Letter to the Registrar dated 24 October 2012
from the Agent of Burkina Faso
[Translation]
Re: Question put by Judge Bennouna at the end of the hearing of 12 October 2012
At the end of the hearing held on the af ternoon of 12October, Judge Bennouna put the
following question to both Parties: “To what exte nt and for which section(s) do each of the Parties
agree to refer to the 1960 IGN map to establish the course of the frontier between them?”
At that time, the President of the Court invited the Parties to reply orally to this question
during the second round of their oral argument and, if necessary, to supplement in writing any oral
answer which they provided. He stated that: “Any such supplementary reply must be submitted no
later than 24October2012 at 6p.m. Written co mments on the replies of the other Party may be
presented no later than 31 October 2012 at 6 p.m.”
Professor Alain Pellet gave a detailed reply to Judge Bennouna’s question at the hearing of
15October (CR2012/25, paras.27-32). For the convenience of the Court, I am attaching hereto
the text of that oral reply, to which we have nothi ng further to add for the time being, together with
the sketch-map which was projected at that point in the hearing.
I note that, for its part, the Republic of Niger confined itself to giving an extremely brief
reply to that same question, delivered by Prof essor Jean Salmon at the hearing of 17October
(CR 2012/26, para. 5). That very short statement does not call for any comment from Burkina Faso
at the present stage. However, we reserve the right to respond to any further information that might
be submitted in writing by Niger, in accordance w ith the invitation addressed to the Parties by the
President of the Court.
___________ A NNEX
Extracts from the verbatim record of the hearing of 12 October 2012 (CR 2012/25),
paras. 27-32, (B. The Erratum’s inadequacies and the 1960 map)
[CR 2012/25, p. 21]
27. Members of the Court, the Erratum is not incomplete and only very marginally does not
suffice. When ⎯ exceptionally ⎯ that is the case, reference must be made to the 1:200,000-scale
IGN France map of 1960. And that brings me to our reply to JudgeBennouna’s question. That
question is twofold.
28. We must first explain “to what extent ” we agree “to refer to the 1960IGNmap to
establish the course of the frontier” between the Parti es. The answer is, in fact, to be found in the
Agreement of 28 March 1987 and, in particular, Artic le 2 thereof: reference may only be made to
the map if the Arrêté, as clarified by its Erratum, does not suffice; and, in the absence of any other
document accepted by joint agreement of the Parties, first, reference must be made to it and,
second, reference may be made to it alone. This is not fetishism, Mr. President, it is not formalism,
it is not “Freudian”; it is quite simply what is stated in the 1987 text, to which the Special
Agreement refers.
29. But beware: it is not permitted to reverse the order of the factors and take the map as a
starting point, a step which our opponents quite blithely do not hesitate to take. Thus
Professor Salmon, after appearing to admit that the map has been granted “the status of subsidiary
title”, goes on unwaveringly to explain that “Niger considered it legitimate to rely on this
subsidiary source” 3. And my esteemed opponent goes even further ⎯ much further: after
[CR 2012/25, p. 22] admitting that Niger was, therefore, “rely[ing] on” the 1960 map, he explains
that “Niger has scrupulously adhered to” its policy of only deviating “ from the IGNline for
reasons” based on the existence “of a colonial marker which was unknown to the drafters of the
map”, of an alleged “agreement which was reac hed after independence”, of “information dating
from the colonial period” and for a “number of reasons” ⎯ which he does not elucidate ⎯ in the
Say sector . No lengthy comments are necessary; I think it is sufficient for me to point out that:
⎯ no, it is not the 1960 map that must be “rel[ied] on”, but the 1927 Erratum; and
⎯ no, it is not permitted, should that text not suffi ce, to substitute the line shown on the map with
an improbable mishmash of more or less formal colonial documents (generally less rather than
more so, by the way).
If you will permit this bad play on words, Mr. Presi dent (which, incidentally, I am not sure can be
translated into English): the map (carte) appears on a menu imposed by the 1987Agreement ⎯
whether it is appetizing or not is irrelevant; Niger wishes, for its part, to choose the map (à la
carte) in order to satisfy its culinary preferences. It may not do so.
30. Moreover, this is not quite the end of the matter ⎯ as I am quite willing to concede ⎯
since it is still necessary to determine exactly when the reference text does not suffice. Here too, it
seems to me that the answer lies in th e text: it is necessary for the Erratum not to suffice for the
purposes of drawing the frontier line. My friend Professor Pierre Klein has gone to a great deal of
trouble to show that the Erratum as a whol e suffers from this defect of inadequacy 41, and has
3CR 2012/23, p. 55, para. 5 (Salmon); emphasis added.
40
CR 2012/23, p. 56, para. 6 (Salmon); emphasis added.
4See CR 2012/23, pp. 21-34 (Klein). - 2 -
42
denounced “the utter frivolity” of Burkina’s position and the presumptuousness of its counsel
who, in splendid isolation, are, he says, obstinately persisting in denying the obscurity of the
Erratum . Yet we are not postulating anything, Mr. President; this is a technical issue, and we are
merely noting that the experts of the two Parties believed, in 1988, that it was perfectly possible to
take the Erratum as the basis for the delimitation, even if it meant falling back on the map in those
cases where that text did not describe the frontier adequately; and in th e only instance where the
map was unable to [CR 2012/25, p. 23] compensate for the Erratum, because a name that it
mentioned did not appear on that map, the Join t Commission, in accordance with the letter and
spirit of Article2 of the 1987Agreement, ga ve precedence to the Erratum over the map by
44
interpreting the text of that instrument .
[End of slide5. Slide6: The 1927Erratum and the 1960map] (This slide is reproduced after
the text.)
31. Mr President, Judge Bennouna’s question al so asks “for which section(s) . . . do each of
the Parties agree to refer to the 1960IGN map to establish the course of the frontier between
them”. The diagram which is now being shown on the screen illustrates Burkina’s position on this
point. The green line is compatible with both the description of the line in the Erratum and the line
shown on the map; the red line represents the lin e described in the Erratum when the line shown
on the map does not coincide with it, and the yellow line ⎯ which is not very easy to make out on
the screen ⎯ represents the line shown on the map when the Erratum does not suffice.
Professors Thouvenin and Forteau will elaborate on these segments of the frontier and explain the
reasons which led the technical experts to think that, in these rare cases (only one as far as we are
concerned), the Erratum did not suffice (I am refe rring to the short segment that I mentioned a
moment ago , which is situated in the sector running from Bossébangou to the intersection of the
Sirba with the Say parallel).
32. I hope that I have rep lied to Judge Bennouna’s satisfaction, but, in accordance with your
invitation, Mr. President, we reserve the right to supplement this answer by 24 October.
___________
42Ibid., p. 21, para. 1 (Klein).
43
See, in particular, ibid., p. 22, paras. 2 and 3; or pp. 32-33, para. 15 (Klein).
44See CR 2012/19, pp. 34-35, paras. 20-22 (Pellet).
45See para. 25 above.
Question put to the Parties by Judge Bennouna at the end of the hearing held on 12 October 2012 at 3 p.m.: Communication by Burkina Faso of the text of the reply given orally by Mr. Pellet (translation)