands. in fact, it whoiiy subscribes to the
proposition argued by Chad in that section of its Memorial - that military
occupation confers no title -although apparently Chad overlooks the application
of this principle to the French movement into the borderlandsafter 1913.
5.123 It isnot Libya'sposition that the Tombalbaye letter involved
a "cession", or attempted "cession", of Chadian temtory to Libya, as some
commentators have suggestedlgO. The words are clearlyinterpretative in nature.
Nevertheless, the legal sigrdichce of such a formal interpretation as this by a
Head of State is weii established under international law191. What the words
appear to mean is that Chad regarded Libyato have title to the area and that this
188 LM, International Accordsand Ameements Annex,No. 35.
189 CM, pp. 71-73,paras. 89-92
190 Sec . anne,B.Tchad:La querelle des frontihres,Paris,Kanhala, 1982,pp. 228-229.
191 lnthe NuclearTests cases,the Coun stated:
'ItisweUrecognizedthat declarations mabywayof unilateral acts,conŒrning
legal or factual situations, may have the effect of creating legal obligations.
Declarations of thii kind may be, and often are, very specific When it is the
intention of the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration the character of
a legal undenaking, the State being thenceforth legally required to follow a
course of conduct consistentwith that declaration." 1.C.J.Re~orts 1974,p. 267.
The Permanent Coun had already, in the Eastern Greenland Case, found that the oral
declaration (later reduced to Mting and initiaued) made by the Nonvegian Foreign
Minister (M. Ihlen), advising the Danish Foreign Minister that the Danish plans
respecting Danish sovereigniyover the whole of Gree"...dould not encounter any
difficulties on the pan of Norwawas hinding on Norway: Leal Status of Eastern
Greenland, Judgment, 1933.P.C.I.J.Re~orts. SeriesAB. No. 53,p. 73. nie Tombalbaye
letter clearly fulfils the criteria inincthese hvo cases for the recognition of
unilateral undenakingaslegallybinding, given the position of Tombalbayeat the the
ashead of StateSec n this regard,Article 7(2) of the Vienna Convention on the Lawof
Treaties.legal title was to be confirmed ("sera") in the future delimitation negotiations
between Libya and Chad yet to take place concerning this frontier. At the very
least the Tombalbaye letter is further evidence of the continuing absence of a
conventional international boundary between Libya and Chad. There appears to
be no question that under Chad's Constitution its lad President had full
authority to write sucha letter includingthese interpretativestatements.
5.124 At the meeting between the two Heads of State in Tripoli at
the end of December 1972 (after this letter had been delivered), at a banquet
held in President Tombalbaye's honour, the Chadian President made these
remarks:
"..1 and the delegation accompanyingme on this visit are not in
Libya for the ht time. History teiis us that before impenalism,
which has ruied both our countnes, there were close fraternal
bonds. The current borders were created by imperialism ...We,
the Libyans and Chad, consider any difference between us as the
result of theeographic situation created byimperialism. 1confirm
to you, Mr. President, that no Chad[ian] considers -1f in
foreign temtory when he isin the LibyanArab Republic ...
The tenor of these remarksbears out the interpretation of the Tombalbaye letter
set out above.
5.125 Aside from this letter, the Libyan presence in the
borderlands was a weii-known fact to Chad when it entered into the 1972
Convention and the 1974 Protocole d'Accord. As reported by Crozetière, the
fïrstofficialChadian reaction to the Libyanoccupationoccurred on 26 September
1975:
"Le généraM l alloum reconnaît publiquement pour la pre@&e fois
la présencede troupes libyennessur le temtoire tchadien .
Thus, almost three years after Libyan occupation of the borderlands (incorrectly
described by the commentator in the quoted passage as "temtoire tchadien"),
Chad's President "reconnaît" their presence; this was not even a protest. The
absence at the time of any Chadian protest was also noted by the then French
Ambassador to Chad, in abook he subsequentlypublished:
192 The fultexof theseremarksappearas LC-M 24.
193 S-, LM. para.5.561ancitationinl589. "Aouzou est maintenant dotée d'une garnisonlibyenne, sans avoir
autafb4 ,,entraîné réaction du gouvernement de
ribalbaye .
5.126 It was not until 10-12 August 1977 that Chad placed this
matter before the OAU. On 4 February 1978, again for the £irst time, Chad
referred the matter to the Security ~ouncil'~~. On 17 Februaq 1978, the
Security Council debate on the question opened; it lasted for one day, for on 22
February, Chad withdrewits ~om~laintl~~.
5.127 Following this, Libya and Chad entered into two further
agreements in which no mention of Libya's presence in the borderlands was
made: the 1980Treaty of Amity and AUiance,and the 1981Accord, sometimes
referred to as the "Accordde fusion"197.
5.128 This, then, was the setting in whichLibya'spresence in parts
of the borderlands (and the reaction, orlack of reaction, to it) took place. Two
agreements between Libya and Chad were entered into while these events were
taking place, in 1972 and 1974. The matter was not brought to the OAU's
attention until August 1977,almost fiveyears later, or to the U.N. until February
1978. In1980,the twoGovemments entered intoa treaty of alliance;and in1981,
they agreed on a fusion of their States. Measured against the test under which
Chad examines the conduct of Italy and of Libya in its attempt to establish
recognition and acquiescence, the conduct of Chad's Government here is
certainly not easy to explain away; and it supports what President Tombalbaye
said in his letter, for otherwise Chad would at once have protested Libya's
presence in the borderlands, and Chad would certainly not have entered into a
series of treaties withLibyain the circumstances.
5.129 The has attempted to explain away Chad's conduct,
nevertheless. Its account of the events surrounding Libya'soccupation of part of
the borderlands attempts tojustifyawaythe conspicuousdelay of Chad in making
194 See,LM,para.5.560andcitationnfns .87-588.
195 See,LM.paras.5.561-5.563.
1% See.LM.para.5.563.
197 See. LM,paras.5.565-5.567;andInternationalAcmrdsandAmeernentsAnnex,Nos.37
and38.any protest, not to speak of the Tombalbaye letter and the agreements1972
and 1974,entered into between Libya and Chad while this was happening. The
line of argument taken in the isthis:
"Aprèsavoir tentéen vain d'obtenir le retrait des troupes libyennes
par des négociationsbilatéje, le Tchad porta l'affaire devantles
instancesinternationales.. ."
5.130 The contends that in August 1974 President
Tombalbaye sent a mission to Tripoli "en vue de protester contre la présence
libyenne à Aozou", adding that the Libyans with whom they met played down
Libya'spresence as a simple police operation and denied that Libya "nourrissait
un quelconque dessein d'annexion de la an de"^ T^he. neither refers to
nor annexes anyevidenceto support this aiiegation;and Libyarejects thisaccount
for lack of evidence. Libyahas no suchrecord of the meeting.
5.131 The CM refers to two other such meetings. According to
Chad, the second meeting was also held in Tripoli,betw29nJuly and5 August
1976. Chad has produced a document relating to this meeting, Ann283,which
must be examinedwith care. It purports to be a report of this mission,and bears
a signature identified as that I.R. Alamdou, Chef de Senice des Affaires
Internationales, showninthe report as a member ofthe Chadian delegation. The
date the report was signedis not indicated. Furthermore, the document does not
appear to be a photocopy of an original document but a retyped version with
certain inked-in alteratioInits conclusions,this document statesthe following:
'Zes deuxdélé~ationsse sont séparéesdos à dos ~%~qu'unprocès-
verbal ne soit etabli niommuniquéfinalpublié .'
Thus, the document represents an entirely unilateral account of the meeting.
198 CM p..33,par76.
199 CM p..35,par84.
200 CM.Annex 283. 5.132 The alleged report is highly charged politicaiiy in its tone
and contents. It indicates that the meeting was not friendly. According to the
document, "le problèmefrontalier TCHAD-LIBYE was discussed,the exchange
being summed up as foiiows:
- Libya denied there was a problem, but since Chad insisted
there was,Libyaagreed to discussit;
- Libya asserted Aouzou was in Libyan temtory by virtue of
the 1935 Treaty; Chad stated the Treaty had never been
ratified;
- Libya produced a map ("Atlas OXFORD 1956 edition)
showingTibesti,includingBardaï, as lyingin Libya1.
,
- The parties agreed to form a "Commission Mixte
Technique" to study the problem and to propose a solution
as soon as possible.
5.133 Libya does not accept this unilateral account. It is not even
apparent that this was a report prepared contemporaneously; in fact, thereo
explanation givenby Chad as to just what this document purports to be. Libya is
unaware that the appointment of a Mixed Commission was "agreed". In any
event no such body was created or went to work on the problem. Libya has no
suchrecord itselfof the meeting.
201 ItisnotedthatBardaïlieswellsouthofthe1935line. 5.134 The third meeting reported in the to have taken place
was allegedly held in N'Djamena in June 1977. The document introduced by
Chad concerning this meeting, Annex 284, is entitled "Procès-Verbal"; its
signaturepage appears thisway:
L, prftcnt proc;s-ocr3<rl CtcLli rn dC.uil; l;lr,l&, ..rcfZ :t
r.ni, a itP liscutk et nprc<;ucr en s6~nc~ >lS%ilrc pr 1,:-
dSlC~ctto~ soeurs & ln JA#SSI.=JSA Lrabc Libyenn. [email protected] et Sociclfst,
ci ln RJpubl ipuc du Tchad.
:lr 1c &'lc'pntion de ln JAMHIRIYB ARAE Pour Zn &ligatf un de la Rdpubl i[
.-:-733! PS,PLILUR.E SOCIALISTE Du Wz¶aD
I
. i-C,YSLUT.?JCW Vice S;critnlre d'Efot 8. CA.XdI Y0ilSSOLBi)nI ZIZIES
'2 Pf,+aires Tect.niques nu S.E. des Secrkîaire d'Etnt nur Bljairfs
Zcires Ltnngères, Prksident &trnrigLres et à ln Coopr'rorfi-n,
Pr& fdent
As this reproduction of the signature pageshows, the "Procès-Verbal"is not
signed. As to its form, once more it is unclear just what Chad claims this
document to be. 1sit an unsigned exact copyof a signed (or of an unsigned)
original? 1sit a retyped versionof a document that was infact never signed bythe
parties? In either'case,whyis the originalnot produced? Libya insiststhat thisis
not satisfactory evidence of what Chad claimstranspired at the meeting. On its
side, Libyahas no such record.
5.135 As to the contents of the document, it appears to be a
summary of a meeting of what is identified in the opening paragraph as "la
CommissionTechnique Mixte",whichbringsto mind the 1976meeting mentioned
earlier. However, thisparagraph saysthisabout the commission"'^ agenda: "La Commission Technique Mixte a discutéde la Recherche des
.voies et moyens pour l'amélioration de la Coopération entre le
Tchad et la Libye, seulpoint inscrit àl'ordre du Jour.
En effet dans leur discours d'ouverture, les deux Chef[si31de
Délégationont souhaitéque les débatssoient colorésde franchise,
sincéritéet de bonne foi, afin qu'une solution honnêtesoit trouvée
en vue de favoriser la coopération éc2~mique, sociale, culturelle
et technique entre les deux pays frère."
This brings out clearly that the sole subject on the agenda of the "Commission"
had nothing to do with the boundaiy between Libya and Chad. Presumably,
therefore, the "Commission" was not the same as that mentioned in the 1976
"report", whose alleged missionwas to deal solelywith the boundaiy matter.
5.136 What this document States is that the Chadian delegation
shifted the discussion from the subject on the agenda to the "dispute"between the
two countnes and to the alleged "illegaloccupation" of Aouzou by Libya, saying
that the cooperation agreements could not be put into effect, in Chad'sview,until
this matter had been cleared up. Libya is reported to have denied the existence
of such a dispute and to have said that, in any event, it should not hold up the
application of the cooperation agreements betweenthem. The document then
goes on to spell out the Libyan delegation's arguments based on th1935 and
1955 Treaties. The Libyan delegation, from this account, obviously unprepared
to discuss any subject other than the one on the agenda, proposed a second
meeting in Tripoli.Chad advanced, as a condition of its acceptance of such a
meeting, Libya's agreement with Chad's view as to the boundaiy and the
elimination of any trace of Libyan administrative or military authonty from
'Aouzou. Itwillbe recalled that two months after this meeting Chad, for the first
time, presented the matter of Libya'spresence in the borderlandstoO.A.U..
5.137 There are several observations to make about this attempt
in the to explain away Chad's conduct in the light of Libya'soccupation of the
borderlands. Firs th, evidence produced by Chad is no better than the evidence
of the Tombalbaye letter; and Libya respectfully calls on the Court to insist that
proper evidence be produced in order to support factual allegations made.
Second, it is quite apparent that after the outbreak of rebeiüon in Ch1965,
and then civil war, Libya could not have seriously entertained the hope of
negotiating with any particular Chadian governmenthen in power over matters
202 CM,Annex 284.affecting the sovereignîy of the two StateTJ& the meetings referred to by
Chad were held to discuss entirely different subjects relating to economic
assistance and cooperation; and the Libyan delegations did not come to these
meetingsprepared to discussboundary questions.
5.138 Just as was to occur later, when Chad brought up the
temtonal dispute before the U.N.,the question had become a kind of political
football. Asthe expressesit:
"It was clear thatising the temtofial dispute between Libya and
Chad before these international forums, under the guise of Libya's
aUegedoccupation of the 'AouzouStnp', claimed by Chad to be its
temtory, was part and parc the civilwar between the different
factionin Chad then ragingdYV.
The French"Limes Rouges". 1983-1984.and Events Botb
(d) BeforeandAftertheirEstablishment
5.139 The drawing of these lines in connection with the French
miljtary intervention called "OpérationManta", which followed the bombing of
Faya-Largeau in August 1983, is dealt with in the m204. What is revealing
about this episode and other contemporaneous events is the ambivalence show
bythe French Govemment at the time.
5.140 This sort of ambivalence appears also in the Accord of
Lagos of 29 August 1979~'~. For although Libya was occupying parts of the
borderlands, there isnot a word in the Accord about that situation. For example,
Article 7 of the Accord mentions the presence of French forces in Chad as an
obstacle to reconciliation; but there is no mention of Libyan forces in the
borderlands. The tex1ofArticle 7reads as follows:
"Les parties tchadiennes ont reconnu unanimement que la
présence continuede troupes françaisesau Tchad est un obstacle
une reconciliation pacifique et à une solution au problème
tchadien. Les tchadiens conviennent donc que le Gouvernement
d'Union Nationale de Transition devra dèssa formation veiller
obtenir le retrait des troupes françaises!'
203 LM. para.5.561.
204 SeeLM, para.5.568.
205 TheAccor üdannexedheretas LCM25. 5.141 It is also of interest to note the text of Arti7lof the 1980
Treaty of Friendship and AUiancebetween Libyaand Chad, whichwhilerejecting
the implantation of foreign bases on Chad's temtory, makes no mention of
Libya'spresebce in Chadian territory and even reserves the right to call on Libya
for help inmaintaining Chad'sindependence:
"ARTICLE 7
The Republic of Chad undertakes not to permit the presence of
any foreign base or imperiaiistoloniaiistforces on its temtory, and
reserves the right to call upon the Sociaiist People's LibyanArab
Jamahiriya if its independence, territorial integrity or interna1
;p.jgp is threatened in accordance with the provisions of Article
5.142 It is also important to note that when Libyanforces, called
into Chad by the GUNT (the legitimate Govemment of Chad established under
the Lagos Accord), were asked to withdraw followingthe Nairobi Conference of
27 June 1981, Libyan forces were promptly withdrawn from Chad - but they
remained in the borderlands.
5.143 When the French Government mounted Opération Manta
in 1983,itestablished a "lignerouge"at lSONlatitude. Thiswas advanced to 16"N
on 28 January 1984. The purpose of the iine has been expressed in these words:
"Dès lors que les franchissements de la zone 'rouge' seront
constatés,la forceManta pourra se considérercomme directement
agressée ...L'ouverture feu sans préavis estdonc autoriséedans
la nouvelle 'zone rouge92% ."
Considering that Faya-Largeau,where the attack occurred that precipitated this
French intervention, lies approximately on the line of 18"Nlatitude, it is stnlcing
that the French Government drew the line as far south as 15"N(and then 16"N).
Ifthe French Government had not wished to indicate that considerable leeway
existedhere, it should have drawn the "lignerouge"at 18'Nor at 1g030>N or at the
1899-1919line.
- -
206 LM.InternationaAccords andAereementsAnnex,No.37.
207 Colonel Spartacus:OpkrationManta.Tchad1983-1984,Paris,Plon, 1985, p. 14(A
mpyof thispageisattachedas LC-M26.) See.LM.MapNo. 109,whichponrays
the'lignesrouges'. 5.144 On 30 April 1984, Libyaproposed the withdrawal of Libyan
forces from Chad so as to remove any pretext for French troops to remain208.
An accord between Libyaand France was amounced on 17September 1984,one
element ofwhich wasthe foiiowingagreement:
"La Jamahinya et la France ont décidéde procéder dans les
meilleurs délaisàl'évacuationtotale et concomitante du Tchad des
forces arméesfrançaiseset des éléments d'appuliibyensauUNT,
ainsi qu%& la totalité de leurs armements et équipements
respectifs ."
Itis clear that the region of northern Tibesti,where Libyahad been present since
the end of 1972, wasnot included within the agreement of withdrawal reached
between Liya and ~rance~lO.
5.145 Evidence of the French Govemment's ambivalence
conceming sovereignty over the Libya-Chad borderlands is to be found in a
statement made by the French Minister of Defence, Charles Hernu, dunng a
publiclytelevised inte~ew 011.27March 1985. He is reported to have said the
following:
"Labande d'Aouzouest hors du Tchad. Cela, tout le monde en est
d'accord. Même le résid e nbréle recomait. C'estune affaire
qui remonteà 1934.
He added thic
"In'y a pas de partition. Au Tchad, ily a le Nordya le Sud. Je
mets hors du Tchad la bande.$AT Nous sommes,nous, pour
l'intégralité, l'intégridchad ... ."
5.146 Liya does not contend that the factor of Libyan effectivités
in portions of the borderlands anywayhas resolved the present dispute. Libya
2. ColonelSpartacu, &, p. 176.
209 Sec.Rousseau, C: 'Chroniquedes faits internatio, evue Gknkralde Droit
International,Tome89,1985, p.477.a>pyof thispageis attachedas LC-M
27.)
210 m., p.479. LGM27.
211 JeuneAfrique,No.266,10April1985,p.22Sec .lso,BuijtenhuR.:LeFrolinatet
lesierrescivilesduTchad(1977-19842Paris,Karthala,1987,p.287,attachedat
LGM 28.does not base its claimto title on these events. However,it is clear that Libyahad
as much right as Chad - and certainly as much as the French -to administer the
borderlands in the interests of security and of the peoples of the region, whom
Libya regards as Libyans and who have, as mentioned above, recently expressed
their wish tobe recognized as belonging to the State of ~ib~a~l~. By its conduct
during 1983-1984and in the statement of its Minister of Defence in 1985,France
recognized that Libyahad legal titlesthat were worthyofrespect.
CHAPTERIV. CONCLUSIONS
5.147 Chad's third theory, which is based on French colonial
effectivités,isnot supportableinlaw:
- The principle of& possidetis adopted by the parties
to the 1955 Treaty in its Article 3, excluded colonial
effectivitésas a boundary criterion thereunder;
- Even if French effectivités had not been ruled out under
Article 3 of the 1955Treaty, the French use of militaryforce
in their invasion of the borderlands was in violation of
international law,for it was an illegalusurpation of the titles
213.
to these lands held by the indigenousSenoussipeoples ,
- In any event, the French military presence in the
borderlands could not be characterized as having been a
"continuous and peacefd display of State authority" and,
hence, did not constitute effective occupation (effectivités)
under prevailinglegal standards.
5.148 Equally, French colonial effectivitésare not established by
the facts as to the nature and extent of the French military presence in the
borderlands:
212 Sec .ara.5.113,lastitem,above.
213 Italso ignoredthe pre-existingclaimsof the Ottoman Empireinhented by Italyunder
the 1912Treatyof Ouchy. -
Prior to 1919,French militaryforces in the borderlands were
concentrated in posts at Faya and Fada (18"Nlatitude) with
only scattered outposts further north, and had abandoned
Tibesti after onlya two-yearpresence;
-
The French operations in the borderlands were purely
military in nature, having as their purpose the defence of
Chad to the south ofthe borderlands;
- Starting in 1913and lastinginto the 1920s(and even into the
early 1930s),there was armed resistance against the French
forces in the borderlands by the indigenous Senoussi
peoples; this followed on the heels of the bitter battle of
these peoples to keep the French out ofthe borderlands;
-
When, in 1929-1930,the French militaryforcestook stepsto
increase their strength in the borderlands, moving into
Tibesti, it was not to occupy the region but as a show of
strength in the face of Italian forces moving south toward
the borderlands and in the light of the ongoingnegotiations
between Italy and France to delimit Libya's southern
boundary;
- In the negotiations in 1934-1935that led to the 1935Treaty,
the French placed no reliance on alleged French effectivités,
-.. ..* and the resultingline didnot reflectthat factor.
5.149 After 1935,the situation on the ground became essentially
irrelevant as a factor in the present temtorial dispute. Until the end of 1938,the
1935 agreed boundary linewas presumed to be about to take effect. Less than a
year after Italymade knownits intent not to exchangeratincations, World War II
broke out. What happened on the ground, and the various legislativemeasures
adopted by France - whether for the borderlands or for Fezzan, into which
French forces had also moved - up to Libya'sindependence on 24 December
1951 have no bearing on the present dispute since they were either war-time
measures or acts taken in carrying out the role assigned to France by the United
Nations in respect to Italy'sformer Afiican colonies. 5.150 The actions of France and Chad after Libya'sindependence
onlyserve to confirm the absence of a conventional boundary between Libya and
Chad. This conclusionemerges kom:
- The 1972Tombalbaye letter;
- The extremely delayed reaction of Chad to Libya's
assumption of administration in a part of the borderlands,
startinginlate 1972-early1973;
- The agreements entered into between Libya and Chad in
1972,1974,1980 and 1981,inspite ofLibya'spresence in the
borderlands, without anymention ofthat fact;
- France's lignes rouees established between 1983-1984,and
the statement made by French Defence Minister Hernu in
1985,justreferred to above.
The issue over the "AouzouStnp" had become a politicalfootball in the civilwar
raging in Chad; and it was evident that the resolution of the temtorial dispute
between Libya and Chad required that it be taken out of the political arena and
referred to the Court for resolution in accordance with the general pnnciples and
rules of international law. PARTVI
THE 1935TREATYOFROME AND RELATEDACCORDS
6.01 The Memorials submitted by both Libya and Chad treat
extensivelyand in detail the 1935Treaty of Rome and related Accords and their
influence on the resolution of the present temtorial dispute. There is, of course,
an important divergencein many of the viewsheld byLibyaand Chad conceming
the Treaty and Accords, especially as to the conclusions to which they lead.
Nonetheless, there is a substantial measure of agreement, as well, on a fair
number of questions. The points of agreement will be dealt within Chapter
1. It will then be easierto isolate the true points of difference between the Parties
for the Court to resolve,which are then dealt with in ChaptIn Chapter III,
Libya'sconclusions as to the significanceof the 1935Treaty and Accords, in the
lightof this discussion,are set out1.
CHAPTER1. POINTS ON WHiCHLIBYA AND CHADAGREE
6.02 The Memorials of the Parties are in agreement on four
essentialpoints conceming the 1935Treatyand Accords:
In these accords, Italy made a major sacrifice,in favour of
(i)
France, of its nghts and interests conceming the lands lying
in southem Libya,in return for France's "désintéressement"
in regard to Ethiopia;
(ii) Unlike the other Accords signed the same day, the Treaty
itself never entered formally into force, because Italy, in
spite of France'spressures for it to do so,refused to take the
required step of exchangingratifications;
(Yi) Asa result, the boundary fixedby the 1935Treaty nevein
the end, was allowed to come into effect and, accordingly,
the pre-existinglegalpositionwasnot modified;
1 S-, also,the discuofthe1935TreatinPartVIII,below,staratpara8.19. Hence, France's obligationunder Article13 of the1915
(iv)
Treaty of London to provide "equitable compensation" to
Italy in the resolution of boundaiy questions between them
wasnever fullydischarged.
Each ofthese four poinwillbe taken up in turn below.
S~ON 1. Italv'sSacrificeofitsTemtoriRi~hts and Ioterests
6.03 The two Memorials take up this point in much the same
way, citing many of the same sources and reaching essentially the same
conclusions. Thus, tCM Statesthat Artic2eof th1935 Treaty-
"..représentait un gain négligeablepar rapport aux aspirations
1935Y ."ales que les autorités italiennes avaient avancées avant
The &l makes the same point by saying that the solution to the boundary
((3
questionagreed byItaly"involveda notable sacrif..ofits Libyaninteres....
The point is brought out even more emphaticaiiyin CMe in quoting a passage
from an intemal note of the Quai d'Orsaydated 24 Janua1935 in whichit was
recognized that:
"La frontière qui séparera désormaisla Libye de 1'A.O.F.et de
I'A.E.F. à l'Est de Tummo reste très en deçà des demandes
résentées parI'ItP et mêmede certaines offres faites var la
France depuis 1919
-. -.
6.04 The Parties are also in agreement that what the Inotean
verbale of 17 December 1938 called "important sacrifices" of a tenitonal
character (described in tCM as "importantesconcessio wne^"^ccepted by
Italy for reasons quite apart from the matter of Libya'sboundanes. Mussolini
2 CM.p.348,para9.
3 LM.para5.353.
4 CM.p.348,para10.Emphasisadded.
5 CM.p.347,para.7.was ready to sacrificeLibya'ssouthern temtones in order to "obtenir l'avalfutur,
par la France, de la conqukte italienne de l'~b~ssinie"~.
S~ON 2. Unlikethe Other Accords of the Same Dav, the 1935Treatv
Never Formallv EnteredInto Fnrce
6.05 There is alsofull agreement between the Parties that the
condition of Article 7 of the 1935 Treaty, under which the ratifications of the
Treaty were to be exchanged as a formal requirement for it to enter into force,
wasnever carried out7. The CM makes a point of fixingthe blame for this failure
on Italy, which refused to give in to the repeated pressures from the French side
and take the final steps to put into effect the ~reaty~. Thisbrings out clearlythat
France considered the 1935Treaty to be very advantageous for it, while Italy -
which had sacrificed its temtonal interests to obtain the political objective of
France's connivancein its aggressionagainst Ethiopia -no longer had any reason
to follow through with the final steps of the Treaty in the light of France's
subsequent conduct that Italy considered as basically hostile to her and not in
9
keeping with the pnor assurances given by France .
6.06 Thus, the recognizes that the reasons that Italy had for
allowingthe 1935Treaty to lapse were entirely politicalin nature and concemed
the general relations between the two countnes, and that the resolution of the
question of Libya'sboundanes had onlya marginal role to play there. Infact, the
line fixed by Article2 of the 1935Treaty was very favourable for France, but it
had also appeared as quite acceptableto Italy,which wasat the time unconvinced
that the contested regions had any real advantage for ltalylO. As a result, Italy
finally repudiated the Treaty, not simply because it represented for Italy "un
résultat singulièrementmaigre" from the temtorial standpoint1', but, more
6 CM, p.348,para.9;s alsoLM. para.5.323.
7 se, LM, para.5.343osa.; CM.p. 351,para.20s!%~
8 See,CM,pp. 356-357,paras39,41,43,andp.372,para.92.
See,CM. p.360,para.49LM. para5.351.
9
10 See,CM,p. 346,para.3; alsoLM. para.5.306.
11 See,CM,p. 360,para.49. In fact,the reverwas true. The point is not that Italy's
temtorial gain was meagre; the jundical nghts and titles over the Tripolitanian
hinterlandinhentedfromtheOttoman EmpirethatItalywaspreparedtoabandonunder
the Treatyinvolveda huge sacrif-and forreasonsthat canwithoutexaggerationbe
descrihedascriminalSee,para8.23,helow. importantly, because the Itaiian Government considered that no such sacrificeof
a temtorial character should thenceforth be agreed in favour of Franceinthe
lightof the attitude adopted byFrance concerningthe Ethiopian matter12.
6.07 Libya has no difnculty in accepting the validity of Chad's
thesis that, although the 1935Treaty ("un accord en forme solennelle"subject to
ratification) did not enter into force in view of the failure to exchange
ratifications, which the Treaty required, the other instruments and joint
declarations signed byMussoliniand Laval on the same day entered immediately
into effect upon signature, for theywere "accordsen fonne simplifnot subject
to ratification.
Smo~ 3. Sincethe 1935Treatv Failed to Enter Into Force. the A&
Boundarv Never Took Effect. Leavine the Leeal Status of
the Boundarv Unchaneed
6.08 The two Mernorials are in fullaccord on what the
consequences were of the 1935 Treaty never entering into force: since the
boundary set out in Article 2 of the Treaty never became a conventional
boundary, the prior juridical situation was, in the end, not modified14. The
Parties also agree that the 1935Treaty'sinterpretation, in the light of al1relevant
circumstances, sheds iight on just what was the preexisting juridical status the
Treaty would have modified. Both Libya and Chad agree, in this regard, that
even though the 1935Treaty failed to enter into force, the Treaty revealed what
Italyand France regardedthat status to haveeen15.
- <- -- - 6.09 Thëre is, of course, at this point a fundamental divergence:
Libya maintains that the 1935Treaty cohed that no boundary existedin the
region covered byArticle2 of the Treaty; Chad argues that the Treaty constituted
the recognition by Italy and France that "la souverainetésur la bande d'Aozou
appartenait à la rance"^ Th.s essential point of differenwillbe discussed
shortly. However, it is important to note 6rst that, in spite of this disagreement,
12 Se.CM. p.372,para92.
13 SeeCM,p. 349,para.12
14 See.M.para.5.330CM. p. 211,para22;p.373,para.93.
15 S-,-g.,LM. para.5.32CM. p.226,para76,ga.
16 CM. p.211,para.22the Parties are in full agreement that, quite aside £rom the question of the
Treaty's non-entry into force, the Treaty provides evidence of great probative
value as to the situation concerning the boundary that France and Italy
recognized at the time.
Smo~4. France Failed toDischarne its Obligations to Iîalv to
Provide "EauitableComwnsation"UnderArticle 13 of the
1915 TreatvofLondon
6.10 The points out that the preamble to the 1935 Treaty
and the General Declaration each expressed France's acknowledgementthat it
had not up to then discharged its obligationto ItalyflowingfromArticle 13 of the
Treaty of London in the form of providing "equitable compensation" in resolving
colonialboundav questionsbetween them in respect to their African coloniIn.
the Treaty'spreamble, the purpose wasexpresslystated as foiiows:
"...de réglerd'une manière dénnitiveles questions pendantes au
suje/...de I'Accordde Londres du 26 avril 1915en son Article 13
.,..
Hence, Italy and France had expresslyagreed that, by virtue of the 1935Treaty,
France had finaliydischargedin fulits Article 13obligations to Italy. Since the
Treaty never entered into force, it followsthat France's obligationsunder Article
13werenot extinguished18.
6.11 The endorses this conclusion. After concludingthat the
Franco-Italian Accord of 12 September 1919 had not exhausted the "créance"
created by Article 1319,thCJ$ goes on to refer to the "carence de la France à
s'acquitter complètement des obligations" in question20, at the same tirne
pointing out tha-
"..I'undes buts principaux de ce Traité étaitde mettre un terme
aux rétentionsavancees depuis longtemps par l'Italie,sur la base
de larticle 13 du Traité de Londres de 1915...Or, en 1935, la
17 LM, Internationl ccordsandAmeemenüAnnex,No.25.
18 See .M. para.5.33et.
19 CM, p.201,para.231.
20 See .M, p.202para.232 France décida d'accueillir définitivefpent ces revendications
politiquespar le TraitéLaval-Mussoiin."
6.12 The foregoing analysis leads to the following two points.
Fir s ta.has clearlyconceded that France nevefulldischarged its Article 13
obligationsto Italy,a result inevitablyflowing£romthe failure of the 1935Treaty
to enter into force. Second,the implicationisinescapable that the "compensation
équitable"owedto Italywasspecificallyfocussedon Libya'ssouthern boundary.
6.13 Now,as the has convincinglypointed out,it wasonlythe
1935 Treaty that failed to take effect due to the failure of ratifications to be
exchanged. The other documents signed on the same day ("lesaccords en forme
simplifiée")entered into force at once, in particular, the General Declaration.
Under it the twoStates solemnlydeclared t-at
"...es conventions en date de cejour ont assuréle règlementdes
principales questions que les accords antérieurs laissaient
pendantes entre eux..et notamment de toutes questions relatives
a l'a lication de l'article 13 de raccord de Londres du 26 avril
19is.p
Accordingly,in an international accord of obligato~yforce 8ulyentered into, Italy
and France publiclyacknowledgedthe linkbetween the Article 13obligationsand
the resolution of the question of Libya's southern boundary provided for in
Article 2 of the 1935Treaty. Bymeans of an instrument of internation-theaw
General Declaration-which entered into full effect, the two States declared that
the Libyan boundary agreed in the 1935 Treaty represented a mutuaily
-. .satisfactory solution of the temtorial dispute between them, in conformitywith
their international commitments, for it resulted in the definitive settlement of a
question that wasofficiallynoted up to that time as "pending".
CHAPTER II. POINTS OF DISAGREEMENTBETWEENLIBYA AND
CHAD
6.14 The principal points of disagreement between the Parties
concerningthe 1935Treaty and Accords and their impact on the resolution of the
Libya-Chadtemtorial dispute concern the followingquestions:
21 CM.p.Un,para.4. (i) Was the 1935Treaty an act recoenizingthe auuurtenance to
Italy and France, respectively,of temtones to the north and
south of the line fixed in its Article 2, or was it rather an
accord under whichFrance cede Fdench territoryto Italy?
(ii) Did subsequent conduct confirm the validity of one or the
other of these hypotheses?
(iii) What effect on the present case has the fact that France,
because the 1935Treaty failed to enter into force, did not
fulfüits obligationsto Italyunder Article 13?
Each of these questionwillbe considered in turn below.
Smo~ 1. Recoenition ofA~purtenance or Cessionof French
Territories
6.15 The CM contends that the 1935Treaty was an agreement
transfemng to Italy sovereignty over French temtones. According to the
Chadian thesis-
prévoyantla cession en sa faveur d'un temtoirefiicain (la bande
d'Aozou) reconnaissait ...que ce temtoire était soumis à la
souverainetéfrançaise:i'ltalie n'aurait pu acquérirla souveraineté
sur la bande d'Aozouen vertu de l'exécutiondu Traité quesi
souverainetéappartenait àla France et que celle-cila luicédait
From this it follows, according to theCM, that since the 1935 Treaty never
entered into force, the situation confronted is a typical one, weil-known to
international jurisprudence, one whe-e
"..un traité non ratifié portant cession d'un temtoire [lequel]
confirme que le territoire envisagépar le traité relève de la
souvera25té de i'Etat qui aurait dû le céder par le traité en
question ."
22 CM. p.207,para5.
23 CM.p.211,para20. 6.16 To be persuasive, thjs thesis of Chad must establish one
prerequisite: that the 1935 Treaty wan accord transferring sovereignty over
temtories, indeed the disputed temtory itself. Nowhere does thmake such
a demonstration. But it seeks to sustain such a thesis with three, seerningly
inconsistent, arguments:
-
Article 13 of the 1915Treaty of London, to which the 1935
Treaty was linked, concemed only the rectification of
, boundanes and, hence, acessi aodnnot an attribution of
territ~r~~~;
- The boundary line shown on the map annexed to the 1935
Treaty bears the legend (inItalian): "nuova frontiera
meridionale"(newsouthern bounda~y)~~;
- Among the 1935Accords, only the 1935Treaty was made
subjectto ratification26.
These arguments willbe considered in turn.
(a) TheArticle13 Areurnent
6.17 The thesis on which this argument res-sthat Article 13
concerned onlythe rectification ofboundan-has been referred to abointhe
context of the Franco-Italian Convention of 12 September 1919, with cross-
..- references to thfuldiscussionin thLM ofArticle 13(where it isshownthat an
analysis of the text of Article 13 showsthe thesis to be wrong). The especially
relevant portions ofArticle 13are underiined in itsEnglishtext quoted below:
"Inthe event of France and Great Bntain increasing their colonial
temtones inAfrica at the eense of Germany, those two Powers
agree in principle that"Ptaly may claim some eauitable
com~ensation, particularly as regards the settlement in hei favour
of the auestions relative to the frontiers of the Italian colonies of
24 CM,p.207,para.4.
25 CM,p.207,par7.
26 CM p.208,para.a=.; p.350,para14-16. Entrea, Somaliland and Libya and2+he neighbouring colonies
belongingto France and Great Britain ."
6.18 It is self-evident that "the settlement ..of the questions
relative to the frontiers" did not necessarily involve a modification under which
France or Great Bntain would (or transfer its sovereigntyover) territory to
Italy. Put another way, a whole senes of possibilities could fit within the task
descnbed in the Treaty. In essence, they would involveeither shifting in Italy's
favour an existingconventional boundary or establishing a boundaq line for the
firsttime in a region contested between the twoStates. The latter situationwould
be where a newlyestablished delimitation would reflect the particular claimsand
aspirations of Italy.
6.19 It is the second possibility to which Article 2 of the 1935
Treaty clearlyapplies, even accordingto its text, as the shows28. Article 4 of
the Treaty, in contrast, applied to the firstpossibi-a cessionof territory; for in
the case of the boundanes there referred to (Entrea and the coast of French
Somaliland), a modification of the preexisting boundanes was contemplated.
That was not the case concerningLibya'ssouthem boundary dealt with inArticle
2; and as the demonstrates, the differences in the texts of the two Articles
bear this out29.
(b) TheM~D Alleeedlv Annexed tothe 1935 Treatv
6.20 Chad'sargument here reposes on the legend written on the
map allegedlyannexed to the Treaty, descnbing the line across Libya'ssouthem
frontier provided for in Article 2 of the Treaty in this way: "nuovo confine
mendionale" (new southern boundary). The argues that such a description
27 LM, International Accordsand Aereements Annex,No. 12.
28 LM. para. 5.332.
29 LM. paras. 5.330-5.331.It must, however,be repeated that in fact the solution accepted
byItalyasto the delimitation of the Libyanbowasanot at au "inits favourVut, on
the wntrarywas greatly Io its detriment. If the 1935Treaty had entered into force, it
would have involvedthe renunciation of therights and titles over the Tripolitanian
hinterland that Italy had receiasdTurkey's successoinLibya and that it had
constantly relied upon in its relations with France. As has bwn seen, this renunciation,
whichexplainswhyFrance subsequently made such great efforts to induce Italy to rat@
the Treatywas the samfice that Itawas prepared to make in order to secure the
political support of France for itsattack againstEthiopia meant that the line on the map replaced a different boundary line - and thus
impliedthere had been a "cession"of tenito$O.
6.21 The argument does not cal1for extensive discussion. To
describe a boundary (or for that matter an automobile) as "new"certainlyimplies
that it is not "old",but no more than thatIfsomeone points out his or her new
car, it does not necessarilymean that, before, that person owned a different car.
Even if the person had never before owned an automobile, the car being pointed
to may accuratelybe described or referred to as a "newcar". It has already been
noted above in reference to the Accord of 12 September 1919 that the same
words - "nouvellefrontière"-were used to describe the boundary delimited in that
agreement, and that, as a matter of law,there had been no pre-existingboundary
arisingout of the 1902Accord and map, as Chad maintains,sinceItalyin 1902not
only did not, but had no legal right to, agree boundaries with France concerning
tenitories whichwere under Ottoman sovereigngl.
6.22 In the interest of precision, it is appropnate to add one
further point, of rather minor importance. Libya has been informed that this
map, which Chad claims to have deposited with the Registrar, was not in fact
deposited. Libya's own research indicates that, in fact, no map was actually
annexed to the signed document, although such a map is referred to in the
Treaty'stext.
(c) TheRequirement thatthe 1935 TreatvBe Ratified
,.-,, .;.=.h- -:..i:x6.23 --The.CM>sargument here is that since onlythe 1935Treaty,
among all the 1935 Accords, was required to be submitted for ratification, it
necessanly concerned a cession of tenitories by France. The reason for this, the
-M suggests,wasthat pnor Parliamentaryapproval in both France and Italywas
required in the case of international treaties involvingthe cessionof territory; and
thus the requirement of ratification con€irmedthat the Treaty would have ceded
French tenitory to
30 CM. p.207,para7.
31 See ,ara.4.124,above.
32 See.CM, p.208,para8,get.; p.350,paras.14-16. 6.24
It must besaid that it is rather hard to understand why the
fact that ratifications were considered necessary by both parties to the Treaty,
even assuminga question of cession of temtory was involved,as Chad maintains,
would demonstrate that such a cession would operate as one made by France in
favour of Italyrather than the other way around. This is particularly so since, as
the CM freely admits, it wasItalywho in 1935agreed to accept a major temtorial
sacrificeconcerning the southern temtories ofLibya.
6.25 Leaving that question aside, however, it is clear that the
1935Treaty did in fact concern the cession of French temtones to Italy;but this
related to the then existingboundanes between Entrea and the Coastof French
Somaliland,covered by Article 4 of the TreatyIn other words, quite aside from
the question of Libya's boundanes, Article4 alone required the exchange of
ratifications, precededby authorking laws enacted by both Parliaments in
accordance with the constitutionalrequirements of each State.
6.26 It must be emphasized here that the surprishg thing about
this line of argument in tCM, aimed at demonstrating that the Treaty was an
agreement to cede to ItalyFrenchterritory to the south ofLibya,isnot merelythe
extreme weakness of the arguments set out in the CM; equaiiy surprising are
Chad's omissions: the ignores completely a whole series of elements of a
decisive character emanating from the text of the 1935Treaty and its travaux.
These aii point in the same direction. There was no transfer of temtory by
France to Italynder Article2; to the contra% France recognized Italian title to
temtories lyingnorth of the 1935line, while at the same the admitting that no
boundary had ever been established in that reg-the Libya-Chadborderlands.
6.27 A bnef reference to thLM. where the followingpoints are
developed, willsufficehere33:
- The 1935 Treaty's text, in relation to Libya's boundary
covered by Article 2, employed the word "détermination",
whereas inArticle4 (the boundaries ofEritrea and Somalia)
the word usedwas "substitution";
33 LM, para. .32g,seq. - The different terms applied to the quite different boundary
situations reveal the careful distinction made in the Treaty
to expressthe intentions of the Parties: "détermination"as to
Libya'sboundary, for there was no preexisting boundary;
"substitution"as to Eritrea and Somalia, where an existing
boundary wasto be modified;
- The accompanying press communiquéreflected the same
distinction:as to Article2,"temtoires ainsireconnus comme
appartenant àla Liye"; as to Article 4,the "rectincation"of
a boundary.
6.28 Amongthe various elements comprisingthe travaux,far and
away the most revealing and, indeed, decisive among them as to the intent of
France as regards Article 2 of the 1935 Treaty was the bosé des motifs
accompanying the law presented to the French Parliament to authorize the
Treaty's ratificati~n~~. In this &osé, the French Govemment, publicly and
officially,informed the French Parliament that prior agreements -
"..laissai[en]t 1'Italieet la France sans frontière conventuelle[&
read 'conventionelle']àl'Estde Toummo."
This document advised the French Parliament, in order to convince it to
authorize the Treaty's ratification,that this "absence de frontières"was causing
difncultiesfor the local authoritie~~~. Inpassing the law, the French Parliament
may be considered to have acted on the basis of this admission by the French
.. .... . . . . . . ~
Government.
6.29 From the foregoing,as weU asthe analysjsset out in theLM.
it is evident that, as regards Lian territory, the 1935Treaty was not "un accord
de cessionterritoriale" by France, as Chad maintains; rather, it was an agreement
that, after havingfound no boundary to have existed,established such a boundary
for the &st time by "reconnaissant"that the temtories to the north of the 1935
line "appartenaient" to Liiya. Asthe BritishForeign Offïceanalysedthe Treaty's
effect at the tirne:
34 Adopted inMarch1935;se, CM,p. 351,para.21. The bosé des motifsappearsinthe
-MasExhibit56.
35 Se. LM.para.5.337. 'The frontier in this area had never previously been demarcated
and the effect of the agreement is that France has nowdefinitely
recognised as Italian n@fy the ownership of whichhad not been
previouslydeterrnined....
SECTIO 2. Subseauent Interuretation
The CM attempts to giveundue importance to the fact that
6.30
words like "céder"and "cession" cropped up in a certain number of French and
Italian documents, especiaiiybetween 1935and 1938. This was a penod during
which the entry into effect of the 1935 Treaty appeared imminent and vanous
preparatory measures concerning its implementation on the ground were being
taken. This involvedFrench and Italian discussions,and communications among
the vanous affected departments and agencies of govemment. In those
documents,even in reference to implementingArticle 2,referenceswere made to
temtones "cédésb "y France to Italy or "remis"or to the forthcoming "translation
des territoires" in question37. On the basis of such elements CMe formulates
the argumentthat the texts- '
" ...de plusieurs documents diplomatiques aussi bien français
qu'italiens,.soulignent tous, en termes absolument clairs et non
equivoques, ~)e#aité prévoyaitun transfert de souverainetéde
la France à1'talie ."
The CM goes on to argue that these expressionsconfjrmedapostenon that both
parties to the 1935 Treaty had signed "en vue d'effectuer une cession de
temt~ire"~~,and thus,in signingthe Treaty, Italyhad confirmed-
36 See,M, para.5.341,anfn .07. Thetextof tfn.sasfouows:
"FObriefingmemorandum on the 1935Franco-ItaAgreements,p.3,dateunclearbut
datinghom 1935, FO371/194!32,British ArchivesAnp..284.Itisclearfrom the
mntext and hom the later memorandumtintquoted from that 'demarcatinthe
quotedpassageasused inthesenseof 'delimior'detemhed'."
37 CM, p. 208,para.etsep.
38 CM, p. 208,para.10.
39 CM, p. 210,para.19. "..d'une manière irréfutablesareconnaissance de la souveraineté
française sur cette zone the SO-"lie Aouzou stnp'] et donc
de la frontière 1899-1919.
6.31 As is often the case where there is an abundant use of such
phrases as "d'une manière incontestable" and "d'une manière irréfutable",such
overstatement invites a closer look. This reveals at once the superficialityof this
analysisin theCM. for it does not venture beyondjust a coiiectionof these words
to which the is content to apply only one among several possible meanings,
without regard to the particular context. Placed in proper histoncal context,these
documents cited are obviouslydealing with the military situation on the ground
and not with the legalrights and titles to the territory ~oncerned~~.
6.32 Aswas carefullyexplainedin the inreference to the text
and the travaux of the 1935 Treaty, and summarized again above, France and
Itaiy had publicly and officiallyconfirmed that no boundaty had been agreed
between Libya and the French possessions to its south (east of Toummo). Italy
had in this borderlands region legal titles opposable to France, as recognized by
France. The 1935Treaty, which had been concluded by the two States in these
circumstances, indicated with a precise boundary line their common convictions
and reciprocal undertakings. However, these provisionsof the Treaty were not a
photograph of the situation prevailing on the ground, since during the 1930s
France had instaiiedmilitarygamsons in certain places situated within the region
under discussion. Itwillbe recalled that after its militaryincursions into regions
north of 15"N latitude, which began in 1913, France withdrew from a large
portion of thisregion; on its side,Italywasnot in a positionimmediatelyto extend
itscolonialoccupationinto the regions ofsouthern Libyato whichrightsand titles
had been conferred on it by the 1912Treaty of Ouchy. However, at the end of
the 1920s,it was in fact in order to head off Italy as it progressed southward that
the French Govemment decided to retum to the northem borderlands and to
Ibid.
40 -
41 Sec.aiso, par8.25,g seq.,below. Iisevidentthat the meaningof "céù"snot
restrictedto an operation wsovereigntyovertemtoryipassedFromone Stateto
another. TheDictionnairede'AcademiFrancais(1931)offersthis other definition:
'Céderl:aisser; abandonrnechosA quelqu'un". nditoffersthisexample:'&dersa
plaŒ,son tour un autre'. Le Petit Larous(1988)defines "ceder'to include
"abandonner(cquei'ona,Πquei'onoccupe"). TheLatinoriginof 'ceitheverb
'cederew,hichmeansin French"s'enaller",an expressionnotiinkedinmeaningto the
mnŒpt ofatransferofsovereigniy.estabiish a few military gamsons in the region, includingareas that under Article
2 of the 1935Treaty were to be recognizedasbelongingto Italy'scolonyofLibya.
6.33 It is important to bear in mind what has already been
pointed out by Libya here and in its Memorial: France's poiicy of infiltrating
northward, and stationing troops in some locations fallingwithin temtones that
Italy regarded as under its sovereignty,gave rise to repeated protests from the
Itaiian Govemment, between 1930 and 1935, officialiyaddressed to the French
Government. Chad has readily admitted this fa~t~~. In short, the presence of
French forces in certain locations that the 1935 Treaty was to recognize as
belonging to Italy, and which Italy had protested as iilegal on a number of
occasions pnor to 1935, was a practical matter to be dealt with. The task of
puttinginto effect Article 2 of the Treaty thus appears from the evidence to have
consisted of a combined effort leading to the handing over to Italyof control over
these places. In other words, French forces were to withdraw from these
installations at the same time as Itaiian forces moved into the temtones
43
concemed .
6.34 Given this situation on the ground, it was perfectly natural
that Italian as well as French documents should speak of a "cession"in refemng
to the forthcoming implementation of Article 2 of the Treaty. It is hard to think
of another term that would as succinctly describe the vanous practical steps
necessary to carry out the operation inte~~ded~~.It is really quite absurd to .,
42 CM. p. 271,para. 243; p. 273;para. 250.
43 Although these disputed borderlands had never ben ounipied by Italy prior to 1935,
Ottoman form had effectivelyounipied them, staning in 1908. It was the Ottoman title
inherited by Italyin 1912that the 1935Treaty recognizedin respect to the lands nonh of
the 1935line.
44 It wasfor similar reasons that Foreign Minister Laval,in the speech he made before the
French Senate on 26 March 1935,replied to criticismfrom the opposition bystating that
the "concession"madeto Itawas in factof veryLittlevalue, and used the word "cession"
inthis regard (-eLM. para. 5.339). Indeed,what the 1935Treaty dwas to obligate
France to withdraw its troops from the places they had ounip-edespite the Italian
protests - in the area which was thenceforward recognized as belonging to Italy.
Consequently, if the Treaty had entered into force, a "cession"of temtory would have
occurred, in that the placeswhere French troops were posted would havebeen given up
to the Italians. Given the anual situation on the ground, the fact that both panies spoke
of a "cession"is of no significancefor the identification of legal titles, in panicular for
Italy, whiwas to obtain (although on a veryreduced scale) what it had been claiming
for a long time; and thanks to the "cession",it would be able thereafter to exercise its
sovereignty over the temtories in question, in accordance with the legal titles it had
inherited fromTurkey.pretend that the term "cession" can only be interpreted as implying the
recognitionby Italythat it possessedno legal title over the temtorites in question,
other than such title as Italy would acquire by the entry into force o1935e
Treaty, and that this title belonged to France. This is brought home by the
continued Italianprotests against French military infiltration into these regions.
The situation was quite the reverse. Thanks to this agreed "cession"by France,
Italy would have finaiiy been able to exercise the full sovereignty that it had
alwaysclaimed, both before and after1935,in accordance with legal titles which
had been Italy'squite independently of t1935Treaty, and whichthe Treaty had
recognized (although in a very restricted sense insofar as the temtonal reach of
these landswasconcemed).
6.35 There is another inconsistency in the m. Chad itself
mentions that Italy had taken the position af1935 that not just the temtones
north of the1935 line belonged to Libya, but regions to the south as weii. The
Italian Government, in a document cited and annexed by Chad, expressly
abed in the foiiowing terms that, until t1935 Treaty took effect, regions
lyingsouth of th1935 üne continued to appertain to Libya4?
"..1'Italie a toujours considérécomme relevant de la Libye
('pe-inenti alla Libia') les régionssituées ausud de la frontière
etablie par les Accords Mussolini-Laval du 7 janvie1935. Ces
Accords n'ét t as en re entrésen vigueur, ladite thèse reste
c'estévident -ferme Pq.l
How in the light of such explicjt declarations, which followed repeated Italian
protests against the1919 Convention, which were equaiiy explicit, can it be
maintained 4th anyplausibilityas Chad attemptsto do, that Italyhad recognized
French swereignty over these regions?
Smo~3. UnderfArticle13ofthe 1915iTreatvofLondon its Oblieations
6.36 As mentioned above, the Parties are in agreement that
France did not fullydischarge its obligationsto Italyunder Article 13. It remains,
45 See.CM,pp.215-216,paras.36-40,andAnne204. Sec. aras8.30-8.helow,fora
discussiofotherItaliandocumeninwhichtheamepositionwastaken.
46 IntheItalianorigi, coreowio".
47 CM. p.216,par40 andAnnex204.therefore, to consider what consequences flow from this failure for the present
case.
6.37 The CM dealswith the question in oniya short passage:
"..Bien entendu, la Libye ne peut prétendre à aucun droit du fait
de la carence de la France &s'acquitter complètement des
obligationscontractéesen1915.. ."
Two arguments are advanced to support this conclusion:firs tt,t "equitable
compensation" under Article 13 did not necessady involve Libya's southern
boundary; secon that.Italin the 1947Peace Treaty renounced all nghts and
titles over its former African colonies. Neither reason is valid, as can easilybe
demonstrated.
6.38 The fir srtument has been commented on above4'. In
fact, France and Italy formaUy recognized that the obligations flowing from
Article 13 had a decisive ifluence on the resolution of their temtonal dispute
over Libya's southern boundary. By the solemn declaration included in the
preambular part of the 1935Treaty and by another international agreement that
entered into force-the 1935 General Declaration, which was one of the 1935
Accords -the two States acknowleged the fact that the boundary line agreed in
1935represented the solution of this dispute under, and in conformitywith, the
terms of Article 13In other words, Italyand France explicitlyadmitted that no
satisfactory, dehitivresolution of the temtonal dispute concerning Libya's
southern boundary could be found without taking into account and applying
Article 13of the 1915secretTreaty ofLondon.
6.39 As to the argument, which relies on Italy's
renunciation of its colonialnghts and titles in 1947,Chad itself has demonstrated
that such an argument lacks substance. The general thesis set out iCMthis
based on the concept that Libya as successor State to Italy is subject to all the
treaties and all the legal arguments that could have been opposed to Italyand are
relevant to resolvingthe present dispute. Surely,Chad does not contend that only
the unfavourable arguments are opposable to Libya! It is evident that Libya's
inhentance from Italy embraces not only the obligations of Italy concerning
48 CM. p.202para.32
49 & para..12above.boundary questions but also the rights Italy had against France concerning
boundary matters at the time Italy renounced its colonial possessions. If,as is
clear, Italy surrendered al1of its colonial riginthe 1947 Peace Treaty, by the
same token, Libya as successor to Italy acquired al1of these rights concerning
Libya'sboundaries at the moment Libyaacceded to independence.
6.40 It is necessary in this connection to underiine the point that
under the principles of international law, codified by Article 11 of the 1978
Vienna Convention on Succession of States in respect of ~reaties~', State
successionnot only does not affect "a boundary established by a treaty", but also
does not affect "obligationsand rights established by a treaty and relating to the
régime ofa boundary". Thus, as was observed by M. Tarnmes during the debate
on this subject inthe International LawCommission -
"...reaty provisions for the completion of a boundary settlement,
by demarcation or otherwise,were inherited @Il the successorState
with the boundarysituation already executed .
During the same debate, Mr. Kearney descnbed the kinds of treaty provisions
that wouldsurviveState successionas including -
"... eans estabiished for the delimitation and determination of the actual
boundary iine";and
"... set of agreed technical rules for the purpose of determining the exact
boundary would constitute part of the régime of the
6.41 It is of great interest to note that this discussion of State
successionby the International Law Commissioninvolvedthe very question that
is before the Court in the present dispute. Judge Ago, then a Commission
member, raised the question of what consequences flowed kom the accession to
independence of Ljbya,Tunisia and Algeria in the light of pre-existingboundary
treaties concluded by the Colonial Powers. Judge Ago at the time expressed the
view that the pertinent principles of international law not only implied for such
successor States that, at the moment of independence "..leurs temtoires étaient
50 ReprintedinAm.J.Intl.L, Vol.72,1978p.971.
51 Yearbook of the InternatioLaw Commission.Vol. 1,1974, p. 208. (copyof this
pageisattachedas LGM 29.)limitéespar les frontièresainsi établies", but al"..signifientainsique ces Etats
n'auraient paspu se prévaloirde la possibilitéde fairetablerase de ces traités".
6.42 Among the treaties of which the States in question would
not be able to "faire table rase", Judge Ago specificaiiycaiied attention to the
1915Treaty of London and the obligation under it incurred by France to make
"compensationséquitables"to 1talg3.
6.43 The I.L.C. based its analysisof this matter on international
jurisprudence, which it found fully recognized the principle of continuity of
boundaiy régimes. The I.L.C. recalled that the Permanent Court in the Free
Zones of U~per Savovand the District of Gex case54had made -
"... a pronouncement which is erhaps the most weighty
endorsement of the existence of a rufe requiring a successor State
to respect a temtorial trsgv affecting the temtoiy to which a
successionofStatesrelates .
Again in the TemDle case56,accordingto the I.L.C.'sanalysis-
"..both parties seem to have assumed that, in the case of a newly
independent State, there would be a successionnot only in respect
of a boundav Wtlernent but also of treaty provisions anciliaiy to
such settlement ."
6.44 Itisthus clearin the lightof these various observations,that
the "régime of a boundaiy" referred to in Article 11 of the 1978 Vienna
Convention encompasses not only the conventional clauses defining a boundaiy
he, but also those clauses prescniing the rights and obligations relative to the
criteria and principles to be foiiowed soas to amve at the establishment of a
boundary that had not prior thereto been fixed. Article 13of the 1915Treaty of
London certainly belongs to thiscategory of clause,for it prescnbes the cnteria of
54 FreeZones ofU~oerSavovandthe DistrictoGex, Judement.1932.P.C.I.J..SeriesAB,
-o.46.
55 Y.I.L.C.,VoII,1972p.298. (Exhibit LC-M30.)
56 Temole ofPreahVihear.Menu. Judment. I.C.J.Reoorts196p.6.
57 Y.LLC..Vol. II,197p.300. LCM 30."compensationséquitables"in favour of Italy(and hence Libyatoday, as successor
State) tobe applied-
"..dans le règlement en sa faveur des questions concernant les
frontièresdes coloniesliemes ...de la Lybie[sicet des colonies
voisinesde la France... ."
6.45 It must be emphasized again that Article 13 is- as its text
indicates exoressis
-a treaty provision related specificallyand directly to
the question that issubiudice in thiscase: the intended object and purpose ofthat
Article was to facilitate, among other things, the resolution of the territorial
dispute concerning the southern frontiers of Libya. This explains why the
obligation that Article3 imposed on France in favour of Italy is now borne by
Chad in favour of Libya,for it concerns an obligation flowingfrom a treaty that
relates specincallyto the "régimeoa boundary". This stands in sharp contrast to
Article3 of the1899 Declaration, whichcannot inanywaybe tied to a "boundary
régime"since, as explained above and in the (and as Chad concedes in the
CM) ,rticle3 did not concern boundanes between sovereign Statesbut, rather,
concerned no more than spheres of influence over regions over which neither of
the two States concerned (Great Bntain and France) exercised at the time
temtonal sovereignty. It is not possible to envisagea successionbetween States
that stems from undertakings made between Great Bntain and France under the
1899 Declaration that neither established a boundary nor concerned the "régime
of a boundary".
6.46 Accordingly, Libyamay take advantage of Article 13 vis-à-
visa successorState to France, in respect of any disputes between Libya and that
State as to the determination of boundanes that were not fixed during the
colonial era. The present case presents just such a situation because during the
colonial period no boundary was established in respect to the temtones lying
between Libya and Chad -the borderlands - as both France and Italy publicly
recognized in 1935. Such a boundary remains to be determined today, in
accordance with the applicable principles of international law and taking into
account ail the related jundical rights, titles and claims. These would include
those that Italycould have asserted against France and, as successorState to Italy,
Libyamaynowassert against Chad, as successorState to France.
58 Sec ext,LM.InternationalAccorasndAmeements,No.12.CHAPTER m. CONCLUSIONS
6.47 The above analysis confirms that the 1935 Treaty and
Accords have an essential place in the resolution of the present dispute. The
Parties agree on this point, just as they agree that the most important of these
instruments, the Mussolini-Lav1935Treaty, never entered into force, unlike the
other Accords ofthe same day, whichdid.
6.48 From this starting point, Libya believes the following
conclusions emerge concerning the1935 Accords, based on what has been said
above and the rathefulldiscussionin tLM:
- The 1935 Treaty and Accords reveat that Italy and France
recognized that prior thereto there had never been
established a Libyansouthem boundaq east ofToummo;
-
Thus,Italy and France recognized that t1935 Treaty was
the first international instrument fixa precise Libyan
southem boundary in the borderlands;
- The fixingof this line was not regarded as involving the
cession of French temtories to Italy; to the contrary, the
delimitation of temtories under Art2cof the1935 Treaty
was a recognition of the appurtenance of the temtones on
either side of the line to Italy and France, respectively; and
the subsequent conduct of the two States did not place in
doubt thisconclusion;
- The 1935 delimitatiowas very favourablefor France, but it
was a major sacrifice of Italy's temtorial ciaims in the
region, a sacrifice deemed acceptable for reasons of a
political character entirely extraneous to Libya and its
bontiers;
- Since the1935 Treaty did not take effect due to the failure
to exchangeratifications,the pre-existingsituation remained
unchanged; thus, after1935,just as before, no boundary separated the Libyanand French temtones lyingto the east
ofToummo;
- inviewof the absence since 1935 of any other international
treaty establishing such a boundary, such a boundary must
be established today in application of the principles of
international lawcurrentlyrecognized;
- These principles require that Libya and Chad be regarded
as successors to Italy and France, respectively, and as a
result the Partiesto this dispute mayinvoke, respectively,al1
nghts, titles, claims and arguments that inhered in their
predecessors;
- in particular, in order to establish the boundary between
Libya and Chad, Libya may invoke for its benefit against
Chad the nghts that Italy had to obtain "equitable
compensationw from France in resolving the boundary
questions that existedbetween them concerning the regions
now comprisingthe Libya-Chadborderlands. PARTW
GOODFAITH IN THE LAW OFTREATIES
CHAPTER 1. INTRODUCTIOND : OCTRINE
7.01 Good faith is a principle which permeates the whole of the
law of treaties.In the codified law of treaties (the 1969Vienna Convention on
the Law of Treaties), there are fïve specificreferences to good faithl. The third
paragraph of the preamble to the Convention notes that "the pnnciples of free
consent and of good faith and the pacta sunt servanda mle are universally
recognised". Article 26 of the Convention, incorporating the most fundamental
ruie ofthe lawof treaties (the pacta sunt servanda de) succinctlyprovides:
"Everytreaty in force is binding upon the parties to it and must be
performed bythem in good faith."
Article 31, thegeneral rule on interpretation, commences with the words: "A
treaty shallbe interpreted in good fai...".here are further references to good
faith (not materialinthe present context) in Articles 46(2) and 69(2)(b) of the
Convention.
7.02 But the principle of good faith applies also in contexts other
than those regulated specificauybythe codifiedlawof treatiesIfArticles 26 and
31 of the Vienna Convention incorporate the good faith pnnciple in the basic
mles relating to the performanceand interpretation of a treaty, there is no doubt
that the good faith principle equally applies at earlier stages of the treaty-making
process, notably at the stage of negotiation. Thus a recent commentator has
observed:
"In the internationallaw of treaties, both its codification and its
judicial and political application demonstrate that while good faith
pervades the whole of this branch of the law, it is particularly
prominent in three separate phases of the existenceof a treaty: the
negotiating phase; the phase of its interpretation and application
(much the same thing in practice); and the phase that is the
consequence of performance (including non-performance or
misperformance) ."
1 Rosenne,S.:Develoamentsinthe Law of Treaties 1945-1986, Cambridge, Cambridge
Universityes 1989,p.137. (wpy of thispagisattacheciatWiibLCM 31.)
2 7bidp.173. LGM 31.Elsewhere, the same commentator, concentrating on the phase of negotiation,
comment5as follows:
"Negotiation is a political operation, at whatever level it is
conducted. As such. it is hardlv a matter for leaal remdation in
itself bevond the aeneralitv. common to al1relati6nshiG. that the
neeotiationrnust be conducted in eood faith and without deliberate
deception ...=."
in yet another passage, the same commentator givesexamples of conduct during
the phase of negotiation whichcan be impugned as demonstrating something less
than complete good faith on the part of one ofthe negotiatingStates:
"inthe phase of negotiation, it seems that two separate aspects are
relevant: the persona1conduct of those handling the negotiations,
and the conduct attnbutable to the State or the international
organization which gave the negotiators their instructions or
endorsed their actions subsequently under a provision such as
article8 of the Vienna Conventions. Nevertheless, some aspects
are common in both respects. Thus, uncandidness,whether by the
individual representatives or by absent authonties of those
amorphous entities, the State or the international
intergovemmental organization - apart from its being bad
diplomaq and a violation of the standards of diplomaticbehaviour
- might not in itself invalidate the negotiation unless there was an
element of fraud or corruption or the deliberate inducement of an
error (envisaged in articles9 and 50of the Vienna Conventions).
But it could well be taken as an indication that the negotiations
were not being conducted ingood faith. That wouldhave a forward
thrust into thelater hases of the existence of the treaty..In an
indirect way the $ enna Conventions themselves may supply
pointers to conduct which couldbe taken as indicatingthe absence
coercionfalready mentioned. Examples could comprise misleading
information, or concealinginformation regarding the relevant rules
of the interna1law (articl46 of the Vienna Conventions),coercion
of a representative article51), deliberately creating a lack of
concordance of plun\ingual versions of a trea (probably to be
embraced $thin the general concept of ,and others are
conceivable ."
7.03 A similar point of view is expressed by another recent
commentator. in a comprehensive studyof good faith in public international law,
Zoller correctly points out that the codifiedlaw of treaties does not envisage the
3 Ybid p.129.Emphasisadded. LCM 31.
4 Ibid pp.173-174. LGM 31.good faith of States as a positive condition for the validity of the conclusion of
treaties:
"iln'existepas en droit positif de texte qui prévoit commecondition
de validitéde la formation des traités internationaux la bonne foi
des Etats. La Convention de Vienne de 1969 se borne à
sanctionnerles atteintes portées au principe mais ne le définitpas.
Ilfaut en conclure qu'enmatièrede conclusiondes traités,la bonne
foi ne peut se définirque par ce qu'elle n'est pas, c'est-à-dire par
son contraire.
Obligation de comportement, la bonne foi revêtici un contenu
indéhi et incertain. Elle oblige,en effet, moins à faire qu'à ne pas
faire. On tentera d'enpréciserle contenu en étudiant, d'une part,
la bonne foi au cours des négociationset, d'autrs part, la bonne foi
entre la signature etl'entréeen vigueurdu traité .
Thus, Zoller envisagesthat, in this particular context, the principle of good faith
willbe satisfied ifneither party displaysin the negotiations an intention to harm
or to deceive the other Party, such as to amount to fraud or corruption, both
being grounds which may be invoked to invalidate the consent of a State to be
bound by a treaty. She goes on to characterize bad faith during the course of a
negotiation as the willingness of a negotiating State to mislead the other
negotiating State. But she points out that bad faith alone may not constitute
fraud. There must be objective facts, such as the practice of fraudulent
manoeuvres. In this context, she cites part of the commentary of the
International Law Commission to what is now Article 49 of the Vienna
Convention on the LawofTreaties:
'This expression ['fraudulent conduct] is designed to include any
false statements, misrepresentations or other deceitful proceedings
by which a State is induced t8 give consent to a treaty which it
wouldnot othenvise havegiven .'
Shearguesthat fraud ismore difficultto prove than error:
"Laréalitéapparaît différente, carsi le do1créebien une erreur en
la personne de i'Etat qui en est victime, il s'agit d'une erreur
provoquée, intentionnelle. Dèslors,ilne s'agitpas seulementpour
1'Etatvictime de faire la preuve qu'ila ététrompé,mais encore il
luifaut prouver qu'ila été trompé intentionnellement,àdessein; en
5 ZollerE.:La bonne foien droit international ~ublic.Paris,Pedone, 1977,p. 49. (A copy
of this page isattacasd LC-M32.)
6 Yearbook of the InternationLaw Commission, Vol. II, 1966,p. 245. (A copy of this
pageisattachedas LC-M 33.) d'autres termes, qu'il étévictime d'une intention dolosive,d'une
intention malveillante.t
She then givesan example of what might net strictlyconstitute fraud, at least in
the absence of other evidence:
"Le simple fait d'arguer de ce qu'au cours d'une négociation
internationale,n Etat a fait usage,par exemple,de cartes falsinées
ne suffit pas à établiri~so facto la mauvaise foi de celui-ci. L'Etat
ainsi mis en cause peut très bien avoir utiliséces cartes en toute
bonne foi, c'est%. due dans l'ignorance totale des vices dont elles
étaient entachées .
7.04 It is for these reasons that another commentator has
explained that:
"La partie victime d'une manoeuvre dolosive préférerade se
cantonner dans le terrain objectif de l'erreur substantielle. Les
notes diplomatiques ou plaidoiries sauront utiliser demi-mot les
circonstances de l'affaire pourrenfBrcer une argumentation qui
laisseintact'honneur de l'adversaire."
The same commentator emphasizes the dificulties of proving bad faith and
indeed maintains that the nuiiity of the resulting treaty may be too heavy a
sanction for breach of the principle of good faith in the context ofits negotiation.
He believes that a more appropriate sanction for breach of the principle of good
faith in the negotiation of a treatyinitaking account ofthis circumstancein the
interpretation of the treaty:
"Aussila sociétéinternationale a-t-elle cherché une sanction plus
nuancéequi permette de réprimerla violation de la bonne foi avec
efficacité.La mise en oeuvre de la responsabilitéinternationale,
outre qu'elle est difficileengager, n'offre pas une compensation
adéquate. Enrevanche, ilest possiblede faire supporter a l'auteur
de l'infraction lesconséquencesde son attitude;1interprét
traitéapparaît alors comme une véritable sanctionjuridique'. :u
7 Zollerm., p.53. (Ampyof thispageisattachedas LGM 32)
8 -bid.
9 Cot,J.P.':abonnefoidanslamnclusiondu traitéR,evuebelcededroitinternational,
1968,p. 143(A mpyofthis pageisattachedas LGM 34.) 7.05 The late Su Gerald Fitzmaunce, in his pnvate writings,took
a simiiarlybroad view of the scope of the principle of good faith in international
law. He argues, inter alia, that the difficultyof obtaining impartial adju-ication
or even any adjudication at a-lof disputed issues of international law makes or
creates for States an added obligation to conform to the requirement of action in
good faith, and that:
"..hisvery fact may create for States an international legal duty to
act uberrimae fidei, notnly in the discharge of obligations they
acknowledgethe law to im ose,but alsointhe exerciseof the rights
and iiberties it confeds.e duty of conduct uberrimae fidei, as is
well known, normaiiy anses with reference to certain contracts,
such as contracts of insurance,where one of the arties, in order to
assess the risk or other material factors inIIi'obiiged to rely
on information suppliedby the other arty, and lyingpeculiarly,or
exclusively,within that party's knoedge11 A somewhat simiiar
situation can anse ininter-state relat... ."
CHAFTER II. JURISPRUDENCE
7.06 in this context, Fitzmaurice goes on to refer to a passage
from the Judgment of this Court on the merits of tCorFu Channel case where
the Courtstated:
"Itis true, as international practice shows, that a State on whose
territory or in whosewaters an act contrary to international law
occurred, may be called upon to e an explanation.Itis also true
that the State cannot evade suf"a request by lirnitingitself to a
reply that it is ignorant of the circumstances of the act and of its
authors. The State may, up to a certain point, be bound to supply
particulars of the u19'81 by it of the means of information and
enquiry at itsdisposai.
In the same case, the Court went on to point out the disabilitiesunder which the
victimState labours in such circumstances,and suggestedthat this might cal1for a
relaxation of the methods of proof:
"On the other hand, the fact of this exclusive territorial control
exercisedby a State within its fiontiers has a bearing upon the
methods of proof availableto establish the knowledge of that State
as tosuch events. By reason of this exclusivecontrol, the other
-
11 FitzmaunŒ,G.:The Law and Procedureof the InternatiCourtof Justice, 1954-
1959:GeneralPrinciplesandSourcesof InternaLaw'35 1959,p.212 (A
mpyofthispageis attachas LCM 35.)
12 Comi Channel.Menu. Judmnen1.C.JReports1949p.18. State, the victimof a breach of international law,is often unable to
furnish direct proof of facts givingrise to responsibility. Such a
State should be aiiowed a more liberal recouse to inferences of
fact and circumstantialevidence. Thisindirect evidencesadmitted
in al1 systems of law, and its use is recognized by international
decisions.It must be regarded as of special weight whenit is based
on a senesl~f,~actslinked together and leading logicallyto a single
conclusion .
This passage may not appear at first sight to have much relevance to the present
case, but Libya submits that, aswillpresently be shown, an analogous principle
must be applied to any assessrnent of French conduct dunng the negotiations
leadingup to the conclusionof the1955 Treaty.
7.07 International case law makes little or no mention of the
operation of the principle of good faith in the negotiation of a treaty, beyond a
few isolated dict exapressed in very general terms. This is not altogether
surpnsing, &en the paucity of cases in which doubt has been raised as to the
good faith of one or other of the negotiating States. But the isolatedic area
nonetheless of some interest as.sheddinglight on certain aspects of the content of
the principle of good faith in the context of treaty negotiations. Thus, in the
Nuclear Tests cases, the Court appears to have underlined that the principle of
good faith is not confined to issues concerningthe interpretation or performance
of treatiesbut has a wider application:
"One of the basic principles governing the creation and
performance of legal obligations, whatever their source, is the
international CO-operation,in particular in an age when thisiCO-
operation in manyfieldsisbecoming increasinglyessential. Just as
the veryrule of pacta sunt servanda in the law of treaties is based
on good faith, soalso is the binding chara r of an international
obligationassumedbyunilateral declaration"fr.i
In the Lake Lanoux arbitration whichinvolvedthe diversionby France of waters
of a river shared byFrance and Spain, the arbitral tribunal found that the relevant
treaties establishing procedures for CO-operationin use of those waters at least
required France to consult, though not necessarily reach agreement, with Spain
with respect to the river diversion. While holding that France had in fact met
these obligations,the tnial went on to declare that:
13 -bid.
14 NuclearTest Australiv.France).Judement.1.C.J.Reports1974,268,para.46 and
p.473,para 49. Emphasisaddedto "aûation". "..the reality of the obligations thus undertaken is incontestable
and sanctions can be a plied in the event, for example, of an
unjustified breakingO8 of the discussions, abnormal delays,
disregard of the agreed procedures, systematicrefusals to take into
in cases ofviolation ofthe rules of good .aithore generaiiy,
So also, in the North Sea Continental Shelf cases, the Court, in,refemng to the
obligation of States to enter into negotiations with a view to amving at an
agreement on the delimitation of their respectivecontinental shelves,stated:
"[Tlhey are under an obligation so to conduct themseives that the
negotiations areeaningfd, whichwill not be the case when either
of them insists itOW" position without contemplating any
modificationofit .
7.08 These dict aae admittedly expressed in vely broad and
general terms and give littin the way of positive guidance as to what the
principle of good faith in treaty negotiation requires. But it is submitted that it
must certainly include a minimum disclosure by a negotiating State of relevant
factswhichare peculiarly,or exclusively,withinits knowledgeand whichthe other
negotiating State has no means of discove~g.
CHAPTER m. APPLICATION OF THE PFUNCWLEOF GOOD FAITE
INTHE PRESENTCASE
7.09 Libya makes no apologyfor drawingthese considerations to
the attention of the Court, for they must be borne in mind in assessing the
signifïcance of France's conduct during its negotiations with I1902 its
exchanges with Great Bntain in 1922, and, most importantly, its treaiy
negotiations with Libya 1955. Libya is_netinvoking French conduct in the
negotiation of the Franco-Italian Accords of-19 0or in the negotiation of
the 1955Treaty as a ground for invalidatingany of these agreements in whole or
in part, whether on the ground of baud or of error. France is not a party to the
present proceedings, and Chad cannot be held responsible for any lack of good
15 Lake LanouxArbitrati24I.L R957,p. 128. (A mpy of thiiisattacheas
-xhibiLCM 36.)
16 I.C.J.Reports 1969,p. 47. Note also thtothe dutyof the parties'Io consult
togetheringoodfaiintheAdvisoryOpiniongivenbyCouninthecasemncerning
the lntemrëtation of the ~meement~akh21951betweenthe WHO andE~I,
Advison'Opinion.1.a. RepORs1980,pp.95-98(esp.para.49).faith shown by France in the negotiation of treaties pre-dating Chad's
independence. However, insofar as Chad relies upon and espouses a claim to
title over temtones in dispute in the present case based upon agreements
onginallyconcludedbyFrance withother powers,Chad must equallyabide bythe
consequences of evidencedemonstratingthat French conduct innegotiatingsome
of the agreements upon whichChad now relies does not appear to correspond to
the conditionsrequiredfor the proper application of the pnnciple of good faith in
the negotiation of treaties.
sec no^1. TheMissine M~D
7.10 Let us look at the evidence.re isfirst of aii the question
of the Non-Annexed Map, the rnap supposedly annexed to the Additional
Declaration of 1899(but in fact not so annexed). Chad admits that the rnap was
not so annexed17. Yet we hd that reference is made to "la frontière de la
Tripolitaine indiquée par la carte annexéeà la déclarationdu 21 mars 1899"in
the 1902 Franco-Italian Accord. This language could have been used only
because the French ~rnbassador Barrère had represented to the Italian Minister
of Foreign Affairs, Signor Prinetti, that ahadabeen annexed to the 1899
Additional Declaration. wiibe recalIed that the proposa1to make a reference
to a rnap iiiustrating the boundanes of French possessionsviTnDovishai
onginaiiybeen made by theltal siaewho suggestedthat the reference should
be to the rnap annexed to the Anelo-French Convention of 189818. It was only
after further discussion between Pnnetti and Barrère that the reference was
changed to the rnap supposedly annexed to the 1899 Declaration. It is an
irresistibleinferencethat this changewas proposed by the French side; and there
is some evidence to show that the Italian negotiators were not even shown the
Non-Annexed Map until after the exchange of letters of 1902 had been
concluded19.
7.11 Chad appears to rely on vanous sources to argue that Italy
accepted and recognized the southeast line descnbed in Article 3 of the 1899
17 CM. p. 159,para.65.
18 See.LM.para.5.91;and p. .113,above.
19 Sec .M.para.5.93.~eclaration~~. Chad invokes a speech made by Admira1Canevaro (then Italian
Mhister of Foreign Affairs) on 24April 1899,but admits that this speech did not
constitute express recognition of the iimit of French expansion agreed between
France and Great Britain in 1899~'. Chad also invokes the 1900 Accord as
constituting recognition of the boundanes of the French sphere of influence
resulting £rom the 1899 Declaration. But this ignores, or at least severely
downplays,the significanceof the fact that that part of the Accord relating to the
effect of the 1899Declaration is confined to a unilateral statement by Barrère on
behalf of France giving a clear cornmitment by France not to go beyond the limits
22
set out in the Declaration .
7.12 Furthermore, it is clear that Italy'smain concern at the time
was to ensure that the northemmost iimit of the tem.tory on the French side of
the line drawn in 1899did not encroach upon the temtory of the of Tnpoli
proper, which Italy hoped to "inherit"from the Ottoman Empire. This explains
why attention was focussed upon the juxtaposition of potential French temtonal
claims with the territory of the vivi of Tnpoli proper and why Italy insisted
upon the inclusion in Barrère's letter of the phrase "en laissant en dehors du
partage d'influence qu'elle sanctionne le vilayet de Tripoli". Butof course the
temtory of the 'Wayet of Tripoli" had not been delimited by international
agreement, and the identification of its western and southern boundaries had not
yet been achieved and could not be achieved without Ottoman agreement. From
the Italian point of view, this was part of the purpose of the 1902 Accord - to
secure an indication by reference to a map (at least vis-à-visFrance) ofwhat was
understood to be the western and southern limit of the 'Gilayetof Tripoli" in the
undertaking France had made to Italyin the 1900Accord. The limitof the vil_avet
of Tripoli thus clarified in 1902(and of course it could not be a true boundary
since neither Italynor France had the status to agree a me boundary at the tirne,
the y&@ of Tripoli forming part of the Ottoman Empire in 1902),is of course
shown on the Non-Annexed Mau as the wavy, dashed line encircling
'Tripolitaine" that proceeds from Ghadamès to Ghat in a roughiy southerly
direction, then from Ghat to Toummo in a roughiy southeasterly direction and
thereafter veers northwestwards and northwards towards the Mediterranean
Coast(see Mao LC-M 26 referred to inparagraph 4.53 above). Now, it is amply
- - -
20 See.CM, pp.167-175,paras.93-118.
21 Sec .ara.4.80, a., above.
22 Sec .ara.4.90gta., above.clear from the text of the1902 Accord itself that the crucial sentence in that
agreement (cited at paragraph 5.84 of the I&l) refers specifically (and
exclusively)to 'la frontièrede la Tripolitaine"indicated on the map.
7.13 The argument that Italy had somehow recognized and
accepted the southeast line described in Article3 of the 1899 Declaration by
concludingthe 1900and 1902 Accords withFrance is thus whoiiyunfounded. At
most the effect of these Accords was to establish that, as between France and
Italy (neither of which asserted. or was in a uosition to assert, a claim to
sovereimtv over the vilavetofTripoli at the time), the frontier ofTripolitania was
tobe taken as being that indicated on the map. Inno way can Italy be taken to
have recognized, either expresslyor impliediy,the southeast line from Tournmo
described in Article 3of th1899Declaration.
7.14 It may of course be contended that the reference in 1902
Accord to the map as havingbeen annexed to the 1899 Declaration is of little or
no consequence if the view is taken (as clearly it ought to be taken) that the
French undertaking was in essence to respect the frontier of Tripolitania as
iiiustrated on the map. This is however to ignore the consideration that France
subseauentlv sought to argue (and Chad stiü argues) that the 1900 and 1902
Accords represented a recognition by Italy of the southeast line described in
Article 3 of the 1899 Declaration. But the French position (and indeed the
Chadian position) is fundamentally flawed. On the one hand, Chad (in this
respect faithfuily echoing previous French arguments) maintains that the1902
Accord, by referring to the map aiiegediyannexed to th1899 Declaration rather
than to the text of the Declaration itself, involvesan implicitrecognition by Italy
ofthe boundary between the French and Britishzonesindicated on that map: this
is the essence of Chad's est theory discussed earlie~~~. Almost in the same
breath, however,Chad concedes that it wasnet the boundary between the French
and British zones whichthe 1902Accord wasrefening to, but only"thefrontier of
Tripolitania" indicated on the map24. Chad cannot have it both ways. The Court
will recall that, in 1930, France likewise sought to argue both of these
25
incompatible theses .
23 Sec .ara.3.01,above.
24 CM, pp.181-182,para.147.
25 See.LM.para 5.269,foran extractfromthe FrenchNote of 5 March1930and para.
5.275,foradescriptionof thentof theFrenchNoteof25June1930. 7.15 That France persistently (and falsely)represented to al1and
sundrythat a map had been annexed to th1899 Declaration is attested to by the
followingadditionalitems of evidence:
-
The French Note to the British Foreign Office of 8
December 1922, the content of which is described at
paragraph 5.206 of the Libyan Memorial - and this
notwithstandingthe French Note to Italy8fOctober 1921,
admitting that "...ladite déclaration [the Additional
Declaration of18991contre l'usage,n'est pas accompagnée
de carte ou de croquis,.
- The French offer to Italy, on 21 December 1928,of a
"concession" on the Tripolitanian boundav, the new
boundary, which would have left Djado in Italian temtory,
to meet up with the "hontier traced on the map annexed to
~27.
the Anglo/French Declaration 21 March 1899 ,
- The French representative's statement to the Ad Hoc
Poiitical Committee of theUN General Assembly on 13
December 1950, purportedly correcting an earlier mis-
statement, where reference is again made to the map
annexed to the Additional Declaration1899~~;
- The maps conveyed by the French Embassy in London to
the British Foreign Office on 12 July 1955,during the
Franco-Libyannegotiations preceding t1955 ~reag~.
7.16 One of the most poignant ironies of the circumstances
surrounding the "missingmap" aliegedlyannexed to t1899Declaration isthat it
was conveyedto Lord Sanderson (then British Ambassador inParis) 27March
26 See,LM.para.5.189.
27 See.LM. para.5.263.
28 See,LM,paras.5.392and5.395.
29 See ,M.paras.5.454-5.456.1899and that, in fonvarding this map to Lord Salisbury,Lord Sanderson noted
that 'The French have drawn the line£romthe Tropic of Cancer to E.S.E. instead
of S.E.",and commented that "1do not knowthat it matters m~ch"~O.It may not
have mattered that much to Great Britain which (rightly)viewed that iine in a
negative sense as limiting French temtorial expansion, and which in any event
had no temtonal ambitions in the hinterland of Tripolitania and Cyrenaica, as
waslater to be evidenced by its renunciation of anypotential claimin right of the
Anglo-Egyptian Sudan to the Sarra triangle. As the evidence amply
demonstrates, the ovemding concern of Great Bntain in concluding the 1899
Declaration was to ensure that a definite lunit was put on French expansionist
movements eastwards and northwards towards the Nile Valleyin the wake of the
Fachoda incident. But of course it matter (and mattered seriously) to the
Ottoman Empire and later to Italyand Libya. The fact that the British raised no
formal objection (whether at the time or subsequently) to this map (the Non-
Annexed Mau) by no means cames with it the implicationthat they agreed with
the southeast line as drawn on that map, at least sofar as the period £rom1899to
1919 is concerned. Itwillof course be recalled that the Bntish War Office maps
of 1906,1914 and 1916showthe southeast line of the 1899Declaration as almost
precisely atrue southeast line.
7.17 From 1919onwards, it can of course be argued with some
degree of plausibilitythat, at least vis-à-visFrance, Great Britain had recognized
that the southeast iine in the 1899 Declaration terminated at the junction of
1Y30'Nlatitude and 24"E longtitude. How France and Great Britain came to
agree on the "interpretation" of Article 3 of the 1899Declaration recorded in the
final paragraph of the Anglo-French Convention of 8 September 1919remains a
mysteg2. As far as the British were concerned, the southeast iine, even as
"interpreted" in 1919,was stillno more than a line dividingspheres of influence,
as is evidenced by the position taken by the British representatives when
negotiating in 1934the Italo-Anglo-EgyptianAgreement on the Sarra triangle33.
30 See,para.4.60,~ a., above.
31 See.LM. para.5.182,andMapNo. 63 appearingthere,a mlour reproductionof which
wasfurnishedbyLibyato theRegistrSeeaiso,MapsLC-M14Aand14Breferredto in
para4.18,above,mlourreproductionsofwhich havealsoben furnishedto theRegistry.
32 See,para.4.161Ga., above.
33 See,inpanicularLM, paras.5.289-5.290and5.295-5.296.See,ako, para.g.S.,,
above.Indeed, precisely because Great Bntain continued, in 1934, to regard the
southeast iine, even as "interpreted"in 1919, as a iine dividing spheres of
influence, it was prepared to acknowledge that the point of intersection of that
iine at19"30'Nlatitude wasnot bindingon Italy.
7.18 As already indicated, Libya is not asserting that the conduct
of France over the "missingmap" in her relations with Italyand Great Britain was
such as to constitute a cause of invalidityof1900and 1902Accords between
France and Italy, whether on the ground of error or fraud. Italy may have been
misled as to thstat of the "missing rnap",but at least France informed her, at
the latest b1921, that the1899 Declaration was not accompanied by a rnap or
~hart~~. As Italy did not thereafter invoke, as against France, any cause of
invalidityof the900 and 1902Accords, it must be deemed to have acquiesced in
the continuance in force of these agreements (though net of course to the
interpretation which France sought to put upon them) throughout the period
until the entry into force of the Peace Treaty with Ital1947. By the same
token, Great Britain, as a party to1899 Declaration, th1919 Convention and
the 1924 Protocol and ~eclaration concerning the boundaq of the Sudan, must
be presumed to have been weUaware of the fact that the 1899 Declaration did
have a rnap formallyannexed to it, despite the persistent attbypFrance
to mislead her on this point. We know now that a copyof this rnap wasobtained
by Lord Sanderson in March 1899 and forwarded to Lord Salisburyon27 March
1899, as already mentioned; and the diligent researches made by the Foreign
Office in December 1922, and again in1955,confirmed the absence of any rnap
formallyannexed to the1899 Declaration.
7.19
What Libyadoes contend, however,is that France's conduct
over the "missingmap" in its relations with Italy and Great Bntain is a factor that
must be taken into account in the intemretation of those international
agreements and acts on which Chad now relies, and in particular the 1899
Declaration, the 1900 and 1902 Accords, the Anglo-French Convention of 8
September 1919,and the 1924Protocol and Declaration. To the extent that these
international agreements and acts are capable of conflicting interpretations,
French conduct in persisting to assert that a rnap was annexed to the 1899
Declaration, when clearly it had not been so annexed, was not only designed to
accord to the Non-Annexed Mau a status whichit did not have, but to strengthen
34 See,M, para.5.189;% also,para.4.205,above.the interpretation which France was putting on these international agreements
and acts. Accordingly,if any doubt remains asto the interpretation to be put
upon any or aii of these international agreements and acts, that doubt should be
resolved against the French (and Chadian) interpretation and in favour of the
Italian (or British, as the case may be) interpretation. Authority for this
proposition can be found in the view expressed by Professor Cot set out in
paragraph 7.04above.
SECIIO N. The 1955Neeotiations
7.20 But it is in the context of the negotiations between France
and Libyaleadingup to the conclusionof the 1955Treatythat, on the evidence so
far made available,we can see how the French negotiators seeking to operate in
accordance with inconsistent,ifnot confiicting, instructions (as to which, see
paragraphs 7.22and 7.23 below),failed to conduct themselvesin accordance with
the requirements of the principle of good faith as applicable to the negotiation of
treaties. It is one thing for France (whether by design or by carelessness) to
endeavour to mislead sophisti'catedEuropean States such as Italy and Great
Britain as to the provenance of a map; it can be argued that Italy and Great
Britain werewellable to look after themselvesand were unlikelyto be misledfor
long. However, a different and, it is submitted, higher standard of good faith is
demanded when a sophisticated European State is engaged in negotiation with a
newlyindependent State, particularly when that negotiation bears upon matters
that were, at the time, peculiarly within the knowledge of the sophisticated
European State.
7.21 This is of course the positioas regards the negotiations
between France and Liiy aabout "fiontiers"leading up to the inclusionof Article
3 (and Annex 1) in the 1955Treaty. It is difficult to form a wholly objective
judgment as to preciselyhowthe French negotiators conducted themselvesduring
these negotiations. The detailed records of these negotiations are sparse,
particularly on the French side for the July-Augustnegotiations, where they are
virtuaiiynon-existent; indeed, the produces practicaiiynothing in the way of
direct travaux bearing on the wordingofArtic3eand Annex I of the 1955Treaty.
However, on the basis of the Libyan travaux covering the later stages of the
negotiations, and of British records coveringboth the earlier ander stages of
the negotiations, it is possible to draw certain conclusions as to the mainerwhich the French negotiators confronted what was for them a dj£ficuif,not
impossible,task.
7.22 On the one hand, the French Governmenthad been advised
bythe Govemor-General of the A.E.F. on 2 May 1955that to open up boundary
questions in the Franco-Libyannegotiations then being pursued would be very
risky,since to request Libya to recognize "lesfrontièresactuelles"would imply
that France had doubts as to the strength of its case and wouldplace France in
the positionofa "demandeur"vis-à-visLibya.The Govemor-General advisedthe
utmost caution and proposed that the 1955 Treaty should simply pose the
principle of a future delimitation,the sole basis of such a delimitationbeing the
treaties inforceat the date ofLibya'sk~de~endence~~.
7.23 On the other hand, the French Government was clearly
anxiousto securea rectificationofthe portion ofthe boundarybetween Ghat and
Toummo,whichhad alreadybeen fixedbyvirtue ofthe Franco-ItalianAccordof
12September 1919. It is clear from Britishrecords that the French negotiators
raised this question of rectificationof the sector of the boundary between Ghat
and Toummo duringthefir psase of the negotiations(between 3 and 6 January
1955). The LibyanAmbassador in London, on instructions,voiced hisconcem
about this developmentto the ForeignOfficeon6January 1955,but the Foreign
Office were reassured by the French Ambassador in London that the French
were simply trying to establish where the line actuallyran between Ghat and
Toummo under the previous Franco-Italian Accord of 12 September 1919 6.
That in fact the rectifications soughtbyFrance in the Ghat-Toummosector were
of considerablygreater significanceis apparent when an analysisis made of the
difference between the Ghat-Toummo line resulting from this Accordand that
resultingfrom the rectificationof thisline achievedas a result of1to the
1955~rea$~.
7.24 Rightfromthe beginning,therefore,the attention of French
and Libyannegotiatorswas concentrated on the French request for rectification
of that part of the boundary lyingbetween Ghat and Toummo. Indeed, during
the finalstagesof the negotjatjonof the 1955Treaty, ajoint expeditionwasmade
35 See .M.paras.5,438-5.4s-,also,paras.3.43,5.04and5.112,above.
36 See .M, paras.5.447-5.448.
37 See .M,paras.5.48û-5.490,andMapsNos.93-95.bya smallLibyan-French team to the Ghat-Toummo region to consultwith tribal
leaders. Whether, and if so, to what extent, the French negotiators may have
been infiuenced in their determination to see this rectification of the Ghat-
Toummo sector incorporated into Annex 1 of the 1955 Treaty itself by their
sudden realization that the Franco-Italian Accord of 12 September 1919 could
not be regarded as an "acteinternational en vigueur"within the meaning of the
general formula in Article 3 of that Treaty itself,is a matter of speculation. What
does however emerge from such fragmentary records of the travaux as are
-
available to Libya, including the British records of their exchanges with the
French, is thatthe onlysubstantiveboundary discussionsthroughout the whole of
the Franco-Libyannegotiations in 1955were directed towards rectification of the
boundary linein the Ghat-Tournmo sector.
7.25 For the rest, the French negotiators appear to have followed
the advice given by the Governor-General of the A.E.F. in his letter of 2 May
1955, and endeavoured, by sleight of hand, to fïnd a general formula whereby
both parties would, as regards the boundaries separating Libya from
neighbouring French possessions in Africa, agree to abide by the general
provisions of the international acts in force as of the date of the creation of the
Libyan State. Followingthe fkst round of Franco-Libyan negotiations in January
1955,there seems to have been a measure of agreement on a general formula of
this kind. However,the French, untilquite a late stage in the negotiations,wished
to see the precjse delimitation on a map completed before the treaty was
concluded, whereas the Libyans throughout wished to settle the question of
frontier delimitation separately from the 1955Treaty and were not prepared to
accept that theconclusion of the treaty should be made dependent on the
38
proposed delimitation .
7.26 At the beginning of the second round of Franco-Libyan
negotiations in mid-July,the French abandoned their proposal that the precise
delimitation on a map be completed before the treaty was concluded, but took
the position instead that the pnnciples of the delimitation should be defined with
sufficientprecision before the conclusionof the treaty in order to ensure that the
subsequentdemarcationon the ground should not giverise to diffic~lties~~.Even
this fall-back position was rapidly given up, no doubt reflecting the entry in the
38 See, M.para.5.44-;, also,par3.19gia., above.
39 See. M.para.5.457.Libyan travaux for 20 July confirmingthe unyielding Libyanopposition to linking
the question of frontiers with the proposed treaty4As a final fall-backposition,
the deviceof adding to the exchangeofletters already prepared to accomplishthe
rectification of the boundaryinthe Ghat-Toummo boundary sector a list of the
"actes internationaux en vigueur" (that is to say, the Annex 1list) may have been
seized upon by the French negotiators as a pis-aller, which had the additional
advantage (in French eyes) of obscuring the consideration that some of the
agreements included in that listwere not en vieueur in 1951. This is a rnatter of
speculation, since there is no evidencinthe of a the list was included in
the text of Annex 1as late as the beginning of August 1955,the French having
assured the British even before the end of July that the boundary question had
been satisfactorilyresoived.
7.27 It has already been demonstrated that, contrary to the
impression sought to be conveyedby the eM. the Libyannegotiatingteam did not
include any experts or specialists in ffontier delimitation41, and that, if for this
reason alone, Libya was throughout extremely reluctant to engagein substantive
negotiations on the issue. such records of the negotiations as have so far been
made available conhm beyond a peradventure that there was no detailed
discussionbetween the parties of the course of the supposed southern boundary
between Libya and French possessions to the east of Toummo or of the "actes
internationaux" embodied in the Annex 1list. The list wasdrawn up at the very
end of the negotiations in August 1955,and in a huny as is evident frorn its
content42. The time factor alone establishes that Libya was in no position to
assess the extent to whichany of the listed acts might be relevant to the eventual
delimitation of a boundary to the east of Toummo or "en vigueur", havingno
experts on frontier delimitation on its delegation. It is clear that Libya had made
no detailed study of thevanous international agreements and acts which France
was claiminghad determined the aUeged"boundary"in that sector; no copies had
been furnished by the French side. The attention of the Libyan negotiators was
firmlyfocussed on the issuewhich France had raised concerning the delimitation
40 SeeL.M.para.5.459.
41 Seeparas.3.25-3.28,abwe.
42 See,paras.3.and 3.32above. of the section between Ghat and Toummo, as the Libyan record of the
negotiatingsessionheld on 28Juiyfuiiycon£irmsQ.
7.28 mat the Annex 1iistwasdrawn up bythe French delegation
and presented to the Libyan delegation is self-evident, since the texts listed
include all those on whichFrance reiied for her theory that the 'boundary" east of
Toummo had already been conventionaiiy delimited, and this notwithstanding
that the &osé des motifsto the draft lawpresented to the French Parliament in
1935 had specificallyconceded that the1919 Franco-Italian Accord had left Italy
and France without a conventional boundary to the east of Toummo, since Italy
had always refused to recognize that the line fixed by the 1919 agreements
between the French and British spheres of influencewas opposable to Italy as a
44
temtorial boundary .
7.29 Now, it is hardly plausible that, in presenting to the Libyan
delegation the iist of texts eventuaiiy embodied in Annex 1 to the Treaty, the
French delegation would have revealed to Libya the shaky foundations upon
which rested the French theory that a conventional boundary to the east of
Toummo already existed. It is equaUyimplausible that the French delegation
wouldhave revealed to Libyathat two of the iisted texts(th1902 Accord and the
Franco-Itaiian Agreement of 12 September 1919) couid not in any event be
regarded as "actes internationaux en vigueur à la date de la constitution du
Royaume-Uni de Libye" (withinthe meaning of Article 3 of the Treaty), since
France had netindicated to Italywithin sixmonths of the entry into force of the
Treaty of Peace with Italy of1947 its wish to revive or maintain in force either
.. agreementjas required by Article44 of the Peace ~reaty~'. In fact, the evidence
supportsthe conclusionthat not onlywere these "actesinternationaux" appearing
on the Annex 1list not produced by the French for examination, they were not
even discussed.
7.30 As Libya was whollyreliant on France as to the iist of texts
of international acts supposedly relevant to the determination of the boundaries
separating Libya from French possessions and supposedlyin force as of the date
of Libya'sindependence,the situation is not dissimilarto that in whichSir Gerald
43 See,LM,para.5.460.
44 See.LM,para.5.356.
45 Sec .ara.3.23,a., abovaFitzmaunce posits an international legal duty of conduct uberrif&i as an
essential component of the principle ofgood faith46. Chad asserts, inter alia,that
Article3and Annex 1of the 1955Treaty detennined the boundary between Libya
and Chad by means of a to the international acts listed in1.nButif,
as al1the evidence filed so far indicates, France did not disclose to Libya during
the 1955negotiations that Italyhad consistentlycontested that the southeast line
described in Articl3of the Additionai Declaration 1899, as "interpreted" in
1919,was opposable to it, that Great Britain had equaily consistentlydenied that
this line constituted a temtonal boundary, and, above ail,that in the &osé des
motifs to the draft French law approving the1935 Treaty, the then French
Government had declared that the Franco-Italian Convention o12September
1919 had left Italy and France without a conventional boundary to the east of
Toummo, the onlyconclusionto be drawn, on the evidenceso far available,isthat
French conduct during the1955 negotiations does not appear to correspond to
the requirements of the principle of good faith as applicable to the negotiation of
treaties, and particularly to the standard of utmost good faith (ubfidei)
proposed by Fitzmaunce for circumstances in which one of the parties is obliged
to rely on information suppied by the other party and lying peculiarly, or
exclusively,within that party's knowledge. Libya would indeed contend that the
international legal duty of conduct ubemmfid apilies with heightened force
in the context of negotiations between a sophisticated Western European State
with a long historyof diplornaticactivityand a newlyindependent State with little
or no knowledge of international law concerning matters of this complexity or
expenence in international negotiations and lackingin expertise on the particular
subject matter (that isto say,the question offrontiers).
7.31 Inthe particular circumstances of this case, there is a close
linkbetween what Libyacontends tobe the legalconsequences ofFrench conduct
in the1955 negotiations and tcont rraferentem rule occasionallyapplied to
the interpretation of treaties. Rousseau asserts tconttherroferentem rule
must be understood as havingtwoquite distinct aspects:
-
That doubtful provisions in a treaty must be interpreted in
the sense most favourable to the State undertaking the
obligation;
46 para7.05above. - That doubtful provisions must be interpreted against the
State whichdrafted them47.
By doubtful provisions, Rousseau is clearly referring to provisions which are
ambiguousor whose meaningisin doubt.
7.32 It is the second aspect of the contra proferentem rule as
applicable to the interpretation of treaties that is of interest in the context of the
particular circumstances of the present case. It must be admitted at the outset
that this second aspect of thcont proferentem mie has not been applied very
frequently by international tnbunals. It is very much an auxiliay rule of
interpretation, to be appiied as a last resort when al1 other methods of
interpretation have failed to resolve the problem. Nevertheless, the Permanent
Court did applyit in the BrazilianLoans case in wnstruing the terms of the bonds
under consideration in that case:
"Moreover, there is a familiar mie for the construction of
instruments that, where they are found to be ambiguous, they
should be taken contra vroferentem. In this caseas the Brazilian
Government by its representative assumed responsibility for the
prospectus, which this representative, who hadsigned the bonds,
had seen and approved",it wouldseem proper to construethem in
case of doubt contra vroferentem and to ascnbe to them the
meaning whichthey qguld naturally carry to those taking the bonds
under the prospectus ."
7.33 So also, in the award in the Lusitania case between the
United States and Germany foliowingthe First World War, it isstated:
'The Treaty [of Peace between Germany and the United States] is
based upon the resolution of the Congress of the United States,
acce ted and adopted by Germany. The language, being that of
the bnited Statesgyl framed for its benefit, wilibe strictly
construed againstit .
7.34 Again, in the Goldenberg case before the German-
Rumanian Mixed Tniunal constituted after the First World War, it is stated in
the award,delivered in 1928:
47 Rousseau,C:DroitinternationvubliçPariSire y ,l.1,1971,p297-298.
48 BrazilianLoans.JudmnenNo.15.P.CIJ..Seriesk No.21,p. 114.
49 OoinionintheCasesoftheLusitania,IIR.Lkk, p.43. (A mpyof this pageisattached
as LCM 37.) "La clause discutéeimpose une obligation à l'Allemagne. Suivant
la règle constamement suivie par le Tribunal arbitral mixte
roumano-allemand, les clauses de ce genre ne doivent pas @tre
étendues, par voie d'interprétation, au-delà du sens que l'Etat
allemand pouvait raisonnablement pr@terau texte soumis à son
acceptation. La cl se ambiguë s'interprète, enprincipe, contre
celuiqui l'aredigée8.,
7.35 Two later awards appear to suggest that this second aspect
of the contr paroferentem rule can be applied only in the case of the
interpretation of an imposed peace treaty. Thus, in the arbitral award in the case
between Germany and the Governing Commission of the Saar Temtory about
the interpretation of the Agreement of Baden-Baden concerningthe Pensions of
officialsof the Saar temtow, it isstated:
'The rule that in case of doubt, the text of a treaty is to be
interpreted against the party which drafted it oniy be applied
when, as in the case of the Treaty ofrsadies, one qffhe parties
handed a prepared textto the other party for signature
So also, in the arbitral award 1958in the case of Saudi Arabia v. Aramco it is
stated:
'The rulecont rraferentem can have its full effects oniy in the
case of so-calied 'adhesion contracts', whose terms are not
discussedbetween the Parties or when, in inter-State relations, one
Party hands to the other, for signature, a prepared text which
be modified oniy in order better toppre its application, as was
the casewith the Treaty of Versailles
7.36 It is subrnitted that this is to read too much intdicta.e
Indeed, in the case of Pensions of Officials of the Saar Territom, the tribunal
specificallynoted, immediately followingthe sentence which has been cited, that
the Agreement of Baden-Baden, whose interpretation was inissue, had been the
subject of lengthy negotiations, precisely on the subject of pensions of officials,
and that the parties had gradually arrived at a mutual agreement. The key
element accordingly appears to be whether the text, whose interpretation is in
issue, has emerged kom a process of substantive negotiation.
50 GoldenbereandSonv. Germanv,IIR.I.kk, p. 90(Ampy of thispagiattacheas
LCM 3%)
51 PensionsoOfficiaof theSaarTenitorv.IIIR.I.kk, p. WLGM. 39.
52 Saudi ArabiaArabianAmericanOilCo.,7u 1959,p.196.(Awpy of thispageis
attacheas LCM 40.) 7.37 inthe present case, it is clear that the list of international
acts set out in Annex 1of the 1955Treaty was presented to Libyaby France and
was not the subject of any negotiations. Libyanecessanly had to accept that the
international acts so listed might be relevant to a future deiimitation of those
sectors of its boundanes with French possessions which had not yet been
delimited, but was in no position at the time to assesswhether and how, if at ail,
they might be relevant. Libya does not contend thaconte praferentem rule
can be applied against Chad as regards the paragraph in Annex 1to the 1955
Treaty whichrelatesto the rectification of the sector ofLibya'sboundary between
Ghat and Toummo, sincethatwas the subject of substantive negotiations between
France and Làbyain 1955. But it does contend that cont praferentem rule
can be applied against Chad as regards the interpretation of Article 3 of that
treaty, read in conjunction with those international acts listed in Annex 1,which
arguably relate to thealleged boundary between Libya and Chad east of
Toummo.
7.38 Again, it must be repeated that Libya is net invoking
France's conduct in the 1955 negotiations as a cause of invalidity of those
provisionsof the Treaty relating to frontiers (3and Annex 1)whether on
the ground of fraud or of error, despite the fact that this French conduct, in
Libya'ssubmission,does not appear to correspond to the requirements of good
faith as applicable within the framework of those negotiationLibya does
however contend that French conduct during the negotiations, in much the same
way as French conduct over the "missingmap", is an important element to be
taken into account in the interuretation of the 1955Treinythe light of this
French conduct, if any doubt remains as to the interpretation of A3tande
Annex 1, that doubt should be resolved against the French (and Chadian)
interpretation and in favour of the Liiyan interpretation. Only in this waywould
the Court be in a position to attnbute legal consequences to the failure of a State
to live up fully to the requirement of good faith in the negotiation of a treaty
where that failure may not by itselfconstitute a cause of invalidityof the resulting
treaty.
7.39 Subsidiarily, Libya would invoke thcont rroferentem
rule applicable to the interpretation of trastregards the interpretation ofArticle3of the1955treaty, readinconjunctiwiththoseinternational asisted
inAnnex 1whicharguablyrelateto the kontierbetweenLibya andChadeastof
Toummo. -363 -
PART Vm
THEMYTH OFRECOGNITIONA , COUIESCENCE ORCONSOLIDATION
OF THE BOUNDARY CLMMED BY CHAD
CHAPTER 1. INTRODUCITON: THE BASIS OF "CONSOLn>ATION"
AND ITSLIMFTS
8.01 Chapter V of Chad'sMernorial is entit"Laconsolidation
de la ligne frontière jusqu1955".Although the concept of "consolidation"is
not, as such, defined or descnaed, it becomes clear from Chad'streatment of the
matenal that Chad envisages thereby an amalgam of "recognition",
"acquiescence"and absence of protest (or "silence")whichcombine to support or
consolidate the boundaryChad claims to have existed since the Anglo-French
Declaration o1899. Chad makes no distinctionbetween (i) the actual title to the
territory, initially claimed by France and now claimed to be inhented by Chad,
and (fit)e precise boundary whichit is allegedwas estabiishedbetween what are
nowChad and Libyaas long agoas 1899.
8.02 The notion of "historical consolidation"has been descnbed
byDe Visscher in theollowingtenus:
'This consolidatio..is not subject to the conditions specincally
required in other modes of acquiring temtory. Proven long use,
which is its foundation, merely represents a complex of interests
and relations, varying from one case to another, and not the
passage of afked term..that are taken into direct account by the
judge to decide concret0 on the existence or non-existence of
consolidationbyhistorictitles.
In this respect such consolidation differs from acquisitive
prescription properly so called, as also in the fact that it can apply
to temtones that could not be proved to havebelonged formerly to
another State. It differs from occupation in that itadmitted
in relation to certain parts of the seas as weii as on land. Finally,it
isdistinguishedfrominternational recognitiond this isthe point
of most practical importanceby the fact that it can be held to be
accomplished not only by acquiescence properly so called,
acquiescencein which the time factor can have no p1.t but more
easilybya sufficientlyprolonged absence of oppos....n
1 De VischerC: ThéorieetR&lit&enDroitInternatiol ublic,Paris,Pedone,1960,
pp.255-256astranslabyCorbett(A wpyofthesepageiattachedas LC-M
41.) 8.03 De Visscher saw the Court's Judgment in the
Nonvegan Fisheries case2 as supporting thisviewof consolidation:as something
different from tacit recognition, or presumed acquiescence. Acquiescence must
therefore be demonstrated asreal, and not fictitiousor presumed, even though no
express act ofrecognitionisrequired.
8.04 It therefore follows that the acquiescence or toleration,
essential to consolidation, requires evidence of knowledge of the nghts or title
being consolidated. Without such knowledge, there can be no genuine
acquiescence. States unaware of the rights or title being asserted can scarcelybe
said to have acquiesced in their assertion. Thus, in the Anelo-Nonve~ian
Fishenes Case,the Court stressed:
'The notonetv of the facts, the general, to!eration of the
international community,Great Bntain s position inthe North Sea,
her own intere in the question, and her prolonged abstention
[from protest] ....
8.05 The need for knowledgecan scarcelybe overstated. Asone
author has expressed it, "...without knowledge there can be no acquiescence at
a1C4. The emphasis on the need for knowledge emerges clearly in the
jurisprudence. In the Alaskan Boundarv &se5, the United States argued that
Great Bntain had acquiesced in Amencan effectivités. The Bntish reply in
argument was:
2 Fisheries. Judmnen1.W. Reports 195!, p. 139. Emphasis added. But noteathe
bySir R. Jennings against reading too much into this Judgment: Jennings, R.:
Acquisitionof Temtoni in International ,Manchester,Manchester UniversityPress,
1963,pp.23-28.
3 Fisheries.Judement. LCJ. Reports 1951,p. 139.Emphasisadded.
4
Johnson,D.H.N.:"AcquisitivePrescription in InternatiLaw" 27 B.Y.LL .950,p.
347. (A copy of this page is attached as LC-M 42) The tendency to discouni
knowledge,on the bais that occupation of temtoiy must necessarilybe well-known(e&
Verykios: La Prescription en droit international public, Paris, Pedone, 1is4,p. 75),
basedon a mistakenviewof the notoriety of State mnduct. AsFauchille has pointed out,
in remote, desen areas, where the acts of State authority are few and dispersed, such
notoriety camot be presumed: Fauchille: Trait6 en droit international Ûublic,paris,
Rousseau, 8tEd.(1921-1926)2 Vols.,p. 761.
5 Proceedinm ofthe Alaskan BoundarvTribunal, Washington,Vol. VII,190311p,. 531;
s-,also, the Landrean ClaimU.S.Pem.R.LAA, 1922,pp. 365-366,where the tribunal
emphasizedthe need for knowledF& the failure to putfonvard a claim. 'Theysayall these thingswere done and we never protested. Well,
you cannot protest againsta thingyouhave never heard of."
8.06 Indeed, in the Ando-Nonveeian Fisheries Case, Judges
Read and McNair differed from the majority on preciselythispoint, being unable
to agree that the United Kingdomwassufncientlyaware of the Norwegian system
of straight base-lines6. One finds exactlythe same principle in Articl45 of the
Vienna Convention on the Law of Treaties. The lossof the right to invalidate or
terminate a treaty by reason of a State's acquiescencen the continuedoperation
of the treaty occurs onlyif that State has become "aware of the facts"that would
justifyinvalidationor termination.
8.07 It may well be that knowledge can be proved, as actual or
constmctive knowledge, without the need to prove express notincation of the
claim of title by one State to the other7. Nevertbeless, if Chad is to argue the
acquiescence of Libyain the French claimsto (i)title and (ii) a precise boundary,
the onus is clearly on Chad to prove that Libya did, indeed, have actual or
constructiveknowledgeofboth.
8.08 It cannot be the case that a newly-independent State must
be regarded as "succeeding" to al1 knowledge of its predecessor. A legal
presumption of that kind would be totally at variance with general expenence.
Many new States have emerged from a colonial past with little inheritance of
archives, and even an incomplete knowledge of the treaties affecting their
temtory. The situationhas been all the worse where States, such as Libya,were
devastated by wars brought to their shores, or as in Chad's case, by civilwar.
Moreover, knowledgeisa highly"personal"quality,and just as "personal"treaties
are not passed on to successor States, so, too, any "personai" knowledge which
Italy, for example, might have acquired cannot be deemed to have been
automaticallytransferred to the newly-independentLibya.
8.09 Thus France, and later Chad, had a clear obligation to
ensure that Libya did in fact know of both the claimto title, its legalbasis and the
precise boundary line for which Chad now argues. This obligationis al1the more
6 I.C.J.Reports 1951,p.80,205.
7 Inthe Islandof Palmas Cas,. a, p.868,Judge Huberrejectedtheviewthatformat
notificationwasmential to proveknowledSec .lso,the ClippertIsland Case, .
a, p. 1110.apparent in the context of treaty negotiations concerning boundaries; for, as
demonstrated above, France in 1955,and even Chad at a later stage, had an
obligationto speiiout to Libyapreciselywhat temtory was claimed, and what was
the basis of that claim.
8.10 Moreover, such knowledge and acquiescencewould have to
continue for as long as the assertion of title continued. For, just as Judge Huber
insisted in the Island of Palmas case8 that a valid title must be acquired-if
occupation be the basis of title - by a continuous and peaceful display of
sovereigntyand maintained accordingto "the conditionsrequired bythe evolution
of the law",so authors have more recently argued that consolidation must meet
the same test. Thus,Johnson writes:
"...every title under international law must undergo a continuous
process of 'maintenance'or 'manifestation'...It is subrnitted that
the process of 'maintaining'or 'manifesting'a t...is in essence a
process of 'consolidation,'different in degree perhaps, though
certainly not in kind, from the 'conso1ip:ion' by which a title may
sometimes be acquired in the fkst plac.
8.11 It followsfrom this that any concept of "acquiescence"must
not only require continuing evidence of consent - continuing throughout the
penod over whichtitle has to be maintained -but, in addition, such acquiescence
must encounter, and complywith, the requirements of lawas they evolve. This is
dictated bythe notion of "inter-temporal law".
8.12 And £rom this it follows that, from the time when the
acquisition of tem.tory by force was prohibited, tisto sayfrom 1919 onwards,
and the prohibition could be regarded asjus coeens, no acquiescence was legally
possible. In fact, as will shortly be seen in Chapter III, acquiescence in French
claims of title did not occur. Italy, in particular, actively contested the French
claims throughout thisperiod. Moreover the States directlyinvolve-Italy,Great
8 IslandofPalmasCase,S.a. p.869.
9 Johnson,D.H.N.:"Consolidatias a Root of Title inInternationalLaw",Cambndce
LawJournal, 1954,p.215,223-225. (Acopyof thesepagesisattachExhib LCitM
43.)&, also,Blum,Y.:Histonc Titlesin InternationalLaw,TheHague,M.Nijhoff,
1965,p.337. Therequirementof matinuingaquiesoencein themaintenaofa title
goes some waytomeeting thecriticismthat consolidationin effect allowsa partyto
create its own title by unilaterals-,sMunkman,A.L.W.:"Adjudicationand
Adjustment- InternationalJudicialDecision and the Settlementof Temtonal and
BoundaryDisputes"6B.-I.L.1972-73,pp.96-97.Bntain and France itself -remained bound, as parties, to the Covenant of the
League and to the Pact of Pans throughout the inter-war years. So their
obligation not to recognize or acquiesce in a title acquired in violation of those
treaties arose from the treaties themselves, irrespective of the evolution of a
general perception amongst States that the prohibition of war had the character
of a rule of jus coeens.In the era followingthe U.N. Charter - and the cntical
date in the present caseis 1951,the date of Libyanindependence -the concept of
jus coeens could be said to have been expanded beyond this prohibition of force,
and to have included the maintenance by force of colonial domination, contraly
to the right ofself-determination of peopleslO.
8.13 This development is reflected in Article 19 of the draft
Articles on State Responsibility adopted by the InternationalLaw Commission,
which includes in the defïnition of an international crime (and therefore a
violation ofjus coeens):
"(a) a senous breach of an international obligation of essential
importance for the maintenance of internationalpeace and
secunty,such as that prohibiting aggression;
@) importance for safeguarding theonght of self-determinationl
of peoples, such as that prohibiting the esta shment or
maintenance byforce of colonialdomination; ... .i
8.14 Conduct of this kind, far from providing a basis for
establishinga legal title, or a preciseboundary, requires the collectiveresponse of
sanctions12. Thus, there can be no question of any "acquiescence" in such
10 Sec .rowein, J.: "Jus Cogens" in 7 Encvclo~edia of International Law, pp. 327-330;
Virally,: "Ré.fiexiosurLe'jusogens'",12Annuaire Francais de Droit International,
1%6, pp. 1-29;ands-,the detailed discussionof international cR.Ag0 in his
Fifth Report onState Responsibility(AKN.4R91 and Add 1and 2), paras. 103-155.
11 Yearbook of the International LawCommission,II(part 2), 1980,pp 30-3432. p.
(A copy of these pages is attaased LGM 44.) SI, also, the draft Code of
Crimes against thece and Securityof Mankind, draft Articles provisionallyadopted
by the LLC., Articles 15and 18:Report of the LLC. on the work of its 43rd Swion,
April-July 1991, United Nations, Official Records of the Fortv-sixth Session of the
General Assembly,Supp. No. 10(Al46110).pp. 198-250.
12 &, R. Ago'FiithReporta&, paras. 144-147.conduct13. On the contrary, the obligation on aii States is to recognize such
conduct as producing any legal nght or benefit to the breaching'state. Thus,
Article 14,paragraph 2(a), ofthe Drafi Articlesproposed byRiphagen, as Special
Rapporteur to the I.L.C.,in hisFifth Report in 1984provided:
"2. An international crime committed by a State entaiis an
obligationfor everyother State:
not to recf$nize as legaithe situation created bysuch
(a) a crime ... ."
8.15 Thisview of the obligationsof States isborne out by United
Nations practice. Thus, Secunty Counciiresolutions conceming,for example, the
16
Golan ~ei~htsl~ or, more recently, in relation to Iraq's invasionof Kuwait ,
testifyto this principle. The same principle is fullyreflected in the resolutions of
the General Assemblyembodying the Declaration on Principles of International
13 Byanalogy,States parties to a treaty wisinvaiid because mncluded mntrary &o
mgens cannot aquiesŒ in such ülegal mndua and tender the treaty operable and
enforceablesec,Articles 53 and 45 of the Vienna Convention on Law of Treaties.
The proposition madeinthe text above simplyassumesthe same principle operatas so
to precludeanyaquiescenceina title to temtory unlawfullyaquired byforce.
14 Fifth Report on theontent Forms and Degrees of State Responsibility (Part Two of
the Draft Articles),Mr.Wilern Riphagen, Special Rapporteur. Report of t].CL.
on the workof itsThirty-sixthSession,7 May-27Juiy 1984,Doc NCN.41380,pp. 4-9and
NCN.4B80 Corr.1. (A wpy of these pageiattachedas LGM 45.)
15 Senirity Council Resolution 242 (1%7), The Situation in the Middle East, oU
November 1967.United Nations, SecuritvCouncil Oficial Records. 22nd Year; Security
Council Resolution 252 (1968). The Situation in the Middle East, of 27 A1968,
United Nations, Securitv Council Official Records. 23rd Year; Security Council
Resolution 267 (1%9),The Situation in the MiddleEast, of 3 July 1969,United Nations,
Securitv Council OfficialRemrds, 24th Year; Security Council Resolution 298 (1971).
The Situation in the Middle East, o25 September 1971, United Nations, S d
Council Official Remrds, 26th Year; Security Council Resolution 476 (1980), The
Situation in the Middle East30oJune 1980,United Nations, SecuritvCouncil Officia1
Records. 36tYeaq Seninty CouncilResolution 478(1980),The Situatiointhe Middle
East, o30June 1980,United Nations, SecuritvCouncilOüicial Records.36th Year.
16 Resolution 662 (1990)of 9 August 1990decided that annexatioIraq of Kuwait "has
no legalvalidity"and expresslycalled on au Members"no1to recognisethat annexation'.
Secwity Council Resolution 662 (1990), The Situation between Iran and Kuwait, of 9
August 1990,United Nations, SecuritvCouncil OfficialRemrds, 46thYear.Law concerning Friendly ~elationsl~ and defhing ~~~ression'~. And there is
evidence that conduct denyingthe nght of self-determination is wvered by exactly
the same principle. Resolutions of the General Assembly on hod de si tael',
South African ~omeland-states20 and ~amibia~' testify to this. in al1these
situations,inwhichthe basis of the iliegalitywas the denial of self-determination,
the coroiiarywas seen as an obligation of non-recognition:this is the antithesis of
acquiescence.
CHAPTER II. THE QUESTIONS RAISED IN ANY PLEA OF
"CONSOLIDATION"
8.16 It is apparent from Chad'sMemorial that the matenal used
in an attempt to demonstrate consolidation is used in a loose, impressionistic
manner which deliberately avoids the ngorous analysis to which a plea of
acquiescence or consolidationought to be subject.
8.17 in the light of the discussionin the previous Chapter, it
would seem necessary to identify specific questions that have to be posed; and
they have tobe posed separately, in relation to the two distinct claims:(i) title to
17 General Assembly Resolution 2625 (XXV), Declaration on Principles of International
Law Concerning Friendly Relations and Co-operation amongintacmrdance with
the Charter of the Uoited Natio24October 1970,United Nations, OfficialRecords
of the Twentv-fourthSessionof the General Assembly,Supplement No. 30,1970.
18 General AssemblyResolution 331(m), Definition of Aggression,of 14December
1974, United Nations, Official Records of the Twentv-ninth Session of the General
Assembly,Supplement No. 31 (A/9631), 1974. See,generally,Dugard, J.: Recoenition
and the United Nations, Cambridge, Grotius Publications Limited, 1987,Ch. 6, 'Non-
Recognition and Jus Coeens".
19 General Assembly Resolution 2652(XXV), Question of Southem Rhodesia, of 3
December 1970, United Nations, Official Records of the Rentv-fifth Session of the
General Assemble Supplement No. 28,1970.
20 General AssemblyResolution 3116A(1976),Policiesof Apartheid of the Government of
South Africa;The So CaUedIndependent Transkei and other Bantustans, of 26 October
1976, United Nations, Official Records of the Thim-Eirst Session of the General
Assembly,Supplement No. 44,1976, and General AssemblyResolution 32/105N (1977).
Policiesof Apartheid of the Government of South Mca (Bantustans), of 14December
1977, United Nations, Officia1Records of the mm-secoSwion of the General
Assembly,Supplement No. 45 (A/32/45),1977.
21 General AssemblyResolution 2678XXV), Question of Namibia, of 9 December 1970,
United Nations, OfficialRecords of the Twentv-fifIhSession of the General Assemblv,
Supplement No. 28,1970.the temtory, and (ii)the evidence of a precise boundary. It is suggested that the
questions are the foiiowing:
- 1sthe conduct in question clear and unambiguous?
- Can such conductbe attributed to ~ib~a~~?
- Does such conduct by Libya accord with a general attitude
of toleration or acceptance of the claims made by France,
and now Chad, by interested States generaiiy, so as to
constitute con~olidation~~?
- Was the conduct regarded as "acquiescence"basedupon full
knowledgeof the situation, in particular knowledgethat the
conduct would necessarilyand adverselyaffect any contrary
claimsthe State rnighthave?
- Was any apparent acquiescence infact vitiated by fraud or
deliberate concealment offactsbythe party assertingtitle?
- Was acquiescence legaiiypossible in the given situation, or
was it precluded bya nom of ajus coeens character?
8.18 It is in the light of these questions that the aiieged evidence
of "acquiescence",produced byChad, must nowbe examined.
22 This questionisespeciauyimportantinsofarasChadseekstorelyon the conduct ofthe
ltalianauthoritiesduringtheiroccupationofLibya.
23 existenceof benefitor detrimentsa as to create the obligation), for consof aation
title one needsthe aquiesŒnce of the communityat large,or at least of those States
generally affected.Title to temtory is title erea omnes.so that anestoppelagainstone
State wül not sufficeto establih sucha title in the absenceof a generalacquiescence.
Were itnotso, atitleunlawfullyaquired byconquest, forexample,wouldbevalidatedby
the representation of one neighbouringStatechcreated a binding estoppel. S-,
generally, Bowett,D.W.:"Estoppelbefore International Tribunalsand its RelaIOon
Aquiescence", 33B.Y.I.L .957,pp. 176-202;Dominid, C: "A propos du principede
Testoppelen droit desgens",Etudesen hommaeeà Paul Gueeenheim,Geneva,Institut
Universitaire desHautes EtudesInternationa1968,pp.327-365;MacGibbon, L:The
scopeofaquiescenŒin internationallaw"31B.Y.LL 1.54,p. 147.CHAPTER m. THEELEMENTS OF "CONSOLIDATIOA ND"DRESSED
BY CHAD
8.19 Chad relies, first, on "recognition"by Italy of French title,
and the so-called 1899boundary. This "recognition" issupposed to be found in
the abortive1935Treatyand the 1938"Jef-Jefincident".
S~ON 1. Iîalv's "Recognitib ovn"Virtue of the Laval-Mussolini
Treatv of 1935
8.20 Inessence,Chad'sargumentisthat Italypursued itspolitical
ambitions ("réclamations politiqueo)n the basisofArticle 13ofthe 1915Treaty
of London; that what was envisaged wasa "cession"of French temtoiy to Italy
(the "Aouzou Stnp"); that this is confirmed by both French and Itaiian
documents24;and that thistherefore confirmsFrench title.
8.21 It may be noted, initially,that Chad nowhere explainswhy
the viewsof the Italian Foreign Ministryin 1935-1937are attributable to Libya
some 15years later. Had a boundarytreaty actuallybeen concluded,then Libya,
as successor State, might well have succeeded to that boundaiy. But that is
because a boundaiy treaty, like a conveyanceof land, operates and fixes the
temtonal iimitsthat future sovereignsmustthen respect. But there isno reason
whysuccessionoperates on occasionalopinions expressedbya predecessorState;
and Chadgivesnone.
8.22 Be that as it may,the depictionof the 1935Treaty by Chad
is totally misleading. Fust, Italy'sclaim to have succeeded to the rights of the
Ottoman Empire was acknowledgedby declarations of both Great Bntain and
France in 1912hediately after the conclusionof the Treaty of Ouchy;and it
wasaccepted inArticle 10ofthe 1915Treatyof London. The Itaiianproposalsin
1919,formulated at the Peace Conference,were based on the rightof succession,
and Article 13entered into playonlyin the sense that Italybelieved itselfto be
entitled to a favourable reception of those proposals. But,in essence, Italywas
claimingnot a cessionof French temtory, but recognitionof itssuccessionto the
24 Thesearethe dipatches 23Aprü 1937.15 December1937.27 December1937andof
uncenain datin 1937,referredto in CM, pp. 209-214 para15-19.The other
argumentused by Chadto suggethe Treatywasone of "wsioisthe fact that the
TreatywassubmittedtbathParliamentSeci.thisregard,pa6.23,g-q.,above.title of the Ottoman ~m~ire~~. And, clearly, the Italian proposals went far
beyond the so-called"Aouzou tri^"^^.
8.23 Infact, by 1928Italy had formaliynotified France of claims
on the basis of inhentance from the Ottoman Em~ire going as far south as Lake
~had~~. Thus, from Italy'spoint of view, the 1935Treaty contemplated not a
"cession"from France, but rather the abandonment of extensive Italian claims
based on successionto the Ottoman Empire. For this abandonment of its claims,
Italy sought a auid pro auo: French abstention from any cnticism of Mussolini's
impending attack on Ethiopia. That guid oro QUO was not forthcoming, since
France formally opposed Italy's action in the League of Nations. And it was
because of this that Mussolini abandoned al1idea of exchangingratifications of
the 1935Treaty (and ofrenouncing thereby the Italian c~aims)~'.
8.24 Indeed, it becomes difficult to explain the Italian decision
conceming the 1935Treaty on any other basis. ForifItalywas gaining temtory
£romFrance by way ofcession,whywould Italy not ratify? It had everything to
gain and nothing to lose. BuiItalywas in fact abandoning genuine claims,the
decisionnot to ratifybecomes understandable. France had failed to liveup to its
side of the bargain, by opposing Mussolini'sEthiopian adventure, sa Italy sawno
reason whyit should abandon its legitimate claims. Thus, Italy saw no reason to
make the "notablesacrifices"whichthe 1935Treaty invo~ved~~.
8.25 There remains onlythe apparent inconsistencyin the Italian
position, revealed in the use of the term "cession"in the four dispatches of 23
Aprii, 15 and 27 December 1937 and of unimown date in1937~~. These were
inter-departmental memoranda, confined to communications within the Italian
Ministnes: they were not communications with any foreign Power. Presumably
25 SeeLM,para.5.153g seq.
26 Of course, this termdid not gain currencyuntil thwas,thus, unknownin
1935Sec .ara.1.1a,seq .,ove.
27 SeeLM, para.5.25aseq.
28 SeeLM, paras.5.303-5.353.
29 LetterfromCountCiano,the Italian ForeignMinister,19 DecemLM.1Exhibit
58.
30 Sec.iscussionof thisterminparag6a.,,above.not al1the officiaiof these Ministries were acquainted with Mussolini'sgrand
designs, or of the history of Italian claims. For them "cession"doubtless meant
cession of rnilitary control rather than cession in the legal sense. And whilst
inconsistency or looseness in the use of language may be regrettable, such
inconsistenciesare an inevitable feature of large, governmental organisations,and
their signiîïcance ought not to be exaggerated. indeed, the Court has warned
against such exaggeration. in the Anelo-Norweeian Fisheries Case the Court
said:
"[It]is impossibleto rely upon a fewwords taken from a singlenote
to draw the conclusion that the Nonvegian Government had
abandoned a pgfition which its earlier official documents had
clearlyindicated .
8.26 Commenting on this statement, Sir Gerald Fitzmaurice
shared the view that too much notice need not be taken of superficial
contradictions,quoting the Court's opinionin the same case:
'The Court considers that too much importance need not be
attached to the few uncertainties or contradictions, real or
apparent, which the United Kingdon~~Governmentclaims to have
discoveredin the Norwegianpractice ."
8.27 That view must be right. In the law of treaties,
interpretation is never controlled by isolated words or phrases: these have to be
interpreted in the context of the agreement as a whole. So, too, in matters of
State conduct the viewsor beliefs of a State can onlybe deduced from its conduct
viewed as a whole. The occasional inconsistencycannot stand against the more
33
general view,consistentlymaintained by a State .
31 1.C.J.Rewm 1951,p.138. It alsomayhaveservedinternal ltalian politicalintereststo
makeit appearthat Francewasgivingu-was'Œdingg-temtorial rightsIoItaly.
32 Fitzmaurice,G.: The Law and Procedure of the International Court of Jus30ce",
B.Y.LL 1953,p.45. (Ampyofthispageisattachedas LCM 46.)
33 The matter might be otherwûe when a State relied on a particular statement, to its
detriment,soasto createconditions foran estoppel. But that cannotbe the casehere.
Evenhad the Mm in questionbeenexpressedto France,rather than in internal Italian
documents,the French Governmentknew fuiiweiithat Italyclaimedthe territory (and
more)asitsown.back into ~ibesti~~. Indeed, Balbo'sviewsof the situation emerge with complete
clarityfrom hisdispatch of1August 1938to hisForeign Ministryin Rome:
"On my part, 1 note that the agreements of 7 January do not
represent a cession to Italy of the temtory in question, butpiy
the recognition of a sovereignty that Italy has constantly and
to beexeicised in the area where it is in contrast with the exercise
of French sovereienty does not require that the 7 January3pT5
agreements be perfected through the exchangeof ratifications.
8.31 And, fa1from there being any disagreementbetween Balbo
and the Itaiian Foreign Ministry,the Ministry'sreply to Balbo on 16August 1938
was as foiiows:
"Ce MinistèreRoyal connaît bien la thèse,constamment soutenue
par nous, d'après laquelle l'Italie a toujours considérécomme
relevant de la Libye (pertinenti alla Libia') les régionssituées au
sud de la frontière établiepar les Accords Mussolini-Laval du 7
janvier 1935. Ces Accords n'étantpas encore entrés en vigueur,
ladite thèse reste-c'estévident--ferme. La zone dans laquelle a
eu lieu4dincident en question est incluse elle aussi dans ces
régions ."
8.32 And, far from acquiescing in any French claim to
sovereignty, the Italian Ambassador was instructed by the Itaiian Foreign
Minister to reply to the Quai dOrsay in these terms:
"..l'Ambassade Royale d'Italie, qar ordre de son Gouvernement,
exprimeses réserves àl'égardde 1affirmation,contenuedansladite
Note, que la région en question est soumise la souveraineté
française, car cette région a toujours étéconsidéréepar le
Gowe ement Royal comme relevant de la Libye(pertinenti alla
-ibia') ."
38 SeeLM,para. 5.273g a.,andpara 5.78above.
39 CM. Annex203. An amrate translationof this documenthasbeen attachedas
LC-M 47,p. 18 hereto, from which this quotation is taken, along with English
translationsof Annexes195,196and197,aurelatingtthiincident.
C&, Annex204. Emphasisadded. Chadsuggaü th&reply showsconhisionas to the
40 facu, in that it assumedJef-Jeflaysout1935 line. This misreadsthe text. The
replyrefetothe wholeof the areasclaimedhyItaly, whichdidindeedextendsouth of
the1935Line.AndJef-Jefdid liewithinthoseclaimedareas.
41 TheCM, p.217,para.42,cites thistextand refersto Annex204. Thisreferencemustbe
wrong,since Anne201 isthe Italian ForeignMinistry'sreply to Ba16August
1938. 8.33 In sum, this incident does not support either of the
interpretations advanced by Chad. There was no "acquiescence",or recognition,
by Italy in either the French claim of title or the so-caUed"frontièrede 1899-
1919". In fact the Italian workers sent to dig the wellswere not withdrawn until
the workwas completed. Asan element in France's "consolidation"of its title, it
is non-existent. In fact, the officialview of the Italian Government conceming
Libya'ssouthern frontier is explicitlyrevealed on the maps issuedby it at various
times. Three such maps are shownhere. The map reproduced as Map LC-M 52
was issuedby the Italian Ministy of Colonies in 1926. No southern boundary of
Libya is shown east of Toummo. The map reproduced as Map LC-M 53 was
issued by the Italian Ministryof Colonies in 1937. It shows the 1935Treaty line.
The map reproduced as M~DLC-M 54 was issued in 1939 by the Instituto
Geografico de Agostini-Novara, after it was announced that instruments of
ratification of the 1935Treaty would not be exchanged. Once again, this map
42
showsno such boundary east ofToummo .
Smio~3. The Debates In. and Measures Taken Bv. the United
Nations : 1948-1952
8.34 Chad's Memorial suggests that, in promoting Libyan
independence, the United Nations saw Libyaas a State "avecdes frontièreset un
temtoire essentiellement incontestés, particulièrementpour ce qui concerne sa
frontière and that, insofar as disputes over frontiers might exist,
"l'Assembléegénéralea décidéque ces derniers devraient êtrerésoluspar un
processus de négociation ...w~~.However, Chad would have the Court believe
that the southern frontier was not in dispute, because "la position française
énoncée clairement à propos de la frontièreSud dla ~ib~e~~wasnot disputed,
and thisChad suggeststestifiesto a general acquiescencein the 1899-191line.
42 Mar,LC-M54 appearsin the&l asMap No. 84at para.5.352. Larger-sizecopies of
eachof thesemaps havebeenhirnishedto theRegistry.
43 CM. p.219,para48.
44 CM. p.219,para.51.
45 a, p.î32, para.98.LC-M 53 LIBIA
",*"".sx.,, s "sa,o", ,,",Tnc.'e LC-54
LIBIA 8.35 This view of what happened in the U.N. simply does not
accordwith the facts. Without repeating the details givenin Libya'i~emorial~~,
it isnecessaryto recall certain facts.
8.36 First, the maps produced in the United Nations were al1at
variance on the question of the southern "frontier". The U.N. Secretariat Map
produced in January 1950 for use by the Interim Committee showed east of
Toummo a line of question marks, in location and direction close to (but not
identical with) the abortive 1935 ~ine~~. Chad suggests that this map was
erroneous because prepared with too much haste. In fact, the difficultiesfacing
the Secretariat were considerable. The Secretariat had access to the maps used
48
by the Four Power Commissiona few years earlier, in 1948-1949. One map
showed a British version of the line, in effect adopting the 1935line. A different
rnap4' was attached to the French version of the Report of the Four Power
Commission and, in a notation on this map, France pointed to the error in the
British map -namely the assumption that the 1935Treaty was in force -and
added a further note to the effect that the southern boundary was governed by a
Franco-Italian Protocol of 10January 1924. This mystifiedthe U.N. Secretariat,
understandably so, since no such Protocol existed. Yet a third map50 had been
furnished by France to the Four Power Commission. But this only showed a line
as far east as 18"E longitude: it did not show the whole southem boundary.
Subsequently, the French delegate to the U.N. Ad Hoc Political Committee
explained that the French reference to the Franco-Italian Protocol of 10January
1924was an error, and that in reality the operative agreement was the Franco-
.. Italian Agreement of 1November 1902,whichadopted the boundary shownon a
map attached to the 1899Anglo-French ~eclaration'~. This, too, was wrong, on
two counts: the 1902Agreement did not concern this southern boundad2; and
no map was in fact attached to the 1899Anglo-FrenchDeclaration.
46 L& paras.5.362-5.3s-,also,para.3.8gseq..,bove.
47 See,LM, MapNo. 87, referredto at para.5.Thismapappearsagainabove,asMap
-C-M11,referredtoatpara.3.92.
48 LM. MapNo. 88,referredto atpara.5.381.
49 LM . apNo.89,referredto atpara.5.381.
50 LM, MapNo.90, referredto atpara.5.381.
51 Forthe ten of theFrenchdelegate'sstates-,LM. para.5.392.
52 .SeeLM, paras.5.83-5.10s-,also,para.4.106,-q., above. 8.37 In the light of this record, the'assertion by 'Chad that the
frontier had been "énoncéeclairement" by France to the General Assembly
seems to be wishfulthinking.Infact,France had:
- Misinformed the General Assemblyas to the existence of a
1924 Franco-Italian Protocol;
- Misinformed the General Assemblyas to the existence of a
Map attached to the1899 Anglo-FrenchDeclaration;
- Misinformed the General Assembly as to the geographical
scope and legal effect of the Franco-Italian Agreement of
1902;and
- Failed to provide the General Assembly with any
authontative, clear maphowingthe southernfrontier.
8.38 To suggest, therefore, that France had made the position
clear, and that the General Assembly had acquiesced in that position, is little
short of ludicrous. The General Assembly was clearly not convinced that any
clear boundary existedin thesouth. And that iswhyResolution392(V) provided:
'That the portion of its boundary with French temtory not already
delimited by international agreement be delimited, upon Libya's
achievement of independe ?FI#by negotiation between the Libyan
and French Governments ... .
8.39 The CM impiies that the General Assembly had in mind
only the Libyanfrontier with Algena, because it was on this frontier that France
sought rectification.Thus, Chad suggests, the General Assembly was not
referring to the southern frontierS4.
8.40 This must be wrong. As we have seen, it was precisely this
southern frontier which, on ail the evidence, seemed unclear and undeiimited to
the General Assembly. The frontier with Algena ws delimited, by the Franco-
53 G.A.Resolution392(Vo)f 15December1950,UNtedNations,OfficialRecorofthe
FifthSessionof theGeneralAssembly,Supplemnt.20(A/173), 195LM. Exhibi2.
54 CM. p.227,para82.Italian Accord of 1919. The fact that France sought to change or "rectilj" this
boundary, so as to place the areas around Chat and Ghadamès in French
territog5, did not mean the frontier was undelimited. The General Assembly
must be deemed to have been aware of the difference between a frontier
delimitation and a frontier rectification, and indeed in the proceedings of the
U.N. Ad Hoc Political Committee the French representative had stressed this
di~tinction~~.So, clearly,it was the southern frontier which,above al1else,wasin
the mind ofthe General Assembly:
8.41 The evidence is, therefore, that the French position was far
from clear to the General Assembly; and the General Assembly, far from
"acquiescing"in that position, cailed fora new, negotiated delimitation. This
being the case, Chad's references to other, implicit acts of acquiescence in the
French position cease to have any real importance57. They can be dealt with
quite briefly.
8.42 The so-called "silence"of theU.N. Commissioner in Libya,
in his Second Report of 30 October 1951,is entirely without significance. The
General Assembly had already resolved the matter -in the sense of calling for
negotiations - by G.A. Resolution 392(V) of 15 December 1950. The U.N.
Commissioner had nothingfurther to add.
8.43 As to the alleged "silences"of other Member States during
the General Assembly debates of 1950-1951, itseems difficult to interpret the
discussionsin theAd Hoc PoliticalCommittee in December 1950as a "silence"58;
and the Resolution which finallyemerged was, as we have seen, anything but an
acceptance of a French "position". The reticence of Italy,whichChad singlesout
for comment59,isperfectlyunderstandable. The General Assembly'sclear desire
wasto excludeItalyfrom anyfurther wntrol in Libya. Itwouldhavebeen tactless
for Italy to have intervened forcefulinthe debate to re-assert the kind of claims
55 There is a strikingparadoxbetween the currentemphasisby Chad on the need for
stabilityin thefrontiersit claimsto haveinhentedfromFrance andthe Frenchdesirein
the1947-1948FourPowerdiscussionsradicallytoaltertheexistingboundaries.
56 See,LM,paras.5.382-5.387.
57 See. CM.p. 227,para.82.
58 See.LM,paras.5.387-5.395.
59 See, CM,p. 232,para.98.Italy had made to France in the inter-war penod. Moreover, at the time Italy
participated as an observer, for it was not yet a member of the. And as to
the "silences"of the Emir Idriss,the Senoussileader destinedto become the Head
of State of the newly-independent Libya,the fact that he specificallyopposed the
Egyptian claim to rectiQ the eastem hontier, but said nothing about the southem
frontier, is perfectly explicable. There was a concrete, clear Egyptian claim,
which called for a reaction. No such "claim"was made byFrance for the southem
frontieroO:that was a matte! which.wassurrounded bythe maximumobscurity.
SFZTIO 4N Libva'sOwnConducf Post-Independence
8.44 In Chapter III of its Memonal Chad surveys a senes of
actions by Libya, post-independence, which in Chad's Mewsuggest conduct by
Libya itself demonstrating acquiescence in the so-called 1899-1919line. It is
therefore necessaryto comment on each ofthese examplesofLibyan conduct.
(a) The "Aouzou Incidentnof1955~~
8.45 It is clear that the post at Aouzou had been occupied
intermittently byFrench forcesbetween 1930-1937,wasabandoned bythe French
between 1938-1951, manned again by France between 1951-1954, then
abandoned again between April-December 1954and reoccupied at that time only
in response to rumours of a Libyan plan to occupy ito2. But clearly the Libyan
authorities believed the oasis to be Libyan when they ordered the expedition to
Aouzou to install aMudir and encouraged the Egyptian expert of the U.N. to
return there to complete his census of the population63. A French secret report
of 12April1955 sawthe incident as a reflection of "lesrevendications temtonales
libyennes que rend possible l'imprécisionde notre frontièreno4. So in fact the
incident as such confirmsboth the existenceof the Libyan claimsand the lack of
anyclearly-definedfrontier.
60 Sec .aras.3.94-3.100,abwe.
61 Formoredetailedanalysisof this"incident:s-, para.3.3,bove,anLM. paras.
5.512-5.517(TheoyaIncident). See,aiso,MauLC-M9 referredto at para.(ni.
29),above,forthe locaofAouzou(andMoya).
62 See,para.5.11et=., above.
63 Sec .M.Annex272. Sec .iso,para.3.38,above.
64 LM. FrenchArchivesnnex,pp.166-168. 8.46 The onlyalleged event that might have been a real element
of "acquiescence"by Libya relates to the telegraphic report from M. Dumarçay,
France's representative in Tripoli, of his meeting with the Libyan Prime Minister
Ben Halim, a matter extensivelydealt with ab~ve~~. The latter is reported as
havingconfirmed "queson Gouvernement n'avaitnullement l'intention de rouvrir
la question d'Aouzou, puisqu'il reconnaît que ce village se trouve en temtoire
français".
8.47 This is the only evidence available of that meeting: we
cannot verify the accuracy of the report of whatMr. Ben Halim said from any
other source; and it has been noted above that the document presented in the
form of Annex 264to the fallsfar short of acceptable evidenceoo. But ifthat
was indeed said, which Libyadoes not accept, it must be noted that the alleged
statement referred only to the one village of Aouzou. It cannot therefore be
treated as an acquiescence in the French claim to the whole of the "Aouzou
Strip",an area the size of ~witzerland~~.It was, moreover, an isolated statement
quite incompatible with what France perceived to be the whole thnist of Libyan
claims. And there must be considerable doubt whether Mr. Ben Halim ever
made the statement, or, if he did, whether he made the statement in full
knowledge of the facts, in particular whether the whole historical record did, or
did not, support the French clah to the area. The more likely explanation, if
indeed the statement was made, was that MI. Ben Halimwasin the middle of the
crucial negotiations for the 1955Treaty with France. His primaryaim was to get
France out of Fezzan, and he was disinclined to allow what he regarded as a
trivialincident tojeopardize hischance of securingthisresult as wellas prevaihg
68
over France in resolvingthe issueconcerning"reactivation"inthe event of war .
Thiswas a serious concem at the time; forFrench forces were in occupation of a
large part of Libya and the borderlands (not to speak of the presence of British
and U.S. forces), and the climate was one in whichLibya wasnot entirely free to
sayand dowhat itwished.
65 See,paras.3.46-3.59,above.
66 -bid.
67 See,para.1.1g,%., above.
68 SecL.M.para.5.429g S. 8.48 There is, in any event, a further factor. The General
Assemblyhad called for negotiations to settle this frontier. It was'scarcelyto be
assumed, by either France or Libya, that the matter would be settled by a
unilateral, oral "admission"by the Libyan Prime Minister. Indeed,in the 1955
Treaty itself, France conceded that the frontier remained to be determined
according to the annexed iist of international acts. France did not regard the
frontier as settled on the basis of the reported statement of Ben Halim, as the
Quai d'Orsaymade clearwhen it received M.Dumarçay'sreport 69 .
(b) The Negotiations in Julv/Aueust 1955 Leadinp to the 1955
Trestv
8.49 Chad's Memorial focusses on the production, during the
meeting of 27 July 1955,of a map by Libyan rnilitaryofficers, showingthe 1935
line as the boundary70. It then notes that, according to Ambassador Dejean's
report of the meeting:
"M. Ben Halim a reconnu ce matin en séance aue les accords
devrai t leur êtreappliqués. Toute difficultémijeure est ainsi
exclueeA.9,
8.50 On the basis of this record, tCM concludes that by these
actions "[le]Premier Ministre libyen reconnaissa[i]t la souverainetéfrançaise sur
le ~jbesti~~".As already pointed out above, the entirely misses the meaning
of Arnbassador Dejean's report73. The map had not been produced in
connection with Libya'ssouthern boundary at all, but rather with respect to
Libya'swestern boundary with Algeria. Ambassador Dejean was reflecting the
fact that he was carefdy followingthe French strategy not to refer to anyline but
only to make a general reference to "actes internationaux en vigueur".In fact,
even at this stage in the negotiations, the Annexist had not yet been tabled by
France. As demonstrated earlier7q Libyadid not know the content of the "actes
internationaux en vigueur",did not know whether in fact their application could
69 Sec .ara.3.54,above,aCM, Annex266.
70 CM. p.136,para.116.
71 CM,p. 136,para.116,andAnne268.
72 CM,p. 136,para.118.
73 Sec .ara.3.61,S., above.
74 Sec .ara.3.2etS., above.produce a line, and certainly did not know where that line might be. So, on the
face of it, there was nothing to which Libya could acquiesce. And France
provided neither the textsnor even a mav showinewhere France believedthe line
75
-o lie . This is the important point about the use of maps during these
negotiations:none were produced for purposes of discussingthe boundary east of
Toummo.
8.51 As the Libyan Memorial has demonstrated, the 1955
negotiations essentiallydealt onlywith the boundawest of ~oummo~~. East of
Toummo, beyond agreeing that the matter should be examined in the future on
the basis of the international actinforce, the Libyans refused to discuss the
boundary sincetheywere not equipped to do so, either in terms of information or
experts. Inthese circumstances the idea that Libya "acquiesced"in any line east
ofToummo is clearly unacceptable.
(c) Libva's "Silence"at the ïïme of Chad's Admission to the
United Nations
8.52 The suggeststhat, on the occasion ofChad's admission
to the United Nations, Libya was somehow bound to raise its claimsas regards
the southern frontier; and that failing to do so constituted some sort of
acquiescencein the so-caUed1899-1919lir~e~~.
8.53 This is quite unrealistic. Such occasions are ill-suited to
raising controversial questions, particularly questions which the Assembly had
decided ten years earlier should be resolved by negotiations. Nothing in the
admission of Chad to the U.N. required a formal protest by Libya; and the
argument that Libya'sabsence of protest in some way constituted recognition of
the alleged 1899-1919line is simply without substance. However, the
suggests that there were contemporaneous applications for admission which
disclosed political problem- Senegal and Sudan on the one hand, and Congo
(Léopoldville)on the other -and that the fact that in relation to those cases the
General Assembly delayed a decision on admission suggests, according to the
75 withwomapsinMay1955;ra%LM.naypara.5.45g,m.,rand MapsNos.91and92.ign Office
76 SeeLM, paras.5.442-5.462.
77 CM. pp.320-322,para.115-122.-M, that the time was equally opportune for Libya to have raised its frontier
problem with ~had~~.
8.54 But of coursehose cases were quite different, and they did
not concern a potential frontier dispute. The federation between Senegal and the
Sudan (Fédérationdu Mali) had collapsed onlyone month before. Obviouslythe
General Assemblyhad to wait until the situation clarified. Once it became clear
that Senegal and Mali had to be treated as two separate States, they were
admitted as such, on 28 September 1960,only 8 days after the main resolution
admitting a group of eleven former French African temtones. Amongst this
group was Upper Volta (Burkina Faso). The fact that Burkina Faso made no
express reservation about its frontier with Mali did not preclude the parties from
bnnging their frontier dispute before a Chamber of this Court in 1986. As to the
Congo, the problem there was one of representation, for it was for a time unclear
whichauthonties had govemmental control.
8.55 A well-established practice in the United Nations makes it
clear that, in admitting new Member States, the General Assemblydoes not wish
to be embroiled in frontier disputes.
CHAPTERIV. ELEMENTS RELEVANT TO ANY ARGUMENT Ol?
"CONSOLIDATIONI" GNOREDBYCHAD
8.56 As indicatedearlier, the notion of consolidationof title rests
on an assumption of general recognition of such title. Thus, Chad's argument
immediately becomes suspect when it is realized that the reactions of important
parties-parties directly concemed in the matter of title and delimi-haven
been ignored.
Smo~ 1. TheAttitudeandConductof GreatBntain
8.57 It is clearthat Great Bntain not regard the line agreed in
the Anglo-French Declaration of 1899 as a temtonal boundary, or as an
acceptance of French title to the south of that line. Great Bntain so assured Italy
78 CM,p. 321,para.119.in 1902~~.And Great Britain made the same viewclear to France itself as late as
1922~~. Even when the Anglo-French Convention of 1919 was concluded,
containing its famous "interpretation" of the 1899 line, the British position
remained the samegl. Moreover this positionwasbased on clear legal advice,for
Malkin (Second Legal Adviserto the Foreign Office)advised:
"..the two Anglo-French agreements did not and could not affect
the rights of Italy in any temtory which belonged to her. The
question whether any of the temto to which those agreements
applied istemtory now belongingto talydepends of courEon the
question offact as to howfarurkish sovereigntyextended ."
8.58 The date of these communications,1922-1923,is important,
for Chad nowsubmits that:
"..à partir de 1913,la France exerça son autoritésouveraine de
manière suffisante pour luiermettre juridiquement de consolider
son titre de souverainetésur un territoire allant jusqu'à laiene
définieave la Grande-Bretagne en tant que limite de sa sphere
d'influence?."
8.59 The argument now advanced byChad is that thisexercise of
French sovereignty overthe whole area up to the 1899line was consolidated and
established by 1919~~.The choice of 1919arouses cunosity. Was it to allow the
Convention of 1919to appear as a recognition of the extent of French effective
occupation? Or was it to avoid the effect of the League Covenant making
conquest by force illegal after 1919? The reasons for the choice must remain a
matter of speculation. What is clear, as a question of fact, is that France in no
79 See. LM. para. 5.59.his constituted a forma1assuranceto Italy thatthe 1899
Declarationcouldnot affect therighü of otherPowers,in panicularthoseof the
of Tripoliand the Mutessarifikof Benghazi;so, clearly,recognitionof Frenchtitle was
not contemplated.This assurancefollowedexpress instfromtheForeignOffice
inLondon:See,LM,paras.5.105-5.106.
80 LM, para.5.60.
81 LM, para.5.192,gt-q.
82 LM, paras.5.202-5.203. See,also, the later BritishresponsbyNote Verbale
dated5 Febmarylm, LM, para.5.212,gt-q.
83 CM, p.376, Conclusion1(xü).
84 See,CM,p. 193,para.191,p.255,para.181,andp.376, Conclus(d).sense effectivelyoccupied the borderlands in 1919~~.For example,French forces
had withdrawnfrom Tibesti in 1916and did not retum, even in minimalnumbers,
until 1929.
8.60 But, even ten years afte French forces first invaded the
borderlands in 1913,Bntain displayed no awareness of any such French title. To
the contrary, for Bntain the question was more one of the extent to which Italy
couldprove it had acquired sovereigntyovertemtory inherited from the Ottoman
Empire. And there is no hint of any knowledge of, or acquiescence in, a French
claimof title based upon effectiveoccupation.
8.61 Indeed, Bntain maintained this position even after World
War II. Asseen earlier, the British map used by the Four Power Commissionin
1947-1948infact showed a boundary corresponding more to the 1935line than
the 1899-1919line8q Neither in the Four Power Commissionnor in the debates
in the United Nations pnor to Lïbyan independence is there any hint of British
87
acceptance of or of acquiescencein the French claimof title
S~ON 2. The Conductofthe Ottoman Emuire
8.62 The Ottoman Empire had protested against the 1899
Declaration in March and May of 1899~~,and again in 1902~~. Moreover the
Porte backed up its protests by reinforcing the Ottoman military presence in
Tibestiand ~orkou~~,so that, at least until1913 when the Turks withdrew,there
could scarcely be any suggestion of either Ottoman "acquiescence" in the 1899
line or French occupation of the borderlands. Indeed, as shown on Mau LC-M
85 Sec.an V,abovep- alsLM. paras.4.17gta.
86 Secpara.8.36,above.
87 Bntain waswell aware of the French aim to keep Fezzan and to secure border
adjustmentswith FrenchAlgeria and Tunisia;but these were quite separatefrom the
Frenchclaim that the boundaryhe soutwas clearlyestablishedon the so-called
1899-1919Lie.
88 See,LM,paras.5.49-5.53.
89 SeeL,M.paras.5.74-5.77.
90 See. LM.paras.4.121-4.150,and Map No. 53 referrLM.opara.5.11p- also,
para5.25,g a., above,and Map LC-M 28refened to at para.4.139, above,which
appearsheregainon thereversesideof MaoLGM 51.LC-M 285191,the de facto line, dividingFrench and Ottoman forces in 1910,left virtually
the whole of the borderlands in Ottoman control. This is confirmed by the
Ottoman stance in the boundary negotiations, opened with France in 1910-
1911~. The boundary proposed as a compromise line (thus greatly reducing the
Ottoman claims) by the of Tripoli to the Ottoman authorities would have
leftthe borderlands almost entirely on the Ottoman side.
Thus, of "acquiescence" in the 1899,line by the Ottoman
8.63
Empire there is no sign at al]. On the contrary, al1 the evidence shows a
determined opposition to that line, backed up by the Ottoman militarypresence
right up to 1913(M~DLC-M 28) when, due to the Italian invasion of Libya, the
Ottoman Empire became unable to offer further opposition. EssentiaUy,the
recognizesthis,because it sees consolidation as occurring "àpartir de 1913",that
is to sayafterthe Ottoman withdrawal.
SECTIO 3.N TheConductof the Senoussi
8.64 In trying to demonstrate the consolidation of French title
and "acquiescence"in the so-caUed1899-1919line,the9 ignoresthe conduct of
the Senoussi. This omission is untenable in law for, as Chad itself says,
sovereigntylaywith the Senoussi:
"Il est aiséde constater que ni la Francnila Grande-Bretagne,
aprèsla Déclarationde 1899,ni la France ni l'Italie,a rèsl'Accord
de 1902,n'acquénrentde droits souverains sur leB. .T. en vertu
de ces accords. En effet,h l'époque,et jusqug 1912, c'étaitla
Senoussiaqui exerçait de tels droitssur la région
8.65 IfChad seeks to implythat, as from 1912withthe Treaty of
Ouchy,the Senoussino longer mattered, because theylost their "sovereignty",this
isa misreadingof that Treaty. For the Firman issuedby thePorte and formingan
integral part of the Treaty recognizedto the inhabitants ofTripolitania-Cyrenaica
"une pleine et entière a~tonomie"~~. Moreover, the Ottoman Empire did not
itself formallyrenounce sovereignty untilthe Treaty of Lausanne in 1923.us,
91 SecalsoLM . apNo.34,referredatpara.4.120,thereto.
92 LM. paras.4.140-4.143.
93 CM. p. 254,para.177.
94 Sec.enerallLM. para.5.130,g-q. -388 -
whilst the Ottoman Empire and later Italy may have asserted claims to
sovereignty to these borderlands on the international plane, they did so fully
recognizing that title to the territory rested with the inhabitants, including the
indigenous Senoussipeoples inhabitingthe borderlands. There existed a "duality"
of title, in the sense that, because the Senoussilacked recognition as a State, it fell
to the Ottoman Empire and later Italy to assert and protect that title on the
international plane. But they did so at a time when title in the borderlands
actuallylaywith the Senoussipeoples.
8.66 In any event, irrespective of the formal status of the
Senoussi, the Senoussi peoples were the indigenous population of the
borderlands, fightingto retain their sovereignty,and so their "acquiescence"in the
French claim of title was vital. Even on Chad'sthesis that the borderlands were
"occupied", such occupation had to be, in the words of Judge Huber, "the
continuous and peaceful display of actual power"95. And, if the French
proceeded bywayof conquest,no title could havebeen acquired byFrance unless
and until the territory was completely subjugated and formally annexed, which
never happened.
8.67 Far from "acquiescing",the Senoussi peoples foight the
French tooth and nail; and this struggle continued afier the Ottoman withdrawal
in 1913~~.So the most fundamental element in anytitlebased on "acquiescence"
isentirelylacking.
Smo~ 4. TheConduct of France
8.68 It is not suggested that "acquiescence"in the Frenchclaim
must be sought in the conduct of France itself. But consistency is certainly
expected. Without consistency,the French view of its title and the aîleged 1899-
1919boundary would lack credibility:in consequence, Chad's own claim, being
denved from that of France, wouldlack credibility.
8.69 The current thesis advanced by Chad is goJ that the 1899
Declaration as "interpreted" by the 1919 Convention established a frontier, but
95 Islanof PalmasCase9.-., p. 857. Emphasisadded.
96 See,para.5.35g S., abovesec,alsoLM. para.4.173,5%.rather that those texts established a line which France converted into a true
frontier byvirtue of its"occupation"ofthe borderlands, between 1913-1919~~.
8.70 The fact is that this was never the thesis advanced by
France. The French thesis rested solely on the treaties, never on French
effectivités; effectivitéswas never a French argument dwing the 1935
negotiations. The French thesis was stated in terms of the treaties thenin force
by France's representative before the United ~ations~~;and it was once more
stated inthose terms by France to Libya itself during the negotiation of the 1955
Treaty. The advice of the French Governor-General of the A.E.F., whichwas
certainly followed,wasto:
"..évitertoute discussionsur le tracé desfrontikres. 11 semble que
cette question ne devrait &treévoquée dansles accords que pour
poser le principe d'une délimitationsur le terrain à entreprendre
dans I'aGnir, mais en prenant pour seules haes les traités en
vigueur àla date de la creation de 1'EtatLibyenyy."
"Pour seules bases"! This advice was inspired, in part, by the concem that Libya
mightinvokeItalian effectivitésduringthe 1955negotiationsloO.
8.71 France precisely followed this advice. The 1955 Treaty
contained no map, no line and no reference to any effectivitésby France that
purportedly converted the so-called 1899-1919line into a true boundary. On the
contrary,Article 3 of the 1955Treaty referred onlyto "lesfrontières ...[qui]sont
101
celles quirésultent desactesinternationauxen vigueur ..."
97 See,para.4.199 ss above,wherethisthesiisdkcussed,withappropriatereferences
to thCM. inthe mntexof Chad'ssecondtheory.
98 Sec .he statementby the Frenchrepresentative(M. Naudyin tbe Ad Hoc Political
Committeein 1950,citeatLM. para.5.392.
99 LJ& French Archives Annex, .71.Emphasisadded.
100 See,paras.3.43and5.112,above.
LM. International AccorsndAmeementsAnnex,No. 28.
101 8.72 It is clear that the basis of title on which Chad now relies is
not the basis upon whichFrance relied, and certainlyat no time did France argue
or dernonstrate thisbasis oftitle to Libyaduringthe 1955negotiationslo2.
8.73 There are yet two further inconsistencies apparent in
French conduct. The 1955LibyanPetroleum Law and Petroleum Regulation No.
1were accompanied by an officia1map, Map No. 1, signed by a Minister of the
Libyan Government, showg a boundary that was a the so-called 1899-1919
line;and thisoccurred onlyfour daysafter Libyasignedthe 1955Treaty. Thiswas
an important lawadopted byLibyaand widelyknownand publicized. Yet France
neither commented on nor protested againstese officialacts of Libya
8.74 A second, cunous inconsistencyarose in 1956.A Franco-
Libyan Frontier Demarcation sub-committee met on 17 November 1956. The
French delegation insisted on considering only the stretch of frontier between
Ghadamès and Chat. They refused a Libyan request to review the frontier as a
wholelo4. This meeting, it must be emphasized, was to explore the problems of
demarcation of Libya'sboundary with Algeria; and demarcation presupposes a
pnor agreement on delimitation. Yet if, as Chad suggests, there had been
agreement on delimitation in 1955for the boundary east ofmrno, whywould
France refuse to discussdemarcationthere aswell? It seems evident that in 1956,
as in 1955,France stiil did not want to face up to a negotiation with Libyato
delimit its southem boundary. In fact, as has already been mentioned, the
politicalclimate for doingsowasverybad indeedlo5.
SECTIO 5. TheConductof Chaditself
8.75 The conduct of Chad likewiseraises an issue of consistency
rather than "acquiescence". It has to be emphasized that the current thesis of
Chad had never before been publiclyexpressed, prior to the deposit of Chad's
Memorial.
102 Just as,in the negotiationswithItaly,Francedid not referto asa basistb
forthe lineit proposed.
103 See,M.paras.5.524-5.and6MapsNos.%and 97,referredto there.
104 para.3.10G,a.. above.
105 S-, para.3.113,g .above. 8.76 The year 1966 saw the Libya-Chad ~ccordl'~ in which,
although Article 1referred to the frontiers between ihe two States, no reference
was made to the 1955 Treaty. The 1972Libya-Chad Agreement of Friendship
and ~o-o~eration~'~ said nothing whatever about frontiers or of Libya'spresence
in the borderlands, which had recently occurred followingthe Tombalbaye letter.
And the 1974Protocole d'~ccordl'', over a year after Libya had strengthened its
presence in the borderlands, reflected the phiiosophy of the two States in its
Article 2:
'The frontier between the two countnes is a colonial conception in
which the two peoples and nations had no hand, and this matter
shouldnot obstruct their cooperation and fraternal relations!'
8.77 No protest came from Chad at the tirne over Libya's
presence in the borderlands and the events during the period suggest that
relations between the two States were good109. Aslate as 1974,there was no hint
of the present Chadian thesis. To the contraxy, it appeared as though the two
States would in due coursenegotiate anew, free from the colonial legaq and the
complex treaties and arguments of colonial provenance on which Chad now
relies. This aim had already been reflected in the 1972Tombalbaye letterIlo.
8.78 Finally, on 26 September 1975 General Malloum, the
Chadian militasr leader, referred to the presence of Libyan troops in what he
descnbed -at least according to press accoun-sas Chad's tem.toory This was the
first official, publicrecognition byd of such a fact; but it was not a protest to
Libya, and no reference was made to the legal basis on which the tenitory was
allegedly claimed to be Chadian. Then, in August 1977came an abrupt change:
Chad placed the matter before the O.A.U.; and finally,one year later in February
1978,Chad brought a complaint before the Security ~ouncil~ll. It was then that
106 See,LM.para.5.540g a.
107 SeeLM,para.5.554,~ seq.
108 See.LM, para.5.55Ga.
109 Secp.ara.5.118,-q.,above.
110 Secp.ara.5.11G,-q.,above.
111 See, M.paras.5.561-5.564.Chad explaineditslegal thesis,the basis ofitslegal claimto the territoV1l2. This
was the strict "treaty-thesis",exactlylike the thesis France itself had developed
before the Ad Hoc PoliticalCommittee in 1950. No mention was made ofFrench
effectivitésconvertinga line dividingspheres of influenceinto a tme bounday or
of the lineitselfprovidingthe legalbasisfor the boundary claimedbyChad. Chad
put fonvard then exactlythe same thesis that had failed to convincethe General
Assembly in 1950 and had led to the cal1 to negotiate in G.A. Resolution
392(v)li3.
8.79 Thus, surveyingChad's own conduct as a whole, it scarcely
seems like "acquiescence" in the original French theds, based on the
establishment bytreaty of the so-called 1899-1919line.
8.80 It took 18 years for the thesis presented to the U.N. to
emerge from Chad, and even then Chad did not take the viewit now takes of the
basisof French - and therefore Chadian - title. One isleft with the suspicionthat,
but for the civilwar in Chad, that thesiswould never have emerged at au, andthat
Chad would have stayed with the commitment expressed in the 1974Protocole
d'Accord,namely to leave aside the legacyof colonialismand resolve any dispute
on the basisof cooperation and fraternal relations.
CHAPTERV. CONCLUSIONS
8.81 It is thus apparent that Chad's argument of the
"consolidation" of the 1899 line into a true boundary, on the basis of French
effectivitésand general acquiescence,isa myth.
8.82 It was never advanced byFrance itself as a basis of title, for
France asserted that a boundary existedon the basis of the treaties as such. Itwas
a thesis that Italy did not accept in the 1920sand 1930s,and that the United
Nations did not accept in G.A. Resolution 392(V). It wascertainiynot acquiesced
in by Libya, for France denied to Libya the knowledge - of the treaties, of the
effectivitésrelied on, and of the supposed line itself-which would have been
essential to anygenuine acquiescence bynewly-independentLibya.
112 See.CM. p.327,para136.
113 See,LM.para ..394,gseq. 8.83 Moreover, the attitude of various other parties, highly
relevant to any argument of general acquiescence, is in contradiction to Chad's
"consolidation" thesis. Great Britain did not share it; the Ottoman Empire
activelyopposed it, as did the Senoussi; and even in the conduct of France and
Chad themselvesthere isno signof adherence to thisthesis.
8.84 The reason why the thesis was never advanced earlier must
remain a matter of speculation. One reason - perfectly consistent with the fa-ts
may be that French effectivitéswere insufficientto establish title and certainlyto
identify a precise boundary. Another reason may be that France understood
perfectly well that, afte1919, it was precluded by law from acquiring title by
conquest. Still another reason may be France's awareness that in 1935 France
and Italyhad settled Libya'ssouthern boundary and that, in the light of the failure
of that boundary to take effect, the situation revened to the status auo ante: the
existence of no conventional boundary east of Toummo, as the French
Government had informed the French Parliament in the 1935 Treaty's &&?&
des motifs, making short shrift of the "consolidation"argument as o1935. The
reason why Chad now advances this thesis is for Chad to explain and justify,and
that isnot donein Chad'sMemorial. -395 -
PART IX
THE PROCESSOFDEïERMININGTHEBOUNDARY
IN THE PRESENTCASE
CHAPTER 1. INTRODUCTION
9.01 The task of attribution of temtory in an area of temtory
subject to the competing claims of two States, which is an accepted judicial taskl,
presupposesthat, as a part of that judicial task, a line can be drawn. It willbe that
line which separates the temtory of one claimant from the temtory of the other,
based on the Court's assessment of the limits within which one State or the other
has proved thebetter title.
9.02 Certainly in many cases the task of identifjmg an actual line
of delimitationdoes not arise, for the nature of the disputed temtory is such that
the boundary is a natural boundary, a boundary which is self-evident once
attribution has been decided. Thiss most clearly the case with a disputed island.
Once sovereignty over the island is decided, the boundaries are, as it were,
dictated by nature2. But conceivably other natural features could facilitate a
Court's task. A river, or a mountain divide, might, for example, produce an
obviousboundary once the issue of title is decid.d
9.03 The present case is undeniably more difncult. The area of
the borderlands that isubject to disputin the present case contains no obvious
line of delimitation, dictated by the physical features of the terrain once title is
decided. Nevertheless, in a situation such as the present where no conventional
boundary exists, the Court's judjcial responsibility remains. Clearly it must
establish a delimitation de novo. But this does not thereby become an arbitrary
exercise, and certainly not acision ex aequo et bono. For the Court has at its
disposal certain fundamentalmies of law which can, and must, be applied taking
1 SecPan II, Chapter II,above.
2 & Chapter II, below,for a discussionof such particular casesas the Island of Palmas
Cas theCliooerton kland Case,and the Minquiersand Ecrehos Case.
3 S-,for example,the CaseConminEtheBoundaw betweenBritish Guivana and Brazil,
decided by the King of Italy, 6 June 1904:R.1904,Doc. 18-20;Repertow of
International Arbitral Juris~nidence,DoEd.Coussirat-Coustbre and Eisemann,
Vol.1,1989,pp. 84-86. Having found that "not even the limit of the wne of temtory
over which the right of sovereigntyof one or other of the hvo Parties maybe held to be
established canhed Mth precision',the Arbitrator nonetheless established a line "in
accordancewith the linestraced bynature'.account of the whole history of events, the documentary record, the proven facts
of the case, and the evidence of the conduct of the interested parties including
both their treaty-practice and their proposals for treaties whether or not a treaty
in force finallyemerged £romthose proposals.
9.04 inshort, the Court is not faced with a tabula rasa. Complex
as the task maybe, there remains a concrete task ofapplyinglawand fact so as to
determine the limits within which each Party has shown, and can legitimately
claim,the better title4; and the respective limitsof the territory of each Party can
be depjcted by a Iine. The onlyspecificlimitations on the Court, peculiar to this
case,are perhaps three:
- Both Parties agree the critical date is 1951, the date of
Libyanindependence;
- Chad claims as successor to France; its title is entirely
derivative;and it can have no better claimthan France itself
could have had;
- in the 1955Treaty, France sought to rely exclusivelyon a
supposed conventional line, and disclaimed any title
acquiredon the basis ofcolonialeffectivités5.
This last point is, in Libya's submission, of the greatest significance. It
demonstrates that France was fullyaware of the weakness of any claim based on
effectivités.France must have known that, even byreference to the classical,19th
Century requirements of effectiveness, the very limited evidence of the French
military presence in the borderlands prior to 1919 (and it was an exclusively
militarypresence) wouldbe whollyinadequate. There isa fundamental failure of
proof in the CM to establish French title to any part of the borderlands prior to
1919, let alone thereafter, the onus being on Chad to show that France's
northward expansioninto the borderlands starting in 1913had generated a legal
4 As regardsthisconcept,% para.9.13,below,afn.W.
5 % analysisof the 1955TreatyinPIIIabove,andthespecificdiscussionof thispoint
in Pan V, staning at par5.03. That France sought, quite deliberately,to exclude
relianceon effectivith is clearfromthe advicegivento the FrenchForeign Ministerby
the Govemor-Generalof theAEF. Thenegotiationsweretobe conducted"enprenant
pourseulesbasesles traien vigueuA ladatedela créatideI'EtatLibyen"; etterof
2 May1955, L& FrenchArchivesAnnex,p. 169.See,para.8.70,abwe.title to this region (and an international boundary) by 1919. Moreover, France
would have been aware in any event, given the legal obligations France had
accepted under the Covenant of the League and the Pact of Paris, that French
military activitiein the borderlands after 1919 against continued armed
resistance persisting into the 1930swere whollyillegal and could not generate a
legal title.
CHAPTER II. THE CRlTERlA TOBE APPLlED
S~ON 1. Prioritvof Titl(PrierinTemwre, PotiorinJure)
9.05 The notion that thelawprotects, and favours, a pnor title is
a principle basic to al1legal systems. It is grouinthose same considerations
that argue for stabilityas a primary objectiveofany legal system.
9.06 Thus, in the Case conceming Sovereimtv over the MD of
cravairola6, the Italian claimwaspreferred, firstly,because Italy had established
a title based on the acquisition of the temtory by communes as early as 1367,so
that, in the absence of proof by Switzerland that such title had been displaced,
that title prevailed. So also,in the Island of Bulama case7, the Portuguese claim,
based partly on discoveryand panly on occupation and settlement dating from
the beginning of the 18th Century, was preferred to the British claim denving
from alleged cessions by native chiefs dating only from the end of the 18th
Century. The decision in the Cli~~erton Island case was based on the. same
8
principle.
9.07 in the present case,if that same principle is applied by
comparing the two titles, the conclusion is inescapable: the pnor titlin the
borderlandsattachesto Libya.
6 ItalvlSwitzerland.Arbitral Awmdof 23 Se~temberastranslatebyMoore, &&
m. Vol. I2028-2047Repertow of International Arbitral Jurisvmdence, Dordrecht,
Ed.Coussirat-Coustereand Eisemann, Vo1, 1989pp.66-74. Somewhat similar
reasoningcan be seen at workin the GrisbadarnaCase,Nowav/SwAwardof 23
October1909,P.CA, ScottJ.B.Th:e Haeue Court Reports, NewYork City,Oxford
UniversityPres132,p.121,for the Court fomulated dinu tmat "in the lawof
nations,isa weii-establishedp~ciple that it is torefraiasfar as possible
fromrnodifyingthestateofthingsexistinginfactand fora longt130).at p.
7 PortuealfGreatBritain.Awar21Avril1870byPresidentUlyssesS.Grant,Reoertoy
ofInternationalArbitralJurispmdence,Vol77-78.
8 CliooertonIsland C9.ea. p.1105. (a) TheTitleof Libva
9.08 As demonstrated in Libya's Memorial, there can be little
doubt that a valid title vested in the Senoussi before the Anglo-French
Declaration of 1899,and even before the French reached Lake chadg. Indeed,
thisisnot contested byChad. AsChad saysinits ownMemorial:
"Il est aiséde constater que ni la France, ni la Grande-Bretagne,
aprèsla Déclaration de1899,ni la France ni l'Italie,a rèsl'Accord
de 1902,n'acquérirent de droits souverainssur le B.1 .T. en vertu
de ces accords. En effet, à i'époque,et jusqu' 1912, c'étaitla
Senoussis qui exerçaitde tels droitssur la région.l*
Thus, on Chad's own thesis, there was a prior Senoussi title; so this question
becomes one of decidingthe limits -that is to saythe geographical limit- within
whichthis title wasdisplacedbya new French title. And this intum requires clear
evidencethatthe Frenchtitle was effectively,andvalidly,acquired.
9.09 The factual evidence has been sumeyed indetail in PartV
above. At thisjuncture it will suffice to recall that French penetration into the
borderlands north of 1YN latitude began onlyin 1913-14;that it was an entirely
militarypenetration concentrated on four oasesll; and that, prior to 1913,15"N
latitude broadly had marked the limit of French penetration. Indeed, the French
negotiations with the Senoussi in 1911seemed to have adopted the same limit,
markingArada as the limitof the French airns12.
9.10 Onlywith the withdrawalof the Ottoman gamsons £romthe
borderlands, completed inMarch 1913,did France begin to penetrate north of
1S"Nlatitude, succeeding only gradually against the indigenous Senoussi tribes,
weakened by the Ottoman withdrawal. Butthis "success"was represented by a
minuscule military presence; and in Tibesti the posts at Zouar and Bardaï, only
occupied in 1914,were quicklyabandoned inthe face of Senoussi resistance, in
August 191613.
Sec .speciallLM, paras.3.44-3.71and4.78-4.1secalso,ParV, above.
l0 CM. p.254,para.177;s-,alsoCM. p.19,para.12.
l1 Confirmed,CM,p.251,para.161. Butnote thattwoof thesefouroases (DjadoandAïr)
liewelltotheeastof theborderlans: para.5.19,above,andMauLC-M38.
l2 See.LM,paras.4.156-4.157.
l3 S-, para.5.25ett., and5.47,gt., above. 9.11 It must alsobe recalled that, at least until 1913,the Ottoman
Empire maintained on the international plane claims to sovereignty that co-
existed with the indigenous Senoussi claims of title to territory14. This "co-
existence" of sovereignty and title flowed from the fact that the local rulers
accepted the Ottoman sovereignty: they accepted that they were vassals of the
Sublime portelS. This was certainly true of the Senoussi, who allied with the
Ottomans and fought under their flag. The report of Muhammed Basala in
189416 revealed the significance httached to the Imperiafirm aynthe local
rulers; and in the borderlands there is cIear evidence that Ottoman protection
was sought and allegiance to the Ottoman Empire was accepted17. Of course,
the Ottoman hinterland clairnsextendedfar south of the borderlands18. But the
factthat, at least so far as the borderlands were concerned, these were not mere
"paper" claims is evidenced by the presence of Ottoman civil and military
authoritiein the borderlands between 1908and 1913,actingin CO-operationwith
the ~enoussi~~. It was this Ottoman presence, which encountered no resistance
from, and was indeed welcomedby,the Senoussiand the local tnbes, that brought
about themodus vivendiwithFrance between 1910and 1913,based on 15'Nas a
de facto de1imitation20.
--
9.12 Thus, at least in the borderlands, Libyahas a good and valid
title (and indeed a prior title), based not onlyon the title of the Senoussipeoples,
but on the assertions of sovereignîy on the international plane by the Ottoman
14
SeeLM,paras.5.49-5.a55paras.5.74-5.and,forthe Franco-Ottomannegotiatiow
on a boundarybehueen 1910-1se,,LM, paras. 5.111-5.116.,alsoLM. paras.
5.134-5.1f4radetailedawunt ofthe legaleffectofthTreatyofOuchy.
l5
S-,LM. paras.4.70-4a724.80-4.81.
16 LM.paras.4.123-4.125.
l7 L& paras.4.127-4.134.
l8 For a map showingthe Ottoman Claim,sec,MLC-M 1,referred to at para. 1.07,
above.
19 S-,LM, paras.4.127-4.1an4,MapNo. 53,refemed to LM. para.5.116; also
Mao LGM 28 referredto at para. 4above,and MaoLC-M41referredto at para.
5.24bove.
20 L& paras.4.140-4.1 46.also, paras.5.30-5bove,and in particularthe passage
fromp.179,ara. 135f the uted at para.5conlïming the woperation between
the Ottoman tniiitarciviauthorities, on the one hand, and the Senoussi,on the
other hand,ringthisperiod.Empire, coupled with the effective exerciseof that sovereigntyby Ottoman civil
and militaxyauthorities duringthe penod from 1908to 1913.
9.13 Nor was this title waived or prejudiced by Italy after 1912.
Italy's protests against the Anglo-French 1919 convention2', and the various
Italian proposalsto France for delimitation during the period 1920-1934~~t ,estify
to the continuingvalidityof the Ottoman/Senoussi claims. Libya thus inherited a
complex,but clear and continuous title to the temtory. The consequence is that
the onus lies on Chad to prove a better title inherited from France and, since the
indigenous Senoussititle and the Ottoman title clearlypre-date any possible title
claimed by France, the presumption of validity must favour the earlier titles 23 .
Inevitably,therefore, one must turn to the evidence advanced by Chad to support
this"replacement"ofthe originaltitle bya newer, French title.
(b) TheTitle of Chad
9.14 The claim of title by Chad is entirely derivative. It is a claim
by way ofsuccession to France, and Chad does not pretend that the claim rests
upon conduct byChad itself,post-independence. Indeed, the matter could not be
othenvise, for Chad agrees with Libya that the operative, critical date is 1951,
prior to Chad'sownindependence.
9.15 It follows,therefore, that in making a derivative claim Chad
cannot claim a better title than France itself possessed. Nor can Chad support
that claimby arguments that would have been denied to France, for Chad cannot
both put fonvard what is in essence a French clah and, at the same time, utilize
arguments incompatiblewith the French claim. Thus, insofar as the French claim
21
See para. 4.20gtS., above.
22
See,LM. paras. 5.247-5.2,nd illustrativemaps.
23 The present caseis clearlyone whichdepends upon the relativesofthe titles (the
"better"title). For discussionof this well-establishedconcept see Island of Palmas Case,
S. &., p. 839 ('superior'title); Rann of Kutcb Casa, p. 518 @o Lagergren).
And, the Judgment of the P.C.I.in the &al Status of Eastern Greenland,
Judement. 1933,P.C.I.J.SerAIB No. 53,p. 4"Inmostof thecasesinvolvingclaimsto
territorial sovereigntywhichhavecome before an international tribunal, there have been
two competing daims to the sovereignty,and the tribunal has had to decide whichof the
two isthe stronger." aiso, the Judgment of the present Court in the Minauiers and
Ecrehos Case,9. a, p. 67:The Court, being now called upon to appraise the relative
strength of the opposing claims to sovereigntyover the Ecrehos in the light of the facts
wnsidered above, find..that the sovereigntyover the Ecrehos belongs to the United
Kingdom." Sec generally,Munkman,9. a, p. 70.rested on the 1955 Treaty -whichisalso Chad'sclaimunder Chad'sfirst the~ry~~
- it was France's contention that any boundary derived exclusivelyfrom the
treaties enumerated in Annex 1to the Treaty. That contention involveda clear
rejection of any claim based on France's colonial effectivités.Accordingly,Chad
cannot now advance a purely derivative claim based on arguments totally
inconsistentwith that French position; and it followsthat Chad'ssecond theory25
- which is based on French effectivitésin the sense that these acts of possession
and control are argued to have "converted" the so-called 1899-1919 line into a
true boundary line -is inadmissible;as indeed is Chad'sthird theory, which relies
on French effectivitésas an autonomous basis for claiming the 1899-1919 line.
These contentions as to the inadmissibilityof Chad'ssecond and third theoriesin
the light of the basic French position that any boundary derived exclusivelyfrom
the treaties listed in Annex1to th1955 Treaty are of coursewithout prejudice to
other Libyan arguments already developed in this Counter-Memonal that Chad's
second and third theones are simply not sustainable on the facts.
9.16 Yet this inconsistency is not the only difficuity faced by
Chad. For there is the additional difncultythat Chad recognizesthat a pnor title
to the temtory of the borderlands vested in the Senoussi (and thus that the
temtory was not terra nullius); and yet Chad argues as if France was entitled to
occupy the temtory, as if the temtory were in fact terra nullius. It is
understandable that Chad would not wish to portray the French penetration into
the borderlands for what it was-military invasionprohibited byinternational law.
And, clearly, Chad's reliance on the theory of "consolidation of title "26 is
essentially designed to avoid this difficulty. It is evidently Chad's hope that, by
invokingthe theory of "consolidation"based on a supposed acquiescence in the
French conduct, the fundamental defects of that conduct can be overlooked. In
fact that cannotbe done. Aswe turnto consider the further critena tobe applied
by the Court, it will become obvious that France never established effective
possession inthe borderlands; that such militarypenetration as did occur was not
only not "peaceful"possession, but actually illegal,armed invasion; and that the
international communitydid not, and legallycouid not, acquiesce in any claim of
title denved from suchconduct.
*4 Sec .an IIIabove.
25 &, Pari IV,above.
26 &, PariVIIIabove ;ecalso,para9.30,ga., below. Smo~ 2. The Cnterion of "Effective"Possession
9.17 Whatever may have been the law in previous centuries,
there can be little doubt that atthe beginning of this century, when France moved
northwards into the borderlands, absent a treaty of cession the law required
effective occupation in the sense of a "continuous and peaceful display of State
a~thority~~". It is certainly true that "effectiveness" is a relative concept, so that
the degree of State authority and activityrequired willVarywith the nature of the
temtory2? less wiUbe required ofa State in an uninhabited temtory than in a
populated temtory. That being so, it is nevertheless true that, even in relation to
uninhabited or sparsely-inhabited temtones, such as the Courts have dealt with in
the Eastern Greenland or the Minquiers and Ecrehos case3', the law
has required some evidence of civ aimlinistration of thetemtory.
9.18 Practice and doctrine have long recognized that military
control of temtory alone will not be consideredas "effective"occupation. In his
classic treatise, 'The Law of Nations", published first in 1758,Emeric de Vattel,
though not directly addressing the issue, pointed out at page 208 that recognition
of sovereignty required that the State had "reallytaken actual possession, inwhich
it had formed settlements, or of which it makes actual us...N~'.The rationale of
the rule is stated byde Vattelto be that the Law of Nations permitsappropriation
of land onlyto the extent that nations "haveoccasion for"it, awillnot recognize
"more than they are able to settleand culti~ate"~~.
9.19 In the 19th Century, the same position was often expressed
in terms of the requuement of the sovereign Power to afford security to life and
27
Islandof PalmasCasea. a, p.870.
28
Sec. Lindley,M.: The Awuisition and Govemment of Backward Territorv in
International Law, London, Longmans, 192p.159; and, ss generally, Ago, R.:
reuuisito dell'effetivitaoccuoazione in diritto internazionale, Rome, Anonima Romana,
1934.
29 Judement. 1933,P.C.I.J..Series. o. 53.
31 De VattelE, as translated byChitty:Lawof Nations,London, Stevens. 1934.
32 In subsequent penods, such prominent writers as Phillimore, R.: Commentaries uwn
International Law,London, Buttenvorths, 3rd ed., 1879-1889(4 Vols.), p. 120,Pinheiro-
Ferreira, S.: Notes on G.F. desMartensp.37,and TwissT.:The Oreeon Ouestion
Examined. London, Longman, Brown, Green and Longmans, 1846, pp. 169 and 295,
reiterated the sameview.proper$3. It is clear that the establishment of a fewmilitaryinstallations spread
over a large temtory willnot satisfythis requirement; The most thorough review
of relevant State practice in the 19thCentury and before is found in M. Lindley,
The Acquisition and Govemment of Backward Temtorv in International Law
(1926)~~. This study directly addresses the relationship between effective
occupation and the maintenance of military establishments and concludes that
the concept of effective occupation,as defined by niles of international law,must
be considered independently of strictlymilitaryconcerns. AsLindleywrites:
"It is, however, becoming generally recognized, from the abstract
point of view, that the physical power of exclusion is not an
essential element in possession,and, so far as territorial sovereignty
is concemed, the mere building of forts ...is not by itself either a
sufiïcient compliance with the congp of effective occupation,
nor, ingeneral,a necessarypart of it .
9.20 It must be borne in mind that the borderlands were
populated by indigenous tribes and are not at ail comparable to uninhabited
islands, for example. Although it has been recognized that the standards for
effective occupation will Vary for inhabited and uninhabited tem-tones, the
presence of scattered militas, posts would not fulfilthe requirement of effective
occupation in an area suchas the borderlands.
9.21 Libya knows of no case where a purely military authority,
divorcedfrom any civiladministration, has been held to be a sufficientdisplayof
State activity. Andsuch a requirement of a displayof govemmental -as opposed
to military -authority would conform to the law of recognition. For States will
accord recognition as sovereignover temtory to those authoritiesthat displaythe
capacity to fulfilthe obligations of a State in respect of such tem.tory. It is the
nature of those obligationswhichdictates that they cannot be fuiîïiiedbymilitary
power alone. The Parties are in complete agreementon thispoint. Chad devotes
Part III of Chapter 2 of its Memonal to sustaining the proposition that
"L'occuvationmilitairene confèrevasde titre".
9.22 Moreover, in relation to the borderlands the question need
not be dealt with inabstract terms, for it is clear that there was an administration
33 Annuairedel'InstitutdeDroitIntenational1888,p.201,gi3.
34 Lindley.oc.@.
35 Ibid p.140. (Acopyof thipage isattachedas LC-M48.)of the territory in existence prior to the French invasion. As has been
dern~nstrated~~,the Senoussi provided education, ieligious and Secular,water-
supplies and facilities for caravans, and settled disputes, imposed taxes and
organized defence. It can thus be assumed that this pre-existing, rudimentary
administration of the temtory represented a minimum standard of effective
control to which a powerful European State, like France, had to conform if it
sought to substitute its own administration. In addition,as pointed out in Part V
above, the Ottoman occupation of the borderlands was not purely military in
nature, a point that Chad con ce de ^^d^;he local authority installed by the
Ottomans wasthe Kaimakam, acivilianauthority.
9.23 Infact, however, the evidence disclosesthat France never
even attempted to match or duplicate this rather minimallevelof administration.
In the crucialperiod 1913-1919,when Chad argues that French "consolidation"of
itstitle wasachievedbyoccupation (effectivités),the picture whichemerges isthe
following38:
Borkou One company (the 7th), centred on Faya, with posts
at AïnGalakka and Gouro.
Ennedi One company(the Rh), centred on Fada, with a post
Ounian~a at Ounianga Kebir.
Ta Bardai abandoned by the French in 1916,after two
years of temporary occupation, and not re-occupied
untilNovember 1929.
SECTIO 3.N The Cntenon of "Peaceful"Possession
9.24 The emphasis on peaceful possession,which is to be found
in Judge Huber's awardin the Island of Palmas is accepted as a correct
statement of the law. It is the peaceful character of occupation which
36 LM. paras.3.44-3.50.
37
Seep.ara.5.3g~eq.above,andCM. p. 179,para. 135.
38
Sec .arV, above. nie sourceof thii informationistheHistoireMilitaire deI'Afriaue
EuuatoriaFranmise,OJ&, pp.458-459(EThibiLC-M13.)
39
powerinthecontestedregion". 857: "thecontinuousandpeacehildisplayof actualdistinguishesit from conquest: the firstremains a validmode of acquiringtitle, the
second does not. In the requirement that possession be "peaceful" one sees a
reflection of the requirement of effectiveness (for an opposed occupationwill
rarely be effective), and perhaps also an embryonic link with the right of seif-
determination. Thus a valid title presupposed an acceptance of the presence of
the occupier bythe indigenouspeople.
9.25 In the case of the borderlands there is clear evidence of
continued, armed resistance to the French invasion by the indigenous peoples
starting in 1913 and continuing into the 1920s, and even into the 19305,
particularly in ~ibesti~'. Certainly, the degree of resistance offered decreased,
for the Senoussi had to divert their efforts towards meeting the Italian threat in
the north. But the very fact that the French penetration into the borderlands was
a penetration emphasizes the factthat jt wasnot peaceful.
9.26 Indeed, the facts of the present case suggest an interesting
paradox. In the late 1920sand early 1930s,Italy was engaged in constant armed
conflictwith the Senoussipeoples within Tripolitania andCyrenaicafollowingthe
denunciation by Italy, o1 May 1923,of the al-Rajma Treaty of25 October 1920,
whereby Italyhad acknowledged a very large measure of autonomy to Emir Idris
(Head of the Senoussi Order) in Qrenaica41. This was in pursuance of the
Italian policy of seeking to assert colonial control over the southern reaches of
Tripolitania and Cyrenaica, the Italian colonial administration and authority
having hitherto been confined to the coastal strips of these two provinces.
Simultaneously, and partly as a consequence of, or in anticipation of, Italian
moves into Fezzan, the French decided to occupy Tibesti, encountenng
detemined resistancefrom the Senoussipeoples in doingso.
9.27 The paradox is that both colonial Powers (Italyand France)
were simultaneously, but for widely differing reasons, intent upon crushing
Senoussi arrned resistance to colonial de. The significantdifference between
the two situationsis of course that Italy was seeking to assen its authority in
territory(Tripolitania and Cyrenaica) overwhichit had undoubted sovereimtv by
virtue of inheritance from the Ottoman Empire and as a result of the Treatv of
4O
SecP.an V,above,anms LC-M 43,47 and48 referredto atparas.5.38,5.52and5.60,
above.
See. M.paras4.1764.182andparas.5.240-5.246.Ouchv, the Treatv of London and the 1923Treatv of Lausanne;whereas France
was seeking to assert its authority in the borderlands. an area in which (as Chad
itself admits) the Senoussi exercised undoubted authoritv and control urior to the
French northward movement in the 1920sand an area to which las France well
knew) bath the Ottoman Empire and Italv (as its successor) asserted title. But
what the facts above al1demonstrate is that the French "occupation" of Tibesti in
1929-1930 was far from peaceful in the sense that it encountered continuing
resistance from the Senoussi and'local tribesmen, and that large parts of the
borderlands (particularly in Borkou and Ennedi) stilllay outside French authonty
42
and control at this time . The criterion of "peaceful" possession of the
borderlands by France was thus not met even in 1929-1930,far less in 1919. Nor
was the French "occupation" continuous. This is particularly evident in Tibesti,
for France withdrew £romthere between 1916and 1929.
Smo~ 4. The Criterion of Leealitv Supplied by the Inter-Temporal
-aw
9.28 The Chadian claim to the "effectiveness" of the French
occupation of the borderlands cannot be detached from the question of the
legaliiy of those acts of occupation. Certainly fora court the maxim ex iniuria ius
--n ~ritur~~must operate as a criterion by which the legal effects of conduct
must be judged, the more especially where the rule of law breached by the
conduct is a rule ofjus coeens.
9.29 In its ~emorial~~, Libya has demonstrated that, from 1920,
France was under a binding legal obligation not to acquire temtory by resorting
to ~ar~~. It must therefore followthat military conquest, contrary to the League
Covenant and the Pact of Pans, could not thereafter generate a valid title to
temtory. And, on al1the evidence, it cannot be said that France had effectively
occupied any territory north of approximately 15"latitude prior to 1920.
42 Sec .aras.5.69-5.95above(especia, aras.5.75-5.92).
43 & Jennings,R.:"NullitandEffectivenessin Internatil aw"E,ssavsin Honourof
Lord McNair,London,Stem, 1965,pp.72-74.
LM. para.6.44g 3.
45 Thenotionthatanysuchlegal obligatioaffordednoprotectiontoentitiesnorMember
Statesof theeague,ornon-partiesto the1928Pactisunacceptableandirrelevanfor
if Italyhaducceededto the claimsandtitles of the Ottoman EmpireI,talywasfully
protectedbythoseobligations. SECTIO 5. TheRelevanceofRecognitionorAcquiescencein the French
Claimsof Title
9.30 The law imposes certain limits on the relevance of evidence
of any claimed "recognition"or "acquiescence". Certainiy such evidence has ijttle
relevance to anyclaimbased on effectivités,in the sense that what conduct can be
proved, to the satisfaction of the Court, is a question essentially fact T.us,
what matters for the Court is the evidence of the facts, and if such evidence really
does not exist, its lack cannot be compensated by the so-called "recognition"by
either Italy pre-1939, or by States in the United Nations post-war. And, in any
event, this Counter-Mernorial has shown that there was, in fact, no such
"recognition"or "acquiescenced6. It has been suggested earlier that one reason
for Chad's preference for "consolidation",as the basis of French title, lies in the
lack of real, factual evidence of effective, continuous occupation, and thathad
seeks to avoid this defect byrelyingon a supposed recognition or acquiescence so
as to overcome the absence of real evidence as to the facts, or to disguisethe fact
that such factual evidence as existsnegatives any claim that France had achieved
effective,continuous occupation of the borderlands prior to 1929-1930,far lessby
1919~~. In this context, it is worth bearing in mind the cautionas. observation
that "the process of consolidation cannot begin unless and until actual possession
isalready an accomplishedfa~t"~~.
Finally,it must be noted that once the French invasion of
9.31
the borderlands is characterized as illegalbyreference to a nom of a jus coeens
character, that conduct becomes a nuiiity. The iiiegalityof the conduct cannot be
"cured"by acts ofrecognition or acquiescenceon thepart of other States 49.
46 Sec .anVIIl,above.
47 See,para9.16,above.
48
Jennings, .:The AcquisitiofTerritowinInternational aw,Manchester, anchester
UniversitPress1963,p.26.
49
Jennings, .&., h. 43above:"Butif th&& isonlyabreachofajuswens ..here
should inprinciplebe no questionof qualifyingthe resultingnullityby waiversor
estoppelsresultingfromtheconduaofapanimlarlegalperson." SECTIO 6. TheConductofthe PartiesDirectlvAfîected.as Reflectedin
Their Proposais for Settlement
9.32 Ln pnnciple, the conduct of interested parties in presenting
their claims ought to afford some guidance- a "criterion"is perhaps too strong a
word - for the Court.
9.33 It is certainly of some interest to see how the Italian
Government viewed the claims to which Italy was entitled, as successor to the
Ottoman Empire, in relation to the advance northwards of the French. A
memorandum of 5 February 1925,drawn up in the Italian Foreign Ministry,made
these points50:
- The French occupation was eroding the temtonal rights of
Italy, based not sirnply on the succession to the Ottoman
Empire's hinterland claim, but based on the Ottoman
exercise of effective sovereign rights in Borkou, Tibesti,
Ounianga and Erdi;
- Thisadverse French occupation wasvery superficial;
- It was designed to transform the 1899line, a mere limit to
further French expansion towards the Nüe, into a true,
temtonal boundary.
9.34 Thus, in assessingthe significanceof the various proposals
and counter-proposals made byItaIyand France in the period 1920-1934,itneeds
to be borne in mind that Italywas not seekinga cessionfrom France, but rather to
minirnize any loss to Italy of temtories it believed it had inherited from the
Ottoman Empire. The existence of Article 13of the 1915Treaty of London did
not change that view. The fact that Italywas entitled to "equitablecompensation"
in Africa did not automaticallyconvert anysettlement of boundaries with France
into a cession by France. Therefore, the Italian 1919daim5', made during thePeace Congress, claimed the whole of Borkou, Ennedi and Tibesti as of riet
under Article 10of the Treaty oond don^^.
9.35 The Italian "maximum","medium"and "minimum"programs
- drawn up in 1928 for the Franco-Italian negotiatiod3- disclose the Italian
perception of a minimum entitlement to most of the borderlands. Cenainly the
more modest "fourth program54 claimed onlypart of Tibesti, and left Borkou to
France, but it was clearlyin the nature of a compromise and no proof at al1that
Italy sought a cessionfrom France. And the 1935line, agreed bythe two Powers
but never implemented, was regarded as a cession bv Italy in return for French
55
support for Italian ambitions againstEthiop.a
9.36 It may be suggested that evidence of France's views of the
extent of French title has equal weight to evidence of those of Italy; and these
views contradict those of Italy. However, it has to be recalled that France was
embarked upon a campaign of military conquest, moving northwards in an
attempt to conven the 1899line IimitingFrench territorial expansion into a true
boundary. For this reason, France's clairns have to be assesinthat context.
Whereas Italy believed itself to be deiending its territorial rights, France was
56
avowedlyextendingits tenitonal claims .
9.37 Faced with two such opposing views,it may be difncult for
the Court to utilize the conduct of either P-rItaly or Franc-as a criterion
supponing the choice of a precise line. But, inLiiya's submission this conduct
does suggest that the area of Libya'sclaim, as shown on Map No. 105 in the
Libyan~emorial~~, and depicted again at the end of thisPart (MLC-M 55) is
a realistic appraisal of the area within which a boundary had to be lo-aasd
seen by the Parties in the decade 1920-1930. The more precise location of a line,
within that area of claim, should,in Libya's submission,turn on other criteria, in
particular the evidence of the absence of French effective occupation pre-1920,
52 SeeLM, para.5.15g,a.
53 See, M.para.5.25ga., and MapsNos.68.70 and71referredto there.
54 SeeL.M. para.5.255,andMapNo72.
55
Sec .ara6.03g a. ,bove.
56 See .ara.9.27,above.
57 Referredto LM. para.6.84.and subject to the Court's power to invoke other equitable factors. These
constitute a fial category of criteria, and it is to these'that we now t'urn.
SECTIO 7. Other "Eriuitable" ntena
9.38 Chad is understandably anxious to exclude al1 equitable
58
considerations . It is however Libya's submission that, in determining a
boundary de novo, the Court has the power (arguably the duty) to produce a line
that is practical, fair and sensible, taking account of the legitimate interests of the
Parties and of the peoples of the region. Whether these criteria are termed
"equitable" or not, is a matter of terminology. There is ample evidence that such
criteria are legallyrelevant criteria: if "equity",it is equity infra le~em.
9.39 Thus, in the words of Professor Bardonnet (referring to
temtonal boundaries):
"L'équité peut contribuer enfin au tracéde la ligne frontière dans
des régionsdont le statut t si indéterminéqu'elles ne connaissent
pas de limites historiques.99
Citing the award in the Rann of Kutch case60, Bardonnet emphasizes that this is
equity within the law,and not a reference to considerations ex aeauoet bono.
9.40 Certainly in the political settlement of frontieashost of
considerations are relevant: the history of the area, the affiliations of the people,
the strategic interests of neighbouring States, etc6'And there is merit in the
suggestion that it is fallacious to distinguish too sharply between political and
judicial Settlements in this sphere62. For the ultimate aim is to achieve a stable
58 CM. pp. 57-60,paras. 42-51.
59 Bardonnet,D.:"Equitk et frontikres terrestres", MklaneasPaul Reuter, Paris,
Pedone, 1981,p.35-74,p66. (A copyof this pagattacheas LC-M49.) For
a similarvis-, Munkman, S. a, pp. 1-116,at pp. 112-114.
Rann of Kutch,. a, citedbyBardonnet3. &,p. 69.
61 A prime exampleisthe determination of the boundary between Turkey and Armenia by
President Wilson under Arti89eof the Treaty Skvres,1920. For various other
illustratios-, Bardonnet,S. &., p. 45. The post-1919 negotiations between the
Allied Powerspursuant to Article 13of the Treaty of LM.dpara. 5.15g S.)
afford a funher example; so, too, the post-1947 discussions inthe U.N. regarding the
disposition of the Italian Colonies (LM, pSm.).5.362,
62 Sec . unkman,S. a, p. 113.frontie- whether via the politicalor thejudicial pr-and thejustification for
this broad viewof the factors whichneed to be taken into account in determining
a frontier de novo is precisely that a broad view of ail the "equities",the relevant
factors, will contribute to a wise decision with a good chance of promoting
stability.
9.41 Indeed, in executing the task of demarcating an agreed,
conventionalboundary, it is accepted wisdomthat a boundary commissionhas an
inherent power to make such adjustments as wiUproduce a coherent, sensible
bo~ndary~~. And these adjustments will be to take account of precisely those
factors- communications, locations of wells, pastures, maintenance of unity
amongst tnbes or peoples, et-whichmaybe termed "equitable".
9.42 It wouidbe extraordinary ifsuch factorswere to be regarded
as relevant in adopting minor variations in a boundary line, but irrelevant in
adopting the line itself.ogically,the position ought to be the opposite. As
Munkman says:
"..it is evident that discretion of the tribunal wiUbe progressively
limited as the boundary ismore closelydefined. in the allocation of
temtory the tribunaligl most free to take account of the widest
considerations ofolicy ."
Such a view is confirmed by the Court's own handling of the Eastern Greenland
9.43 This view is supported by the jurisprudencInthe Award
of 9 Juiy1909 in the BolMak'eru disputeo6, the arbitrator was given power in
Article 4 of the compromis, in situatiinwhich the location of the line on the
basis of possidetis was unclear, to resolve the question equitably
("esquitativemente"). In the award by Chief Justice Hughes in the
GuatemalaMonduras dispute, rendered on 23 January 193367, ~ possidetis
63 Ss themanyillustrationsgivenbyBardoS. aL,pp.49-55.
G4
Munkman, S. a, p. 116(Acopyof thispageisattaased LGM 50.)
65
Eastern Greenland Ca,.a.
66 XIR.I.AA, p. 141. ThedecisionisdisnissedbyBard9.a., t pp.57-58.
6' IIR.I.A.App.1307-1366.again offered little precise guidance on a iine, for large areas were unexplored
and administrativeauthority non-existent. ChiefJustice Hughes concluded:
"[TJheTreaty [the com~~romism ] ust be construed as empowenng
the Tribunal to determine the definitive bounda%$s justice may
require throughout the entire area in controvers... ."
9.44 In the Rann of Kutch Case, the Chairman made reference
to a portion of the linewhere two deep inlets occurred on either side of a feature
called Nagar Parkar, and concluded:
"...it would be inequitable to recognize these inlets as foreign
territory. It would be conducive to friction and conflict. The
paramount consideration of promoting peace and stability in this
region compels the recognition and confirmation that this temtory,
which i8~hoiiy surrounded by Pakistan temtory, also be regarded
as such ."
9.45 If,then, the judicial task of attribution of temtory requires
that, in determining a precise line, "equitable"factors maybe.taken into account,
it remains only to identify those factors. However, there is no reason why the
categories of such factors should be regarded as closed, or absolute, in land
boundary cases, anymore than they are in maritime boundary cases: each case is
a unicum,and the relevance of factorswillVaryfromcaseto case.
9.46 However, the practice of tnbunals suggests that the
foiiowingcriteria are legitimate,and relevant; and they clearlyhave a role to play
in the present case0 .
(a) The TiesTothe North of theInhabitantsof the Borderlands
9.47 This must be a relevant consideration, if only because any
contemporaneous attribution of temtory must take account of the wishes of the
peoples. Were it not so, the nom of self-determination of peoples would have
68
m., p. 1352. (A copy ofthis pageis attached aLC-M51.)
69
Rann ofKutch,OJ.@., p. 520. (A copy ofthis pageisattachedas LC-M52.)
70
Munkman,OJ. a, pp. 95-116,lists the criteria shownIo be relevant in the jurispmdence
as foiiows: -(a) recognition, aquiescencand preclusion; @) possession and
administration; (c) affiliation of the inhabitants of the disputed temtory; (d)
geographical considerations; (e) economic considerations; (f) historical mnsiderations;
(g) others. The first Iwocategories are covered extensiveVyandPVIIIabove,
and need not be repeated here. To Munkman'slis1it is clearlynecessary,on the basis of
the jurispmdence reviewedabove,Io add consideratpeaceand securityin the area.very little content.As shown in Pan III, Chapter IIof Libya's Memonal, the
predominant tribal groups in the borderlands have ties to their Mudim brethen in
the north. In fact, members of these tnbes are to be found throughout Libya and
the borderlands. In addition, substantial numbers of Libyan merchants came into
the borderlands when the Senoussi assumed control of the area and protected
and promoted commerce, and they have remained.
9.48 The natural affiliation of these people to the north meant
that those who fled from the borderlands dunngthe civilwar in Chad, in 1968and
thereafter, fled to Fezzan, Tripolitaniaand Cyrenaica.
9.49 The peoples of the borderlands are linked to the peoples to
the north ethnically and by common bonds of religion, language and culture, as
well, for they are desert, semi-nomadic peoples with a natural afityto the great
deserts in the north, rather than to the settled, pastoral life of the tnbes that
inhabit the area south of 15% latitude. If evidence were needed of the
substantialdifference between the peoples of the borderlands and those to the
south in Chad, the bitteCM] war inChad provides that evidence.
(b) Geom~hical Considerations
9.50 Considerations of the geography of the region tiinwith the
ethnic differences noted above. At around 1YN latitude the climate and terrain
change. The difference between desert and savannah, with vegetation being
dependent on rainfall, has resulted in a difference between populations. It has
affected their lifestyle and their natural affiliations. Moreover, the mountainous
regions of the Tibesti &f have tended to isolate the peoples of that region
from the peoples of the plains to the south71.
(c) EconomicConsiderations
9.51 The economic link bestween the peoples of the borderlands
and Libya to the north are a result of essentiaily two factors: the issthat they
71 See,generaiiy, Pan III,andinpanicular,para3.10.3.29-3 .oge.her withMaps
Nos.8,15,16.17and 18.share a semi-nomadiclifestyle;the second is that such trade as developed along
the trade-routes was essentiallytrade withthe north2.
9.52 Looking to the future, there seems little doubt that the
prosperity of the peoples of the borderlands willdepend upon a fostering of the
linkswith Libya.
(d) HistoricalConsiderations
9.53 The long historical description of the evolution of this
dispute - which need not be repeated here - demonstrates that, historically,the
borderlands were held by the Senoussi, who owed allegiance to the Ottoman
Empire. France itself saw the borderlands as a separate temtory, different £rom
Chad to the south, "le front nord", and always separately administered. The
attempt to unite the borderlands with Chad was both artificial and doomed to
failure, as the civilwar in Chad has shownat great cost.
(e) Considenitionsof Stabilitv,Peaceand Security
9.54 Sofar as the inhabitants of the borderlands are concerned,
as previousfactorshave indicated, their historical,ethnic, religiousand economic
ties are withthe north. To attempt to fusethese peoples withthe people in Chad
proper isto invitecontinuingunrest and permanent instability.
9.55 Certainlyso longasFrance remained asa Colonial Powerin
Africa, France saw its hold on these borderlands as important to the secunty of
the French African Empire. For France deemed its communications between
French West Africa, Chad, and French North Aîrica to be But that
situation no longer remains, and Chad has no comparable secunty interest in the
borderlands.
9.56 For Libya, however, the area remains of the highest
importance74. For Libya, protection of its vast desert areas- and of the oil, gas
and water resources located there - demands that Libya should maintain control
72
See ,enerallLM. para.3.72.
73 Sec S.., paras.5.266-5.267.
74
See,LM,para.3.91,gtse^.LC-M 55 The reality of this security interest is sufficiently
of the Tibesti &f.
demonstrated by the concem expressed by Italy during its negotiations with
France from 1920-1934to secure control of the Tibesti massif, down through
Ennedi. It is no accident that the "Ligne Rouge" of 1983-1984reflected the same
Libyan concern 75.
9.57 In sum, therefore, it is Libya's submission that al1 these
"equitable" considerations support Libya's claim that it has title to most of the
borderlands, and that a precise boundary can be identified by reference to these
considerations, coupled with an accurate appraisal of the limits of effective, and
legallyvalid, French control and occupation (Mao LC-M 55). For Chad can have
no better title than had France, and in the borderlands it is Libya that has the
better title.
75 See.LM.MapNo. 109,referretothereatpara.6.85. Havine reg .ard 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'sMemonaI and in preceding parts of this Counter-
Memorial;
In view of the other facts and circumstances having a bearing on
this case, as discussedabove and inLibya'sMemorial;
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 rights
and titles claimed by the Parties, and of the conduct of the indigenous peoples
whose temtories are the subject of this dispute;
In a~~lication of the pnnciples and rules of international law of
relevance to this dispute;
Mav it ~lease the Court, rejecting al1 contrary claims and
submissions:
To adiudee and declare, as foiiows:
1. That there exists no boundav, east of Toummo, between
Libya and Chad by Wtue of any existing international
agreement.
2. That in the circumstances, therefore, in deciding upon the
attniution of the respective temtories as between Libyaand
Chad in accordance with the rules of international law
applicable in thismatter, the foiiowingfactors are relevant:(i) that the temtory in question, at al1relevant times,
wasnot terra nullius;
that title to the temtoiy was, at al1relevant times,
(ii)
vested in the peoples inhabiting the territory, who
were tribes, confederations of tribes or other peoples
owing allegiance to the Senoussi Order who had
accepted Senoussi leadership in their fight against
the encroachments ofFrance and Italy ontheir lands;
(iii) that these indigenous peoples were, at al1 relevant
times, religiously, culturally, economically and
politicallypart of the Libyanpeoples;
that, on the international plane, there existed a
(iv)
communityof titlebetween 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 in1951;
(v) that any claim of Chad rests on the claim inherited
fromFrance;
that the French claimto the area in disputerested on
(vi)
"actesinternationaux"that did not create a temtorial
boundary east of Toummo, and that there is no valid
alternative basis to support the French claim to the
area indispute.3. That,in the light of the above factors, Libya has clear title to
al1 the tem'to~ynorth of the line shown on Map 105 in
Libya'sMemorial and shown again here on Mar>LC-M 55,
that is to say the area bounded by a line that starts at the
intersection of the eastern boundary of Niger and 18"N
latitude, continues in a strict southeast direction until it
reaches 15"N latitude, and then follows this paraIIel
eastwards to itsjunction with the existingboundary between
Chad and Sudan.
(Signed) ...........................
Abdullati IbrahimEl-Obeidi
Agent of the Socialist People's
Libyan Arab Jamahiriya
Counter-Memorial submitted by the Great Socialist People's Libyan Arab Jamahiriya