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Comments of Burkina Faso on the replies given by the Republic of Niger
to the questions put by Judge Cançado Trindade
1. In accordance with the opportunity which it has been given, Burkina Faso considers it
helpful and appropriate to make the following brie f comments on the replies given by Niger to the
questions put to the two Parties by Judge Cançado Trindade on 17 October 2012.
2. Generally, Niger’s replies demonstrate an ew that country’s total indifference to the
applicable rules of law, be they those expressl y accepted by the Parties fo r the purpose of settling
this dispute or the general principles applicable to frontier disputes between States born out of
decolonization.
Question 1: map indicating the areas throug h which nomadic populations used to move,
during the period when they became independent and today
3. First, Burkina Faso notes that the Republic of Niger has been no more able than it has to
produce one or more maps indicating the areas th rough which nomads used to move at the time of
independence or today. It further observes that the documents on which Niger relies are patchy and
incomplete, both in terms of their temporal and geographical scope, and that it is clear that they
give only a partial picture of the movement of the nomadic populations. The sketch-maps which
Niger felt able to produce are inevitably as precar ious as the bases on which they were drawn and
should therefore be interpreted with caution.
4. Second, and more importantly, it should be pointed out that both Parties agree that the
rules in force and effectively applied between th e two States allow for — and widely facilitate —
cross-border transhumance. Niger describes this as a modus vivendi arrangement (p. 8 of its reply):
whatever its precise significance, that expression does not give an accurate representation of the
situation. As shown by Burkina Faso in its own reply 1, and confirmed by the additional
information given by Niger, the freedom of nom adic movement and tran shumance is established
(and supported) by an effective legal framework , which guarantees its continuity. In this
connection, Burkina Faso supports Niger’s conclusion that:
“All of those instruments binding the two Parties thus ensure that nomadic
populations who migrate across the frontier between Niger and BurkinaFaso will be
able to continue their current way of life.” (P. 11.)
5. The logical conclusion that emerges from the concordant evidence furnished by the two
Parties is that considerations concerning nomad ic movement and transhumance cannot play any
role in determining the course of the frontier: wh atever the location of the frontier, it is not and
shall not be an obstacle to that movement.
Question 2: radius of the areas of movement of the nomadic populations along the border
6. Here, too, it should be noted that Niger’s reply does not contradict the information which
Burkina was able to gather.
1
See paras. 17-52 of Burkina Faso’s reply to the questions put by Judge Cançado Trindade. - 3 -
7. However, Burkina Faso must express its astonishment at the wording of the introduction
to Niger’s reply to question2, in which it is stat ed that the “border” is “the current de facto
boundary between the two States”. There is no “de facto” boundary between the Parties— a
notion which, moreover, Niger fails to de fine. On the other hand, there is a de jure frontier, that
which was fixed by the 1927 Arrêté of the Governor-General of FWA and its Erratum, and which
the Court is called upon to confirm.
Question 3: the villages
8. Burkina Faso is surprised by Niger’s re ply to the third question put by Judge Cançado
Trindade, and surprised in many respects.
9. First, Niger’s reply employs terminology which is confusing to say the least. Niger bases
its claims over the villages on the “national statu s” of those villages, or on their status as “villages
with Niger populations”, all terms which appear to imply that the villages in question are composed
and have always been composed— and composed exclusively, what is more— of persons of
Niger nationality, of which Niger offers not one sh red of evidence. Moreover, in so doing, it
confuses the question of ethnicity or nationality with territorial status.
10. In other respects, Niger bases “its clai m” over these villages on a second argument, of a
different nature to the firs t and which relates to the existence of post-colonial effectivités. In fact,
Niger argues that the villages to which it lays clai m “have always been considered as being part of
the Colony, subsequently the State, of Niger” and that it “continues to claim” them on the basis of
“the current situation”.
11. The foundation of Niger’s claim is thus le gally confused. Moreover, it is contrary to
international law, because sovereignty over villa ges can only derive from delimitation, and not the
other way round. This is especially true in the present case, since effectivités which post-date the
title constituted by the Erratum cannot have even the slightest effect on the delimitation which was
definitively established by that title in 1927 — on this the Parties agree.
12. Niger’s village claims are also unsubstantia ted by the facts. According to Niger, there
are no fewer than 47 villages (28 in Téra sector, 19 in Say sector) which belong to Niger (although
it does not justify that assertion) and which would be affected by the fron tier as described in the
Erratum, which Burkina Faso is requesting be applied. However:
(i)a large number of those villages were simply never mentioned in Niger’s written
pleadings (their names do not appear in either the Memorial or the Counter-Memorial),
which therefore raises the question: On th e basis of what evidence is Niger founding its
claim over those villages? This applies to localiti es 2, 6, 7, 8, 12, 16, 26 and 28 in list 1.1
(Téra sector) and localities 1, 2, 3, 5, 7, 9, 10, 11, 12, 14, 15, 16, 18 and 19 in list 1.2 (Say
sector);
(ii) certain other villages were mentioned in Niger’s written pleadings, but no documents were
cited in support of the idea that they were “Nig er” villages: this is true of localities 3, 15,
25 and 27 in list 1.1 (Téra sector) ;
2
See MN, pp. 94, 98 and 100 respectively. - 4 -
(iii) Niger also states in its written pleadings that some of the names it gives are encampments 3
and not villages: this concerns encampments 5, 9, 11 and 13 in list 1.1 (Téra sector) ;
(iv) some of the localities which Niger attributes to itself in its reply were, however, att4ibuted
to Burkina in its written pleadings: this is true of localities 9, 10, 21, 23 and 24 ;
(v) as for the few villages wh ich Niger claimed belonged to it by annexing to its written
pleadings documents which purportedly support th at claim, Burkina has shown in its own
written pleadings and during its oral argumen t that, in fact, those documents do not
demonstrate anything; there is no reason to go back over this here;
(vi) finally, it appears that, far from drawing up a list of villages that “have always been
considered as being part” of Niger, as Niger alleges to have done in its reply, Niger was
content to adjust the villages to which it la ys claim according to the line which it is now
asking the Court to adopt. This is demonstrat ed by the fact that the lists furnished by
Niger in its reply correspond only very pa rtially to those dating from 1994, which it
annexed to its Counter-Memoria l and whose purpose, nevertheless, was said to be the
same. That document — the Report of mi ssion conducted on 21and 22 September 1994
by Commandant Seyni Garba, Permanent S ecretary of the National Frontier Commission
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of Niger in the arrondissements of Téra and Say, Niamey, 23October1994 — is
instructive in three respects in particular:
(i) first, the author of the document r ecalls that the frontier demarcation operations
which began in 1989 were suspended in 1990 “f or a number of reasons, in particular
due to Niger calling into question the line initially accepted by joint agreement of the
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Parties” . It goes on to state that further negotiations ended in failure, since the
political compromise of 1991 “did not meet with the approval of the majority of
Niger’s experts”. The author of the docum ent points out the need to ascertain the
existence of any effectivités in the frontier region “with a view to the upcoming
negotiations concerning the line”, stating that “Niger should negotiate with Burkina
Faso with a view to adopting a line cons istent with the one on the IGNFrance
1:200,000 map, 1960 edition”. The search for effectivités in respect of the villages
was thus carried out in order to get Burkina to reconsider, by means of negotiation,
the line adopted by joint agreement of th e Parties in 1988 in application of the
1927 Erratum or, alternatively, the line adopted under the 1991 compromise;
(ii) second, virtually none of the villages liste d by Niger in 1994 as liable to be affected
by the delimitation and which also appear on the lists furnished by Niger in its reply
to Judge Cançado Trindade’s question are included in the directory of localities of
FWA which, however, was published in the same year as the Erratum. Furthermore,
the few exceptions are interesting to poi nt out. Thus, while a “Mamassirou” does
appear in the “Niger” fascicule of th e directory, it is not in Tillabéry cercle, Téra
sector, but in Say cercle, Say Subdivision, Tamou canton ; 7
(iii) third and last, the 1994 lists and tho se furnished on 16November2012 by Niger in
its reply to the third question of Judge Ca nçado Trindade do not correspond. Of the
24villages claimed by Niger in Téra sector in 1994, ten no longer appear in the
3See MN, pp. 95-96.
4See, respectively, MN, p. 96; p. 55, para. 4.23; p. 98; pp. 98-99, para. 6.25; and p. 123.
5
CMN, Ann. C 132.
6Note should be taken of the expression “accepted by joit agreement of the Parties” which is used in this
document to refer to the 1988 consensual line.
7MBF, Ann. 28. - 5 -
2012 list (villages 2, 5, 6, 8, 17, 18, 19, 22, 23 and 24); therefore, since 1994, Niger
has purportedly discovered more than 15 new villages in Téra sector (which it claims
have always belonged to Niger), in order to arrive at its list of 28 Niger villages in
Téra sector; the same observation can be ma de in respect of the list of villages in
Say sector, when the 1994 list is compared to that of 2012.
13. This approach does not call for lengt hy comment. In it, Burkina sees renewed
confirmation of the unfounded nature of Niger’s argument based on the effectivités. In any event,
Burkina Faso is convinced that these fanciful lists can have no influence over the determination of
the frontier which the Court is requested by th e Parties to determine on the basis of the
1927 Erratum and, should that not suffice, the 1960 map.
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Written comments of Burkina Faso on Niger's replies to the questions put by Judge Cançado Trindade at the end of the hearing held on 17 October 2012 (translation)