12488
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING THE FRONTIER DISPUTE
(BURKINA FASO/NIGER)
COUNTER-MEMORIAL OF THE
REPUBLIC OF NIGER
PARTS I and II (Annexes)
JANUARY 2012
[Translation by the Registry] TABLE OF CONTENTS
L IST OF PRINCIPAL ABBREVIATIONS ........................................................................
..................... 1
G ENERAL INTRODUCTION ........................................................................
..................................... 1
A. Points on which the Parties agree........................................................................
................ 2
The purpose of the Court’s Judgment........................................................................
......... 2
The importance of the Decree of 28 December 1926......................................................... 3
The framework provided by the official texts of 1927 ....................................................... 3
The absence of documents adopted “by joint agreement of the Parties”............................ 3
B. Points of disagreement between the Parties ........................................................................
4
A dispute over delimitation or demarcation?...................................................................... 4
The alleged lack of need to interpret the 1927 texts ........................................................... 6
The alleged difference of approach betw een the official texts of 1927 and those
preceding them ........................................................................
..................................... 7
Burkina Faso’s one-sided portrayal of border incidents..................................................... 7
The alleged precision of the 1927 texts ........................................................................
...... 7
The non-existence of a “consensual line” a llegedly agreed on previously by the
Parties ........................................................................
................................................... 8
Presentation of the structure and plan of the Republic of Niger’s Counter-Memorial ............ 9
CHAPTER I THE THEORETICAL AND ARTIFICIAL CHARACTER OF BURKINA
FASO’S ARGUMENTS........................................................................
..................................... 10
S ECTION 1 – THE LACK OF BASIS FOR THE THEORY OF THE ARTIFICIAL STRAIGHT LINE ............ 10
A. The theory whereby the boundary consists of a series of straight lines, an artificial
and arbitrary colonial boundary........................................................................
................ 10
B. The history of the making of the boundary in no way implied anything artificial or
arbitrary in character........................................................................
................................. 13
(a) The historical context ........................................................................
................... 13
(b) The cartographic context........................................................................
.............. 19
C. The theory of a clear title which is sufficient in itself and does not need clarification..... 24
(a) An incomplete and imprecise text........................................................................
. 24
(b) Interpretation using cartographic material.......................................................... 29
(c) Interpretation based on colonial effectivités........................................................ 31
S ECTION 2 – THE LACK OF BASIS FOR THE “CONSENSUAL LINE ” THEORY .................................. 32
A. The de facto absence of a “consensual line”..................................................................... 33
(a) The Protocol of Agreement of 23 June 1964........................................................ 33
(c) The 1988 line and the differences in interpretation of the basic texts.................. 35 - ii -
(d) The line resulting from the ministerial meeting of May 1991 and its
non-compliance with the delimitation instruments............................................... 36
B. The de jure absence of a “consensual line”....................................................................... 38
(a) The provisional lines proposed in 198 8 and 1991 were never formalized in
a legal instrument binding upon the State of Niger.............................................. 38
(b) The provisional lines proposed in 1988 and 1991 have never been
formalized in a definitive legal instrument ratified by the Head of State of
Niger........................................................................
............................................. 39
Ministers and plenipotentiaries must be vested with full powers signed by the
Minister for Foreign Affairs ........................................................................
............... 39
Ratification of international agreements by the President of the Republic....................... 40
CHAPTER II DELIMITATION OF THE FRONTIER IN THE DISPUTED SECTOR ............... 42
S ECTION 1 – THE FRONTIER IN THE TÉRA SECTOR ...................................................................... 42
A. The section from Tong-Tong to Tao........................................................................
......... 43
B. The section from the Tao astronomic marker to Bangaré ................................................. 45
Petelkolé ........................................................................
................................................... 46
Oussaltane or Ousaltan (geographical co-ordinates: 135°4 4'1.4",
00° 27' 34.8" E) ........................................................................
.................................. 47
Bangaré........................................................................
..................................................... 48
C. The section from Bangaré to the boundary of Say cercle ................................................. 49
Beina (Beyna)........................................................................
........................................... 49
Mamassirou........................................................................
............................................... 50
Ouro Gaobe........................................................................
............................................... 50
Yolo ........................................................................
.......................................................... 50
S ECTION 2 – THE FRONTIER IN THE SAY SECTOR ........................................................................
51
A. The Bossébangou region........................................................................
........................... 54
B. The “salient of four villages” ........................................................................
.................... 58
C. The section of the frontier which leaves th e “salient” and runs to the start of the
Botou bend........................................................................
................................................ 67
S UBMISSIONS ........................................................................
....................................................... 69
In the Téra sector:........................................................................
..................................... 69
In the Say sector: ........................................................................
...................................... 69
S UMMARY OF SKETCH -MAPS AND MAPS ILLUSTRATING THE C OUNTER -M EMORIAL ................. 70
L IST OF DOCUMENTS IN THE ANNEXES TO THE C OUNTER -M EMORIAL OF N IGER ....................... 71
Series A ⎯ Diplomatic documents ........................................................................
.......... 71
Series B ⎯ Legislative and regulatory documents........................................................... 71 - iii -
Series C ⎯ Administrative documents and correspondence............................................ 71
Series D ⎯ Maps (These maps were inserted, unbound, in the original copy of
Niger’s Counter-Memorial)........................................................................
................ 72
Series E ⎯ Doctrine ........................................................................
................................. 73 L IST OF PRINCIPAL ABBREVIATIONS
FWA French West Africa
CMN Counter-Memorial of the Republic of Niger
ICJ International Court of Justice
IGN Institut géographique national
OJ Official Journal
OJFWA Official Journal of French West Africa
OJFR Official Journal of the French Republic
OJRN Official Journal of the Republic of Niger
MBF Memorial of Burkina Faso
MN Memorial of the Republic of Niger 0.0. Article 3 of the Special Agreement signed on 24 February 2009 by Burkina Faso and the
Republic of Niger provides:
“Wrpiteneedings
1. [...] the Parties request the Court to authorize the following procedure for
the written pleadings:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)a Counter-Memorial filed by each Party not later than nine(9)months after
exchange of the Memorials”.
By its Order of 14 September 2010, the Court fixed 20 January 2012 as the time-limit for the
filing of a Counter-Memorial by each Party.
This Counter-Memorial is submitted by the Republic of Niger in accordance with these
provisions.
G ENERAL INTRODUCTION
0.1. It is immediately apparent on reading the Memorials filed by the Parties to the present
proceedings that they adopt a very different approach to this case. Burkina Faso has confined itself
to a highly formalistic position, focusing almost exclusively on the texts whereby the authorities of
French West Africa (FWA) endeavoured, in19 27, to define the boundaries between the two
colonies concerned. The other Party thus offers a detailed, though very abstract, interpretation of
those texts. In its view, the frontier between the two States in the sector still under dispute consists
of straight lines, with very few exceptions. It ma intains that this solution emerges clearly from the
official texts of1927 delimiting th e frontier in this sector, and that the Parties only disagree as to
the manner in which this boundary should be marked out on the ground.
0.2. The position taken by the Republic of Niger, on the other hand, is rooted in the realities
on the ground. It does not deny the relevance or importance of the 1927 texts, but, like a number of
administrators of the regions concerned, both before and after independence, it notes the lack of
precision and the inadequacies of those texts when it comes to determining the exact course of the
frontier between the two States in the disputed sector . Thus the Republic of Niger has tried as far
as possible to take account of events leading up to the adoption of the1927 boundary and all
subsequent developments concerni ng that boundary. To that end, it has pointed to a number of
other documents which might help the Court fulfil the task entrusted to it by the Parties, such as
official correspondence, mission reports, maps and sketch-maps prepared during the colonial
period, and ⎯ in particular, given that the Parties th emselves specifically refer to it in several
earlier agreements ⎯ the 1960 IGN map and the work preparatory to it.
0.3. Burkina Faso presents its approach as closely following the methodology adopted by the
two States to determine the course of the frontier. It should be recalled that according to this
methodology, as set out in particular in the Agreem ent of 28 March 1987 to which Article 6 of the
SpecialAgreement seising the Court specifically refers, the Parties decided to give clear
precedence to the 1927 texts and only provi ded for recourse to other documents ⎯ in particular - 2 -
1
the 1960 IGN map ⎯ in the event that those texts should “not suffice” . BurkinaFaso claims to
adhere strictly to that line of conduct and minimi zes recourse to any document other than the 1927
texts. This methodology in fact only has the a ppearance of being simple, precisely because of the
extremely formal nature of the exercise. There is a large body of evidence in the case file that is
presented in the Republic of Niger’s Memorial which clearly refutes the idea that the course of the
frontier in the disputed sector should be considered as simple and linear.
0.4. Niger’s position, on the other hand, involves recourse to various sources (the 1927 texts,
the 1960 IGN map, and the subsequent agreement between the Parties), which will no doubt draw
criticism from the other Party. Yet this methodology is fully justified under the very terms of the
1987 Agreement and the 2009 Special Agreement. Unlike BurkinaFaso, the Republic of Niger
considers it obvious that the 1927 texts clearly do “not suffice” given their extremely lapidary
nature. Since they do not suffice, recourse to other sources is completely justified ⎯ and fully
consistent with the will of the Parties, as has already been pointed out.
0.5. In general ⎯ and in line with the approach described above ⎯ it is striking that Burkina
Faso makes only very few references to documents other than the official texts from the colonial
period. There are a dozen administrative documents in the annexes to the other Party’s Memorial
at the very most. In particular, the preparatory stages of the 1927 texts are very largely ignored,
with the exception of only one record of a meetin2 held at the beginning of 1927, from which,
moreover, an important passage has been cut . The Republic of Niger, on the other hand, has made
every effort to present the Court with as complete a picture as possible of how the inter-colonial
boundary was gradually defined in the disputed sect or, and how it was subsequently applied on the
ground. Given the extremely laconic nature of the official texts of the colonial period, these other
documents indeed prove essential in identifying the course of the frontier that the Court has been
requested to determine.
0.6. Further to the above remarks, it is in f act possible at this stage of the proceedings to
identify the main points of agreement (A) and disagreement (B) between the Parties on questions of
principle and methodology, as they emerge from th e written proceedings submitted to the Court by
the two States.
A. Points on which the Parties agree
The purpose of the Court’s Judgment
0.7. The purpose of the Court’s Judgment is to put an end, with the authority of res judicata,
3
to the frontier dispute between the Parties . This is perfectly clear to the Republic of Niger, which
in no way disputes it. Nevertheless, the Republic of Niger believes it should be noted that it
considers itself already bound by the understanding reached between the Parties in 2009 on the two
4
demarcated sectors of the frontier . That is why, when negotiating the Special Agreement, the
Republic of Niger informed BurkinaFaso that it did not consider it necessary to submit that
1
Agreement and Protocol of Agreement of 28 Marc h 1987 between the Revolutionary Government of
Burkina Faso and the Government of the Republic of Niger on the demarcation of the frontier between the two countries,
MN, Anns., Series A, No. 4.
2
MBF, para. 4.43; for more details on this subject see below, para. 1.1.10.
3MBF, para. 0.14.
4Exchange of letters of 29 October and 2 November 2009 (MN, Anns., Series A, Nos. 16 and 17), taking formal
note of the records of 3 July and 15 October 2009 (MN, Anns., Series A, Nos. 14 and 15). - 3 -
agreement to the Court for it to be “place[d] on record”, inasmuch as it was already a binding
instrument for the two States under international la w. The Court was thus not requested to settle
any dispute in this regard.
The importance of the Decree of 28 December 1926
0.8. The Decree of 28 December 1926 detaching certain cantons of Dori cercle and
Say cercle (with the exception of Gourmantché Botou canton) from Upper Volta and incorporating
them into Niger “is of particular importance for the purposes of this case” . This is perfectly true
and, furthermore, the Decree is even more important given that the 1927 Arrêté and Erratum were
issued pursuant thereto. Contrary to what the other Party asserts in so peremptory a manner, the
link between these texts clearly shows that the aim of the colonial legislator was not to draw
straight lines in complete disregard of the situation on the ground, but to transfer territorial
divisions whose existing boundaries were taken into account from one colony to another. We shall
return to this in greater detail in the present Counter-Memorial . 6
The framework provided by the official texts of 1927
0.9. The Parties also agree on the fact that the basic texts to be taken into consideration in
resolving the present dispute are those of 1927, which have never been modified since that time 7.
BurkinaFaso’s Memorial is nevertheless ambiguous in respect of these texts, as it admits on the
one hand that the Erratum of 5 October 1927 replaced the Arrêté of 31 August of the same year , 8
9
yet on the other hand it continues to refer to the Arrêté as the basic text . This proves problematic.
It is in fact the Erratum of 5 October 1927 that is the reference text in this case, inasmuch as it quite
simply replaced the operative part of the text of the Arrêté . This is essentially the conclusion
reached by the Chamber of the Court in the case of the Frontier Dispute (Burkina Faso/Republic of
Mali), when it stated that it was “free to examin e... the two successive versions of the1927
Order, while nonetheless attributing greater weight to the text as modified by the erratum as a
11
reflection of the definitive intentions of the colonial authorities . . .” . Furthermore, the fact that
the text of the Erratum has never been modified since does not mean that it alone suffices to
determine the course of the frontier in the disputed sector.
The absence of documents adopted “by joint agreement of the Parties”
0.10. Lastly, the Parties agree on the fact that no other document was adopted “by joint
agreement of the Parties” during the negotiations on the determination of the boundary, within the
meaning of Article 2 in fine of the Agreement of 28 March 1987 on the demarcation of the frontier
5MBF, para. 1.16.
6See below, paras. 1.1.8 and 1.1.9.
7
MBF, para. 1.23.
8
See esp. MBF, paras. 2.27 and 2.42 in fine.
9See, inter alia, MBF, para. 1.26; see also the ambiguous wording used in para. 2.41 to describe the relationship
between these two texts.
10According to the text published in the Official Journal of FWA of 15 October 1927, “Article 1 of the Arrêté of
31August1927 fixing the boundaries of the Colonies of Ni ger and Upper Volta, published in the Official Journalof
French West Africa No.1201, of 24Septembe r1927, page638, should read as follows:” ⎯ followed by the text of the
Erratum (MN, Anns., Series B, No. 27). Article 2, which provided that “[t]he Lieutenant-Governors of Upper Volta and
Niger are responsible for implementing the present Arrêté, which shall be recorded, published and publicized in all
appropriate quarters”, for its part remained unchanged.
11
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, I.C.J. Reports 1986, p. 590,
para. 69; emphasis added. - 4 -
12
between the two States . Thus, the frontier in the disputed sect or is to be determined only on the
basis of the other documents referred to in this provision (the 1927 texts ⎯ which still have to be
interpreted ⎯ and, should they “not suffice”, the 1960 IGN map). This of course does not rule out
consideration of the informal agreements reached by the colonial authorities regarding the location
of frontier points, in particular those on inter-colonial roads.
B. Points of disagreement between the Parties
A dispute over delimitation or demarcation?
0.11. According to Burkina Faso, the dispute before the Court does not concern delimitation,
as that was effected by the 1927 texts; in its view it is “only” a matter of demarcation . The other
Party thus states in its Memorial that the Agreement and Protocol of Agreement of 1987
“definitively establish the delimitation of the frontier” . Burkina Faso offers a further argument to
this effect based on the fact that the 1987 Protocol of Agreement refers only to the “demarcation”
of the frontier, which, in its view, implies that the sole purpose of that text is to enable a line, which
has been clearly established elsewhere and fully ag reed upon by the Parties, to be marked out on
the ground.
0.12. This argument is untenable, inasmuch as the 1927 texts inevitably invite interpretation
because of their extreme concision. If a delimitation had actually been effected, it could at best be
regarded as provisional, since the agreements betw een the Parties (especially that of 1987) make
specific provision for recourse to additional instru ments (in particular, the 1960 IGN map) in order
to define the frontier, which shows that the delimitation had clearly not been finalized at that stage.
It is thus indeed a question of a delimitation ope ration in this case; contrary to Burkina Faso’s
assertion, the delimitation cannot be regarded as “s ettled”. Moreover15Burkina Faso’s argument is
expressly contradicted in its citation of the 1964 Agreement , as the latter refers to the (future)
signature of a delimitation report, which obviously implies that the delimitation had not yet been
16
effected . The situation has not changed since. Thus , if the two States have referred their frontier
dispute to the Court, it is for the very reason that only part of their common frontier has been
delimited and demarcated.
0.13. Furthermore, the Court has had to deal with similar matters in other frontier disputes
brought before it. It has given a very clear r esponse, in particular in the case concerning the
Land and Maritime Boundary between Cameroon and Nigeria . On that occasion, having recalled
that the Parties “ha[d] devoted lengthy argumen ts to the difference between delimitation and
demarcation and to the Court’s power to carry out one or other of these operations”, the Court
declared:
“As the Court had occasion to state in the case concerning the Territorial
Dispute (Libyan Arab Jamahiriyal Chad) (I.C.J. Reports 1994 , p. 28, para. 56), the
delimitation of a boundary consists in its ‘definition’, whereas the demarcation of a
12MBF, para. 2.46.
13
MBF, para. 0.3; see also para. 0.19.
14
MBF, para. 1.61.
15MBF, para. 0.5.
16See also, inter alia, paragraph 1.44 of the Memorial, where Burkina Faso itself refers to the “delimitation of the
frontier” in connection with the 1964 Protocol of Agreement. - 5 -
boundary, which presupposes its prior delimita tion, consists of operations marking it
out on the ground.” 17
0.14. As in the case concerning the Land and Maritime Boundary between Cameroon and
Nigeria, there exist legal instruments recognized by the two Parties to the present proceedings
“whose purpose was to effect the delimitati on between their respective territories” 18. The Court
had identified its task at the time as being to19specify . . . the course of the . . . boundary as fixed by
the relevant instruments of delimitation” . The same is true in the present case. Under the terms
of the Special Agreement signed on 24 February 2009, the Parties requested the Court “to
20
determine the course of the boundary between the two countries” in the disputed sector . In the
case concerning the Land and Maritime Boundary between Cameroon and Nigeria ⎯ as in this
one ⎯ the Court had to “specify definitively” the course of said frontier, and affirm that the
delimitation instruments were binding on the Pa rties and applicable. However, in its
2002 Judgment, the Court stated that it
“cannot fulfil the task entrusted to it in this case by limiting itself to such
confirmation. Thus, when the actual content of these instruments is the subject of
dispute between the Parties, the Court, in order to specify the course of the boundary
in question definitively, is bound to examine them more closely. The dispute between
Cameroon and Nigeria over certain points on the land boundary between Lake Chad
and Bakassi is in reality simply a disput e over the interpretation or application of
21
particular provisions of the instruments delimiting that boundary.”
0.15. It is the same kind of dispute that is at issue in these proceedings: the Court is
requested to interpret and apply delimitation instruments identified by the Parties in the Special
Agreement of 2009 in order to specify the course of the frontier in sectors where there is continuing
disagreement between the Parties on the course of said boundary. As in the case between
Cameroon and Nigeria, it is, in Niger’s view , “this dispute which the Court [should] now
22
endeavour to settle” . And, as in the latter case, it should do so by considering “in succession each
of the points in dispute along the . . . boundary” . 23
0.16. It is with this in mind that the Repub lic of Niger requests the Court to specify the
course of its frontier with Burkina Faso in the Té ra and Say sectors, based on its interpretation of
the relevant delimitation instruments adopted by the Parties. In so doing, the Court will undertake
a delimitation exercise and nothing else. If we ma ke the same distinction as the Court did in its
24
2002 Judgment , it is in fact clear that the Court is be ing asked here to “defin[e]” the frontier ⎯
17
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 360, para. 85.
18
Ibid.
19Ibid., p. 359, para. 85.
20Article 2, para. 1 of the Special Agreement.
21
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 359, para. 85.
22
Ibid.
23
Ibid., p. 360, para. 86. In the casbetween Cameroon and Nigeria, the Cour t considered 17 disputed points
along the boundary which had been identified by the Parties ithe written proceedings and which involved sections of
varying length; it added other points mentioned by the Parties in the oral proceedings and in their written responses to the
Court’s questions (I.C.J. Reports 2002, pp. 360-399, paras. 86 to 192).
24
See above, para. 0.13. - 6 -
the 2009 Special Agreement speaks of “deter min[ing] the course of the boundary” ⎯ and not to
“mark . . . it out on the ground” as in a demarcation operation.
Furthermore, this is precisely the reading ad opted by H.E. Mr.Paramanga ErnestYonli,
Prime Minister of Burkina Faso, in his letter of 9 February 2006 to H.E.Mr.HamaAmdadou,
Prime Minister of the Republic of Niger:
“It is in fact urgent for the dialogue on the delimitation of our frontier to be
restarted.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
However, and without prejudice to the results of these new discussions, it seems
to me important that we initiate action aimed at a definitive solution. It is for that
reason that we have already sought your views on the option of jointly putting the
matter before the International Court of Justice, so that it may rule on the persisting
differences of interpretation in regard to the colonial texts.” 25
The alleged lack of need to interpret the 1927 texts
0.17. By the same reasoning as described above , Burkina Faso suggests further on that the
meaning of the 1927 texts is so clear that it re quires no interpretation. In connection with a
meeting of experts of the two Parties held in 1986, the other Party thus states that
“strictly speaking, it was not a matter of ‘interpreting’ the Arrêté and its Erratum; in
reality these texts did not raise any concerns between the Parties, which... sought
only to . . . plot . . . on the map the description of the frontier given by the text” . 26
The “plain meaning” doctrine, wh ereby the content of a text is so obvious that it is not even
necessary to interpret it, is all uded to for the first time here 27. One may well wonder how such an
assertion ⎯ and such an approach ⎯ is compatible with what the other Party actually does in
practice over more than sixty pages of its Memorial , namely to offer its interpretation of the 1927
texts. By the same token, it is quite obvious that the two States had in mind that the texts were not
necessarily particularly clear (or sufficient), since the 1987 Agreement provides for recourse to
the1960 IGN map should the texts not suffice. And in 2006, as we have just seen, the Prime
Minister of Burki28 himself referred to “the persisting differences of interpretation in regard to the
colonial texts” . It is undeniable that an interpretation of the 1927 texts ⎯ whose highly laconic
character has already been amply underlined 29 ⎯ is not only necessary but essential. This is
precisely what the Court has been requested to do, and that task can only be properly accomplished
by having recourse to a number of documents other than the 1927 texts, which are clearly not
30
sufficient in themselves to determine the precise course of the frontier in the disputed sector .
25Letter No.2006.039/PM/CAB from the Pr ime Minister of Burkina Faso to the Prime Minister of Niger dated
9 February 2006; MN, Anns., Series A, No. 11 ; emphasis added.
26
MBF, para. 1.59.
27
See also MBF, para. 2.13, where reference is made to “a clear . . . title”.
28See above, para. 0.16 and Letter No. 2006.039/PM/CAB from the Prime Minister of Burkina Faso to the Prime
Minister of Niger dated 9 February 2006; MN, Anns., Series A, No. 11.
29See below, para. 0.20.
30For further details on this point, see below, paras. 1.2.11 et seq. - 7 -
The alleged difference of approach between the official texts of 1927 and those preceding
them
0.18. Once more as regards the official texts of the colonial period, Burkina Faso makes a
distinction between the Arrêté and Erratum of 1927 and the texts that preceded them. According to
the other Party, while the earlier texts defined the colonies and their constituent cercles simply by
listing the subdivisions of the cercles , as from the 1927 Arrêté “it was no longer a matter of
administrative divisions but of the frontier”, which from that date was established “ne varietur” . 32
Such a distinction is in fact highly questi onable. The two approaches are not necessarily
incompatible and the preparatory work to the Arrêté of 31 August 1927 proves that the frontier was
33
established on the basis of the boundaries of the pre-existing cantons . The links between the
Decree of 28December1926 transferring cercles that previously belonged to Upper Volta to the
colony of Niger and its implementing Arrêté of 31August1927, as replaced by the Erratum
34
of 5 October of the same year, clearly show that Burkina’s contention on this point is baseless .
Burkina Faso’s one-sided portrayal of border incidents
0.19. In respect of more recent times, particularly the period following independence, in its
Memorial BurkinaFaso gives a very one-sided pi cture of the border incidents that have marked
relations between the two States in the disputed sector . On reading the written proceedings of the
other Party, one gets the impression that Niger alone is guilty of such encroachments, and never
Burkina Faso. The reality is of course more complex, and it is well established that both Parties are
guilty of encroachments and incursions, to wit the several (among many) examples given by the
36
Republic of Niger in its Memorial . It is actually quite difficult to see the point of such a
one-sided portrayal of the border incidents, of which there have undeniably been many over recent
decades in the sector concerned. The fact that such incidents are recurrent, whether they involve
officials from Burkina or Niger, points particularly clearly to the persistent difficulties faced by the
two States due to the lack of precision in the boundaries decreed by the colonial power in this
sector.
The alleged precision of the 1927 texts
0.20. It should further be noted that there is a fundamental disagreement between the Parties
as to the degree of precision of the 1927texts. Burkina Faso asserts that the 1927 Arrêté, as
modified by the Erratum, “constitutes a title covering the whole of the frontier— which it
describes with a precision that stands in stark contrast to the ditherings of many internal
37
delimitations in former FWA and French Equatorial Africa (FEA) ” . The assertion that the text
defines the boundary “with... precision” is of course highly questionable given the particularly
succinct descriptio38of several portions of the disputed frontier, as the Republic of Niger underlined
in its Memorial . Moreover, the other Party admits in its own written proceedings that
the1927texts give “very few salient topographical details, considering the length of the line and
31
MBF, paras. 1.24 and 1.25.
32MBF, para. 1.26.
33See also MN, paras. 1.24 and 5.10.
34
See above, para. 0.8 of this introduction and, for a more detailed discussion, below, paras. 1.1.8 and 1.1.9.
35
MBF, paras. 1.49 et seq.; see also, inter alia, para. 1.57.
36See, inter alia, the documents referred to in notes 119 et seq. of Niger’s Memorial.
37MBF, para. 2.39; emphasis added.
38See, inter alia, MN, para. 6.9 for the Téra sector and para. 7.11 for the Say sector. - 8 -
39
the changes in direction” . It is indeed the least that can be said of texts which were intended to
describe in less than a page a boundary that runs over more than 300kilometres, largely in little
known and uninhabited regions, in th e southern part of the Say sector. Once again, the argument
whereby the texts which are to serve as the basis for determining the course of the frontier in the
disputed sector are simple and precise by no means fits in with the facts of the case, which reveal a
far more complex reality and highlight the cons iderable difficulties caused on the ground by the
texts’ lack of precision .40
The non-existence of a “consensual line” allegedly agreed on previously by the Parties
0.21. Finally, Burkina Faso’s oft-repeated reference to the “consensual line” allegedly agreed
on by the experts of the two States in 1988 is also problematic 41. It is claimed that the Parties
reached an agreement on the course of the front ier during the work of the Joint Technical
Commission on Demarcation established by the 1987 Agreement, and that it is only because Niger
subsequently called that agreement into question that the dispute has persisted 42. This
representation of the facts does not correspond to reality at all. Contrary to the assertion of the
other Party, which refers to “what they agreed to call the ‘consensual line’” 43, neither that
expression nor the basic agreement from wh44h it is said to derive was ever officially recognized in
the relations between the two Parties . More to the point, the expression does not sit at all easily
with the manner in which the Joint Commissi on actually worked: it functioned as a kind of
“laboratory” in which experts from both States compared notes and together tried to identify the
course of their common frontier. They no doubt so metimes managed to reach a consensus in this
framework, but it could only ever be provisional. This was both because any possible consensus
was based purely on information held by the experts at that time ⎯ and could thus be called into
question if any other information came to light ⎯ and because, in any event, the work of the
Commission had to be formally approved by the competent political authorities for it to be
regarded as constituting an agreement between the two States concerned 45. It is well established
that it has never been possible to reach such an agreement in this case ⎯ and that, moreover, is the
reason why the two States stand before the Court today.
*
All the arguments outlined in the above introduction will be discussed in detail in the body
of this Counter-Memorial, which will be broadly structured as follows.
39
MBF, para. 3.24.
40
See below, paras. 1.2.13 et seq.
41See, inter alia, MBF, para. 1.69. This term is used on numerous occasions thereafter; seinter alia, MBF,
p. 154.
42MBF, para. 1.75.
43MBF, para. 1.69.
44
It is particularly revealing, for example, that expression does not occur in the document referred to in
Burkina Faso’s Memorial when it first uses these words, especially considering that it is an internal document of
Burkina Faso (Report No. 42/FP/MAT/SG/DCAF from the Minister for Territorial Administration to the Head of State of
Burkina Faso, 5 March 1991, Ann. MBF 88, mentioned in note 131 of the Memorial).
45For further details on this point, see below, paras. 1.2.20 et seq. - 9 -
Presentation of the structure and plan of the Republic of Niger’s
Counter-Memorial
0.22. In the following chapters, the Repub lic of Niger will explain in detail why
Burkina Faso’s arguments must be rejected. The plan of the Counter-Memorial is as follows:
C HAPTER I. THE THEORETICAL AND ARTIFICIAL CHARACTER OF BURKINA FASO ’S ARGUMENTS
Section 1 – The lack of basis for the theory of the artificial straight line
A. The theory whereby the boundary consists of a series of straight lines, an artificial and
arbitrary colonial boundary
B.The history of the making of the boundary in no way implied anything artificial or
arbitrary in character
C. The theory of a clear title which is sufficient in itself and does not need clarification
Section 2 – The lack of basis for the “consensual line” theory
A. he de facto absence of a “consensual line”
B. he de jure absence of a “consensual line”
C HAPTER II. DELIMITATION OF THE FRONTIER IN THE DISPUTED SECTOR
Section 1 – The frontier in the Téra sector
A. The section from Tong-Tong to Tao
B. The section from the Tao astronomic marker to Bangaré
C. The section from Bangaré to the boundary of Say cercle
Section 2 – The frontier in the Say sector
A. The Bossébangou region
B. The “salient of four villages”
C. The section of the frontier which leaves t“salient” and runs to the start of the Botou
bend
C ONCLUSIONS C HAPTER I
T HE THEORETICAL AND ARTIFICIAL CHARACTER OF
B URKINA F ASO ’S ARGUMENTS
1.0. Burkina Faso’s arguments rest on two pillars.
The first consists in maintaining that th e boundary determined by the Erratum of
5October1927 consists of straight lines 4, which were deliberately chosen as artificial and
arbitrary lines in the purest colonial tradition. Th e title is thus said to be clear and sufficient in
itself and not to need clarification. It is saito establish a definitive delimitation of the frontier,
which merely remains to be demarcated. According to this view, a disembodied text applies almost
automatically. The historical and socio-political background to the text’s preparation and the
concrete problems associated with its subsequent application are blithely ignored. This first
argument will be dealt with in section 1.
The second pillar consists in maintaining that the line claimed by Burkina Faso is based on a
demarcation project that was allegedly the object of a “consensual agreement” between the two
Parties which is binding on Niger. This ar gument overlooks both the frequent and various
objections raised by Niger to that project throughout the negotiations and the fact that it is not
legally binding on Niger. This second argument will be dealt with in section 2.
SECTION 1 – T HE LACK OF BASIS FOR THE THEORY OF
THE ARTIFICIAL STRAIGHT LINE
1.1.1. Burkina Faso’s argument is based firstly on the contention that the boundary
established by the Erratum of 5October1927 consists of a series of straight lines(A). This is
allegedly the result of the colonial practice of usingartificial and arbitrary boundaries (B). The
Erratum is thus said to be a clear title which suffices by itself and does not need clarification (C).
These various assertions do not stand up to scrutiny.
A. The theory whereby the boundary consists of a series of straight lines,
an artificial and arbitrary colonial boundary
1.1.2. It is indisputable and undisputed that there exists a frontier title with force of law
between the Parties. It is the Erratum of 5 October 1927 which replaces the Arrêté of 31 August of
47
the same year . It is further indisputable that this text covers the entire frontier, from “N’Gouma
to the intersection of the former boundary of the cercles of Fada and Say with the course of the
Mekrou”.
The Parties were able ⎯ not without difficulty ⎯ to reach agreement on the meaning and
scope of the text in respect of two stretches of the boundary: from N’Gouma to Tong-Tong 48and
from Tchenguiliba, at the start of the Botou bend, to the intersection of the former boundary of the
cercles of Fada and Say with the course of the Mekrou. However, they were unable to agree on the
46
With one notable exception in the Bossébangou sector and the “salient”, see MBF, para. 4.95.
47It should be noted in passing tis not because the text of the Erratu m is “both subsequent to and more
precise than” the Arrêté that “preference should be given” to it (MBF, para. 2.41), but because, pursuant to the very terms
of the Erratum, it replaces the Arrêté.
48Though not without having to interpret the text on some points. - 11 -
part described in the Erratum between those two stretches, from Tong-Tong to Tchenguiliba. That
portion of the text reads as follows:
“this line then turns towards the south-east, cutting the Téra-Dori motor road at
the Tao astronomic marker located to the we st of the Ossolo Pool, and reaching the
River Sirba at Bossebangou. It almost immediately turns back up towards the
north-west, leaving to Niger, on the left bank of that river, a salient which includes the
villages of Alfassi, Kouro, Tokalan, and Tankour o; then, turning back to the south, it
again cuts the Sirba at the level of the Say parallel. From that point the frontier,
following an east-south-east direction, continues in a straight line up to a point located
1,200 m to the west of the village of Tchenguiliba.”
Both Parties, in their respective memorials, divi ded this part of the frontier in the same way,
namely into two sectors: one from Tong-Tong to the tripoint between the cercles of Dori, Tillabéry
and Say (hereinafter called the “Téra sector”) and one from the latter point to Tchenguiliba
(hereinafter called the “Say Sector”). There are numerous reasons why the Parties cannot agree on
the course of the frontier in these two sectors and these were set out in Niger’s Memorial.
1.1.3. In respect of the Téra sector (which belonged to the cercle of Tillabéry), at first, during
negotiations, the two Parties based their interpreta tion of the boundary on geometric thinking. The
straight-line solution, in two segments, was advocated by Burkina Faso. It consisted in joining the
three points indicated by the text with two successive straight lines. That method was contested by
Niger, which maintained that the line that joins Tong-Tong to the point where it me49s the
boundary of Say cercle, and passes through the Tao marker, could only be a curve . Niger based
its position on the use of the verb “to turn” [ “s’infléchir” in French] and further relied on the only
map known at that time by the Parties to be contemporary to the Erratum: the map entitled “new
frontier between Upper Volta and Niger (according to the Erratum of 5 October 1927 to the Arrêté
of 31 August 1927)” . Given the small scale of the map (1 :1,000,000), it admittedly gave a rough
representation of the boundary in this sector, but it unquestionably describes a curve.
1.1.4. These views were set out as follows in the Report of 28July1990 of the Joint
Technical Commission on the Demarcation of the Frontier. According to Niger:
“From the Tong-Tong astronomic marker, the frontier line turns in a uniform
direction (south-east) and following a unifo rm course as far as the River Sirba at
Bossébangou, passing through the Tao astronomic marker. The only geometric form
that would enable the frontier to pass thr ough these three points, which are clearly not
aligned, 51 a curve. That curve is the arc of a circle, with a well-defined centre and
radius.”
For its part,
“Burkina Faso asserts that, from its starting point to its endpoint, the frontier is
composed of a succession of straight lines, other than the waterways and the
ridgelines, and that this is also the ca se between Tong-Tong and Tao and between
Tao and Bossébangou.
49
MN, para. 5.8 and sketch-map opposite on p. 69.
5French West Africa: new frontier between Upper Volta and Niger (according to the Erratum of 5 October 1927
to the Arrêté of 31 August 1927), scale 1:1,000,000; MN, Anns., Series D, No. 13.
5Report of the Second Ordinary Session of the Joint T echnical Commission on the Demarcation of the Frontier
between Niger and Burkina Faso held at Ouagadougou from 23 to 28 July 1990; MN, Anns., Series A, No. 5. - 12 -
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Burkinabe delegation contends that the meaning given to the word
‘s’infléchir’ must be understood as a ‘change of direction’, and that if it had involved a
curve the author would have made this clear by expressly so stating. Furthermore,
given the means of transport at that time (horses, motor vehicles) and the technical
specialists employed, neither the author nor the te52nical specialists would have
considered configuring the frontier line in that way.”
This entire disagreement arose in the context of an interpretation based on a geometric view
of the boundary in this sector.
1.1.5. No documentary research was in fact carried out at the time the Commission
undertook its work. The only conceptual work undertaken was an analysis of the texts. As regards
the stretch from Tong-Tong to the boundary of Say cercle, the experts were faced with a
particularly arduous task: they had to imagine a boundary line over 150kilometres in length, of
which only two points were known with any certa inty (Tong-Tong and Tao). Indeed, the point
where this sector reaches the River Sirba also posed problems of interpretation, as the two Parties
53
disputed the location of the tripoint between the cercles of Dori, Tillabéry and Say .
Niger abandoned this geometric approach in the course of conducting documentary and map
research in the colonial archives, which called for a different understanding of the1927 text that
had been obscured by the abstract textual interpretation. The archives reveal the historical and
socio-political context in which the Arrêté and its Erratum of 1927 were adopted and rule out the
possibility of the French legislator envisaging a geometric boundary.
1.1.6. In support of its position whereby the boundary consists of a series of two straight
lines in the first sector, Burkina Faso today puts fo rward the theory that the frontier between Niger
and Burkina Faso was for the most part determin ed by a succession of straight lines because of the
artificial and arbitrary character of the colonial boundary:
“In many respects, the frontier defined by the amended Arrêté is artificial in
nature. The colonial authorities, wanting to establish a complete and precise
boundary, were aware of the implications of choosing such a boundary, and that
choice was made by the Governor-General of FWA in full knowledge of the facts and
in accordance with what was standard practice at the time.” 54
It should be noted that this assertion is not backed up by any document from the colonial
authorities proving the intention of the authorities of FWA to choose an artificial and arbitrary
boundary.
Burkina Faso goes even further when it adds at paragraph2.39 of its Memorial that
“The 1927 Arrêté is no exception to the rule and establishes an arbitrary and artificial boundary”.
The very assertion that there exists a “rule [that] establishes an arbitrary and artificial boundary” is
completely baseless, as shall be explained below . 55
52Ibid.
53
See MN, paras. 7.14 et seq. and below paras. 2.2.5 et seq.
54
MBF, para. 2.38.
55See below, para. 1.1.7. - 13 -
Applying its theory to the Tong-Tong–Bossébangou sector, Burkina Faso’s Memorial
maintains at paragraph 4.26:
“The brevity with which the French colonizer defined the course of the
inter-colonial boundary in this sector in 1927... leaves not the least doubt that the
boundary adopted was of an artificial nature.”
The same assertion is repeated at paragraph4.27 et seq., with a shift in the meaning of the
word “artificial”.
“4.27. It is clear simply from reading the 1927 Arrêté [it is in fact the Erratum]
that, in the sector concerned, it is an artificial and not a natural boundary that has been
adopted. Indeed no natural feature is referred to,”
“4.28. […] it is obvious that the Arrêté delimits the boundary in the form of an
artificial line alone”.
“4.33. The artificial nature of that delimitation did not seem to pose any great
difficulties to the colonial administration.”
Repeating the argument does not make it any less baseless. Niger will now prove that there
is no basis for this theory by showing that the history of the making of the boundary in no way
implied that the boundary was of an artificial or arbitrary character.
B. The history of the making of the boundary in no way implied anything
artificial or arbitrary in character
1.1.7. It is of course well known that the col onial powers, particularly in Africa, did have
recourse to straight lines of an artificial and arbitrary character in drawing the boundaries of
colonial territories. This was the case across deserts, uninhabited regions and regions that remained
unexplored before or after conquest. One needs only to think of the boundaries of Western Sahara,
Mauritania, Algeria, Libya, Chad, etc., to cite just a few examples.
However, this is not at all the case in respect of the boundaries concerned here. The
circumstances in which the boundary between Niger and UpperVolta was established reveal, on
the contrary, a true concern to respect local inha bitants and pre-existing administrative divisions.
The historical context and map archives prove this.
(a) The historical context
1.1.8. Burkina Faso’s contention that the boundary between the two States in the Téra sector
followed a straight line, corresponding to a typical, artificial African frontier, runs counter to the
practice implemented in the region as early as 1907 following the incorporation of Say and Fada
56
cercles into the Colony of Haut-Sénégal et Niger, as shown by Niger in its Memorial . It is worth
recalling here the words of the report from the Minister for the Colonies, Milliès-Lacroix, to the
President of the French Republic regarding the transfer of the cercles. The Minister for the
Colonies explains that he wishes to incorporate the cercles of Fada N’Gourma and Say into the
Colony of Haut-Sénégal et Niger because of the “disadvantages” of incorporating these
administrative units into the Colony of Dahomey and to which “[his] attention has been drawn a
number of times”. In his view,
56
MN, para. 1.14. - 14 -
“[e]thnic considerations of genuine importance, as well as administrative
requirements, make it necessary, on the contrary, that these cercles be incorporated in
our Colony of Haut-Sénégal et Niger, which had moreover already possessed them in
57
part prior to the Decree of 17 October 1899” .
1.1.9. More specifically, the history of the boundary concerned here should be recalled.
On22June1910, the part of Tillabéry cercle situated on the right bank of the River Niger was
detached from the Military Territory of Niger and adde d to the Territory of Haut-Sénégal et Niger.
Under Article 2 of the Arrêté concerned:
“These territories shall form . . .
Th4 e. cercle of Say, consisting of the cantons on the right bank detached from
Djerma cercle;
Finatlley, cantons of Tillabéry on the right bank shall be incorporated into
Dori cercle.” 58
It should thus be noted that, far from drawi ng artificial boundaries, this text on the contrary
takes account of the situation on the ground and transfers certain cantons.
59
The Colony of Upper Volta was established by Decree of 1March1919 . It consisted of
various territories detached from the Colony of Haut-Sénégal et Niger, including the cercles of Say
and Dori (into which the cantons of Tillabéry cercle on the right bank of the Niger were
incorporated and henceforth called “Téra Subdivision”).
57Decree of 2 March 1907 incorporating into the Colony of Haut-Sénégal et Niger the cercles of Fada N’Gourma
and Say, OJFWA, No. 117, 30 March 1907, p. 135, reproduced in MN, Anns., Series B, No. 10.
58MN, para. 1.15 and Arrêté général No. 672 of 22 June 1910 reorganizing the Military Territory of Niger,
OJFWA, undated 1910, p. 475, MN, Anns., Series B, No. 15 (emphasis added).
59MN, para. 1.17 and Decree of 1March1919 dividing the Colony of Haut-Sénégal et Niger and creating the
Colony of Upper Volta, and Arrêté promulgating that Decree in French West Africa, OJFWA, No.768, 1919,
pp. 550-551, MN, Anns., Series B, No. 18. - 15 -
Figure 1: Téra Subdivision consisting of the cantons of Tillabéry cercle situated on the
right bank of the Niger, incorporated into Dori cercle in 1910
(extract from MN, Anns., Series C, No. 47)
1.1.10. Wishing to organize his patchwork co lony, the Lieutenant-Governor of Upper Volta
sent a circular to the Administrators of the cercles enquiring about the possibility of adjusting the
boundaries of the Colony, its cercles and subdivisions. He notes the following:
“It is not always possible, when determ ining the boundaries of a colony, to rely
solely and rigorously on the distribution of ethnic groups. Other considerations
intervene, and the very size of certain gr oups sometimes means that they have to be
divided. However, this should only be done in quite exceptional circumstances, and
when it has become absolutely clear that th ere is no other choice. Thus we should
avoid dividing ethnic groups through arbitrary boundaries , which have the effect, by
destroying the unity of view and action, of upsetting the local population, provoking
mass departures . . . It is thus clearly worthwhile to make the necessary adjustments to
the boundary to resolve ethnic issues, whenever circumstances permit . . .” 60
61
Such language is clearly at odds with a “rule [of] arbitrary and artificial boundar[ies]” .
1.1.11. In March 1923, aware of the Governor of Niger’s desire for Upper Volta to transfer
the right bank of the river to Niger, the Governor of Upper Volta asked the Administrator of Dori
62
cercle to look into the matter from a political, ethnographic and economic point of view . The
Commander of Dori cercle was against any transfer. It is interesting to note the following among
his various arguments:
60Circular Letter No. 713 A.G. of the Lieutenant-Governor of Upper Volta to the Administrators of the cercles of
the Colony, 28 July 1920, MBF, Anns., 17 (emphasis added).
61To quote Burkina Faso (MBF, para. 2.39).
62Letter No. 682 from the Lieutenant-Governor of Upper Volta to the Commander of Dori cercle, 22 March 1923,
MBF, Annex 20. - 16 -
“what is important for them is not the creation of a new colony: it is stability in their
habits, being accustomed to the heads of their cantons , their very keen awareness of
being ‘at home’ on the right bank of the ri ver, on the Gourma bank, while the left
63
bank ⎯ the Haoussa bank ⎯ is no longer part of their territory” .
Such a response shows the importance attached by the Administrators to the human factor
and in particular to the stability of the cantons. In his letter of 7June1923 to the
Governor-General of FWA , the Lieutenant-Governor of U pper Volta expresses his opposition to
the transfer of part of Dori cercle , but says that he is open to transferring Say cercle with the
exception of Botou canton, which once again shows the Lieute nant-Governor’s attention to the
specific nature of the cantons. It is ironic to note that all these documents which demolish its
argument are provided by Burkina Faso itself in the annexes to its Memorial.
1.1.12. Some three years later, the Governor of Niger ⎯ at that time the famously tenacious
Jules Brévié ⎯ wrote to the Governor-General of FWA requesting the incorporation into his
colony of “that part of the current Dori cercle detached from Tillabéry cercle in 1910 . . . [and] Say
cercle, minus the canton of Botou . . .” . He attaches to his request:
“a map of Tillabéry cercle prepared by Captain Coquibus in 1908 which clearly shows
the part of Dori cercle that would have to be incorporated into Tillabéry in order to
re-establish that division within its original boundaries” . 66
This further episode shows that the boundary in question had already existed previously and
was formed of cantons known to the Administrators, as we shall see below. There was nothing
artificial or arbitrary about the boundary then proposed.
By a Decree of 28December1926, the President of the Republic of France made the
following ruling:
“The following territories, which are currently part of the Colony of Upper
Volta, shall be incorporated in the Colony of Niger with effect from 1 January 1927:
1. Say cercle, with the exception of Gourmantché Botou canton;
2. The cantons of Dori cercle which were formerly part of the Military Territory of
Niger in the Téra and Yatacala regions, and were detached from it by the Arrêté of
the Governor-General of 22 June 1910.
An Arrêté of the Governor-General in Standing Committee of the Government 67
Council shall determine the course of the boundary of the two Colonies in this area.”
63Letter No. 58 from the Commander of Dori cercle to the Lieutenant-Governor of Upper Volta, 7April1923,
MBF, Annex 21 (emphasis added).
64Letter No. 1270 from the Lieutenant-Governor of Upper Vo lta to the Governor-General of FWA, 7 June 1923,
MBF, Annex 22.
65Letter No. 3 A.G. from the Lieutenant-Governor of Niger to the Governor-General of FWA, 26January1926,
MBF, Annex 24. This letter added “[t]he map of Tillabéry cercle belongs to the archives of this post, I would be grateful,
Sir, if you could have it returned to Niamey when it is no longer of use to your offices”.
66Ibid.
67
Decree of 28December1926 transferring the administrativ e centre of the Colony of Niger and providing for
territorial changes in French West Africa, OJFWA, No.1167, 1927, p.92); see MN, Anns., SeriesB, No. 23 (emphasis
added). - 17 -
1.1.13. The fact that the preside ntial Decree speaks in terms of cantons , that is to say small
and identified units that already existed in1910, makes particularly flimsy the contention that the
Arrêté of 31August1927 intended to adopt a boundary consisting of straight lines, an artificial
boundary moreover.
Under the French constitutional system, the rules that applied to the creation of colonies, and
their subdivision and delimitation, were clearly drawn from a well-stocked legal arsenal. The
division of powers was clear between the central metropolitan authorities and the colonial
authorities in regard to fixing the boundaries betw een colonies. The internal organization of the
colonies, in particular the creation of cercles and other subdivisions, was the responsibility of the
68
colonial authorities, namely the Governor-General of the Colonies . But the incorporation of a
given territory into one colony or another was the sole responsibility of the central authorities,
namely the President of the French Republic, whose act was countersigned by the Minister of the
69
Colonies .
1.1.14. In this case, the central aut horities exercised that power by Decree of
28 December 1926. While the local authorities had the power to execute the Decree locally, they
could not breach its terms. This would be th e result, however, if we were to adopt the
interpretation proposed by Burkina Faso and appl y the texts approved by the Governor-General
in 1927. As we shall see, on the contrary, the efforts by the colonial authorities to apply the Decree
show a clear will to locate on the ground the boundaries of the cantons concerned as they were
in 1910.
1.1.15. With a view to preparing the Arrêté of the Governor-General of FWA ⎯ who had to
implement the 1926 Decree ⎯ and to ensure that his office ha d concrete information on which to
base the delimitation, the two Colonies agreed on a number of texts.
First, a Record of Agreement was signed on 2 February 1927 between Mr. Brévié, Governor
of the Colony of Niger, and Mr.Lefilliatre, Insp ector of Administrative Affairs, representative of
the Governor of Upper Volta 70. The Record listed the cantons which belonged to the former
Tillabéry cercle on 22 June 1910 and which were to be reincorporated into Niger, and defined the
boundary between those cantons and that part of Dori cercle remaining in UpperVolta. This
Record is cited in Burkina Faso’s Memorial 7, though the list of cantons is omitted from the
citation. This is nevertheless a very key element. The list of cantons was as follows:
“The cantons belonging to the former Tillabéry cercle on 22 June 1910 shall be
incorporated in the Colony of Niger.
The cantons are:
1. Dargol - Sonrhais
2. Kokoro-ditto
3. Diagourou-Peuhls
6Decree of 18 October 1904 reorganizing the General Govern ment of French West Africa, Article 5; CMN,
Anns., Series B, No. 34.
69
Sénatus-consulte of 3 May 1854; CMN, Anns., Series B, No. 33.
70
Record of Agreement of 2February1927 between Brévié, Governor of the Colony of Niger, and Lefilliatre,
Inspector of Administrative Affairs, representative of the Governor of Upper Volta; MN, Anns., Series C, No. 7.
7See MBF, para. 4.43. - 18 -
4. Téra - Sonrhais
5. Goroual - ditto
72
6. Logomaten (nomads and Bellahs) . . .”
Saoyrd cercle, the Record of Agreement incorporating into the Colony of Niger the
cantons composing Say cercle, drafted at Say on 10 February 1927 by Inspector of Administrative
Affairs Lefilliatre, representative of the G overnor of Upper Volta, and Chief Colonial
Administrator Choteau, representative of the Governor of the Colony of Niger, provided:
“ohlleowing cantons composing Say cercle are hereby incorporated into
Niger Colony: Namaro, Lamordé, Torodi, Gueladio, Diongoré, Say, Ta73u, Tiala,
independent villages of Sarakolés, Dantiandou, Kollo, Dar-es-Salam.”
It was thus not a question of drawing (str aight or curved) geometric lines through unknown
regions, but rather of incorporating pre-existing cantons into the territory of one colony or the
other. The areas comprising these cantons ⎯ inhabited by indigenous peoples and consisting of
villages, crop and pastureland, and nomad routes ⎯ did not in principle follow abstract lines, but
were based on land occupation and followed the conf iguration or nature of the ground. This was
particularly true of Tillabéry cercle.
1.1.16. Also indicative of the attention paid to the question of the boundary is the initiative
then taken by the Governor of Upper Volta who, being attentive to that aspect of matters, had made
the following request to the Commanders of Dori and Fada cercles, who were going to be affected
by these boundary changes:
“Request send me soon as possible precise information to enable preparation
Arrêté général fixing new boundaries between Colonies Niger and UpperVolta.
Solely to avoid error and need subse quent correction, essential that course be
determined on ground with full agreement Administrators Divisions concerned.
Results work recognized and accepted by Heads bo74 adjacent Colonies to be
forwarded Dakar for action definitive text.”
A Note from the Chef de cabinet of the Governor of Upper Volta dated 2 June 1927 gave the
following instructions to Dori cercle:
“Co75d you commence work with AdministratorTillabéry simply follo76ng
Coquilin line and examine population situation as you suggest.”
72See Record of Agreement of 2 February 1927 between Brévié, Governor of the Colony of Niger, and Lefilliatre,
Inspector of Administrative Affairs, representative oe Governor of Upper Volta; MN, Anns., Series C, No.7
(emphasis added).
73Record of Agreement of 10February1927 between Le filliatre, Inspector of Administrative Affairs,
representative of the Governor of Upper Volta, and Choteau, Ch ief Colonial Administrator, representing the Governor of
the Colony of Niger; MN, Anns., Series C, No. 8 (emphasis added).
74Telegram/letter No.1166/AG from the Governor of Upper Volta, dated 27April1927, see MN, Anns.,
Series C, No. 11.
75This is clearly a reference to a sketch-map drawn by Captain Coquibus, as can be seen from the allusions and
partial descriptions made to it subsequent correspondence. Captain Coquibus’ sketch-map was not found in the
archives.
76Note BLHV No. 1.393 from the Chef de cabinet of the Governor of Upper Volta, dated 2June1927, see MN,
Anns., Series C, No. 12. - 19 -
The work of the Administrators of the two cercles concerned consisted in determining on the
ground the boundaries of the cantons of their respective cercles. For this purpose, they based
themselves on a sketch-map of the former boundary of Tillabéry cercle prepared previously by
77
Captain Coquibus. Two reports followed, one from Prudon, Commander of Tillabéry cercle , the
other from Delbos, Commander of Dori cercle . These reports are similar, even though they do
not totally coincide. However, both have the mer it of showing, firstly, that the Administrators
followed a boundary based on orographic informa tion and with the agreement of the local
inhabitants, and, secondly, that the boundary was a sinuous one. Although the reports by the
Commanders of the cercles and their accompanying sketch-maps did not reach Dakar before the
Arrêté of 31 August 1927 was published, they testify to a situation on the ground that ruled out the
pre-existence of an artificial and arbitrary line. These documents give a detailed description of the
boundaries of the cantons which were transferred from one colony to the other by presidential
Decree of 28December1926. They thus constitu te an element in the interpretation of the
boundary that cannot be ignored. Furthermore, they had a major influence on administrative
practice during the colonial period.
(b) The cartographic context
1.1.17. The only sketch-map of the boundary between the cercles of Dori, Say and Tillabéry
closest to the date of the presidential Decr ee of 26December1926 is the one prepared by
CaptainCoquibus in 1908. This sketch-map, wh ich was sent by the Governor of Niger to the
Governor-General of FWA on 16January1926 7, has not been found in either the archives of
Dakar, or those of Niamey or Ouagadougou. We only have an indirect idea of it from the reports
by Administrators Prudon and Delbos, who described travelling along the boundary between their
respective cercles (Tillabéry and Dori) with Coquibus’s sket ch-map in hand. The Administrators
80
in turn drew that boundary on their own sketch-maps . That line is clearly not made up of straight
lines; overall it appears to curve towards the east and it is sinuous in various places.
81
1.1.18. A second sketch-map from1909, prepared by CaptainBoutiq , shows that the
boundary between Tillabéry cercle and Dori cercle reaches Say cercle at the northernmost point of
the so-called salient of four villages. This point was thus the tripoint between the cercles of Say,
Dori and Tillabéry.
[This sketch-map, listed as Figure 2, was to be included here but is
missing from the original text.]
77Tour Report No. 25 from Administra tor Prudon, Commander of Tillabéry cercle, dated 4August1927; MN,
Anns., Series C, No. 15 and see Tillabéry cercle, 1:200,000 sketch-map prepared by Administrator Prudon, June1927,
MN, Anns., Series D, No. 3.
78Report No. 438 from the Commander of Dori cercle to the Governor of Upper Volta, dated 3 August 1927, has
not been found, but the sketch-map bearing that date (sketch-map of the route followed by the Administrators of Dori and
Tillabéry on a mission in June 1927 with a view to delimitation between Dori and Tillabéry cercles, MN, Anns., Series C,
No. 14.) and a supplementary report dated 27 August 1927 including two sketch-maps (MN, Anns., Series C, No. 16).
79See above, para. 1.1.12.
80Letter No. 731 from Administra tor Delbos, Commander of Dori cercle, to the Governor of Upper Volta dated
17December1927, inc. two sketch-maps, MN, Anns., Series C, No. 20; Tillabéry cercle, 1:200,000 sketch-map
prepared by Administrator Prudon, June 1927, MN, Anns., Series D, No. 3 (Prudon).
81Djerma cercle, 1:1,000,000 sketch-map prepared by CaptainBoutiq,cercle Commander, dated 19June1909,
MN, Anns., Series D, No. 1. - 20 -
1.1.19. As we saw above, the part of Tillabéry cercle situated on the right bank of the
RiverNiger was incorporated into Dori cercle. However, by presidential Decree of1926, that
former part of Tillabéry cercle was to be returned to it and the 1910 boundary would once again
serve as the inter-colonial boundary between Niger a nd Upper Volta. This was to be the object of
the Arrêté of 31August1927 as replaced by the Erratum of 5October1927. The most obvious
illustration of this new situation is the map en titled “French West Africa: new frontier between
UpperVolta and Niger (according to the Erratum of 5October1927 to the Arrêté of
82
31August1927)”, scale 1:1,000,000 . It was an illustration of the Erratum of 5October1927
produced by the FWA Geographical Department.
8French West Africa: new frontier between Upper Volta and Niger (according to the Erratum of 5 October 1927
to the Arrêté of 31 August 1927), scale 1:1,000,000, MN, Anns., Series D, No. 13. - 21 -
Figure 3: Map entitled “French West Africa: new frontier between Upper Volta and Niger
(according to the Erratum of 5 October 1927 to the Arrêté of 31 August 1927)”,
scale 1:1,000,000 (see MN, Anns., Series D, No. 13) - 22 -
1.1.20. Burkina Faso seeks to dispute the scope and value of this map, as the course of the
boundaries appearing on it does not support its arguments 83. It states that Niger claimed this map
84
had been “officially annexed... to the Erratum” and develops a legal argument based on the
jurisprudence of the Court regarding the value of maps 85, a jurisprudence that Niger has never
contested. Niger has in fact never maintained that the map was “annexed” to the text of the
Erratum. Still less that it constituted a “territorial title” .86
Relying, inter alia, on the pronouncement of the Interna tional Court of Justice in the case
concerning the Frontier Dispute (Burkina Faso/Republic of Mali) , Burkina Faso disputes that this
88
map constitutes an illustration of the 1927 texts . That is nevertheless what it is, as Niger
demonstrates in its Memorial 89. After the discovery of a document in the national archives of
90
Senegal , we now know that this map is closely linked to the text of the 1927 Erratum. It is
without doubt an official map and was issued by th e administrative authority. It was sent with a
transmission note by the military Chef de cabinet (2 ndsection) to the Director of Political
Administrative Affairs in Dakar on 6 October 1927, namely the day after the Erratum was adopted,
with “copy to the Department and two Colonies concerned” 91. Even though the map was not
annexed to the text, everything points to the fact that the administration of the Government-General
of FWA regarded it as a reflection of what it ha d just decreed. This document thus carries
considerable weight for the interpretation of the Erratum and it is to be regretted that, regardless of
Niger’s insistence, Burkina Faso has always been opposed to allowing it as a document “accepted
by joint agreement of the Parties” under the 1987 Agreement . 92
Nevertheless, while the map in question was largely based on a number of older maps and
sketch-maps of Say cercle ⎯ minus the canton of Botou ⎯ it had nothing similar to rely on for the
boundaries of the cantons of Tillabéry cercle.
1.1.21. Notwithstanding the small scale of th e “new frontier” map, which represents the
15k0ilometres between Tong-Tong and the Dori/Tillabéry/Say tripoint in a mere
15 centimetres ⎯ hardly sufficient to give any details ⎯ it yields two interesting conclusions. The
first is that the shape of the boundary is represen ted as a curved line and not as two straight lines.
The second is that the tripoint between the cercles of Dori, Tillabéry and Say is located not in
Bossébangou but where Niger demonstrated it to be in its Memorial 93. Moreover, the section
between the tripoint and Bossébangou is represented by the sign for cercle boundaries and not for
colony boundaries.
83For example, MBF, para. 1.76, then from para. 4.91.
84
MBF, para. 1.76.
85
MBF, para. 4.95.
86
MBF, para. 4.95.
87Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, I.C.J. Reports 1986, p. 554.
88MBF, para. 4.91.
89MN, para. 5.7.
90
Transmission Note No. 99213 for the 1:1,000,000 sketch-map entitled “New Frontier Upper Volta-Niger”, sent
by the military Chef de cabinet (2nd section) to the Director of Politic al Administrative Affairs in Dakar, dated
6 October 1927, MN, Anns., Series C, No. 17.
91Ibid.
92
Report of the extraordinary meeting of the Joint T echnical Commission on Demarcation of the Niger-Burkina
Frontier, Niamey, 14 and 15 May 1990, MBF, Annex 85.
93
See MN, paras. 7.14 et seq. - 23 -
[Figure 4 was to be included here but is missing from the original text.]
Figure 5: Dori/Tillabéry/Say tripoint (extract from MN, Anns.,
Series D, No. 13)
For the rest, the other boundaries of the Say cercle sector are represented by straight lines
94
(except for Botou canton ). This is not problematic in itself, as, apart from the course of the Sirba,
the boundaries of Say cercle have always been represented by a series of straight lines. This can be
explained by the fact that the southern part of Say cercle, with the exception of Botou canton, was
largely uninhabited during the colonial period. Contrary to the text relating to Tillabéry cercle, the
Erratum uses terms for the Say sector which undoubted ly imply straight lines: “turning back to the
south”, “following an east-south-east direction, conti nues in a straight line”, “turns back up in a
straight line”, and at the end of the Botou canton bend it “meets the former boundary of the Fada
and Say cercles” which itself runs in a straight line as far as the Mekrou.
It is clear from the above that the southern boundary of Tillabéry cercle in1910, to which
the 1926 Decree refers, was in no way an artificial and arbitrary boundary.
Burkina Faso’s argument whereby the 1927 texts constitute a clear title which is sufficient in
itself is no more convincing.
94The boundaries of Gourmantché Botou canton were the subject of a detailed report dated 9 May 1927 between
the Administrators of Fada cercle (Mr.de Coutouly) and Say cercle (Mr.Lesserteur), see MN, Anns., SeriesC, No. 9.
See also Captain Boutiq’s sketch-map [MN, Anns., Series D, No. 1]. - 24 -
C. The theory of a clear title which is sufficient in itself and
does not need clarification
1.1.22. According to Burkina Faso, the clarity of the title is an obvious consequence of the
above reasoning. If the colonizer used artificial straight lines between well-defined points, there is
no need for the text to be interpreted 95. But this is begging the question. And there are absolutely
96
no grounds for claiming “[m]oreover, the Parties have not disputed [the clarity of the title]” .
We have just seen that the colonizer had no intention of establishing an artificial and
arbitrary boundary. We have also seen that the 19 27 text does not state that the line in the Téra
sector is straight or that it runs in a direction that would result in it forming a straight line. Niger
has demonstrated that a boundary between inhabited and juxtaposed cantons cannot form a straight
line. Finally, it has further been established that earlier and subsequent cartographic documents
represent a curved boundary, though ⎯ given the scale of the documents ⎯ they may not show the
sinuous course of the boundaries of the cantons, their villages and the topography of the ground.
To claim that the 1927 texts are perfectly clear is thus a gratuitous assertion that is not borne
out by any of the documents of the period.
1.1.23. Burkina Faso’s Memorial also contains the following phrase: “the boundary between
the Parties was fully defined in [the] Arrêté . . .” . The wording is ambiguous: while the full
length of the frontier is indeed covered by the Erra tum, the frontier is nevertheless not defined in
full, since the text as it stands does not enable demarcation to be carried out.
It is clear from examining the archives of the two Colonies that the colonial administrators
encountered difficulties in representing the traditional administrative boundaries ⎯ which the
Government-General had no intention of infringing ⎯ and the geographic configuration of the
ground, in the face of a text which, far from being clear and complete, was known to be incomplete
and imprecise. Its lack of precision was, moreover, largely confirmed in the course of the work of
the Joint Technical Commission on Demarcation, w hose experts were constantly confronted with
serious difficulties in interpreting various parts of the 1927 texts.
Niger will now develop these different points.
(a) An incomplete and imprecise text
1.1.24. Right from the start, the colonial ad ministrators encountered major difficulties in
applying a text which proved to be incomplete and imprecise, and which did not provide an
adequate reflection of the traditional occupation or geographic configuration of the land.
As soon as it was promulgated, the text of th e Erratum caused strident but well-articulated
98
protests from Dori cercle . T hecercle administrators did not cease complaining of the
shortcomings and lacunae of the Erratum up until the time when the colo ny of UpperVolta was
9MBF, paras. 2.13 and 4.8.
96
MBF, para. 4.8.
9MBF, para. 2.8.
9Letter No.731 from Administrato r Delbos, Commander of Dori cercle, to the Governor of Upper Volta
dated 17 December 1927, MN, Anns., Series C, No. 20. - 25 -
99 100
abolished ; those criticisms were then taken up by the administrators of Téra (Tillabéry
Subdivision).
The Commanders of Tillabéry and Dori cercles had no information whatsoever to enable
them to find a lasting solution to the boundary probl ems with which they were faced. Thus, in the
sector of Tillabéry cercle, where the 150km-long boundary remains in dispute between the two
Parties, there are only two points which are certain: the Tong-Tong astronomic marker and the Tao
astronomic marker. The point where the line ends at the boundary of Say cercle in the
Bossébangou area posed problems, as we know. That is why the 1927 Erratum was always deemed
to be insufficient. The Head of Téra Subdivision judged this document harshly: “[this text,] whose
imprecision is matched only by its inaccuracy, is the source of constant argument between Yagha
101
and Diagourou farmers . . .” .
The cercle Commanders relied to a great extent on the traditions of their cercles; the reports
and sketch-maps of Administrators Delbos a nd Prudon were often used to rule on boundary
problems 102.
1.1.25. The Governor of Niger, in his dispatch 359/APA of 10 July 1951 to Tillabéry cercle,
wrote the following:
“As regards land disputes between the i nhabitants of Téra Subdivision and Dori
cercle, these should be settled jointly by the officials in charge of the two divisions, as
was agreed with Administrator Raynaud.
Indeed as you point out, the lack of precise boundaries means that the
103
jurisdiction ratione loci of the courts cannot be determined with certainty.”
Faced with an unusable text ⎯ at least in the Téra sector ⎯ and in the absence of detailed
official maps until the publication of the 1960IGN maps, local traditions made up for these
shortcomings. It is largely this local administ rative practice that the IGN was to reflect when it
began producing its maps from 1958 onwards.
1.1.26. As well as being imprecise and incomplete, the text of the Erratum was mistaken as
to the endpoint of the line running from Tong-Tong to the boundary of Say cercle. The colonial
archives in fact reveal that, despite the fact that it was intended to rectify an error in the Arrêté , the
99
Letter No.135 from the Commander of Dori cercle to the Governor of Upper Volta dated 26February1930,
MN, Anns., Series C, No. 32; Letter No. 112 of 10 April 1932 and Tour Report from Civil Service Deputy Roser, Acting
Commander of Dori cercle, to the Governor of Upper Volta, MN, Anns., Se ries C, No. 45. These complaints continued
after the cercle was incorporated into Niger: Niger Colony, Dori cercle , Political Report, Second Quarter 1934,
30 June 1934, MN, Anns., Series C, No. 55.
100
Report of a meeting between the Commanders of Dori and Tillabéry cercles at Téra on 6July1951, MN,
Anns., Series C, No. 72; Official telegram/letter No.70 from the Head of Téra Subdivision to Tillabércercle dated
11July1951, MN, Anns., Series C, No. 73; Tele gram/letter No.710 from the Commander of Tillabéry cercle to the
Governor of Niger dated 22December1953 , MN, Anns., Series C, No. 78; Geogr aphical study of Téra Subdivision,
extract from Monographie de Téra, National Archives of Niger, Ann. 19-1.1bis, MN, Anns., Series C, No. 85.
101Report of the census tours of Téra canton conducted from 28 July to 22 August and 20 to 21 September 1952,
by the Head of Téra Subdivision; Annex: Territorial Organization of Moyen Niger, Establishment of Téra Station, p. 13,
MN, Anns., Series C, No. 74.
102MN, paras. 2.7 and 2.8.
103
Telegram/letter of 10July195 from the Governor-General of Niger to Tillabérycercle, MN, Anns., Series C,
No.72. See also letter No.1511/APA from the G overnor of Niger to the Commander of Tillabéry cercle dated
17 April 1953, MN, Anns., Series C, No. 75. - 26 -
text of the Erratum still contained a drafting error which left doubt as to where this section of the
boundary ended at Bossébangou. We shall return to this point later 104.
1.1.27. The difficulties faced by the administrators during the colonial period in applying an
imprecise and incomplete text were to be enc ountered again when the Joint Technical Commission
on Demarcation of the Frontier tried to mark out the frontier between the two States on the basis of
the Protocol of Agreement of 28 March 1987.
Let us recall the part of the text of Erratum concerned:
“A line starting from the heights of N’ Gouma, passing through the Kabia ford
(astronomic point), Mount Arounskoye and Mount Balébanguia, to the west of the
ruins of the village of Tokebangou, Mount Doumafende and the Tong-Tong
astronomic marker; this line then turns towards the south-east, cutting the Téra-Dori
motor road at the Tao astronomic marker located to the west of the Ossolo Pool, and
reaching the River Sirba at Bossebangou. It almost immediately turns back up
towards the north-west, leaving to Niger, on the left bank of that river, a salient which
includes the villages of Alfassi, Kouro, Toka lan, and Tankouro; then, turning back to
the south, it again cuts the Sirba at the leve l of the Say parallel. From that point the
frontier, following an east-south-east direction, continues in a straight line up to a
point located 1,200 m to the west of the village of Tchenguiliba . . .”
We shall recall just a few of the problems encountered by the Joint Technical Commission
on Demarcation in interpreting this text.
One of the first problems concerned the preci se identification of the places mentioned in
the1927 texts. This was the case, for example, for Mount Arounskoye and Mount Balébanguia.
Despite several field missions, the Commission experts could not locate these different geographic
features and were finally able to agree on thei r co-ordinates only by recourse to aerial photographs
or the IGN map. There were more serious problems in identifying the site of villages or former
villages. Thus, the experts were unable to find the “ruins of the village of Tokebangou”, despite
three field missions during which they only mana ged to gather imprecise or contradictory
information. The report on the survey work carried out in September1988 is particularly
revealing:
“On 12 March 1988, the topographers went to Tokébangou (a village under
Burkina administration), where they found no sign of the ruins d escribed in the basic
text. Representatives of the village took the t echnical staff to the presumed site of the
former village; but no ruins were found there, either; an iron stake marked the foot of
Mount Komkara, to the west of the place indicated.
The technical staff returned to Tokébangou from 11 to 12 May 1988, guided by
representatives from the villages of Dolbel and Kossa (Niger side), who confirmed
that in Tokébangou the boundary passes through a plot of land belonging to one of the
villagers and that a boundary marker and a tree (Garbeye or Aduwa) with an indicator
plate had existed at that location. The t opographers did not find the marker or the
plate, much less the tree bearing the plate.
Nonetheless, the owner of the plot of land admitted that he had cut down a tree
of that kind, though said he had not seen the signs in question. Subsequently, despite
extensive research, no data sheets providing information on the location of the signs
referred to could be found.
104
See below, paras. 2.2.2et seq. - 27 -
It had to be acknowledged that the basic text did not suffice and recourse was
had to the map. This document also pr oved to be insufficient, as there is no
continuous line on the map connecting the two defining points where the boundary
changes direction, as described in the texts . . .” 105
Similarly, despite a number of missions conducted jointly in the field, the experts were
unable to locate the site of the village of Tokalan, mentioned in the text of the Erratum.
Is it any surprise that in 1988 the experts appeared to be unable to find the “Tamarind tree
with an indicator plate to the north of the Dori -Téra road”, which was nevertheless very clearly
106
identified in Captain Nevière’s 1927 survey ?
Similar difficulties arose elsewhere, including in respect of the 107ronomic points. Thus the
experts found the co-ordinates for two different markers at Tao (whereas the text speaks of “the
Tao astronomic marker”), although neither of them could be found on the ground.
Difficulties of a different nature arose on several occasions in respect of determining the
meaning of certain phrases used in the 1927 texts. This was so first of all with the phrase “[this
line] then turns towards the south-east”. We know that the experts of the two States disagreed
strongly on the meaning of these words 108. It should be recalled that Burkina Faso’s position at the
109
time was that this phrase referred to a change in direction between a series of stra110t lines . In
the present proceedings, Burkina Faso devotes more than twenty pages of its Memorial to the
interpretation of this word and maintains that it refers to a change in direction 111. Rather
surprisingly, however, the line claimed by Burkina Faso, as it is drawn on the map attached to its
Memorial, is perfectly straight in this area and does not include the least change in direction. The
other Party in fact places Mount Doumafende (point6), the Tong-Tong astronomic marker
(point7) and the Tao astronomic marker (Tao) on th e same straight line. Clearly, Burkina Faso
now offers another ⎯ and rather unusual ⎯ interpretation of the word “s’infléchir”.
105
Report on completion of the survey of the proposed demarcation of the Niger-Burkina frontier,
28 September 1988, MBF, Ann. 82.
106
Survey annexed to letter DEC/934 from IGN France to the Secretary-General of the Niger Minister of State for
Finance, dated 23 June 1988, MN, Anns., Series C, No. 105.
107
Ibid.
108See above, paras. 1.1.3 et seq.
109Report of the second ordinary session of the Joint Technical Commission on Demarcation of the Niger-Burkina
Faso Frontier, held in Ouagadougou from 23 to 28 July 1990, MN, Anns., Series A, No. 5, p. 3.
110MBF, pp. 109-132.
111
See, inter alia, MBF, paras. 4.69-4.70. - 28 -
Figure 6: Illustration by Burkina Faso of the Doumafendé-Tong-Tong-Tao section of
the boundary without any turn at Tong-Tong (extract from
Cartographic Annex MBF 36)
There were further problems of interpretati on during the work of the Joint Commission.
This was the case, for example, with the statement that the frontier “almost immediately turns back
up towards the north-west”; the meaning of these words caused strong disagreement between the
experts of the two States 112. Similarly, the experts could do no more than record their disagreement
11Report of the second ordinary session of the Joint Technical Commission on Demarcation of the Niger-Burkina
Faso Frontier, held in Ouagadougou from 23 to 28 July 1990, MN, Anns., Series A, No. 5, p. 3. - 29 -
over the interpretati113of the phrase “at the level of th e Say parallel”, as used in the last part of the
text of the Erratum .
This short, non-exhaustive list of the difficulties raised by the interpretation of the 1927 texts
in the framework of the Joint Co mmission’s work is surely enough to show that Burkina Faso’s
view whereby the texts were perfectly clear is particularly utopian.
1.1.28. How can these shortcomings be a ddressed? It follows from the summary and
imprecise nature of the description of the boundary in several sectors that the practical scope of the
Arrêté and its Erratum remains extremely limited. It is therefore necessary to consider the
possibilities of interpreting these texts by havi ng recourse to cartographic criteria and the
effectivités of the boundary throughout its history.
(b) Interpretation using cartographic material
1.1.29. We mentioned above the importan ce of the map entitled “new frontier between
Upper Volta and Niger (according to the Er114um of 5October1927 to the Arrêté of
31 August 1927)”, scale 1:1,000,000 . We shall not return to this point again. We also noted its
limitations, due to its scale and the fact that the inter-colonial boundary had not been surveyed
along its entire course at that time.
1.1.30. The 1:200,000 map of the Institut géographique national de France , 1960edition,
does not suffer from the same flaws. Burkina Faso tries from the outset to minimize the
importance of this map. It is referred to as “a working document on which the course described by
115
the above-mentioned texts could be plotted” ; in other words, it was alleged to be simply a
“mapbase”. However, shortly thereafter, Burkina Faso appears to contradict itself in this regard,
when, in respect of a meeting of the experts of the two Parties in 1986, it writes that the Parties
“sought only to . . . plot . . . on the map the description of the frontier given by the text, and relyi116
on the map itself if need be, in accordance with the Protocol of Agreement of 23 June 1964” .
Elsewhere, Burkina Faso acknowledges that “at several locations the frontier line resulting
from the basic texts does not coincide with the line on the IGN 1:200,000 map or with certain
administrative realities on the ground” 117, though it is careful not to draw any conclusion. This
position is particularly strange given that the text of the Protocol of Agreement of 23June1964
refers to the 1927 texts and to the map as basic documents, placing them on the same footing:
“By agreement between the Parties it was decided to take as basic documents
for the determination of the frontier Arrêté général 2336 of 31August1927, as
clarified by Erratum 2602 APA of 5 October 1927, and the 1:200,000-scale map of the
118
Paris Institut Géographique National.”
113Report of the second ordinary session of the Joint Technical Commission on Demarcation of the Niger-Burkina
Faso Frontier, held in Ouagadougou from 23 to 28 July 1990, MN, Anns., Series A, No. 5, p. 4.
114See above, paras. 1.1.19 et seq.
115
MBF, para. 1.45.
116
MBF, para. 1.59; emphasis added.
117MBF, para. 1.69.
118Protocol of Agreement signed at Niamey on 23June1964, OJRN, 1April1966, pp.150-151; MN, Anns.,
Series A, No. 1. - 30 -
While it a119gns a subsidiary role to the 1960 IGN map, the Protocol of Agreement of
28 March 1987 maintains the reference to it:
“Sho tueld Arrêté and Erratum not suffice, the course shall be that shown on
the 1:200,000-scale map of the Institut Géographique National de France ,
1960edition, and/or any other relevant doc ument accepted by joint agreement of the
Parties.”
Yet, starting from the assumption that the title is clear and sufficient in itself, Burkina Faso
claims that it is not necessary to have recourse to the said map.
1.1.31. It is also quite hard to reconcile the other Party’s disregard for the map with:
1. the fact that the road map of the Repub lic of Upper Volta, scale 1:1,000,000, published
120
in 1963 , adopted the course shown on the IGN map;
2. the plan by the two States in 1968 to seek assistance from IGN-France for the work of
demarcating the frontier:
“Following an exchange of corresponde nce between the Government of the
Republic of Upper Volta and the Institut Géographique National de Paris, it has been
agreed to entrust the latter body with the t ask of demarcating the frontier. The cost
has been estimated at some 10 million CFA, to be borne equally by the Governments
121
of Niger and Upper Volta.”
The demarcation operations could not be carri ed out, as UpperVolta did not release the
necessary funds. Nevertheless, it seems highly probable that, if the project had gone ahead, IGN
would not have used the 1960 map merely as a “map base” on which to plot the skeleton line
described by the 1927 texts, but would have follo wed it closely as a guide, and would most likely
have removed any remaining doubts in areas where the course was unclear with the help of the two
countries’ administrative authorities.
Is it necessary to add that Burkina Faso relies on the 1122 IGN map when it suits its purpose,
for example in the region of Bossébangou and the salient ?
1.1.32. The relevance of this map, or rather co llection of sheets, is indeed evident. It dates
very precisely from 1960; one could not be closer to the critical date in order to establish a
123
“photograph” of the uti possidetis. As Burkina Faso’s Memorial quite rightly recounts , the
Judgment of the Court in the case concerning the Frontier dispute (Burkina Faso/Republic of Mali)
noted the following:
119
Agreement and Protocol of Agreement of 28Marc h1987 between the Revolutionary Government of
Burkina Faso and the Government of the Republic of Niger on the demarcation of the frontier between the two countries,
MN, Anns., Series A, No. 4.
120
Upper Volta: road map, scale 1:1,000,000, designed and published by the Institut géographique national, Paris
(Dakar Branch, First Edition, May 1963), MN, Anns., Series D, No. 31.
121
Report of the ministerial meeting between Niger and Upper Volta, Niamey, 9-10 January 1968, Ann. MBF 54.
12See, for example, MBF, paras. 4.127 et seq.
12MBF, para. 2.2. - 31 -
“The principle of uti possidetis freezes the territorial title; [colonial law is only]
evidence indicative of what has been called the ‘colonial heritage’, i.e., the
‘photograph of the territory’ at the critical date.” 124
And, in the same case, in respect of the same IGN map, the Court underlined that:
“having regard to the date on which the su rveys were made and the neutrality of the
source, the Chamber considers that where a ll other evidence is lacking, or is not
sufficient to show an exact line, the probative value of the IGN map becomes
decisive” 12.
Moreover, the scale of the map at 1:200,000 is sufficiently detailed. It also has a solid
technical basis, at least from a cartographic point of view. The coverage of toponyms ⎯ which
was notoriously rudimentary in earlier maps by the Army Geographical Section and later the
IGN ⎯ is as complete as knowledge of occupation on the ground allowed. The hydrographic and
orographic detail, prepared from aerial photographs a nd refined by field surveys, is of excellent
quality. Finally the indications of the boundaries are based on information obtained from the local
authorities 126⎯ even if they are sometimes tentatively represented by discontinuous lines of
crosses, inasmuch as the information on which they were based could not always be fully relied
on ⎯ and their sinuous nature suggests that they were pr epared with some care. It is clear that, in
the absence of reliable information from the local authorities, the drafters of the map followed the
rivers, marigots and ridgelines, which together represent more than 50 per cent of the boundaries of
Téra sector.
All of this implies that, far from interpreting the Erratum as establishing arbitrary straight
lines and far from relying on the old sketch-maps which showed curved lines connecting isolated
points, the drafters of the 1960 map based themselves on a whole body of pertinent data in order to
represent the probable boundaries of the cantons as they were applied in practice at the date the
map was prepared (1958).
Unless we find abnormal deviations in relation to the texts, manifest lacunae in the
information on the canton boundaries, or obvious errors ⎯ as in the case of Bossébangou ⎯ and
subject to the necessary caution where the hesitation of the map’s drafters is reflected in gaps in the
lines of crosses, these results should in principle be followed.
(c) Interpretation based on colonial effectivités
1.1.33. Would this manner of proceeding be in breach of the principles governing the
relationship between title and effectivités in territorial disputes? Th is question was considered at
length in the Judgment of the Court in the case concerning the Frontier Dispute
(Burkina Faso/Republic of Mali ). The Court distinguished four eventualities 127, two of which are
at issue here.
12Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, 22 December 1986, I.C.J. Reports 1986 , p. 568,
para. 30.
125
Ibid., p. 586, para. 62.
126
This is perfectly clear from the indi cations given on the supplementary maps established by the IGN teams,
MN, Anns., Series D, No. 27-30.
12Frontier Dispute (Burkina Faso/Republic of Mali) , Judgment, 22 December 1986, I.C.J. Reports 1986 , p. 580,
para 51. - 32 -
128
Burkina Faso’s contention that the title is clear leads it to adopt the eventuality whereby a
clear title “therefore prevails over any effectivités to the contrary”. It is the first eventuality
considered by the Court, though of course it only applies if the title is effectively clear and contains
no lacunae or errors. However, the title invoked here does not fall within that category. We have
seen that it is imprecise, incomplete and, on one point, erroneous. Among the four eventualities
considered by the Court, here we are faced with the fourth case, where “the legal title is not capable
of showing exactly the territorial expanse to which it relates”:
“Finally, there are cases where the legal title is not capable of showing exactly
the territorial expanse to which it relates. The effecti129és can then play an essential
role in showing how the title is interpreted in practice.”
Need it be recalled that it was indeed because the two Governments were aware of the
imprecision of the 1927 texts that the 1987Agreement leaves no doubt as to the intention of the
Parties to use the 1960 IGN maps; the wording is in the imperative:
“Shtohueld Arrêté and Erratum not suffice, the course shall be that shown on
the 1:200,000-scale map of the Institut Géographique National de France ,
1960 edition.” 130
By the same token, the course of the frontier between Tong-Tong and the Dori/Tillabéry/Say
tripoint can be established by having recourse to the effectivités arising from the history and
composition of the cantons, and from the maps and a number of agreements dating from the
colonial or post-colonial period, which explicitly or implicitly recognize the frontier points.
This method justifies the line proposed by the Republic of Niger in this sector, as we shall
see in Chapter II of this Counter-Memorial.
*
Thus, Burkina Faso’s argument whereby the 1927 texts are clear and precise, and define a
boundary which runs in arbitrarily defined stra ight lines, proves to be utterly baseless and is
contradicted by a large amount of evidence in the case file. As we shall now see, the same can be
said of the claim whereby, after their accession to in dependence, the Parties allegedly agreed on a
“consensual line” which is binding upon the Republic of Niger.
SECTION 2 – THE LACK OF BASIS FOR THE “CONSENSUAL LINE ” THEORY
1.2.1. In its Memorial, Burkina Faso presents the results of the frontier demarcation work
carried out by the technical experts of the two countries in 1988 as being a “consensual line” 131.
This line is purported to be the subject of an ag reement and therefore binding on the two Parties to
these proceedings. It is further alleged to be in compliance with the 1987 Protocol, making it even
more blameworthy on the part of Niger to call it into question.
12MBF, para. 2.16.
129
Frontier Dispute (Burkina Faso/R epublic of Mali), Judgment, 22 December 1986, I.C.J.Reports1986 ,
pp. 586-587, para 63.
130
Emphasis added.
13MBF, p. 46, para. 1.69 and p. 48, para. 1.75. - 33 -
1.2.2. In Niger’s view, the provisional lines proposed by the Joint Technical Commission on
Demarcation established by the 1987 Agreement can in no way be considered as binding on the
Parties, either de facto or de jure: de facto because they were called into question at various times
both by Burkina Faso and by Niger and therefore cannot possibly have resulted in a “consensual
line” (A); de jure because they were never formalized in a definitive agreement signed and ratified
by the two Parties and hence binding upon them (B).
A. The de facto absence of a “consensual line”
1.2.3. From 1964 onwards the efforts of the two States to arrive at a delimitation and then
demarcation of their common frontier were very uneven. Those efforts, which were initiated on the
basis of the Protocol of Agreement of 23 June 1964 and continued under the Agreement of
28March1987, produced results which were appr oved by the experts of Niger and Burkina Faso
in 1986, 1988 and 1991. However, all those results were subsequently called into question by one
Party or the other. A partial agreement on two sectors of the frontier was reached in 2009, while
the middle sector remains in dispute and is the subject of the present proceedings.
1.2.4. By examining the specific circumst ances surrounding the joint approval of the
different results of the technical experts’ wo rk by the two countries’ delegations, it can be
established that it was not only the Republic of Ni ger that called those results into question.
Niger’s reasons for contesting those results were always grounded in legal arguments, based for the
most part on differences in interpretation of the delimitation instruments adopted by the two
countries in the framework of the 1987 Agreement and Protocol of Agreement. Niger intends to
show this by examining in turn, in this connection, the Protocol of Agreement of 23 June 1964, the
results of the delimitation work approved by the delegations of the two countries in 1986, those
approved in 1988 and the ministerial “solution” of 1991.
(a) The Protocol of Agreement of 23 June 1964
1.2.5. Pursuant to the Protocol of Agreement of 23 June 1964, in January 1968 the two States
132
agreed on the idea of entrusting the task of marking out their entire common frontier to
IGNFrance. Everything suggests that this agreement was far more than a simple understanding
regarding the procedure to be followed and that it also marked a consensus on the actual line to be
adopted. In fact, in all probability, the IGN woul d then have carried out the demarcation work on
the basis of the line on the 1960 map, which Upper Volta had in the meantime endorsed, as can be
seen in particular by the fact that that line is reproduced on the 1963 road map of Upper Volta 133.
1.2.6. However, this project could not be impl emented. Burkina Faso states in its Memorial
that this process “was not put in place as rapidly as the Parties had originally intended, given the
134
considerable cost of such an undertaking ove r a frontier approximately 590 km in length” . This
132
Letter No.T08/STC of 16 August 1972 from the acting Director of the Topographical Department and
Cadastre to the Minister of Finance and Saharan and Nomad Affairs, CMN, Anns., Series C, No. 129.
133
On this point, see also above, para. 1.1.31 and the references given.
13MBF, p. 37, para. 1.48. - 34 -
is a biased present135on of the facts. In truth, it was simply because Upper Volta did not pay its
share of the costs that the work then entrusted to IGN France could not be carried out.
(b) The 1986 line and its calling into question by Burkina Faso
1.2.7. Notwithstanding the fact that the 1964 Protocol of Agreement was not implemented,
Niger and Upper Volta continued to consider ways and means of demarcating their common
frontier. In 1982, in an apparent change of mind, Upper Volta proposed a draft line that departed
from the IGN line. This proposal was examined and adopted by the technical experts of the two
countries at a meeting held in Ouagadougou from 21 to 23May1986. Having proceeded
“tointerpret” the 1927 texts, on this occasion the delegations of the two countries adopted “the 136
co-ordinates of the astronomic markers, and of the points where the frontier changes direction”
and these were recorded in a document annexed to the report of the meeting. They then “agreed
the line of the frontier”, after which they discussed 137 the costs of demarcation “on the basis of a
working document presented by Burkina Faso” . That line was adopted “unanimously” by the
experts 138.
1.2.8. It was nevertheless called into question shortly thereafter. At the meeting of the Joint
Technical Commission on Demarcation of the Frontier established by the Agreement of
28 March 1987, held in May 1988, it was noted
“that the line along this part of the fron tier [between Tokébangou and Tchenguiliba]
was based on that of the French Nati onal Geographic Institute (IGN France)
1:200,000 map, not on Arrêté No. 2326 of 31 August 1927, as clarified by its Erratum
of 5 October 1927, both of which were designated in the agreement signed by the two
Governments in March 1987 in Ouagadougou.
The technical specialists explained that their position was based on the frontier
line as recorded in the report of the meeting between specialists from Niger and
Burkina held from 21 to 23 May 1986 in Ouagadougou.
It was apparent that this line was an interpretation of the above-mentioned
Arrêté and Erratum. The Commission considered that the technical staff were not
authorized to adopt a procedure that deviated from the decisions of the two
Governments. They were accordingly instructed to reconsider the 110km portion in
question within eight (8) days, complying with the texts designated in the Agreement
139
and Protocol of Agreement signed by the two Governments.”
13See letter No. 108/STC dated 16 August 1972 from the acting Director of the Topographical Department and
Cadastre to the Minister of Finance a nd Saharan and Nomad Affairs, CMN, Anns., Series C, No. 129. For its part, the
Republic of Niger had included its share in the speciequipment budget, namely the sum of 4,400,000 CFA francs,
under heading 640-2-84 “delimitation of the Niger-V olta frontier” (Law No. 68-14 of 5 March 196OJRN, No. 7 of
1 April 1968). That sum was carried over into the Republic of Niger’s 1969 budget and only cancelled at the end of the
financial year when it became clear that the other Party had no intention of making the same financial effort.
136
Report of the meeting between tec hnical experts of the Republics of Niger and Burkina Faso, Ouagadougou,
21 to 23 May 1986; MN, Anns., Series A, No. 3.
137
Ibid.
13Burkina Faso uses the same expression regarding the 1988 line. Cf. MBF, p. 51, para. 1.82.
13Report of the meeting of the Joint Technical Commiss ion on Demarcation of the Burkina-Niger Frontier,
Diapaga, 12-15 May 1988, 15 May 1988, Ann. MBF 80. - 35 -
1.2.9. It appears to be largely at the initiative of Burkina Faso that the line was called into
question, as attested by a letter from the acti ng Permanent Secretary of the National Frontier
Commission of Niger reporting on the second ordinary session of the Joint Technical Commission
on Demarcation of July 1990 to the Interior Minister of his country:
“In May 1988, after a field survey mission, our friends from Burkina called the
agreed line into question, finding fault with it at the level of the Say parallel. The line
was then modified and submitted to th e Governments of the two countries for
140
adoption.”
(c) The 1988 line and the differences in interpretation of the basic texts
1.2.10. Following the fourth meeting of the Joint Technical Commission, representatives
from both States noted that “[t]he experts [were] thus unanimous as to the map interpretation and
the field survey of the boundary line defined in the basic documents cited in the Agreement and
141
Protocol of Agreement, signed in Ouagadougou on 28 March 1987” . The representatives of the
two States thus agreed on a line based on the interpretation of the basic texts which they
represented on two composites of 1:200,000-scale maps (1960 IGN map) 14. That is what, in its
written proceedings, Burkina Faso calls the “consensual line”.
1.2.11. But this line proved to be no more consensual than that of 1986. In the course of its
work in1988, the Joint Comm ission noted a significant number of places where the line
“differ[ed]” from the one resulting from the b asic t143s, the line on the 1960 IGN map “and from
certain administrative realities on the ground” .
The doubts raised for Niger by these differences were confirmed by the field mission
conducted from 17 to 21 April 1990 by the national di rectors responsible for frontier matters of the
two countries at the request of the Joint Technical Commission on Demarcation 14.
1.2.12. Niger then proposed a review of the line of September1988. To support its
contestation of the September 1988 line, it s ubmitted the map entitled “new frontier between
UpperVolta and Niger according to the Erratum of 5October1927 to the Arrêté of
145
31 August 1927” . The importance and relevance of that map were contested by BurkinaFaso
which merely proposed to consider it “as a pur ely factual element merely providing additional
information” 146.
140Note from the acting Permanent Secretary to the Minister of the Interior, containing the report of the meeting
of the Joint Technical Commission on Dema rcation of the Niger-Burkina Frontier, 31 July 1990, CMN, Anns., Series C,
No. 130.
141Report of the fourth meeting of the Joint Techni cal Commission on Demarcation of the Niger-Burkina
Frontier, Niamey, 26-28 September 1988, Ann. MBF 81, p. 2.
142Report on completion of the survey of the proposed demarcation of the Niger-Burkina frontier,
28 September 1988, Ann. MBF 82, p. 6. That composite map is reproduced in Cartographic Annex 15 to Burkina Faso’s
Memorial.
143Report on completion of the survey of the proposed demarcation of the Niger-Burkina frontier,
28 September 1988, Ann. MBF 82, p. 3.
144Report of the extraordinary meeting of the Joint Tech nical Commission on Demarcation of the Niger-Burkina
Frontier, Niamey, 14 May 1990, Ann. MBF 85.
145Ibid., pp. 1-2.
146Ibid., p. 2. - 36 -
1.2.13. At the extraordinary meeting of the Joint Commission convened in Ouagadougou
from 23 to 28July1990 to consider the report on the new mission conducted by the technical
experts between 5 and 12 June 1990 with a view to surveying the villages ci147 in the basic texts,
“the Commission undertook a re-interpretation of the frontier line” . In the course of
reconsidering the line, problems of interpretation be came apparent in respect of certain provisions
of the Erratum of 5October1927. At the ti me Niger put forward the idea that the phrase
“the frontier turns” was meant to indicate a curved line 148. The Commission had to resign itself to
recording the diverging points of view expressed by the two Parties. It was further decided that a
meeting should be called at Niamey to review the line, with each Party being urged to engage in
further research and reflection with a view to reaching an agreement.
1.2.14. Thus, contrary to what Burkina Faso writes in its Memorial, as soon as the situation
on the ground was first assessed following the provisional determination of the frontier line decided
by the Parties in September1988, Niger noted certain anomalies arising from problems of
interpretation of the basic texts. Its objections to that line were argued and illustrated on the basis
149
of cartographic material. It was not a “short-lived belief” , as stated by BurkinaFaso, which
claimed that “[t]hat thesis was never put forward again thereafter” by Niger 150. On the contrary, as
we have seen, Niger repeatedly reiterated this position: in April1990 in the framework of the
Technical Sub-Committee; at the session of the Joint Technical Commission on Demarcation in
July 1990 ⎯ the first to take place subsequent to th e determination of the line in September 1988
and which was convened specifically to consider Niger’s objections; in November1990 at the
meeting between the two Co-Chairmen of the Technical Sub-Committee prior to the meeting of the
151
Joint Technical Commission on Demarcation in Niamey in February 1991 . The latter meeting in
Niamey was unable to resolve the problem. The Commission therefore decided to submit the
difficulties encountered to the Governments of the two countries 152.
(d) The line resulting from the ministerial meeting of May 1991 and its non-compliance with the
delimitation instruments
1.2.15. At a Ministerial consultative and working meeting held on 15 May 1991, the Minister
for Territorial Administration of BurkinaFaso and the Minister of the Interior of Niger attempted
to find a solution to the problem raised by the application of the basic delimitation instruments 153.
Having listened to the presentations by the technical experts of the Joint Technical Commission on
Demarcation, and having noted that the 1927 Arrêté and its Erratum did not suffice, the
two Ministers adopted a “political solution”, in the words of Burkina Faso in its Memorial 154. The
Ministers in fact proposed a solution which seemed to satisfy both Parties in respect of the sections
of the frontier then in dispute. They decided th at the frontier consisted of “straight lines” for the
147Report of the Second Ordinary Session of the Joint Technical Commission on the Demarcation of the Frontier
between Niger and Burkina Faso held at Ouagadougou from 23 to 28 July 1990; MN, Anns., Series A, No. 5.
148Ibid.
149
MBF, p. 48, para. 1.75.
150
Ibid., p. 49, paras. 1.77 and p. 48, para. 1.75.
151Cf. Report of the meeting of the Joint Technical Sub-Committee on Demarcation of the Niger-Burkina
Frontier, held in Niamey from 3 to 7 February 1991, CMN, Anns., Series A, No. 22.
152Ibid.
153Joint Communiqué on the Ministerial consultative and working meeting between Niger and Burkina Faso, held
on 14 and 15 May 1991 in Ouagadougou, MN, Anns., Series A, No. 6.
154MBF, p. 50, para. 1.80. - 37 -
stretch from Tong-Tong to Bossébangou, and that it should follow the line of the 1960IGN map
from Bossébangou to the River Mékrou 155.
1.2.16. This “compromise” did not meet the conditions laid down by Articles 1 and 2 of the
Agreement of 28 March 1987, since it was not base d on the basic instruments referred to in those
provisions. Consequently, it was decided not to submit this text to the ratification procedure
required under Article 7 of the said Agreement for its final approval. At the 3 rdordinary session of
the Joint Technical Commission on Demarcation held in Niamey in November 1994, Niger argued
that the solution adopted by the two Ministers in Ouagadougou “was not entirely consistent with
the terms of Articles1 and 2 of the 1987 Protocol of Agreement. Niger accor156gly requested a
review of the frontier in the area addressed by the compromise.” That position was based both
on the fact that the line agreed by the ministers in 1991 was consistent with neither the 1927 basic
texts nor the IGN map, and on the fact that that line would have resulted in localities considered as
belonging to Niger from time immemo rial being transferred to Burkina 15. Burkina Faso opposed
the request and considered “that any request seeking to review that compromise would fall outside
158
the terms of reference of the Joint Technical Committee” . In its view, it was therefore up to
Niger to submit the problem to the appropriate political authority.
1.2.17. That is what the Niger Delegation did in referring the matter to its government
authorities. The matter was subsequently brought to the attention of the highest authorities and,
rather than a meeting between the ministers responsible for frontier matters, a working meeting
took place in Niamey in September1995 between de legations of the two countries led by their
respective Prime Ministers. While that meeting did not expressly correspond to Niger’s request to
review the line of May1991, the two Parties did agree to convene a meeting of the competent
ministers in Niamey in order to “overcome the 159 difficulties and speed up the work of the Joint
Technical Commission on Demarcation” .
1.2.18. However, that meeting did not ta ke place despite the fact that in1995 both
delegations expressed their mutual desire for it to do so 160 and it was not until2001 that the Joint
Commission resumed its work. The report of th e Commission’s2001 meeting clearly shows that
the Parties then agreed to start work again on the basis of the instruments referred to in
the1987Agreement, thus setting aside any provisi onal agreements that may have been reached
161
previously by the experts or ministers . The “political solution” of May 1991 therefore came to
nothing.
155Ibid.
156Cf. Report of the third ordinary session of the Joint Technical Commission on Demarcation of the
Niger-Burkina Frontier, held in Niamey from 2 to 4 November 1994, MN, Anns., Series A, No. 7.
157Cf. Report of mission conducted on 21 and 22Septem ber1994 by Commandant Seyni Garba, Permanent
Secretary of the National Frontier Commission of Niger in the arrondissements of Téra and Say, Niamey,
23 October 1994, CMN, Anns., Series C, No. 132.
158Cf. Report of the third ordinary session of the Joint Technical Commission on Demarcation of the
Niger-Burkina Frontier, held in Niamey from 2 to 4 November 1994, MN, Anns., Series A, No. 7, p. 3.
159Report of the working meeting, held in Niamey on 4 and 5September1995, between the Delegation of
BurkinaFaso led by Prime Minister Roch Marc Chri stian Kabore, and the Dele gation of Niger, led by
Prime Minister Hama Amadou, CMN, Anns., Series A, No. 23, see esp. point II.3.
160Ibid.
161
Report of the fourth ordinary session of the Joint T echnical Commission on Demarcation of the Niger-Burkina
Frontier, held in Ouagadougou from 18 to 21 July 2001, MN, Anns., Series A, No. 8. - 38 -
1.2.19. A review of the different steps taken by the two States with a view to delimiting their
common frontier immediately after their accession to independence thus clearly shows that, while
the two Parties agreed on various proposals for th e frontier line, those solutions were only ever
provisional. Neither in the 1960s, nor in1986, 19 88, 1991 or after that date, did the two States
agree on a “consensual line”. The only line th at can rightly be called “consensual” is the one
comprising the two sectors of the frontier which ar e no longer in dispute between the Parties and
162
which were the subject of exchanges of letters in 2009 . All of the evidence in the file thus shows
that before the latter date, there was in fact never any “consensual line” binding upon the two
Parties. We shall now see that at the same time as having no basis in fact, the theory of the
“consensual line” has absolutely no basis in law either.
B. The de jure absence of a “consensual line”
1.2.20. According to Burkina Faso, the “consensual line” of1988, confirmed by the
ministers of the two States in 1991, constitutes “an interpretation that is fully binding on the State
163
of Niger [which] thus continues to be binding between the Parties” . This assertion is wholly
inaccurate. The various proposals for provisional li nes on which the Parties may have agreed at
different times can in fact have no legal effect whatsoever as long as they have not been formalized
in a binding legal instrument (A), approved by the competent executive authorities and ratified by
the Head of State of Niger (B).
(a) The provisional lines proposed in 1988 and 1991 were never formalized in a legal instrument
binding upon the State of Niger
1.2.21. It is common for States to specify th at they will only be bound by an international
instrument if certain formal conditions are met. Th is is precisely the concern reflected in Article 7
of the Agreement concluded on 28March1987 between the Revolutionary Government of
BurkinaFaso and the Government of the Republic of Niger on the demarcation of the frontier
between the two countries where it provides that: “The result of the dema rcation works shall be
embodied in a legal ins164ment, which shall be su bmitted for signature and ratification by the two
Contracting Parties.”
It should be noted that Burkina Faso omits to cite this key provision of the Agreement.
1.2.22. After more than forty years of nego tiations on the delimitation of the frontier, it
165
should be stressed that they were successf ul for only part of the common frontier . The
provisional lines proposed in1988 and1991, however, were not to be embodied in a legally
binding instrument in accordance with the require ments of Article7 of the Agreement concluded
between Burkina Faso and Niger on the demarcation of their common frontier.
Inasmuch as the alleged consensual lines of1988 and 1991 were not formalized in a
definitive legal instrument, one may wonder how the State of Niger could be bound by an
162
Letter No.2009-004874/MAECR/SG/DGAJC from the Minister for Foreign Affairs of Burkina Faso to the
Minister for Foreign Affairs of Ni ger, dated Octobe2r009, MN, A nns., SeriA, No1.6; Letter
No.007505/MAE/C/DAJC/DIR from the Minister for Foreign Affair s of Niger to the Minister for Foreign Affairs of
Burkina Faso, dated 2 November 2009, MN, Anns., Series A, No. 17.
163
MBF, pp. 122-123, paras. 4.56-4.57.
16Agreement and Protocol of Agreement of 28Marc h1987 between the Revolutionary Government of
Burkina Faso and the Government of the Republic of Niger on the demarcation of the frontier between the two countries,
MN, Anns., Series A, No. 4.
16See above, para. 1.2.19 - 39 -
international agreement which does not in fact exist. The provisional lines proposed in1988
and1991, which were part of the preparatory work and subject to change during negotiations, do
not constitute a definitive commitment reflecting the will of the Parties to be bound by international
law.
1.2.23. In any event, even supposing that the provisional lines proposed in1988 and1991
had been embodied in a definitive instrument, Article7 of the Agreement concluded between
Burkina Faso and Niger on the demarcation of thei r common frontier further requires that the legal
instrument embodying the results of the demarcation work should be ratified by the two contracting
Parties in order for it to be valid. No such instrument has ever been ratified by the Head of State of
Niger pursuant to the rules and procedures governin g the ratification of international commitments
concluded by the Republic of Niger.
(b) The provisional lines proposed in 1988 and 1991 have never been formalized in a definitive
legal instrument ratified by the Head of State of Niger
1.2.24. Referring to the Decree of 1Dece m1661962 concerning the ratification and 167
publication of the international commitments of Niger and to his letters of 26 December 1963
and 5February1964 16, in a letter dated 14July1971 the Pr esident of the Republic of Niger had
occasion to set out the rules governing the negotiation, signature, ratification and publication of
Niger’s international commitments 169. It emerges from these rules that, in order to negotiate,
ministers and plenipotentiaries must be vested with full powers signed by the Minister for Foreign
Affairs. International agreements, with the ex ception of “agreements in simplified form”, must
then be ratified by the President of the Republic in order for them to be binding upon the State of
Niger.
Ministers and plenipotentiaries must be vested with full powers signed by the Minister for
Foreign Affairs
1.2.25. In his letter dated 5 February 1964, the President of the Republic of Niger recalled
the rules to be observed for the negotiation, si gnature, ratification and publication of Niger’s
international commitments. As regards the pr ocedure to be followed for the negotiation and
signature of international commitments, the President’s letter notes that “ministers and
plenipotentiaries [must] be previously vested with full powers. According to international custom,
the Minister for Foreign Affairs has the authority to issue full powers” 17.
In this case, research carried out in the releva nt departments did not reveal the existence of
any full powers signed by the Minister for Foreig n Affairs authorizing a plenipotentiary to commit
the Republic of Niger.
166
Decree No. 62-282/PRN/AE of 1December1962 concer ning the ratification andpublication of Niger’s
international commitments of Niger (OJRN, special edition 10 of 29 December 1962), CMN, Anns., Series B, No. 36.
16Circular No. 79/PRN from the President of the Republic to the Ministers and Secretary of State, dated
26 December 1963, CMN, Anns., Series C, No. 126.
16Letter No.64-011/PRN/MAE of 5February1964 from th e President of the Republic to the Ministers and
Secretaries of State, CMN, Anns., Series C, No. 127.
16Letter No. 16/PRN/MAE of 14 July 1971 from the President of the Republic to the Ministers and Secretaries of
State, and to the Commissioners-General for Development, Information, Youth and Sport, CMN, Anns., SeriesC,
No. 128.
17Letter No. 64-011/PRN/MAE of 5 February 1964 from the President of the Republic to the Ministers and
Secretaries of State, CMN, Anns., Series C, No. 127. - 40 -
In any event, the issuance of full powers to plenipotentiaries by the Minister for Foreign
Affairs is only a first step. The plenipotentiary’s signature only takes effect once the President of
the Republic has ratified the international agreement.
Ratification of international agreements by the President of the Republic
1.2.26. During the period from 6 October 1989 171to 9 August 1991 172, the Republic of Niger
was governed by the Constitution of 24 September 1989. Under Article 100 of that Constitution, it
is the President of the Republic who “shall ne gotiate and ratify international treaties and
agreements” 17.
It follows from this provision that the ratification of international commitments is within the
exclusive competence of the President of the Re public by decree of the Council of Ministers 17.
However, some conventions ⎯ which do not include those relating to the delimitation of
frontiers ⎯ required prior enabling legislation to be adopted by the National Assembly.
1.2.27. This exclusive competence was very clearly recalled in a letter dated 5 February 1964
from the President of the Republic to Ministers and Secretaries of State 175:
“Ministers or senior officials with full powers to negotiate and sign an
agreement act on behalf of the President of the Republic, who alone has the authority
under the Constitution to negotiate and ra tify treaties. The signature of the
plenipotentiary only becomes definitive once the agreement has been ratified by the
President of the Republic, with the rare exception of less important agreements in
so-called ‘simplified form’, the final clauses of which expressly provide for their entry
into force upon signature and do not require ratification. The plenipotentiary must
further have prior authorization from the President of the Republic to agree to such a
provision.” 176
1.2.28. The 1987 Agreement on the demarcation of the frontier does not derogate from the
general rule on ratification. The lines proposed a nd agreed by the experts at one time or another
have never been definitive in nature and, in any event, could only have had effect if formalized by a
plenipotentiary vested with full powers. The expe rts of Niger were obviously fully aware of these
formal requirements at the time. Thus, in a letter of December 1990 to the Minister of the Interior,
the acting Permanent Secretary of the National Frontier Commission of Niger stated that
171Article 1 of Order No. 89-14 of 6 Octobe r 1989, promulgating the Constitution ( OJRN, special edition3,
25 October 1989) provides that the Basic Law takes effect from the date of the signature of the above-mentioned Order of
6 October 1989.
172The Constitution of 24 September 1989, amended by Law No. 91-02 of 24 April 1991, was suspended by
Article 2 of Act No. 3 adopted by the National Conference, 9 August 1991.
173Ibid. [Translation by the Registry.]
174Letter No. 64-011/PRN/MAE of 5 February 1964 from th e President of the Republic to the Ministers and
Secretaries of State, CMN, Anns., Series C, No. 127.
175
Article53 of the Constitution of 8November1960 which was then in force provided: “The President of the
Republic shall negotiate and ratify intern ational treaties and agreemen ts”. It should be noted that the wording of this
provision is identical to that of Article100 of the Constitution of 24September1989 cited above.[Translation by the
Registry.]
176Letter No. 64-011/PRN/MAE of 5 February1964 from th e President of the Republic to the Ministers and
Secretaries of State, CMN, Anns., Series C, No. 127. - 41 -
“a frontier line can only be considered defin itive after demarcation, signature of the
demarcation report, approval of the line by the Presidents of the two countries,
177
approval by the two assemblies and exchange of instruments of ratification” .
1.2.29. Thus, the provisional lines proposed in1988 and1991 were never embodied in a
legal instrument pursuant to the requirements of Article7 of the Agreement concluded between
Burkina Faso and Niger on the demarcation of their common frontier 178. It could not have been
otherwise since it was merely a process of negotia tion between the Parties, in the framework of
which proposals of various kinds were put forward at different times, and without the negotiators
having been vested with full powers. The evolving nature of the process is amply illustrated by the
acting Permanent Secretary of the National Frontie r Commission of Niger in his previously cited
letter of1990, in which he points out that the representatives of Burkina are wrong “to consider
the 1988 line as definitive[,] whereas it is only indica tive. They are well aware of this themselves,
as they were the first to call the 1986 line into question.” 179
The different provisional lines proposed were part of those negotiations and were never
formally embodied in a definitive agreement. C onsequently, no decree was to be issued by the
President of the Republic of Niger ratifying a non-existent international agreement.
1.2.30. As Professors Patrick Daillier, Mathias Forteau and Alain Pellet quite rightly pointed
out in their work on public international law:
“In the course of negotiations, draft texts are submitted for discussion, they give
rise to amendments and counter-proposals or both... As long as the text is not
finalized ⎯ that is, until the adoption of the treaty ⎯, all its provisions can be called
180
into question.”
177Letter No. 47/MI/CNF of 17 December 1990 from the act ing Permanent Secretary to the Minister of the
Interior, CMN, Anns., Series C, No. 131, p. 6.
178Ibid.
179Letter No. 47/MI/CNF of 17December1990 from the ac ting Permanent Secretary to the Minister of the
Interior, CMN, Anns., Series C, No. 131, p. 5.
180 th
Patrick Dailler, Matthias Forteau and Alain Pellet, Droit international public, 8 edition, Paris, LGDJ, 2009,
p. 145, para. 72. [Translation by the Registry.] C HAPTER II
DELIMITATION OF THE FRONTIER IN THE DISPUTED SECTOR
2.0. As the Republic of Niger described in its Memorial, the part of the frontier line that
remains in dispute between the two Parties concerns two areas with very different physical and
human characteristics. The first of these, the Téra sector, is 150km in lengt h. It is a relatively
densely populated area, where the movement of human groups has highlighted the problems
associated with establishing the fro ntier. The second, the Say sector, is some 160km in length.
Unlike the Téra sector, it is sp arsely populated and has a relative ly hostile natural environment
(including dense forest, wild animals and parasites) . The fact that conditions are so very different
from one sector to the other justified their being de alt with separately. We shall take the same
approach in this Counter-Memorial and first of all deal with the frontier line in the Téra
sector (section 1), then in the Say sector (section 2).
SECTION 1 – THE FRONTIER IN THE TÉRA SECTOR
2.1.1. In presenting a frontier line running in st raight lines in its Memorial, Burkina Faso has
adopted a reasoning and logic diametrically opposed to those set out by the Republic of Niger in its
own Memorial. Niger demonstrated that the line determined by Arrêté 2336 of 31August1927
replaced by its Erratum 2602/APA of 5 October 1927 was inadequate. It therefore concluded that
it was necessary to apply the Agreement of 28March1987 ⎯ referred to in the Special
Agreement ⎯ which specifically provides for such a contingency:
“Shthueld Arrêté and Erratum not suffice, the course shall be that shown on
the 1:200,000-scale map of the Institut Géographique National de France , 1960
181
edition, . . .”
In respect of the Téra sector, Niger explained in its Memorial how, in its view, this
subsidiary source should be used:
“We have already explained the extent to which the drafters of the 1960map
based themselves on a body of relevant data in order to represent the probable
boundaries of the cantons as these were applied in practice at the critical date. In
consequence, unless we find abnormal deviations in relation to the texts or manifest
lacunae in the information on the canton boundaries, and subject to the necessary
caution where the hesitation of the map’s drafte rs is reflected in gaps in the line of
crosses, these results should in principle ser ve as a guide to determine the course of
the inter-colonial boundary in 1960.” 182
Niger’s Memorial then examined that part of the frontier by dividing it into three sections:
from Tong-Tong to Tao (a), from Tao to Bangaré (b) and from Bangaré to the boundary of
Say cercle (c).
While following the same course, this Count er-Memorial makes certain small changes and
limits the number of situations where the Republic of Niger considers it necessary to deviate from
the IGN line to three, namely in the sector co mprising the localities of Vibourié, Petelkolé and
Oussaltan. At the same time it will show how adopting the straight line claimed by Burkina Faso
181
Agreement and Protocol of Agreement of 28 March 1987 between the Revolutionary Government of
Burkina Faso and the Government of the Republic of Niger on the demarcation of the frontier between the two countries,
MN, Anns., Series A, No. 4.
182MN, p. 91, para. 6.16. - 43 -
would place under the latter’s sovereignty a substantial portion of territory which has been regarded
as belonging to Niger ever since colonial times.
A. The section from Tong-Tong to Tao
2.1.2. The Erratum determines the boundary be tween these two points as follows: “[after]
the Tong-Tong astronomic marker; this line then turns towards the south-east, cutting the
Téra-Dori motor road at the Tao astronomic marker”.
Burkina Faso claims that in this section the frontier runs in a straight line that is a
continuation of the straight line from Mount Doumafende (point6 in the representation in
183
Cartographic Annex 16 of Burkina Faso’s Memorial). It has already been pointed out above that
the other Party’s position regarding this point is inconsistent. While the 1927 text states that the
frontier line turns at Tong-Tong, the other Party ar gues that the line in this sector is perfectly
straight. It is obviously quite difficult to reconc ile this position with the fact that BurkinaFaso
attaches such importance to adhering strictly to the terms of the 1927texts. BurkinaFaso’s
representation of this stretch of the frontier is thus necessarily inaccurate both because it does not
comply with the text’s requirement for the line to turn and because by claiming a straight line in
this area, it completely overlooks the importanc e attached by the French authorities to the canton
boundaries in the delimitation process in 1926.
2.1.3. The starting point of the boundary in this sector, located at the Tong-Tong astronomic
marker, is not disputed by the Parties. Both Burkina Faso’s and Niger’s Memorials agree on the
co-ordinates of this marker which is given as th e starting point of the disputed section of the
frontier in Article2 of the Special Agreement of 24 February 2009 (latitude 14° 25' 04" N,
longitude 00°12'47"E). The point adopted on the IGN map, which is located further east, is
therefore inaccurate.
Similarly, the line on the 1960 IGN map (Téra sheet) adopts a shape broadly incurvated to
the west for this section, for which there is no justification.
2.1.4. On the other hand, the IGN map does not take as a frontier point the Vibourié
marker ⎯ whose co-ordinates are 14° 21' 44" N, 0° 16' 25" E ⎯ which was installed by mutual184
agreement of the Parties in the colonial period. As Niger described in its Memorial , the origin of
this point is a Record of Agreement of 13Ap ril1935 concluded between Administrator Garnier
(Dori cercle) and AssistantDeputyLichtenberger (Téra cercle) following the settlement of a
dispute over the occupation of cropland:
“Furthermore, in order to prevent any si milar further territorial dispute in this
area, we have established a marker designed to fix the boundary between Dori and
Téra, the boundary in principle following a notional straight line starting from the
Tong-Tong astronomic marker and running to the Tao marker. The Ouiboriels marker
[Vibourié on the 1960 IGN Téra map] being located on this notional line, on a
ridgeline some 10km to the east of Falagountou and 2km to the east of Ouiboriels.
This delimitation, having been effected on an adversarial basis, has not been disputed
185
by the parties involved.”
18See above, para. 1.1.27.
184
MN, para. 6.20, pp. 92-93.
18Certified copy of 14April of Record of Agreement of 13April1935 between AdministratorGarnier (Dori
cercle) and Deputy Lichtenberger (Téra Subdivision); MN, Anns., Series C, No. 56. - 44 -
This arrangement had, moreover, been approved by the Governor of Niger 18. As described
in the Record of Agreement, from the Tong-To ng astronomic marker the boundary passes through
the Vibourié marker, and from there runs in a straight line to join the Tao astronomic marker.
The difference between the lines claimed by Ni ger and Burkina Faso in this first section
takes the form of a triangle whose angles ar e the Tong-Tong astronomic marker, the Vibourié
marker and the Tao astronomic marker. In Nige r’s view, that triangle, though not claimed by
BurkinaFaso, is part of its territory. On the ot her hand, the part to the east of the triangle was
within the boundaries of Téra Subdivision in the co lonial period. That is still the case today and
that area comprises Niger villages such as Amérasindé, Séla, Ainé and Haini.
18OLT 693 AP of 17 May 1935 (see Description of Tillabéry cercle; MN Anns., Series C, No. 65). - 45 -
Figure 7: Triangle formed by the Tong-Tong astronomic marker,
Vibourié marker and Tao astronomic marker
B. The section from the Tao astronomic marker to Bangaré
2.1.5. After the Tao astronomic marker, the differences in the way the Parties to the
proceedings approach the frontier line become more marked. Keeping to its straight-line theory,
BurkinaFaso identifies only one section from th e Tao astronomic marker to the village of
Bossébangou. For its part, the Republic of Niger, in keeping with its position of following the - 46 -
boundaries of the cantons ⎯ a position largely reflected by the IGN map ⎯ will break this section
down into two stretches, the first from the Tao marker to the village of Bangaré, the second from
there to the boundary of the Say cercle.
2.1.6. The starting point of the first stretch is located at the Tao astronomic marker. The Tao
astronomic marker, according to the IGN letter of 23 June 1988 187, is at the following co-ordinates,
recorded by Captain Nevière in 1927: latitude 14° 03' 13" N, longitude 0° 22' 53" E. It was at this
location that the frontier marker was installed by the two Parties in the course of the work of the
Joint Technical Commission on Demarcation. The IGN line passes through this point. The
188
co-ordinates of this marker, measured by GPS by Niger, are: 14° 03' 02.2" N, 00° 22' 52.1" E .
From this frontier marker, the line claimed by Niger in this section follows the IGN line to
Bangaré, with the exception of two localities: Petelkolé and Oussaltane.
Petelkolé
2.1.7. The co-ordinates of this village are 14°00'35.7"N; 00°24'52.6"E. The data on
189
the 1960 IGN map for the village of Petelkolé are contradictory . On the Sebba sheet, Petelkolé
is on the frontier line, while on the Téra sheet, it is s lightly to the west of th e line. In any event,
this locality belonged to Niger in the colonial period, as administrative information from that
period attests. Thus, it was already regarded as be longing to Niger at the time of the Roser/Boyer
Agreement of April 1932, which locates the village of Petelkolé to the east of the boundary and the
190
Féto Karkalé pool to the west . Similarly, in the1953 report recording the tour conducted by
Administrator Lacroix of Tillabéry cercle to survey the boundary between the two colonies in this
sector, we find the following reference: “Rimaïbé having established the permanent hamlets of
191
Petelkarkalé and Petelkolé, be tween which the boundary passes” . Petelkolé is mentioned as
belonging to Diagourou canton on the sketch-map of the canton drawn up in 1954 192. The village
remained under Niger’s authority after independence; for administrative purposes it is attached to
the rural commune of Bankilaré; it has a population of 2,654.
In any event, the frontier line has to deviate slightly to the west from the IGN line in the
vicinity of Petelkolé in order to include the frontier post between Niger and Burkina Faso, which is
situated entirely within Niger territory. The site of the post was chosen by the bilateral
(Burkina-Niger) Committee on the identification of sites for the installation of juxtaposed control
posts on the Ouagadougou-Dori-Téra-Niamey road, which concluded on 9 June 2006 that:
187
Letter DEC/934 from IGN France to the Secretary-General of the Niger Ministry of State for Finance, dated
23 June 1988, MN, Anns., Series C, No. 105.
188The co-ordinates of this marker measured by GPS by Burkina Faso are: 14° 03' 04.7'' N, 00° 22' 51.8'' E (MBF,
para. 4.16).
189Map of West Africa at 1:200,000: Republic of Mali, Republic of Niger, Republic of Upper Volta, Téra,
sheetND31XIII, drawn and published by the Institut géographique national, Paris (West Africa Branch, Dakar), First
Edition July1960, reprinted September1969, MN, Anns., Series D, No. 23 (Téra sheet), and, Map of West Africa at
1:200,000: Republic of Niger, Republic of Upper Volta , Sebba, sheetDN31VII, drawn and published by the
Geographical Department, Dakar, 1960, MN, Anns., Series D, No. 24 (Sebba sheet).
190
Letter No.112 and Tour Report from Civil Serv ice Deputy Roser, Acting Commander of Dori cercle, to the
Governor of Upper Volta (Political Offi ce), dated 10April1932, MN Anns., Series C. No. 45. The Tour Report of the
Administrator of Dori cercle of 31 March 1931 noted: “the village of Pétélkalkallé (or Fétokarkalé) is located on the
border of the two cercles and is not defined by the delimitation, but will nonetheless remain in Dori, as the boundary
passes approximately 1 km east of this village” (MN, Anns., Series C, No. 41).
191Report of a tour conducted from 16 to 23 November 1953 by Deputy-Administrator Lacroix (Tillabéry cercle),
dated 24 December 1953, MN, Anns., Series C, No. 79.
192
Diagourou canton: scale 1:250,000, 1954, MN, Anns., Series D, No. 21 (appended to the Report from the
Head of Téra Subdivision on the census of Diagourou canton, dated 10 August 1954). - 47 -
“After analyzing the information on the basis of the above-mentioned criteria,
two sites met the conditions for the insta llation of juxtaposed control posts. These
were Petelkolé in the territory of Niger and Seynotyondi in Burkina, both of which
were situated approximately two kilometres from the frontier.
By mutual agreement, and on account of the size of the village of Petelkolé
in
relation to its socio-economic infrastructure, the experts of the two States, assisted by
the Commission of the WAEMU and LGA, adopted the village of Petelkolé (Niger) as
the site for the installation of juxtaposed control posts on the
Ouagadougou-Dori-Téra-Niamey road. A ccordingly, they recommended that the
competent authorities of the two States should endorse this decision.” 193
That decision was not called into questi on. The co-ordinates of the post are:
14° 00' 10.4" N, 00° 24' 34.4" E. The frontier point is situated slightly to the west, at the endpoint
of the new stretch of the Téra-D ori road constructed by Niger (c o-ordinates: 14° 00' 04.2" N,
00° 24' 16.3" E).
From this point, the frontier passes through the point with co-ordinates 13°59'03"N,
00°25'12"E, before returning to the IGN line at the point with co-ordinates 13°58'38.9"N,
194
00°26'03.5"E, leaving the Feto Karkalé pool in BurkinaFaso, as noted above . The frontier
then follows the IGN line as far as the discontinuous crosses at the level of Oussaltane at the point
with co-ordinates 13° 55' 54" N, 00° 28' 21" E.
Oussaltane or Ousaltan (geographical co-ordinates: 13° 54' 41.4" N, 00° 27' 34.8" E)
195
2.1.8. Oussaltan straddles the boundary on Delbos’ sketch-map of June 1927 .
Commander Mangant, Administrator of Dori cercle , noted in his report of 7July1930 that
members of cert196 tribes “said that Oussaltane where they were settled belonged to Téra
Subdivision” . The Roser/Boyer Agreement of Ap ril1932 likewise regards Oussaltan as
belonging to Niger. According to that agre ement, the boundary passes close: “to Houssaltane,
which it leaves to the east, to Petelkarkelé, which it leaves to the west, to Petelkolé which it leaves
to the east” 197.
193Report of the bilateral (Burkina-Niger) Committee on the identification of sites for the installation of
juxtaposed control posts on the Ouagadougou-Dori-Téra-Niamey road, 9 June 2006, CMN, Anns., Series A, No. 24, p. 5.
The abbreviations used in the document are: WAEMU (West African Economic and Monetary Union) and LGA
(Liptako-Gourma Authority), two sub-regional organizations for integration.
194See the beginning of this paragraph.
195
Sketch-map prepared by Administrator Delbos of th e route followed by the Administrators of Dori and
Tillabéry on a mission in June 1927 with a view to delimitation between Dori and Tillabéry cercles, MN, Anns., Series C,
No. 14.
196
Report No. 416 from the Commander of Dori cercle on the difficulties created by the delimitation established
in1927 between the Colonies of Niger and Upper Volta ( Arrêté of 31August1927) regarding the boundaries between
Dori cercle and Tillabéry cercle, 7 July 1930, MN, Anns., Series C, No. 38, p. 11.
197
Letter No.112 of 10April1932 and Tour Report fro m Civil Service Deputy Roser, Acting Commander of
Dori cercle, to the Governor of Upper Volta (Political Office). Certified copy of 15September1943, MN, Anns.,
Series C, No. 45, p. 6. - 48 -
In 1935, the administrator in charge of Téra subdivision confirmed that the encampment of
198
Oussaltan “is in the territor199f Téra” . Oussaltan is indicated as a “dependent settlement 200
[lougan] of Logomaten” Kel Timijirt in the directory of villages of Téra Subdivision of 1941 .
The Head of Téra Subdivision, in a telegram/letter of 11July1951 to Tillabéry cercle 201, uses
exactly the same wording as th e Roser/Boyer Agreement of April1932. The region is still
administered by Niger today. It is an encampment, or more precisely a group of encampments, of
the Kel Tamajirt tribe, of the Tinguéréguédesch groupement of the rural municipality of Bankilaré.
There are an estimated 296inhabitants, the majority of whom are of Niger nationality, and they
regularly pay their taxes in Bankilaré.
The frontier line then skirts the hamlet of Oussaltane, passing through the point with
co-ordinates 13° 54' 42" N, 00° 26' 53.3" E, then through the point with co-ordinates 13° 53' 30" N,
00°28'07"E, before returning to the IGN line at the point with co-ordinates 13°53'24"N,
00° 29' 58" E, which it then follows, leaving Bangaré to the north.
Bangaré
2.1.9. Bangaré has been regarded as a Niger village since colonial times. As the Commander
of Dori cercle wrote in1932, “the large village of Ba ngaré . . . has always belonged to Téra
canton” 202. Under the name of Bankaré, it appeared in the list of villages of Diagourou canton in
203 204 205 206 207
1927 , 1933 and 1948 , and under the name of Bangaré in 1954 and 1959 . The village
is indicated on the sketch-map of the canton prepared in 1954 208. It is mentioned in the census
report
198
Letter No.161 from the Head of Téra Subdivision to Tillabéry cercle dated 24May1935, MN, Anns.,
Series C, No. 60. The copy of this document annexed to Niger’s Memorial was illegible; it is therefore reproduced again
under the same annex number in this Counter-Memorial.
199See the Record of Agreement of 2February1927 ⎯ which mentions the Logomaten as a canton of
Tillabéry ⎯ between Mr.Brévié, Governor of the Colony of Ni ger, and Mr.Lefilliatre, Inspector of Administrative
Affairs, representative of the Governor of Upper Volta, Téra, 2 February 1927; MN, Anns., Series C, No. 7.
200Directory of villages of Téra Subdivision, villages of KelTamared, KelTinijirt, Logomaten Assadek,
Logomaten Allaban, undated, 1941, MN, Anns., Series C, No. 64, p. 26.
201Official telegram/letter No.70 from the H ead of Téra Subdivision to Tillabéry cercle dated 11July1951, inc.
reproduction on a scale of 1:500,000 of a sketch-map by Mr. Delbos, MN, Anns., Series C, No. 73.
202Letter No.112 of 10April1932 and Tour Report fro m Civil Service Deputy Roser, Acting Commander of
Dori cercle, to the Governor of Upper Volta (Political Office ). Certified copy of 15September1943, MN, Anns.,
Series C, No. 45, p. 6.
203
Extract from the “Directory of localities”1927: villages of thecanton of independent Peulhs ⎯ Diagourou
(Dori cercle), CMN, Anns., Series C, No. 109. At that date, Diagourou canton still belonged to Dori cercle.
204
List of villages of Téra Subdivision ⎯ Diagourou canton, 6 July 1933, CMN, Anns., Series C, No. 110.
205
List of Niger cantons and villages forwarded to the Minister for Overseas France (Diagourou, Tamou and
Torodi cantons), undated, 1948, MN, Anns., Series C, No. 71.
206
List of villages of Téra Subdivision at 1 January 1954 ⎯ Diagourou canton, CMN, Anns., Series C, No. 117,
and list of villages of Téra Subdivision at 10 August 1954 (extract No. 1), CMN, Anns., Series C, No. 118.
207
List of villages of Diagourou canton, 17 April 1959, CMN, Anns., Series C, No. 125.
208
Sketch-map of Diagourou canton: scale 1:250,000, MN, Anns., Series D, No. 21 (appended to the Report from
the Head of Téra Subdivision on the census of Diagourou canton, dated 10 August 1954). - 49 -
for Diagourou canton written by the Head of Téra Subdivision, dated 10August1954 209, and is
210
appended to that report . Bangaré appears in the list of villages voting in Niger for the National
Assembly in 1956 211.
C. The section from Bangaré to the boundary of Say cercle
2.1.10. This final section of the frontier follo ws the length of the IGN line, until it reaches
the point which in colonial times formed the boundary of Say cercle (tripoint between the cercles
of Tillabéry, Dori and Say), that is the point with co-ordinates 13° 29' 08" N, 01° 01' 00" E 212.
2.1.11. It leaves to Niger the villages that lie between the IGN line and the straight line
claimed by Burkina Faso, which, due to its arbitrary nature, blindly traverses areas that belonged to
Niger during the colonial period and have done so ever since; that, moreover, is why that line
could not be accepted as a compromise in 1988 and in 1991. We shall give some examples:
Beina (Beyna)
213
2.1.12. This village was indicated as bei ng in Niger on the 1927 sketch-map by Prudhon .
It is one of the villages included in the list of localities of Téra Subdivision in 1952 214, 1954 215 and
216
1959 . It was shown as being linked to the v illage of Mamassirou on the sketch-map of
Diagourou canton 217 appended to the census report on the canton prepared in Téra on
218
10august1954 by the Head of Téra Subdivision . There is a data sheet entitled “Beïna
astronomic station”, Niger Territory, Téra region ⎯ updated on 20 February 1957 219. This village
220
again appears in the list of localities of Diagourou canton in 1959 . It was indicated in the list of
polling stations for the elections to the National Assembly in 1956 221.
209
Report from the Head of Téra Subdivision on the census of Diagourou canton, dated 10 August 1954, MN,
Anns., SeriesC, No. 84. Referred to in the list of four r ecently formed villages as follows: “the fourth, Bangaré, was
created by Mr. Garat in 1945”.
210
“Bangaré”: appended to the Report from the Head of Téra Subdivision on the census of Diagourou canton,
dated 10 August 1954, CMN, Anns., Series C, No. 120.
21Arrêté No.2794 establishing polling stations and distri cts for the elections to the National Assembly ( Official
Journal of Niger, No. 304, 1 January 1956), CMN, Anns., Series B, No. 35.
21See above, Figure 5: Dori/Tillabéry/Say tripoint (extract from MN, Anns, Series D, No. 13), p. 32.
213
Tillabéry cercle, 1:200,000 sketch-map prepared by Administra torPrudon, June1927, MN, Anns., Series D,
No. 3.
21Census of Téra canton, 10 July 1952, CMN, Anns., Series C., No. 115.
215
List of villages of Téra Subdivision at 1 January 1954, Téra canton, CMN, Anns., Series C. No. 116.
216
List of villages of Téra canton, 17 April 1959, CMN, Anns., Series C, No. 124.
217
Diagourou canton: scale 1:250,000, 1954, MN, Anns., Series D, No.21.
218
Report from the Head of Téra Subdivision on the census of Diagourou canton, dated 10 August 1954, MN,
Anns., Series C, No. 84.
219
“Beïna astronomic station” data sheet, 20 February 1957, CMN, Anns., Series C, No. 123.
220
List of villages of Téra canton, 17 April 1959, CMN, Anns., Series C, No. 124.
22Arrêté No.2794 establishing polling stations and distri cts for the elections to the National Assembly ( Official
Journal of Niger, No. 304, 1 January 1956), CMN, Anns., Series B, No. 35. - 50 -
Mamassirou
2.1.13. This village was regarded as belongi ng to Niger by the Roser/Boyer Agreement of
222 223
April 1932 . It is part of Diagourou canton according to the census lists prepared in1954
and 1959 224. It was referred to as follows in the list of four recently formed villages in the report
by the Head of Téra Subdivision on the census for Diagourou canton, dated 10August 1954:
“[t]he third [village] Mamassirou Beina... was [founded] by a number of Gourmantché families
some twenty years ago” 225. This village was the subject of an annex to the report 226. It is shown
227
on the 1954 sketch-map of Diagourou canton appended to the same report . It appears in the list
of polling stations for the elections to the National Assembly of 1956 22.
Ouro Gaobe
2.1.14. This locality was referred to as follows in the list of four recently formed villages in
the census report for Diagourou canton prepared by the Head of Téra Subdivision, dated
10 August 1954: Ouroyaghabe-Taka “formed some twenty years ago by the Rimaibé of Yagha” 229.
Yolo
2.1.15. This village was indicated in all the lists of villages of Téra Subdivision, Diagourou
230 231 232 233 234
canton, under the name of Yolo (1927 , 1933 , 1948 , 1954 ), and then Yélo (1959 ). It
appears on the sketch-map of this canton drawn in 1954 235. It was also mentioned in the sheets
appended to the report by the Head of Té ra Subdivision on the census of Diagourou canton,
222
Letter No.112 of 10April1932 and Tour Report fro m Civil Service Deputy Roser, Acting Commander of
Dori cercle, to the Governor of Upper Volta (P olitical Office). Certified copy of 15 September 1943, MN, Anns., Series
C, No. 45, p. 6.
22List of villages of Téra Subdi vision at 1 January 1954 – Diagourou canton, CMN, Anns., Series C, No. 117,
and list of villages of Téra Subdivision at 10 August 1954 (extract No. 1), CMN, Anns., Series C, No. 118.
22List of villages of Diagourou canton, 17 April 1959, CMN, Anns., Series C, No. 125.
225Report from the Head of Téra Subdivision on the census of Diagourou canton, dated 10August1954, MN,
Anns., Series C, No. 84.
22“Mamassirou Beyna”: appended to the Report from the Head of Téra Subdivision on the census of Diagourou
canton, dated 10 August 1954, CMN, Anns., Series C, No. 121.
22Diagourou canton: scale 1:250,000, 1954, MN, Anns., Series D, No. 21.
22Arrêté No.2794 establishing polling stations and distri cts for the elections to the National Assembly ( Official
Journal of Niger, No. 304, 1 January 1956), CMN, Anns., Series B, No. 35.
22Report from the Head of Téra Subdivision on the census of Diagourou canton, dated 10 August 1954, MN,
Anns., Series C, No. 84.
23Extract from the “Directory of lo calities” 1927: v illages of the canton of independent Peulhs ⎯ Diagourou
(Dori cercle), CMN, Anns., Series C, No. 109.
231
List of villages of Téra Subdivision ⎯ Diagourou canton, 6 July 1933, CMN, Anns., Series C, No. 110.
23List of Niger cantons and villages forwarded to the Minister for Overseas France (Diagourou, Tamou and
Torodi cantons), undated, 1948, MN, Anns., Series C, No. 71.
233
List of villages of Téra Subdivision at 1 January 1954 ⎯ Diagourou canton, CMN, Anns., Series C, No. 117,
and List of villages of Téra Subdivision at 10 August 1954 (extract No. 2), CMN, Anns., Series C, No. 119.
234
List of villages of Diagourou canton, 17 April 1959, CMN, Anns., Series C, No. 125.
235
Diagourou canton: scale 1:250,000, 1954, MN, Anns., Series D, No. 21. - 51 -
prepared on 10 August 1954 23. This village appears in the list of polling stations for the elections
237
to the National Assembly of 1956 .
As can be seen from the above, the frontier lin e claimed by Niger basically follows the IGN
line in the stretch that goes from Tao to the tripoint between the cercles of Dori, Tillabéry and Say.
It only deviates from that line when the principle of uti possidetis calls for it to do so.
[Figure 8 was to be included here but is missing from the original text.]
S ECTION 2 – THE FRONTIER IN THE S AY SECTOR
2.2.1. Reading the Memorials filed by th e two Parties in the context of the present
proceedings confirms that, as was the case for the Téra sector, they have divergent views as to the
course of the frontier in the Say sector. This is true of both the Bossébangou region (A) and the
region of the “salient of four villages” (B), as well as the last section of the frontier, which goes
from the point where it leaves the “salient” to the start of the Botou bend (C). We shall see that the
arguments put forward by the other Party to justif y the frontier line it seeks to claim in this sector
are problematic for each of these sections. They would thus appear unable to refute the validity of
the line claimed by the Republic of Niger in this area. Over the section of the frontier that goes
from the point which was formerly the “tripoint” between the cercles of Dori, Tillabéry and Say to
the start of the Botou bend, that line follows what were the traditional boundaries of Say cercle, as
handed down to the Colony of Niger in 1926. The only change made to it is the one resulting from
the agreement between the colonial authorities to fix the frontier point separating the two colonies
on the Niamey-Ouagadougou road. The effect of this was to replace the traditional boundary
which consisted of one straight line with a boundary in two straight-line segments in the south of
Say cercle.
23“Yollo Beyna”, “Yollo Djinkargou”, “Yollo Hamidou” and “Yollotaka or Taka”: appended to the Report from
the Head of Téra Subdivision on the census of Diagourou canton, dated 10 August 1954, CMN, Anns., Series C, No. 122.
23Arrêté No.2794 establishing polling stations and distri cts for the elections to the National Assembly ( Official
Journal of Niger, No. 304, 1 January 1956), CMN, Anns., Series B, No. 35. - 52 -
Figure 9: The traditional boundaries of Say cercle in 1926
(MN, Anns., Series D, No. 6) - 53 -
Figure 10: The traditional boundaries of Say cercle in 1927
(MN, Anns., Series D, No. 20) - 54 -
A. The Bossébangou region
2.2.2. According to the Erratum of 5October1927, after the Tao marker, the boundary
between Upper Volta and Niger should “reach . . . the River Sirba at Bossébangou”. The Republic
of Niger explained in detail in its Memorial how this reference in the Erratum to a boundary
238
passing through the locality of Bossébangou was marked by error . On this point the Erratum did
not correct the text of the Arrêté it replaced, as it retained in its description of the inter-colonial
boundary some of the internal boundaries of Say cercle ⎯ which had no place to be there 239.
Furthermore, this poses a more general problem regarding the conformity of the Erratum ⎯ and of
the Arrêté before it ⎯ with the text of the Decree of 28 December 1926, which it was supposed to
implement. As the Republic of Niger will show in the following pages, the consequence of this is
to deprive the Erratum, in respect of this specifi c point, of any legal basis, and thus also of any
effect240.
2.2.3. In its Memorial Burkina Faso strongly contested this position, which had been argued
241
previously by Niger , according to which the Erratum was erroneous in running the inter-colonial
boundary through Bossébangou. The other Party o ffers two main pieces of evidence in this
connection: the first relating to the actual text of the Erratum, and the second concerning the lack
of relevance of the representation of the inter-colonial boundary on the 1927 map, which supports
Niger’s approach. We shall now look at them more closely.
2.2.4. In its written proceedings, BurkinaFaso first of all seeks to refute the argument
whereby the Erratum of 5 October 1927 retained th e description of some of the internal boundaries
of Say cercle and was, as a result, tainted by error. The other Party offers the following argument
on this subject:
“while the Arrêté of 31August1927 did effectively confuse the boundaries of the
cercles with those of the colonies, that was precisely not the case with the Erratum,
which was adopted with a view to describing only the inter-colonial boundary—
without any reference to the cercle boundaries— and further clarifying its course;
moreover, the text of the Erratum is unambiguous in this regard, since it begins with
the following statement: ‘The boundaries of the Colonies of Niger and Upper Volta
are determined as follows...’; it is thus not the boundaries of the cercles that it
describes.” 242
This is merely begging the question: since its purpose was to correct the description of the
inter-colonial boundary given in the Arrêté of 31August1927, which mistakenly included the
internal boundaries of the cercles of only one of the colonies concerned, the Erratum ipso facto
could not perpetuate this error, not even partly. Admittedly, the reasoning is rather formalistic.
And the very logic of BurkinaFaso’s arguments on this point is contradicted by the texts. The
other Party in fact believes it can find confirmation of the validity of its theory in the actual text of
the Erratum, which is “unambiguous in this regard, since it begins with the following statement:
‘The boundaries of the Colonies of Niger and Upper Volta are determined as follows . . .’” 243. This
23MN, paras. 7.14 et seq.
23MN, para. 7.16.
240
See below, paras. 2.2.9 and 2.2.10.
241
Report of the extraordinary meeting of the Jo int Technical Commission on Demarcation, Niamey,
15 May 1990, Ann. MBF 85.
24MBF, para. 4.95.
24Ibid. - 55 -
leads BurkinaFaso to conc lude very confidently that “it is thus not the boundaries of the cercles
that [the Erratum] describes” 244. Yet exactly the same words app ear at the beginning of the first
article of the Arrêté of 31 August, which was undoubtedly marked by error, and which the Erratum
was supposed to correct. This is sufficient proof of the inanity of Burkina Faso’s argument on this
point: a mere declaration of intent does not mean that the intent was automatically carried out. It is
not because the purpose of the Erratum of 5 October 1927 was to correct the Arrêté of 31 August of
the same year by removing the description of the internal boundaries of the cercles of only one of
the colonies concerned that it did in fact fully achie ve that purpose. On the contrary, the error on
this point persisted in at least one fragment of th e text: that which has the inter-colonial boundary
run to Bossébangou.
2.2.5. Niger showed in its Memorial that a number of documents from the colonial period
fully confirmed the fact that the locality of Bossébangou was not regarded as bordering on the
Colony of Upper Volta. A number of descriptions by the colonial administrators of the
inter-colonial boundary in this sector clearly bear this out 245. Suffice it to recall in this regard the
description given by Administrator Delbos in a letter from 1927: “The frontier . . . runs . . ., as my
letter 438 states, southward as far as Nababori, reaching the Say cercle to the west of Alfassi and
246
not at Bossébangou, which is further up. ” This insistence is all the more striking in so far as it
comes from the Commander of Dori cercle, who refutes the hypothesis of an inter-colonial
boundary passing through the locality of Bossébangou, whereas in fact such a line could have
effectively increased the land base of the cercle of which he was in charge. As the Republic of
Niger showed in its Memorial, this is in any ev ent far from being an isolated description of the
247
boundary in this sector, and it is given by the administrators of both of the colonies concerned .
2.2.6. The fact that the village of Bossébangou was not regarded as bordering on the Colony
of UpperVolta is also confirmed by a number of cartographic representations, including the
sketch-map entitled “new frontier between Upper Volta and Niger (according to the Erratum of
248
5 October 1927 to the Arrêté of 31August1927)” . BurkinaFaso focuses its criticisms on this
document. Thus, it notes “the gross misinterpretations of the text of the Arrêté and its Erratum”
contained in that sketch-map 249and believes that if the boundary lines shown on it in this sector
were to be considered accurate, “the 1927 sketch-map would be deemed to replace the 1927 Arrêté
and its Erratum” 250. “[T]he sketch-map would then be re cognized as a territorial ‘title’”, which
would be “legally . . . impossible”, since that sket ch-map cannot be regarded as being appended to 251
an official text it is said to illustrate or as being a reflection of the will of the State concerned .
244Ibid.
245
MN, paras. 7.19 and 7.20.
246
Letter No.731 dated 17December1927; MN, Anns., Seri es C, No. 20, emphasis added. See also on the
subject MN, para. 7.19.
247
See MN, para. 7.19.
248French West Africa: new frontier between Uppe r Volta and Niger (according to the Erratum of
5 October 1927 to the Arrêté of 31August1927), scale 1:1,000,000, MN, Anns., Series D, No. 13. See also MN
para. 7.17 and above para. 1.1.21 on this subject.
249MBF, para. 4.93.
250MBF, para. 4.95.
251MBF, para. 4.95. - 56 -
2.2.7. This line of reasoning prompts two or ders of observation. Firstly, the Republic of
Niger has no intention of claiming the “new frontie r” map of 1927 as a “territorial title” in itself.
There is absolutely no question of “replacing” the Arrêté and its Erratum with this document. It
needs only to be recalled in this connection that new evidence has shown beyond doubt that this
map and the official texts are more closely connected than originally thought 252. There is no doubt
that the representations of the inter-colonial b oundaries given on it ther efore carry particular
weight. This is especially true in respect of the Bossébangou sector ⎯ which brings us on to the
second order of observation ⎯ as this is a far from isolated in stance of the inter-colonial boundary
being represented as not passing through that locality on the maps and sketch-maps of the time.
Thus Niger listed no less than six other maps prepared between 1927 and 1936 which feature a line
identical to the one on the “new frontier” map of 1927 253. It seems particularly noteworthy in this
regard that the traditional inter-colonial boundary in this sector continued to be represented on
various maps despite the existence of an official text containing statements to the contrary.
2.2.8. In other words, it is not because the “new frontier” map constitutes a title in itself that
it is of particular importance for the question of the frontier line in the Bossébangou sector, but
because it is a faithful reflection of a situation of which all the colonial administrators were fully
aware at the time, namely that Bossébangou was not a locality bordering on Upper Volta. The fact
that the Erratum of 5October1927 contains an erroneous description of this section of the
inter-colonial boundary, by having it reach the village of Bossébangou, is thus corroborated by a
wide range of documents.
2.2.9. It should further be noted, in this re gard, that by using these terms to describe the
course of the inter-colonial boundary in this area, the Erratum of 5October1927 contradicts the
text of the Decree of 28 December 1926, which it was nevertheless supposed to implement. In its
254
own words, the 1926Decree detached Say cercle from the Colony of Upper Volta and
incorporated it into Niger, and provided that the traditional boundaries of the cercle should be
changed in only one respect:
“The following territories, which are currently part of the Colony of
UpperVolta, shall be incorporated in the Colony of Niger with effect from
1 January 1927:
1. Say cercle, with the exception of Gourmantché Botou canton.” 255
Thus, the only change to the former boundaries of Say cercle provided for by the text of the
Decree of December 1926 concerns Gourmantché Botou canton ⎯ and nothing else.
252
See MN, para. 5.7 and above, para. 1.1.20.
25MN, para. 7.17. All these maps are reproduced in the annexes of the Republic of Niger’s Memorial (MN,
Anns., Series D, Nos. 10, 11, 14, 15, 16 and 17).
25Decree of 28December1926 transferring the administrativ e centre of the Colony of Niger and providing for
territorial changes in French West Africa, and Arrêté of 21January1927 promulgating that Decree ( OJFWA, No.1167,
undated, 1927, p. 92), MN, Anns., Series B, No. 23.
25Report of the Minister for the Colonies to the President of the French Republic con cerning the treatment of the
administrative centre of the Colony of Nigerand territorial changes in French West AfricaOJFR, 5January1927,
p. 198, MN, Anns., Series B, No. 24; emphasis added. - 57 -
2.2.10. In describing the inter-colonial boundary as running as far as the village of
Bossébangou, and thus effectively lopping off a portion of the area of Say cercle in the south ⎯
removing it from Niger and giving it to Upper Volta, the Erratum of 5October1927 blatantly
contradicts the Decree of 28 Dec256er 1926, which both Parties recognize as being of fundamental
importance in this dispute . Consequently, in respect of this specific point, the Erratum is
deprived of any legal basis ⎯ and thus also legal effect ⎯ since in the hierarchy of French
257
administrative acts a decree comes above an arrêté . According to the legality principle, as an act
implementing a decree, an arrêté cannot contain statements contrary to the provisions of that
258
decree . This factor cannot be ignored by the Court since, as the Chamber noted in the case
concerning the Frontier Dispute (Burkina Faso/Republic of Mali),
“[t]he line which the Chamber is required to determine as being that which existed in
1959-1960, was at that time merely the admi nistrative boundary dividing two former
French colonies, called territoires d’outre-mer from 1946; as such it had to be defined
not according to international law, but according to the French legislation which was
applicable to such territoires” 259.
256
See above, para. 0.8.
25As an author of the time wrote, “[i]n the French colonies, pursuant to a series of special texts and principles,
the President of the Republic has far broader powers. There, the President can most often legislate by simple decree
whenever the legislature has not passed a law made expressly for the colonies, or when the law, in formal terms, has not
been declared to be applicable to them.” (Adhémar Esmein, Eléments de droit constitutionnel, Paris, Sirey, 1921, Vol. 2,
pp. 85-86; CMN, Anns., Series E, No. 1.) [Translation by the Registry.] Accordingly, the Presidential Decree of 1926
has the equivalent force of law.
258 th
See Félix Moreau, Précis élémentaire de droit constitutional, 9 edition, Paris, Sirey 1921, p.351, para. 347;
CMN, Anns., Series E, No. 2.
259
Frontier Dispute (Burkina Faso/Republic of Mali) , Judgment, 22 December 1986, I.C.J. Reports 1986 , p. 568,
para. 29; emphasis added. - 58 -
Figure 11: Sketch-map illustrating the amputated part of Say cercle
(reproduction from MN, Anns., Series D, No. 29)
As the part of the Erratum of 5October1927 that describes the boundary between the
colonies of Upper Volta and Niger as passing through the village of Bossébangou has no legal
effect under the regulatory regime applicable at the time the text was adopted, it evidently cannot
be regarded as part of the “colonial herita ge” which purportedly binds the Parties to these
proceedings for that portion of the frontier. Burkina Faso’s arguments on this point thus prove
completely unfounded.
B. The “salient of four villages”
2.2.11. There are other problems with the theo ry put forward by Burkina Faso to justify the
line it claims from Bossébangou; these will only be discussed in the alternative, since, as has
already been amply recalled, the Republic of Niger rejects the starting point of this entire line of
reasoning whereby the frontier passes through th e village of Bossébangou. Indeed, the
interpretation developed by the other Party to dete rmine the course of the line between this village
and the point of the “salient of four villages”, from where the frontier descends southwards in a
straight line, is highly speculative and not b ased on any supporting evidence. According to
BurkinaFaso, the interpretation of the text of the1927 Erratum whereby the inter-colonial
boundary “almost immediately turns back up towards the north-west, leaving to Niger, on the left - 59 -
bank of that river, a salient which includes the v illages of Alfassi, Kouro, Tokalan, and Tankouro”
invites the following conclusion: “the frontier cannot follow any course here other than that
followed by the right bank of the Rive r Sirba, from Bossébangou to its source” 26. This is said to
follow from the fact that:
“while the text states that the frontier, coming from the north-west, ‘reaches the River
Sirba’ at Bossébangou, there is not the least indication that it ‘leaves’ the River Sirba
before it starts to ‘turn back up’. This mu st mean that the frontier follows the course
of the river until it starts to ‘turn back up’. The frontier thus also logically follows the
right bank of the River Sirba. In this connection, Burkina has already pointed
out...that the point where the frontier reaches the River Sirba at Bossébangou,
point P, is situated on the right bank of the River Sirba. Consequently, as there is no
indication that the frontier turns back on itself to reach the median line of the river, it
must be understood that it necessarily stays on and follows the right bank up to the
point where it again crosses the river to start ‘turning back up’ towards the
north-west.” 261
2.2.12. The other Party tries to justify the frontier line running along the right bank of the
Sirba by an exegesis of the text of the Erratum, to which it attempts to give a scientific gloss 262. In
particular, Burkina Faso makes the point that the 1927 text
“explicitly stated . . . that the frontier, after reaching the point from which it begins to
‘turn back up’, produces a salient that includes part of the left bank of the River Sirba
in Niger. This information suggests a contrario that before the point from which it
‘turns back up’, the frontier does not leave the left bank of the Sirba to Niger.” 263
It is indeed very hard to see how this “a contrario” reasoning ⎯ which as we know should
be used with great caution ⎯ could invite the conclusion that is drawn with such authority by the
other Party. Even supposing we were to accept it, this “gloss” of the text of the Erratum by no
means leads to the conclusion th at the frontier between the two States should run along the right
bank of the River Sirba. If we were to conc lude that the wording of the Erratum “suggests
a contrario that before the point from which it ‘turns back up’, the frontier does not leave the left
bank of the Sirba to Niger”, why would that necess arily imply a frontier line that runs along the
right bank of that river, rather than following its median line or thalweg? There is absolutely no
evidence to justify such a conclusion, which appears to be dictated only by the other Party’s desire
to push its territorial claims as far as possible. On the contrary, such a conclusion very clearly runs
counter to State practice, whereby it is only exceptional for States to agree to a frontier on the bank
of a river. It therefore seems quite odd to infer from a text’s silence that a frontier line runs along
the bank of a river when there is absolutely nothing to justify it ⎯ either in the text itself or in State
practice.
2.2.13. In any case, Burkina Faso’s arguments in respect of this entire section of the frontier
encounter a major difficulty. In developing its arguments whereby the boundary passes through the
village of Bossébangou, the other Party in fact co mpletely ignores the traditional course that was
always given to the boundaries of Say cercle. Until the adoption of the 1960 IGN map, this line
never included the “duck’s bill” which takes the frontier to the locality of Bossébangou and back
again. Quite the contrary, on the maps and sketch-maps of the colonial period the boundaries of
26MBF, para. 4.100.
26MBF, para. 4.101.
262
MBF, paras. 4.103 and 4.104.
26MBF, para. 4.103. - 60 -
Say cercle are systematically represented in the form of a triangle in the northern part of the cercle,
with the northernmost point of the triangle being the tripoint between the cercles of Tillabéry, Dori
264
and Say. As the Republic of Niger stated in its Memorial , it is in fact this point ⎯ and not the
locality of Bossébangou ⎯ that was always identified by the colonial administrators as the meeting
point of the three cercles concerned. For example, in1927, Administrator Delbos described the
boundaries between Dori cercle, of which he was in charge, and Tillabéry cercle, and stated that
this boundary line “finally follow[s] a beari265of 170° until it reaches the boundary of Say cercle to
the west of Alfassi on the River Cirba” . This is also what emerges very clearly from a number of
maps from the colonial period, starting with th e sketch-map drawn by Captain Boutiq in 1909 266.
267
The co-ordinates of this tripoint, as recalled above , are: 13° 29' 08" N, 01° 01' 00" E. It is from
this point that the frontier then goes on to form the western boundary of the “salient of four
villages”.
Figure 12: Traditional shape of the salient of Say cercle (extracts from MN,
Anns., Series D, Nos. 1 and 4)
264MN, para. 7.19.
265Letter to the Governor of Upper Volta dated 27 August 1927, MN, Anns., Series C, No. 16.
266Djerma cercle, 1:1,000,000 sketch-map prepared by CaptainBoutiq, cercle Commander, dated 19June1909,
MN, Anns., Series D, No. 1.
267
See above, para. 2.1.10. - 61 -
Figure 13: Traditional shape of the salient of Say cercle in 1915 and 1926
(extract from MN, Anns., Series D, No. 6)
2.2.14. Burkina Faso then tries to justify th e frontier line continuing to points identified as
points “P1” and “P2”, the latter being the point from which the frontier makes an abrupt change in
direction and turns southwards where it reaches point “P3”, before changing direction again and
reaching the start of the Botou bend 268. According to the other Party, the section going “from
point P1 to point P2, can only be clarified by referring to the 1960 IGN map, as it is not possible to
establish one specific pointP1 based on the description of the frontier in the Arrêté and its
Erratum” 269.
Thus it is the line on the 1960 IGN map that Burkina Faso faithfully reproduces in this sector
from Bossébangou to the point where, after returni ng south, the boundary “again cuts the Sirba at
the level of the Say parallel”, as stated in the E rratum. This solution is allegedly corroborated by
the fact that the experts of the Joint Tec hnical Commission on Demarc ation made the same
observation ⎯ that the information given in the Erratum did not suffice for this section and that it
was therefore necessary to have recourse to the 1960 IGN map ⎯ and adopted the same
solution ⎯ establishing the line shown on the map ⎯ in the work they carried out at the end of
270
the 1980s . As regards the endpoint of the frontier line in this sector (point “P3”), it is allegedly
easy to determine as according to the text of the Erratum it is the point where the boundary “again
cuts the Sirba at the level of the Say parallel”, words which Burkina Faso interprets as follows:
268
MBF, paras. 4.125 et seq.
26MBF, para. 4.127.
27MBF, paras. 4.138 et seq., and esp. 4.142. - 62 -
“The frontier ‘cuts’ the River Sirba, in other words it cro sses it, going from the
left bank — given its general west-east direc tion, and ending on the right bank, at the
spot where it meets the Say parallel.” 271
The other Party is thus able to give the precise co-ordinates of point “P3” 272.
2.2.15. In its Memorial, the Republic of Niger set out the reasons why the line adopted by the
IGN cannot be regarded as a valid representation of the frontier line in this sector of the “salient of
four villages”. Niger recalled that the representa tion used by the IGN was based on the location of
three of those villages at the time the map was drawn, and not at the time the Erratum was adopted.
And it is273 established fact that the villages were relocated shortly after the 1927text was
adopted .
Figure 14: Example of some villages that were relocated shortly
after the adoption of the 1927 texts
There is thus an obvious problem of methodology in establishing the frontier between the
two States in this sector on the basis of the “modern” location of those villages, rather than their
location in1927. Furthermore, as regards the poi nt where the frontier leaves the “salient of four
villages” to go to the village of Tchenguiliba at the start of the Botou bend, the Republic of Niger
recalled the interpretation of the text of the 192 7 Erratum offered by its representatives in the past,
whereby “the expression ‘at the level of the Say pa rallel’ [used in the Erratum to indicate the
change of direction of the inter-colonial boundary in this area] was merely indicative” 274. In
Niger’s view, this is the obvious conclusion if we are to give effect to the 1927text which states
that the line separating the two colonies must include on the Niger side the four villages listed
271
MBF, para. 4.134.
272MBF, para. 4.135.
273MN, paras. 7.28 et seq.
274
MN, para. 7.32 referring to the Report of the Second Or dinary Session of the Joint Technical Commission on
the Demarcation of the Frontier between Niger and Burkin aFaso held at Ouagadougou from 23 to 28 July 1990; MN,
Anns., Series A, No. 5. - 63 -
therein ⎯ which makes a literal interpretation of the expression concerned impossible. In effect, it
proves that only a looser understanding of those words ⎯ such as emerges in particular from the
275
documents written preparatory to the official 1927 texts ⎯ can achieve that result .
2.2.16. Burkina Faso tries to refute the latte r approach in its Memorial. The other Party
counters this interpretation by po inting to the accuracy of the terms used by the authors of the
276
Erratum (“at the level of” does not mean “approximately”) , the fact that Niger’s argument is
based on speculation as to the location of one of the four villages of the “salient” (that of
Tokalan) 277and the fact that the site of that locality cannot correspond to the present-day village of
278
Takatami, which already existed in 1927 and could not be confused with the village of Tokalan .
2.2.17. Let it first be noted that none of those points goes to the heart of Niger’s arguments
whereby the frontier line in this sector must include in Niger territory the four villages mentioned
in the 1927 Erratum if we are to comply with the terms of the text. This cannot be achieved if the
words “at the level of the Say parallel” are interpreted to mean “at the intersection of the Sirba with
the Say parallel”, as a line based on such an interp retation of the terms of the Erratum results in
leaving the site of what was the village of Tokalan ou tside the territory of Niger. It is true there is
still some uncertainty as to the location, in 1927, of the latter village which has since
disappeared 279. While at one time the site of this lo cality was assimilated with that of Takatami 280,
it is true, as the other Party’s Memorial explains, that this hypothesis proved groundless, as the
village of Takatami already exis ted in1927 and was never consider ed to be situated in Niger
281
territory . However, further research and a comparison of the maps and sketch-maps
contemporary to the official text s of 1927 with more recent maps ⎯ in particular the 1960IGN
map ⎯ make it possible to locate the site of the fo rmer village of Tokalan on the eastern edge of
the pool formed by the arms of the rivers Faga and Yamanou. Through a comparison of the maps,
the site of the lost village can be located in the immediate vicinity of the site of the locality of
Tangagari, which the frontier line should therefore le ave in Niger territory. The fact that the line
claimed by Burkina Faso does not make it possible to achieve this result constitutes further grounds
for rejecting it.
275MN, para. 7.32.
276MBF, para. 4.117.
277
MBF, para. 4.118.
278
MBF, para. 4.119.
279See also on this point MN, para. 7.28.
280See, inter alia, the Mission report of the Topographical Sub-Committee of the Joint Technical Commission on
Demarcation of the Niger-Burkina Frontier, 5-12 June 1990, 12 June 1990, MBF, Annex 86.
281MBF, para. 4.119. - 64 -
Figure 15: The four villages of the salient attributed to the Colony of Niger by
the Erratum of 5 October 1927 (MN, Anns., Series D, No. 9) - 65 -
2.2.18. Finally, it should further be recalled th at the other Party’s interpretation of the words
“at the level of the Say parallel” has the effect of excluding from the territory of Niger not only the
village of Tankouro, which the text of the Erratum clearly leaves to Niger, but also that of Dogona
282
(also known as Boborgou Saba), which has alwa ys been regarded as belonging to Niger . As
Niger explained in its Memorial, the fact that this village, among others, belonged to Niger is
28See also MN, para. 7.33. - 66 -
confirmed by documents from the colonial peri od which establish the boundary between the
colonies of Niger and Upper Volta on the colonial road at a point situated four kilometres
south-west of this village. The 1930 sketch-map reproduced below gives a clear illustration of this
283
situation .
Figure 16: Sketch-map showing the boundary 4 km from Boborgou Saba
2.2.19. All these points are ignored by the ot her Party, which tries to give a so-called
scientific character to the demonstration it undertak es to justify the frontier line in the sector of the
“salient”, while that “demonstration” is in comple te contradiction to the actual requirements of the
text of the Erratum as they stood in the context of 1927. Burkina Faso’s claims in this sector, based
on the line that appears on the 1960 IGN map, thus appear to be completely unfounded. The same
is true of the last section of the frontier in the Say sector.
283The Republic of Niger draws the Court’s attention tothe fact that the sketch-m ap reproduced below should
have appeared instead of the sketch-map produced as annex No.C35 in Niger’s Memorial. The latter sketch-map,
prepared by the same administrator during the same tour, had a different subject and ws reproduced by error in the
annexes. - 67 -
C. The section of the frontier which leaves the “salient” and
runs to the start of the Botou bend
2.2.20. As regards this last section of th e boundary, the position argued by the other Party
consists in adhering to the text of the Erratum of1927, which states that, from the point where it
leaves the “salient”, “the frontier, following an east-south-east direction, continues in a straight line
up to a point located 1,200 m to the west of the village of Tchenguiliba”. Burkina Faso observes in
this connection that the wording is “crystal clear and does not require any particular comment” 284.
2.2.21. The Republic of Niger has absolutely no intention of disputing the fact that
the 1927 text is “crystal clear”. The wording in itself invites no comment. However, what poses a
problem here, as Niger pointed out in its Memorial, is rather the fact that this straight-line boundary
“appears to have no basis in the situation prio r to the adoption of the Erratum and was never
285
confirmed in the subsequent practice” . As Niger explained it its written proceedings, the
representation of the boundary in a straight line of this kind is not to be found on a large number of
maps from the colonial period, either prior or s ubsequent to the adoption of the official texts
286
of 1927 . Even more crucially, the position argued by BurkinaFaso on this point completely
overlooks the fact that, for over fifty years now, the two States have agreed to consider that their
common frontier in this sector passes through a point located on the road between Niamey and
Ouagadougou, 14 kilometres from Mossipaga (Niger) and 17kilometres from Kantchari
(Burkina Faso) 287. This point had already been marked out in the colonial period by a frontier post,
the location of which has never been disputed by the Parties. A number of documents from the
colonial administrations concerned relating to road construction and maintenance confirm that
location 288.
The subsequent agreement reached by the two States on this point clearly shows that they
had no intention of adhering to the wording of the 1927 Erratum in defining this part of the course
of their common frontier, and that on the contrary they deliberately resorted to another boundary
line consisting of two straight-line sections. It is beyond doubt that this subsequent agreement
takes precedence over the definition of the boundary given by the 1927Erratum. Here too, the
position argued by BurkinaFaso is therefore completely unfounded and ignores the subsequent
agreement of the two States on the establishment of the course of their frontier in this sector.
284
MBF, para. 4.150.
285MN, para. 7.35.
286MN, paras. 7.36 and 7.37.
287
MN, para. 7.38.
288
In addition to the documents referred to in para. 7.38 of the Republic of Niger’s Memorial, reference can also
be made to the 1:500,000 “sketch-map of the Niamey-Fada road” appended to the document entitled “Survey of the
Niamey-Fada road by Mr.Carli, Chief Supervisor of P ublic Works”, dated 30April1933 (CMN, Anns., SeriesC,
No. 111), as well as to Tour Report No. 2751 from the Commander of Niamey cercle, dated 20November 1939 (CMN,
Anns., Series C, No. 112) and Tour Report No. 1125 from the Commander of Niamey cercle, dated 10 June 1940 (CMN,
Anns., Series C, No. 113). The boundary is indicated as being 19 km from Kantchari in the former document and 20 km
in the latter. These imprecisions wereto be rectified shortly thereafterOn 27August1940, the Governor of Niger
informed the Commander of Niamey cercle that the “distance in kilometres between Niamey-Torodi-Kantchari, which up
until now had given rise to conflicting assessments, has just beclarified by chaining... Markers have been placed
every 5 km.” (Letter No. 2144/TP from the Governor of the Colony of Niger to the Commander of Niamey cercle, dated
27 August 1940, CMN, Anns., Series C, No. 114.) However, only the total di stance was given in this document, and the
length of each section provided only in subsequent documents (see, inter alia, Telegram/letter No. 106 from the Head of
Say Subdivision to the Commander of Niamey cercle dated 16 June 1954, MN, Anns., Series C, No. 82). - 68 -
Figure 17: Map showing the frontier post on the Niamey-Ouagadougou-Bamako
federal highway (MN, Anns., Series D, No. 30)
The Republic of Niger, for its part, can but ma intain all of the arguments that it presented in
its Memorial in respect of determining the course of the frontier between the two Parties in the Say
sector, in so far as none of the elements develope d by Burkina Faso in its written proceedings is
capable of refuting those arguments. - 69 -
SUBMISSIONS
The Republic of Niger requests the Court to adjudge and declare that the frontier between the
Republic of Niger and Burkina Faso takes the following course:
In the Téra sector:
⎯ Starting from the Tong-Tong astronomic marker (co-ordinates: 14° 25' 04" N, 00° 12' 47" E);
⎯ from that point: a straight line as far as the Vibourié marker (co-ordinates: 14°21'44"N,
0° 16' 25" E);
⎯ from that point: a straight line as far as the Tao astronomic marker (co-ordinates:
14° 03' 02.2" N, 00° 22' 52.1" E);
⎯ from that point the frontier follows the 1960IGN line (Téra sheet) as far as the point having
co-ordinates 14° 01' 55" N, 00° 24' 11" E;
⎯ from that point, it runs in a straight line to the frontier point on the new Téra-Dori road
(co-ordinates: 14° 00' 04.2" N, 00° 24' 16.3" E) (to the west of Petelkolé);
⎯ from that point, it runs in a straight line to the point with co-ordinates 13°59'03"N,
00° 25' 12" E;
and reaches the IGN line (at the point with co -ordinates 13° 58' 38.9" N, 00° 26' 03.5" E),
which it follows as far as the break in the line of crosses north of Ihouchaltane (Oulsalta on the
1960 IGN map, Sebba sheet), at the point with co-ordinates 13° 55' 54" N, 00° 28' 21" E;
⎯ from this point the frontier skirts Ihouchaltane (Oulsalta), passing through the points with
co-ordinates 13° 54' 42" N, 00° 26' 53.3" E, then 13° 53' 30" N, 00° 28' 07" E,
⎯ from that point, it rejoins the IGN line (at th e point having co-ordinates 13° 53' 24" N,
00° 29' 58" E), which it follows as far as the tripoint of the former boundaries of the cercles of
Say, Tillabéry and Dori (co-ordinates 13° 29' 08" N, 01° 01' 00" E).
Where there are gaps in the course of the IGN line, these will be filled by straight lines or,
where there is a watercourse, by following its bed.
In the Say sector:
⎯ Starting from the tripoint of the former boundaries of the cercles of Say, Tillabéry and Dori
(co-ordinates 13° 29' 08" N, 01° 01' 00" E), the frontier runs in a straight line as far as the point
having co-ordinates 13°04'52"N, 00°55'47"E (where it cuts the River Sirba at the level of
the Say parallel), then from that point a strai ght line passing through a point situated 4km to
the south-west of Dogona with co-ordinates 13° 01' 44" N, 01° 00' 25" E, as far as the frontier
marker with co-ordinates 12°37'55.7"N, 01°34'40.7"E, and finally from there to the point
fixed by agreement between the Parties, the co-ordinates of which are the following:
12° 36' 18" N, 01° 52' 07" E. - 70 -
SUMMARY OF SKETCH -MAPS AND MAPS
ILLUSTRATING THE C OUNTER -M EMORIAL
Figure 1: Téra Subdivision consisting of the cantons of Tillabéry cercle situated on the
right bank of the Niger incorporated into Dori cercle in 1910 (extract from
MN, Anns., Series C, No. 47). ........................................................................
.............15
Figure 2: Sketch-map prepared by Captain Boutiq, dated 1909 (missing)
Figure3: Map entitled “French West Africa: new frontier between Upper Volta and
Niger (according to the Erratum of 5October1927 to the Arrêté of
31 August 1927)”, scale 1:1,000,000 (see MN, Anns., Series D, No. 13)...................21
Figure4: Map entitled “French West Africa: new frontier between Upper Volta and
Niger (according to the Erratum of 5October1927 to the Arrêté of
31August1927), scale 1:1,000,000 ( see MN, Anns., Series D, No. 13)
(missing)
Figure 5: Dori/Tillabéry/Say tripoint (extract from MN, Anns., Series D, No. 13) ...................23
Figure6: Illustration by Burkina Faso of the Doumafendé-Tong-Tong-Tao section of
the boundary without any turn at Tong-Tong (extract from Cartographic
Annex MBF 36) ........................................................................
..................................28
Figure7: Triangle formed by the Tong-Tong astronomic marker, Vibourié marker and
Tao astronomic marker........................................................................
.........................45
Figure 8: The traditional boundaries of Say cercle in 1915 (MN, Anns., Series D, No. 4)
(missing)
Figure 9: The traditional boundaries of Say cercle in 1926 (MN, Anns., Series D, No. 6).........52
Figure10:The traditional boundaries of Say cercle in 1927 (MN, Anns., Series D,
No. 20) ...............................................................
..........................................................53
Figure11: Sketch-map illustrating the amputated part of Say cercle (reproduction from
MN, Anns., Series D, No. 29) ........................................................................
.............58
Figure12:Traditional shape of the salient of Say cercle (extracts from MN, Anns.,
Series D, Nos. 1 and 4) ........................................................................
........................60
Figure 13: Traditional shape of the salient of Say cercle in 1915 and 1926 (extract from
MN, Anns., Series D, No. 6) ........................................................................
...............61
Figure14: Example of some villages that were relocated shortly after the adoption of
the 1927 texts ........................................................................
.......................................62
Figure15:The four villages of the salient a ttributed to the Colony of Niger by the
Erratum of 5 October 1927 (MN, Anns., Series D, No. 9) ..........................................64
Figure 16: Sketch-map showing the boundary 4 km from Boborgou Saba...................................66
Figure17: Map showing the frontier post on the Niamey-Ouagadougou-Bamako federal
highway (MN, Anns., Series D, No. 30) .....................................................................68 - 71 -
LIST OF DOCUMENTS IN THE ANNEXES TO THE
C OUNTER -MEMORIAL OF N IGER
Series A ⎯ Diplomatic documents
A22. Report of the meeting of the Joint Technical Commission on Demarcation of the
Niger-Burkina Faso Frontier, held in Niamey from 3 to 7 February 1991.
A 23. Report of the working meeting held in Niamey on 4 and 5 September 1995, between the
Delegation of Burkina Faso led by Prime Mi nister Roch Marc Christian Kabore, and
the Delegation of Niger, led by Prime Minister Hama Amadou.
A24. Report of the bilateral (Burkina-Niger) Committee on the identification of sites for the
installation of juxtaposed control posts on the Ouagadougou-Dori-Téra-Niamey road,
9 June 2006.
Series B ⎯ Legislative and regulatory documents
B 33. Sénatus-consulte of 3 May 1854.
B 34. Decree of 18 October 1904 reorganizing the General Government of French West Africa.
B 35. Arrêté No. 2794 establishing polling stations and dist ricts for the elections to the National
Assembly, Official Journal of Niger, No. 304, 1 January 1956.
B36. Decree No. 62-282/PRN/AE of 1 December 1962 concerning the ratification and
publication of Niger’s international commitments ( OJRN, special edition10 of
29 December 1962).
Series C ⎯ Administrative documents and correspondence
C 60. Letter No. 161 from the Head of Téra Subdivision to Tillabéry cercle dated 24 May 1935.
C109. Extract from the “Directory of localities” 1927: villages of thecanton of independent
Peulhs – Diagourou (Dori cercle).
C 110. List of villages of Téra Subdivision ⎯ Diagourou canton, 6 July 1933.
C 111. Survey of the Niamey-Fada road by Mr. Carli, Chief Supervisor of Public Works and the
1:500,000 sketch-map of the Niamey-Fada road (30 April 1933).
C 112. Tour Report No. 2751 from the Commander of Niamey cercle dated 20 November 1939.
C 113. Tour Report No. 1125 from the Commander of Niamey cercle dated 10 June 1940.
C114. Letter No. 2144/TP from the Governor of the Colony of Niger to the Commander of
Niamey cercle dated 27 August 1940.
C 115. Census of Téra canton, 10 July 1952.
C 116. List of villages of Téra Subdivision at 1 January 1954 – Téra canton. - 72 -
C 117. List of villages of Téra Subdivision at 1 January 1954 – Diagourou canton.
C 118. List of villages of Téra Subdivision at 10 August 1954 (extract No.
1).
C 119. List of villages of Téra Subdivision at 10 August 1954 (extract No.
2).
C 120. “Bangaré”: appended to the Report from th e Head of Téra Subdivision on the census of
Diagourou canton, dated 10 August 1954.
C 121. “Mamassirou Beyna”: appended to the Report from the Head of Téra Subdivision on the
census of Diagourou canton, dated 10 August 1954.
C122. “Yollo Beyna”, “Yollo Djinkargou”, “Yollo Hamidou” and “Yollotaka or Taka”:
appended to the Report from the Head of Téra Subdivision on the census of Diagourou
canton, dated 10 August 1954.
C 123. “Beïna astronomic station” data sheet, 20 February 1957.
C 124. List of villages of Téra canton, 17 April 1959.
C 125. List of villages of Diagourou canton, 17 April 1959.
C 126. Circular No. 79/PRN from the President of the Republic to the Ministers and Secretary of
State, dated 26 December 1963.
C127. Letter No. 64-011/PRN/MAE of 5 February 1964 from the President of the Republic to
the Ministers and Secretaries of State.
C128. Letter No. 16/PRN/MAE of 14 July 1971 from the President of the Republic to the
Ministers and Secretaries of State, and to the Commissioners-General for
Development, Information, Youth and Sport.
C129. Letter No. T08/STC of 16 August 1972 from the acting Director of the Topographical
Department and Cadastre to the Minister of Finance and Saharan and Nomad Affairs.
C130. Note from the acting Permanent Secretary to the Minister of the Interior, containing the
report of the meeting of the Joint Technical Commission on Demarcation of the
Niger-Burkina Frontier, 31 July 1990.
C 131. Letter No. 47/MI/CNF of 17 December 1990 from the acting Permanent Secretary to the
Minister of the Interior.
C 132. Report of mission conducted on 21 and 22 September 1994 by Commandant Seyni Garba,
Permanent Secretary of the National Frontier Commission of Niger in the
arrondissements of Téra and Say, Niamey, 23 October 1994.
Series D ⎯ Maps (These maps were inserted, unbound, in the original copy of Niger’s
Counter-Memorial)
D 32. Niger–Burkina, line proposed by Niger, Téra sector; 1:200,000.
D 33. Niger–Burkina, line proposed by Niger, Say sector; 1:200,000. - 73 -
Series E ⎯ Doctrine
E 1. Adhémar Esmein, Eléments de droit constitutionnel, Paris, Sirey, 1921, Vol. 2, pp. 85-86
E 2. Félix Moreau, Précis élémentaire de droit constitutional , 9th edition, Paris, Sirey 1921,
p. 351.
___________
Counter-Memorial of Niger