Further reply to the question of Judge Bennouna
Replying orally to the question put by Judge Bennouna, counsel for Niger stated the
following at the hearing on the afternoon of 17 October 1:
“This may be an appropriate time to reply to Judge Bennouna’s question [slide
of the sketch-map showing the line of the frontier]. For the record, that question reads
as follows: ‘To what extent 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?’
[AnA]ex The sketch-map which is now being shown marks in red the portions
of the boundary line shown on the IGN Fran ce map which are followed by Niger, and
in yellow those which are not.
This sketch-map therefore shows that the first section in which the boundary
shown on the map is followed by Niger is the one which runs from the Tao astronomic
marker to the site of the former ‘tripoint’ between Dori, Tillabéry and Say cercles.
The only exceptions in this section are the sites of Petelkolé and Oussaltan. The
second section in which the boundary that appears on the 1960 map is followed by
Niger runs from the Gouina frontier point to the beginning of the Botou bend. Niger
will provide in writing, before the deadlines set by the Court, additional information
about the reasons for which it does not adopt the other portions of the boundary line
shown on the IGN France map.”
The additional information which follows is divi ded into two parts: the Téra sector and the
Say sector.
The Téra sector
With respect to the Téra sector (between the starting point of the disputed line and the former
tripoint of the cercles of Dori, Tillabéry and Say), the points of disagreement between the boundary
claimed by Niger and that adopted by the IGN map are as follows.
If the IGN line is traced from its starting point at the astronomic marker of Tong-Tong, the
following points will be noted.
The starting point of the Burkina Faso-Niger boundary is not in dispute between the Parties:
it is the Tong-Tong astronomic marker. The co-ord inates of that marker are given as the starting
point of the disputed sector of the frontier in Article2 of the Special Agreement of
24 February 2009. They are as follo ws: latitude 14° 25' 04" N; longitude 0° 12' 47" E. Since the
starting point indicated on the IGN map is situated further east, it should therefore be disregarded,
at the express wish of the Parties.
Furthermore, from this point, the IGN line a dopts a shape very broadly curved towards the
west. [Annex B] That curve is unusual. Both the 1927 texts and the Delbos/Prudon sketch-maps,
and the official new frontier map, adopt, in the section between Tong-Tong and Tao, a line which is
straight or very slightly curved. Niger’s archiv al research, however, brought to light the existence
2
of a marker installed at Vibourié by mutual agreement (Record of Agreement of 13April1935)
between Administrator Garnier (Dori cercle) and Assistant Deputy Lichtenberger (Téra
1
CR 2012/26, pp. 35-36, para. 5.
2
See MN, pp. 92-93, para. 6.20; CMN, pp. 63-64, para. 2.1.4. - 2 -
Subdivision) 3; this agreement was approved by the Governor of Niger, of which the two cercles
4
had formed part since the dissolution of Upper Volta . Considering that this marker must have the
force of law between the Parties, the broken li ne which runs from Tong-Tong to Tao, passing
through the Vibourié marker— the co-ordinates of which are the following: 14° 21' 44" N,
0° 16' 25" E — therefore replaces the IGN line in this sector.
From that marker, the frontier runs in a straight line to the Tao astronomic marker
(co-ordinates: 14° 03' 02.2" N, 00° 22' 52.1" E).
From there, the frontier follows the 1960 IGN lin e (Téra sheet) 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), with two exceptions.
The first exception is the village of Petelkolé [Annex C].
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. That post is
situated entirely within Niger territory, on the Ouagadougou-Dori-Téra-Niamey road. The frontier
point is situated slightly further to the west, at the end of the stretch of the new Téra-Dori road
constructed by Niger, two kilometres from Petelkolé. The frontier line thus deviates from the IGN
line to follow the three points with the following co -ordinates: it leaves th e IGN line at the point
with co-ordinates 14° 01' 55" N; 00° 24' 11" E and runs in a straight line west of Petelkolé to the
frontier point on the new Téra-Dori road (co-ordinat es: 14° 00' 04.2" N, 00° 24' 16.3" E). It then
passes through the point with co-ordinates 13° 59' 03" N, 00° 25' 12" E, before running in a straight
line to rejoin the IGN line at the point with co-ordinates 13° 58' 38.9" N, 00° 26' 03.5" E.
The frontier then follows the IGN line 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 [Annex D].
6
Ichoultane is the second exception : this place was recognized as belonging to Niger during
the colonial period. It is a group of Logomaten encampments of the Kel Tamajirt tribe, of the
Tinguéréguédesch groupement of the rural municipality of Bankilaré.
The frontier line skirts the hamlet of Oussa ltane Ihouchaltane (Oullsalta), 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 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).
The Say sector
With respect to the Say sector, the boundary claimed by Niger between the point that was the
former tripoint of the cercles of Dori, Tillabéry and Say and the point where the Gouina frontier
marker is situated deviates from the line show n on the IGN map. On the other hand, the line
claimed by Niger is the same as that shown on th e IGN map between that frontier marker and the
beginning of the Botou bend.
3Record of Agreement dated 13 April 1935, MN, Ann. C 56.
4
OTL693AP of 17May1953, as stated in the Description of Tillabéry cercle, prepared in 1941 by Mr. Leca,
MN, Ann. C 65.
5
CMN, pp. 65-67, para. 2.1.7.
6See CMN, para. 2.1.8., and CR 2012/26, pp. 38-39, para. 9. - 3 -
The reasons why the line claimed by Niger does not follow the line shown on the IGN map
in the above-mentioned part of the Say sector were set out in detail by Niger in its written
pleadings. They can be summarized as follows.
⎯ With regard to the meeting point between the sectors of Téra and Say, the IGN map shows a
sinuous boundary line which reaches the villa ge of Bossébangou from a north-westerly
direction and leaves it in a general east-westerly direction, following the course of the River
Sirba. In Nigers view, that line has no legal basis. It is true that the text of the Arrêté of
31August1927, as amended by the Erratum of 5October of the same year, describes the
boundary between the colonies of Upper Volta and Niger in this area as passing through “the
River Sirba at Bossebangou”. However, Niger e xplained in detail both in its written pleadings
and i7 its oral argument that the text of the Erratum on this point was affected by a factual
error . It cannot, therefore, constitute a valid legal basis for the line adopted by the IGN in this
area. Nor does that line reflect in any way th e reality on the ground, as it could have been
observed by the IGN cartographers during the surveys which they carried out in 1958-1959. In
fact, there is nothing in the case file to attest to the existence of effectivités which would
indicate that the portion of territory which was a ttributed to Upper Volta by the line shown on
the IGN map in that area had at any time belonge d to that colony. On the contrary, all the
maps from the colonial period show that portion of territory as belonging, throughout the entire
colonial period, to the Colony of Niger. [Annex E] The sinuous line adopted by the IGN,
following the Sirba after the village of Bossébangou, does not appear on any of those maps.
⎯ The course of the boundary as shown on the IGN map in the sector known as “the four
villages” sector is also unsubstantiated in Niger’s vi ew. It could, at first sight, appear to be
founded on the text of the Erratum of 31 August 1927, which states that, after passing through
the village of Bossébangou, the boundary “almo st 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 Tankouro”. However, the line shown on the IGN map appears
to be based on the positions of those above -mentioned villages, which still existed in
1958-1959, as they were at that time . However, it is well established that several of those
villages were relocated after 1927. It is know n that Alfassi, among others, was moved for
health reasons . [Annex F] Niger has done its best to identify, using maps from that period, the
location of the four villages at the time of the adoption of the Erratum. Nevertheless, it is clear
that the line adopted by the IGN makes it impossibl e to leave to Niger, pursuant to the text of
the Erratum, on the left bank of the River Sirba, a “salient which includes the [four] villages” in
question, as they were located in 1927 [Annex G].
⎯ Moreover, this also explains why the line cl aimed by Niger, in the section where it changes
direction in order to run, following an east -south-east direction (under the terms of the
Erratum), towards the beginning of the Botou bend, also departs from the line adopted by the
IGN as far as the Gouina frontier point. Accordi ng to the maps from the colonial period, this
point where the boundary changes direction is situ ated by Niger slightly further west and north
of that which appears on the IGN map, as shown on the sketch-map reproduced opposite
page 114 of Niger’s Memorial [p. 111 in the English version] [Annex H]. However, it should
be noted that, in this section, the line claimed by Niger is very close to that shown on the IGN
map.
___________
7
MN, para. 7.14 et seq.; CMN, para. 2.2.2. et seq.
8
See MN, para. 7.28 et seq., and references. L IST OF ANNEXES
A. Slide shown during the presentation of Pr ofessor Jean Salmon of 17October2012 on the
boundary in the Téra sector [judges’ folder, ta b 21, No. 1: The course of the boundary shown
on the IGN map]
B. Slide shown during the presentation of Pr ofessor Jean Salmon of 12October2012 on the
boundary in the Téra sector [judges’ folder, ta b19, No.6: Extract from a map showing the
IGN line from the Tong-Tong marker]
C. Line claimed by Niger in the vicinity of Petelkolé
D. Line claimed by Niger in the vicinity of Ousalta
E. Slide shown during the presentation of Prof essor Pierre Klein of 12October2012 on the
boundary in the Say sector [judges’ folder, tab 20, No. 8: Enlarged extract from the 1927 new
frontier map]
F. Labitte sketch-map showing the relocated villages [MN, Ann. C 39]
G. Extract from the Blondel/La Rougery map showing the villages of the salient mentioned in the
Erratum (Alfassi, Kouro, Tokalan) [Extract from MN, Ann.D9; slide shown during the
presentation of Professor Pierre Klein of 12Oc tober2012 on the boundary in the Say sector
(judges’ folder, tab 20, No. 14); and CMN, Figure No. 15, p. 89]
H. Sketch-map of the traditional salient and th e salient as shown on the IGN map as reproduced
opposite page 114 of the Memorial of the Republic of Niger [p. 111 of the English version]
___________ - 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]. - 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)
Further reply of Niger to the question put to the Parties by Judge Bennouna at the end of the public sitting held on 12 October 2012 at 3 p.m. (translation)