3 February 1994

 

General List No. 83

 
     

international Court of Justice

     
 

Territorial Dispute

 
     

Libya

 

v. 

Chad

     
     
 

Judgement

 
     
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BEFORE:

President Sir Robert Jennings;
Vice-President Oda;
Judges: Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabud-deen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola, Herczegh;
Judges ad hoc: Sette-Camara, Abi-Saab

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1994.02.03_jamahiriya.htm
   
Citation: Territorial Dispute (Libya v. Chad), 1994 I.C.J. 7 (Feb. 3)
   
Represented By: Libya: H.E. Mr. Abdulati Ibrahim El-Obeidi, Ambassador, as Agent;
Mr. Kamel H. El Maghur, Member of the Bar of Libya;
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor emeritus, University of Cambridge, Mr. Philippe Cahier, Professor of International Law, Graduate Institute of International Studies, University of Geneva, Mr. Luigi Condorelli, Professor of International Law, University of Geneva;
Mr. James R. Crawford, Whewell Professor of International Law, University of Cambridge;
Mr. Rudolf Dolzer, Professor of International Law, University of Mannheim;
Sir Ian Sinclair, K.C.M.G., Q.C.;
Mr. Walter D. Sohier, Member of the Bar of the State of New York and of the District of Columbia, as Counsel and Advocates;
Mr. Timm T. Riedinger, Rechtsanwalt, Frere Cholmeley, Paris;
Mr. Rodman R. Bundy, avocat a la Cour, Frere Cholmeley, Paris;
Mr. Richard Meese, avocat a la Cour, Frere Cholmeley, Paris;
Miss Loretta Malintoppi, avocat a la Cour, Frere Cholmeley, Paris; Miss Azza Maghur, Member of the Bar of Libya, as Counsel;
Mr. Scott B. Edmonds, Cartographer, Maryland Cartographies, Inc.; Mr. Bennet . , Cartographer, Maryland Cartographies, Inc.;
Mr. Robert C. Rizzutti, Cartographer, Maryland Cartographies, Inc.,
as Experts;

Chad: Rector Abderahman Dadi, Director of the Ecole nationale d'administration et de magistrature de N'Djamena, as Agent;
H.E. Mr, Mahamat Ali-Adoum, formerly Minister for Foreign Affairs of the Republic of Chad, as Co-Agent;
H.E. Mr. Ahmad Allam-Mi, Ambassador of the Republic of Chad to France;
H.E. Mr. Ramadane Barma, Ambassador of the Republic of Chad to Belgium and the Netherlands, as Advisers;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre and at the Institut d'etudes politiques of Paris, as Deputy-Agent, Counsel and Advocate;
Mr. Antonio Cassese, Professor of International Law at the European University Institute, Florence;
Mr. Jean-Pierre Col, Professor at the University of Paris I (Pantheon-Sorbonne);
Mr. Thomas M. Franck, Becker Professor of International Law and Director, Center for International Studies, New York University,
Mrs. Rosalyn Higgins, Q.C., Professor of International Law, University of London, as Counsel and Advocates;
Mr. Malcolm N. Shaw, Ironsides Ray and Vials Professor of Law, University of Leicester, Member of the English Bar, Mr. Jean-Marc Sorel, Professor at the University of Rennes, as Advocates;
Mr. Jean Gateaud, ingenieur general geographe honoraire, as Counsel and Cartographer;
Mr. Jean-Pierre Mignard, Advocate at the Court of Appeal of Paris. Mr. Marc Sassen, Advocate and Legal Adviser, The Hague, as Counsel;
Mrs. Margo Baender, Research Assistant, Center for International Studies, New York University, Mr. Olivier Corten, Assistant at the Faculty of Law of the Universite libre de Bruxelles ;
Mr. Renaud Dehousse, Senior Assistant at the European University Institute, Florence;
Mr. Jean-Marc Thouvenin, attache temporaire d'enseignement et de recherche at the University of Paris X-Nanterre, Mr. Joseph Tjop, attache temporaire d'enseignement et de recherche at the
University of Paris X-Nanterre, as Advisers and Research Assistants;
Mrs. Rochelle Fenchel;
Mrs. Susan Hunt;
Miss Florence Jovis;
Mrs. Mireille Jung;
Mrs. Martine Soulier-Moroni.

 
     
 
 
     
 

[p7]

The Court,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 31 August 1990, the Government of the Great Socialist People's Libyan Arab Jamahiriya (hereinafter called "Libya"), referring to Article 40, paragraph 1, of the Statute of the Court, filed in the Registry a notification of an agreement entitled "Framework Agreement [Accord-Cadre] on the Peaceful [p9] Settlement of the Territorial Dispute between the Great Socialist People's Libyan Arab Jamahiriya and the Republic of Chad" (hereinafter referred to as the "Accord-Cadre"), done in the Arabic and French languages at Algiers on 31 August 1989. A certified copy of the Accord-Cadre was annexed to that notification.

2. The text of the Accord-Cadre, registered with the Secretariat of the United Nations under Article 102 of the Charter, and notified to the Organization of African Unity, is as follows:

"The great Socialist People's Libyan Arab Jamahiriya and the Republic of Chad,
On the basis, on the one hand, of the resolutions of the Organization of African Unity (OAU), in particular resolution AHG/Res.6 (XXV) on the Libya/Chad territorial dispute and, on the other hand, of the fundamental principles of the United Nations, namely:

the peaceful settlement of international disputes;
the sovereign equality of all States;
non-use of force or threat of force in relations between States;
respect for the national sovereignty and territorial integrity of each Slate;
non-interference in internal affairs;

Resolved to settle their territorial dispute peacefully,

Hereby decide to conclude this agreement:

Article I. The two Parties undertake to settle first their territorial dispute by all political means, including conciliation, within a period of approximately one year, unless the Heads of State otherwise decide.

Article 2. In the absence of a political settlement of their territorial dispute, the two Parties undertake:
(a) to submit the dispute to the International Court of Justice;
(b) to take measures concomitant with the judicial settlement by withdrawing the forces of the two countries from the positions which they currently occupy on 25 August 1989 in the disputed region, under the supervision of a commission of African observers, and to refrain from establishing any new presence in any form in the said region;
(c) to proceed to the said withdrawal to distances to be agreed on;
(d) to observe the said concomitant measures until the International Court of Justice hands down a final judgment on the territorial dispute.

Article 3. All prisoners of war shall be released.

Article 4. The great Socialist People's Libyan Arab Jamahiriya and the Republic of Chad reiterate their decisions concerning the cease-fire established between them and undertake further to desist from any kind of hostility and, in particular, to:

(a) desist from any hostile media campaign;
(b) abstain from interfering directly or indirectly, in any way, on any pretext and in any circumstance, in the internal and external affairs of their respective countries;[p10]

(c) refrain from giving any political, material, financial or military support to the hostile forces of either of the two countries;
(d) proceed to the signature of a treaty of friendship, good-neighbourliness and economic and financial co-operation between the two countries.

Article 5. The two Parties decide to establish a Mixed Commission to be entrusted with the task of making the necessary arrangements for the implementation of this Agreement and ensuring that all necessary measures are taken to this end.

Article 6. The Ad Hoc Committee of the Organization of African Unity on the Libya/Chad dispute shall be requested to monitor the implementation of the provisions of this Agreement.

Article 7. The great Socialist People's Libyan Arab Jamahiriya and the Republic of Chad undertake to give notice of this Agreement to the United Nations and the Organization of African Unity.

Article 8. This Agreement shall enter into force on the date of its signature."

3. In its notification to the Court, the Libyan Government staled, inter alia, the following:

"The negotiations referred to in Article 1 of the Accord-Cadre have failed to resolve the territorial dispute between the Parties . . . and no decision by the respective Heads of State has been reached to vary the procedures established by the Accord.

Accordingly Libya is bound, following the expiry of the year referred to in Article 1, to implement its obligation under Article 2 (a) '. . . soumettre le differend au jugement de la Cour internationale de Justice'.
For the purposes of the Rules of Court, the dispute {'differend') submitted to the Court is their territorial dispute ('leur differend territorial') referred to in the Accord-Cadre, and the question put to the Court may be defined in the following terms:

'In further implementation of the Accord-Cadre, and taking into account the territorial dispute between the Parties, to decide upon the limits of their respective territories in accordance with the rules of international law applicable in the matter."

4. Pursuant to Article 39, paragraph 1, of the Rules of Court, a certified copy of the notification and its annex was communicated forthwith to the Government of the Republic of Chad (hereinafter referred to as "Chad") by the Deputy-Registrar.

5. On 3 September 1990, the Government of Chad filed in the Registry of the Court an Application instituting proceedings against Libya, the text of which had previously been communicated to the Registry by facsimile on I September 1990 and to which was attached a copy of the Accord-Cadre. In its Application, Chad stated, inter alia, that the Heads of State of the two Parties had, "during the summit meeting held in Rabat on 22-23 August 1990, decided to seise the International Court of Justice immediately" and that the Application had been '"drawn up pursuant to that decision and to Article 2 (a) of the Accord-Cadre of 31 August 1989" ; it relied, as a basis for the Court's jurisdic-[p11]tion, principally on Article 2 (a) of the Accord-Cadre and, subsidiarily, on Article 8 of a Franco-Libyan Treaty of Friendship and Good Neighbourliness of 10 August 1955; and it requested the Court to

"determine the course of the frontier between the Republic of Chad and the Libyan Arab Jamahiriya, in accordance with the principles and rules of international law applicable in the matter as between the Parties".

6. Pursuant to Article 40, paragraph 2, of the Statute and Article 38, paragraph 4, of the Rules of Court, the Registrar transmitted forthwith to the Libyan Government a certified copy of the Application.

7. By a letter dated 28 September 1990, received in the Registry the same day by facsimile, and the original of which was received on 5 October 1990, the Agent of Chad informed the Court, inter alia, that his Government had noted that "its claim coincides with that contained in the notification addressed to the Court on 31 August 1990 by the Libyan Arab Jamahiriya" and considered that

"those two notifications relate to one single case, referred to the Court in application of the Algiers Agreement, which constitutes the Special Agreement, the principal basis of the Court's jurisdiction to deal with the matter";

a copy of this letter was addressed to the Agent of Libya by the Deputy-Registrar on 1 October 1990.

8. At a meeting held by the President of the Court on 24 October 1990 with the Agents of the Parties, pursuant to Article 31 of the Rules of Court, it was agreed between the Agents, first that the proceedings had in effect been instituted by two successive notifications of the Special Agreement constituted by the Accord-Cadre of 31 August 1989 that filed by Libya on 31 August 1990, and the communication from Chad filed on 3 September 1990, read in conjunction with the letter from the Agent of Chad of 28 September 1990 and secondly that the procedure in this case should be determined by the Court on that basis, pursuant to Article 46, paragraph 2, of the Rules of Court.

9. By an Order dated 26 October 1990, the Court decided accordingly that each Party would file a Memorial and Counter-Memorial, within the same time-limits, and fixed 26 August 1991 as the time-limit for the Memorials.

10. Pursuant to Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, copies of the notifications and of the Special Agreement were transmitted to the Secretary-General of the United Nations, the Members of the United Nations and other States entitled to appear before the Court; a copy of the Order dated 26 October 1990 was also communicated to them.

11. Since the Court included upon the Bench no judge of the nationality of the Parties, each of them exercised its right under Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case: Chad designated Mr. Georges Abi-Saab, and Libya designated Mr. Jose Sette-Camara.

12. The Memorials of the Parties having been duly filed within the time-limit fixed for that purpose, the President, by an Order dated 26 August 1991, fixed 27 March 1992 as the time-limit for the filing, by each of the Parties, of a Counter-Memorial; the Counter-Memorials were duly filed within the time-limit so fixed.

13. By an Order dated 14 April 1992, the Court decided to authorize the pres-[p12]entation by each of the Parties of a Reply, within the same time-limit, namely 14 September 1992; the Replies were duly filed within the time-limit so fixed.

14. On 9 February 1993, after the closure of the written proceedings, the Deputy-Agent of Chad communicated to the Registry new documents under cover of a letter in which he requested the Court, if Libya did not give its consent to the presentation of these documents, to authorize their presentation under Article 56, paragraph 2, of the Rules of Court; Libya did not object to the production of the documents.

15. In accordance with Article 53, paragraph 2, of the Rules, the Court decided to make the pleadings and annexed documents accessible to the public as from the dale of the oral proceedings.

16. The Parties having been duly consulted pursuant to Articles 31 and 58, paragraph 2, of the Rules of Court, public hearings were held between 14 June and 14 July 1993, in the course of which the Court heard the oral arguments and replies of the following:

For Libya: H.E. Mr. Abdulati Ibrahim El-Obeidi,

Mr. Derek W. Bowett, C.B.E., Q.C, F.B.A.,
Mr. Kamel H. El Maghur,
Sir Ian Sinclair, K.C.M.G., Q.C,
Mr. Walter D. Sohier,
Mr. Luigi Condorelli,
Mr. Philippe Cahier,
Mr. James R. Crawford,

Mr. Rudolf Dolzer.

For Chad: Mr. Abderahman Dadi,
Mr. Alain Pellet,
Mrs. Rosalyn Higgins, Q.C,
Mr. Jean-Pierre Cot,
Mr. Thomas M. Franck,
Mr. Antonio Cassese,
Mr. Malcolm N. Shaw,
Mr. Jean-Marc Sorel.

At the hearings, a Member of the Court put a question to one Parly who answered in writing; this reply having reached the Registry at the close of the oral proceedings, the other Party submitted written comments upon it in accordance with Article 72 of the Rules of Court.

17. In the course of the proceedings, the following submissions were presented by the Parties:

On behalf of Libya,

in the Memorial, the Counter-Memorial and Reply and at the hearing of 8 July 1993 (mutatis mutandis identical texts):

"Having regard to the various international treaties, agreements, accords and understandings and their effect or lack of effect on the present dispute, as set out in Libya's Memorial, Counter-Memorial, Reply and oral pleadings;

In view of the other facts and circumstances having a bearing on this case, as discussed above, and in Libya's pleadings;

In the light of the conduct of the Parties, of the conduct of other State s[p13] or political, secular or religious forces, whose conduct bears on the rights and titles claimed by the Parties, and of the conduct of the indigenous peoples whose territories are the subject of this dispute;

In application of the principles and rules of international law of relevance to this dispute;

May it please the Court, rejecting all contrary claims and submissions:

To adjudge and declare, as follows:

1. That there exists no boundary, east of Toummo, between Libya and Chad by virtue of any existing international agreement.

2. That in the circumstances, therefore, in deciding upon the attribution of the respective territories as between Libya and Chad in accordance with the rules of international law applicable in this matter, the following factors are relevant:

(i) that the territory in question, at all relevant times, was not terra nullius;

(ii) that title to the territory was, at all relevant times, vested in the peoples inhabiting the territory, who were tribes, confederations of tribes or other peoples owing allegiance to the Senoussi Order who had accepted Senoussi leadership in their fight against the encroachments of France and Italy on their lands;

(iii) that these indigenous peoples were, at all relevant times, religiously, culturally, economically and politically part of the Libyan peoples;

(iv) that, on the international plane, there existed a community of title between the title of the indigenous peoples, and the rights and titles of the Ottoman Empire, passed on to Italy in 1912 and inherited by Libya in 1951;

(v) that any claim of Chad rests on the claim inherited from France;

(vi) that the French claim to the area in dispute rested on 'actes interna-tionaux" that did not create a territorial boundary east of Toummo, and that there is no valid alternative basis to support the French claim to the area in dispute.

3. That, in the light of the above factors, Libya has clear title to all the territory north of the line shown on Map 105 in Libya's Memorial, on Map LC-M 55 in Libya's Counter-Memorial and on Map LR 32 in Libya's Reply, that is to say the area bounded by a line that starts at the intersection of the eastern boundary of Niger and 18 N latitude, continues in a strict south-east direction until it reaches 15 N latitude, and then follows this parallel eastwards to its junction with the existing boundary between Chad and Sudan."

On behalf of Chad,

in the Memorial, the Counter-Memorial and the Reply, and at the hearing of 14 July 1993 (identical texts):

"The Republic of Chad respectfully requests the International Court of Justice to adjudge and declare that its frontier with the Libyan Arab Jama-hiriya is constituted by the following line:

from the point of intersection of the 24 of longitude east of Greenwich [p14] with the parallel of 19 30' of latitude north, the frontier shall run as far as the point of intersection of the Tropic of Cancer with the 16 of longitude east of Greenwich;
from that latter point it shall follow a line running towards the well of Toummo as far as the fifteenth degree east of Greenwich."

18. The Court has been seised of the present dispute between Libya and Chad by the notifications of the special agreement constituted by the Accord-Cadre of 31 August 1989, the text of which is set out in paragraph 2 above. The Accord-Cadre described the dispute between the Parties as "their territorial dispute" but gave no further particularization of it, and it has become apparent from the Parties' pleadings and oral arguments that they disagree as to the nature of the dispute. Libya, in its notification of the Accord-Cadre to the Court filed on 31 August 1990, explained the "territorial dispute" by stating as follows:

"The determination of the limits of the respective territories of the Parties in this region involves, inter alia, a consideration of a series of international agreements although, in the view of Libya, none of these agreements finally fixed the boundary between the Parties which, accordingly, remains to be established in accordance with the applicable principles of international law."

On this basis, Libya defined the question put to the Court by requesting it:

"In further implementation of the Accord-Cadre, and taking into account the territorial dispute between the Parties, to decide upon the limits of their respective territories in accordance with the rules of international law applicable in the matter."

Chad, on the other hand, in its initial communication to the Court filed on 3 September 1990, indicated that in its view there was a frontier between Chad and Libya, the course of which "was not the subject of any dispute until the 1970s", and stated that

"The object of the present case is to arrive at a firm definition of that frontier, in application of the principles and rules applicable in the matter as between the Parties."

On this basis, Chad requested the Court:

"to determine the course of the frontier between the Republic of Chad and the Libyan Arab Jamahiriya in accordance with the principles and rules of international law applicable in the matter as between the Parties".

19. Thus Libya proceeds on the basis that there is no existing boundary, and asks the Court to determine one. Chad proceeds on the basis that there is an existing boundary, and asks the Court to declare what that boundary is. Libya considers that the case concerns a dispute regard-[p15]
ing attribution of territory, while in Chad's view it concerns a dispute over the location of a boundary.

20. Chad in its submissions has indicated the position of the line which it claims constitutes its frontier with Libya. Libya, while maintaining in its submissions that in the region in question "there exists no boundary... between Libya and Chad by virtue of any existing international agreement", also submits that it "has clear title to all the territory" north of a specified line, constituted for much of its length by the 15th parallel of north latitude. Sketch-map No. 1 on page 16 hereof shows the line claimed by Chad and the line claimed by Libya. The area now in dispute, between those two lines, has been referred to by Libya in this case as the Libya-Chad "Borderlands".

21. Libya bases its claim to the Borderlands on a coalescence of rights and titles: those of the indigenous inhabitants, those of the Senoussi Order (a religious confraternity, founded some time during the early part of the nineteenth century which wielded great influence and a certain amount of authority in the north and north-east of Africa), and those of a succession of sovereign States, namely the Ottoman Empire, Italy, and finally Libya itself. Chad claims a boundary on the basis of a Treaty of Friendship and Good Neighbourliness concluded by the French Republic and the United Kingdom of Libya on 10 August 1955 (hereinafter referred to as "the 1955 Treaty"). In the alternative, Chad claims that the lines delimiting the zones of influence in earlier treaties, referred to in the 1955 Treaty, had acquired the character of boundaries through French effectivites; it claims finally that, even irrespective of treaty provisions, Chad can rely on those effectivites in regard to the area claimed by it.

22. Both Parties accepted the jurisdiction of the Court on the basis of the Accord-Cadre. However, Chad has added that, subsidiarily, the jurisdiction of the Court is also based upon Article 8 of the 1955 Treaty which provides that

"Such disputes as may arise from the interpretation and application of the present Treaty and which may prove impossible to settle by direct negotiations shall be referred to the International Court of Justice at the request of either Party, unless the High Contracting Parties agree upon some other method of settlement."

Since however the jurisdiction to deal with the present dispute conferred by the Accord-Cadre has not been disputed, there is no need to consider the question of an additional ground of jurisdiction under the Treaty.

*[p16]

Sketch-Map No. 1 - Claims of the Parties

[p17]

23. Libya, which had been a colonial territory of Italy, was, after the termination of hostilities in World War II, administered by the Four Allied Powers (France, the United Kingdom, the United States and the Union of Soviet Socialist Republics), and became a sovereign State on 24 December 1951 pursuant to resolution 289 (IV) of the General Assembly of 21 November 1949. Chad had been a French colony, then a "territoire d'outre-mer", appertaining in both cases to French Equatorial Africa. It became a member of the French Community from 1958 to 1960. Chad acceded to independence on 11 August 1960.

24. The dispute between the Parties is set against the background of a long and complex history of military, diplomatic and administrative activity on the part of the Ottoman Empire, France, Great Britain and Italy, as well as the Senoussi Order. This history is reflected in a number of conventions, numerous diplomatic exchanges, certain contemporary maps and various archival records, which have been furnished to the Court. The Court will first consider this documentation, and will enumerate those of the conventional instruments which appear to it to be relevant.

25. At the end of the nineteenth and beginning of the twentieth century, various agreements were entered into between France, Great Britain and, later, Italy, by which the parties purported to divide large tracts of Africa into mutually recognized spheres or zones of influence. The agree-ments described the limits of the areas in question, with reference to points on the ground, where such points were known and identifiable, and to lines of latitude and longitude. With the increasing influence and presence of these Powers in the region, they also entered into treaties regarding the boundaries of the territories they claimed, both between themselves and with the Ottoman Empire, already present in the region.

26. Alongside that Ottoman presence was the Senoussi Order, already referred to. The Senoussi established at many points within the region a series of zawiyas which, inter alia, fostered trade, regulated caravan traffic, arbitrated disputes and functioned as religious centres. These centres comprised mosques, schools and guesthouses for travellers, and also sometimes had in residence a qadi or judge. The sheikhs of the zawiyas were confirmed in their positions by the Grand Senoussi, the head of the Order.

27. French colonial expansion into the Chad area took place from the south, the west and the north. There was an expedition from the south in the direction of Lake Chad during the period from 1875 to 1897. From the west, another moved towards Lake Chad in the period from 1879 to 1899; and from Algiers in the north a further expedition advanced on the Lake from 1898 to 1900. Consequent on this expansion, large tracts of African territory were later grouped together in what were designated as French West Africa and French Equatorial Africa.

28. Towards the end of the nineteenth century France and Great Britain entered into two successive agreements, in the form of an Exchange of Declarations signed at London on 5 August 1890, and a Convention [p18] concluded at Paris on 14 June 1898, as a result of which (inter alia) each party recognized certain territories in Africa as falling within the "sphere" of the other (1898 Convention, Art. IV). By a subsequent Declaration signed at London on 21 March 1899, it was agreed that the fourth article of the 1898 Convention should be completed by certain provisions, and in particular it was recorded that "it is understood, in principle, that to the north of the 15th parallel the French zone shall be limited by" a specified line, described in the text. No map was attached to the Declaration, but a few days after its adoption the French authorities published a Livre jaune including a map, a copy of which is attached to this Judgment (see paragraph 58 below).
29. Exchanges of letters took place between the French and Italian Governments, relating to their interests in Africa, on 14-16 December 1900, and 1-2 November 1902, in the course of which Italy was reassured that "the limit to French expansion in North Africa ... is to be taken as corresponding to the frontier of Tripolitania as shown on the map annexed to the Declaration of 21 March 1899". As indicated below (paragraph 61), the reference could only have been to the Livre jaune map. Similar assurances were given to Italy by the British Government in an exchange of letters of 11-12 March 1902.

30. On 19 May 1910, a Convention was concluded between the Tunisian Government and the Ottoman Empire defining the frontier between the Regency of Tunis and the Vilayet of Tripoli. In 1912 Italian sovereignty was established over the Turkish provinces of Tripolitania and Cyrenaica (Treaties of Ouchy and Lausanne, 15 and 18 October 1912). Certain rights and privileges were however reserved to the Sultan by the Treaty of Lausanne.

31. On 8 September 1919, France and Great Britain concluded a Convention expressed to be supplementary to the Declaration of 21 March 1899 additional to the Convention of 14 June 1898 (paragraph 28 above), recording (inter alia) an interpretation of the 1899 Declaration defining the limits of the French zone. On 12 September 1919 an arrangement in the form of an exchange of letters was concluded between France and Italy for the fixing of the boundary between Tripolitania and the French possessions in Africa west of Toummo.

32. The Treaty of Lausanne of 24 July 1923 re-established peace between Turkey and the other signatory parties (including France, Great Britain and Italy); it included a provision that Turkey recognized the definitive abolition of all rights and privileges which it maintained in Libya under the 1912 Treaty of Lausanne. By a Protocol dated 10 January 1924, approved by an Exchange of Notes of 21 January 1924, France and Great Britain defined the boundary between French Equatorial Africa and the Anglo-Egyptian Sudan. Similarly, an Exchange of Notes of 20 July 1934 between Egypt, Great Britain and Italy defined the boundary between Libya and the Sudan.
[p19]
33. On 7 January 1935 a Treaty was concluded between France and Italy for the settlement of questions pending between them in Africa. That Treaty included a definition of a boundary between Libya and the adjacent French colonies east of Toummo. Although ratification of the treaty was authorized by the parliaments of both parties, instruments of ratification were never exchanged, and the treaty never came into force; for convenience, it will be referred to hereafter as "the non-ratified Treaty of 1935".

34. After the conclusion of World War II, the Treaty of Peace with Italy was signed on 10 February 1947. By Article 23 of this Treaty, Italy renounced all right and title to its territorial possessions in Africa, i.e., Libya, Eritrea and Italian Somaliland. The final disposal of these possessions was to be determined jointly by the Governments of the Four Allied Powers; if those Powers were unable to agree within one year on the final disposal of the territories the matter was to be referred to the General Assembly of the United Nations for a recommendation. The four Powers undertook in advance to accept that recommendation. There being no agreement between the four Powers, the General Assembly was seised and, by resolution 289 (IV) of 21 November 1949, recommended that "Libya, comprising Cyrenaica, Tripolitania and the Fezzan, shall be constituted an independent and sovereign State". The independence of Libya was proclaimed on 24 December 1951, and recognized on 1 February 1952 by General Assembly resolution 515 (VI). With independence, Libya entered into treaties with the United Kingdom and the United States, which provided inter alia for a military presence in Libya.

**

35. Negotiations opened at the beginning of 1955 between Libya and France, and led to the conclusion of the 1955 Treaty, i.e., the Treaty of Friendship and Good Neighbourliness between the French Republic and the United Kingdom of Libya of 10 August 1955. In the preceding November, Libya had informed France that it did not intend to renew a provisional military arrangement of 24 December 1951 under which French forces remained stationed on Libyan territory, in the Fezzan. The French Government wished to maintain its military presence there, but the Libyan Parliament had made it clear that it had no intention of accepting an agreement leaving French forces in the Fezzan. Among other matters which were the subject of negotiation were military matters (including the non-substitution of other foreign troops for the French troops, and French access to airstrips and certain caravan routes), and the question of boundaries. France possessed extensive territories in Africa which bordered Libya on the west and on the south. French authority in parts of those territories had been challenged and a settled border was essential. This was so particularly to the west of Toummo.[p20] East of Toummo, on the other hand, there was, in France's view, an existing frontier resulting from the Anglo-French Agreements of 1898, 1899 and 1919 (paragraphs 28, 31 above), but there had been long-standing disagreement between France and Italy in that respect. Obtaining Libyan acceptance of those agreements, which entailed recognition of the inapplicability of the non-ratified Treaty of 1935, was important to the French.

36. It is recognized by both Parties that the 1955 Treaty is the logical starting-point for consideration of the issues before the Court. Neither Party questions the validity of the 1955 Treaty, nor does Libya question Chad's right to invoke against Libya any such provisions thereof as relate to the frontiers of Chad. However, although the Treaty states that it has been entered into "on the basis of complete equality, independence and liberty", Libya has contended that, at the time of the Treaty's conclusion, it lacked the experience to engage in difficult negotiations with a Power enjoying the benefit of long international experience. On this ground, Libya has suggested that there was an attempt by the French negotiators to take advantage of Libya's lack of knowledge of the relevant facts, that Libya was consequently placed at a disadvantage in relation to the provisions concerning the boundaries, and that the Court should take this into account when interpreting the Treaty; it has not however taken this argument so far as to suggest it as a ground for invalidity of the Treaty itself.

37. The 1955 Treaty, a complex treaty, comprised, in addition to the Treaty itself, four appended Conventions and eight Annexes; it dealt with a broad range of issues concerning the future relationship between the two parties. It was provided by Article 9 of the Treaty that the Con-ventions and Annexes appended to it formed an integral part of the Treaty. One of the matters specifically addressed was the question of frontiers, dealt with in Article 3 and Annex 1. The appended Conventions were a Convention of Good Neighbourliness, a Convention on Economic Co-operation, a Cultural Convention, and a "Particular Convention" dealing with the withdrawal of French forces from the Fezzan.

38. The Court will first consider Article 3 of the 1955 Treaty, together with the Annex to which that Article refers, in order to decide whether or not that Treaty resulted in a conventional boundary between the territories of the Parties. If the 1955 Treaty did result in a boundary, this furnishes the answer to the issues raised by the Parties: it would be a response at one and the same time to the Libyan request to determine the limits of the respective territories of the Parties and to the request of Chad to determine the course of the frontier. The Court's initial task must therefore be to interpret the relevant provisions of the 1955 Treaty, on which the Parties have taken divergent positions.

39. Article 3 of the Treaty reads as follows:

[Translation by the Registry]

"The two High Contracting Parties recognize that the frontiers between the territories of Tunisia, Algeria, French West Africa and [p21]French Equatorial Africa on the one hand, and the territory of Libya on the other, are those that result from the international instruments in force on the date of the constitution of the United Kingdom of Libya as listed in the attached Exchange of Letters (Ann. I)."

The Treaty was concluded in French and Arabic, both texts being authentic; the Parties in this case have not suggested that there is any divergence between the French and Arabic texts, save that the words in Arabic corresponding to "sont celles qui resultent" (are those that result) might rather be rendered "sont les frontieres qui resultent" (are the frontiers that result). The Court will base its interpretation of the Treaty on the authoritative French text.

40. Annex I to the Treaty comprises an exchange of letters which, after quoting Article 3, reads as follows:

"The reference is to [Il s'agit de] the following texts:

the Franco-British Convention of 14 June 1898;
the Declaration completing the same, of 21 March 1899;
the Franco-Italian Agreements of 1 November 1902;
the Convention between the French Republic and the Sublime Porte, of 12 May 1910;
the Franco-British Convention of 8 September 1919;
the Franco-Italian Arrangement of 12 September 1919.

With respect to this latter arrangement and in conformity with the principles set forth therein, it was recognized by the two delegations that, between Ghat and Toummo, the frontier traverses the following three points, viz., the Takharkhouri Gap, the Col d'Anai and Landmark 1010 (Garet Derouet el Djemel).

The Government of France is ready to appoint experts who might become part of a Joint Franco-Libyan Commission entrusted with the task of marking out the frontier, wherever that work has not yet been done and where either Government may consider it to be necessary.
In the event of a disagreement in the course of the demarcation, the two Parties shall each designate a neutral arbitrator and, in the event of a disagreement between the arbitrators, they shall designate a neutral referee to settle the dispute."

It has been recognized throughout the proceedings that the Convention referred to as of 12 May 1910 is actually that of 19 May 1910 mentioned in paragraph 30 above.

41. The Court would recall that, in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context
[p22] and in the light of its object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.

42. According to Article 3 of the 1955 Treaty, the parties "recognize [reconnaissent] that the frontiers . . . are those that result" from certain international instruments. The word "recognize" used in the Treaty indicates that a legal obligation is undertaken. To recognize a frontier is essentially to "accept" that frontier, that is, to draw legal consequences from its existence, to respect it and to renounce the right to contest it in future.

43. In the contention of Libya, the parties to the 1955 Treaty intended to recognize only the frontiers that had previously been fixed by the international instruments: where frontiers already existed (as between Tunisia and Libya), they were confirmed by the 1955 Treaty, but where there was no frontier (as in the south), the treaty did not create one. The Court is unable to accept this view; it has no difficulty either in ascertaining the natural and ordinary meaning of the relevant terms of the 1955 Treaty, or in giving effect to them. In the view of the Court, the terms of the Treaty signified that the parties thereby recognized complete frontiers between their respective territories as resulting from the combined effect of all the instruments listed in Annex I; no relevant frontier was to be left undefined and no instrument listed in Annex I was superfluous. It would be incompatible with a recognition couched in such terms to contend that only some of the specified instruments contributed to the definition of the frontier, or that a particular frontier remained unsettled. So to contend would be to deprive Article 3 of the Treaty and Annex I of their ordinary meaning. By entering into the Treaty, the parties recognized the frontiers to which the text of the Treaty referred; the task of the Court is thus to determine the exact content of the undertaking entered into.

44. Libya's argument is that, of the international instruments listed in Annex I to the 1955 Treaty, only the Franco-Ottoman Convention of 1910 and the Franco-Italian arrangement of 1919 had produced frontiers binding on Libya at the time of independence, and that such frontiers related to territories other than those in issue in this case. In the view of Libya, the 1899 Franco-British Declaration merely defined, north of the 15th parallel, a line delimiting spheres of influence, as distinct from a territorial frontier; neither the 1919 Franco-British Convention nor French effectivites conferred on that line any other status; furthermore the latter instrument was never opposable to Italy. The 1902 Franco-Italian exchange of letters, in Libya's view, was no longer in force, either because Italy renounced all rights to its African territories by the 1947 Peace Treaty (paragraph 34 above), or for lack of notification under Article 44 of that Treaty.[p23]

45. The Court does not consider that it is called upon to determine these questions. The fixing of a frontier depends on the will of the sovereign States directly concerned. There is nothing to prevent the parties from deciding by mutual agreement to consider a certain line as a frontier, whatever the previous status of that line. If it was already a territorial boundary, it is confirmed purely and simply. If it was not previously a territorial boundary, the agreement of the parties to "recognize" it as such invests it with a legal force which it had previously lacked. International conventions and case-law evidence a variety of ways in which such recognition can be expressed. In the case concerning the Temple of Preah Vihear, a map had been invoked on which a line had been drawn purporting to represent the frontier determined by a delimitation commission under a treaty which provided that the frontier should follow a watershed; in fact the line drawn did not follow the watershed. The Court based its decision upholding the "map line" on the fact that "both Parties, by their conduct, recognized the line and thereby in effect agreed to regard it as being the frontier line" (Temple of Preah Vihear, Merits, I.C.J. Reports 1962, p. 33).

46. In support of its interpretation of the Treaty, Libya has drawn attention to the fact that Article 3 of the Treaty mentions "the frontiers" in the plural. It argues from this that the parties had in view delimitation of some of their frontiers, not that of the whole of the frontier. The use of the plural is, in the view of the Court, to be explained by the fact that there were differences of legal status between the various territories bordering on Libya for whose international relations France was at the time responsible, and their respective frontiers had been delimited by different agreements. Tunisia was a protectorate at the time; Algeria was a groupe de departements; and French West Africa and French Equatorial Africa were both groupes de territoires d'outre-mer. In this context the use of the plural is clearly appropriate, and does not have the significance attributed to it by Libya. Moreover, it is to be noted that the parties referred to a frontier between French Equatorial Africa and Libya.

47. The fact that Article 3 of the Treaty specifies that the frontiers recognized are "those that result from the international instruments" defined in Annex I means that all of the frontiers result from those instruments. Any other construction would be contrary to the actual terms of Article 3 and would render completely ineffective the reference to one or other of those instruments in Annex I. As the Permanent Court of International Justice observed, in its Advisory Opinion of 21 November 1925, dealing with a provision of the Treaty of Lausanne "intended to lay down the frontier of Turkey" (emphasis in original),

"the very nature of a frontier and of any convention designed to establish frontiers between two countries imports that a frontier must constitute a definite boundary line throughout its length" (Inter-[p24]pretalion of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925, P.C.I.J., Series B, No. 12, p. 20, emphasis added).

It went on to say that

"It is . . . natural that any article designed to fix a frontier should, if possible, be so interpreted that the result of the application of its provisions in their entirety should be the establishment of a precise, complete and definitive frontier." (Ibid.)

Similarly, in 1959 in the case concerning Sovereignty over Certain Frontier Land, the Court took note of the Preamble to a Boundary Convention as recording the common intention of the parties to "fix and regulate all that relates to the demarcation of the frontier" and held that

"Any interpretation under which the Boundary Convention is regarded as leaving in suspense and abandoning for a subsequent appreciation of the status quo the determination of the right of one State or the other to the disputed plots would be incompatible with that common intention." (I.C.J. Reports 1959, pp. 221-222.)

48. The Court considers that Article 3 of the 1955 Treaty was aimed at settling all the frontier questions, and not just some of them. The manifest intention of the parties was that the instruments referred to in Annex I would indicate, cumulatively, all the frontiers between the parties, and that no frontier taken in isolation would be left out of that arrangement. In the expression "the frontiers between the territories . . .", the use of the definite article is to be explained by the intention to refer to all the frontiers between Libya and those neighbouring territories for whose international relations France was then responsible. Article 3 does not itself define the frontiers, but refers to the instruments mentioned in Annex I. The list in Annex I was taken by the parties as exhaustive as regards delimitation of their frontiers.

49. Article 3 of the 1955 Treaty refers to the international instruments "en vigueur" (in force) on the date of the constitution of the United Kingdom of Libya, "tels qu'ils sont definis" (as listed) in the attached exchange of letters. These terms have been interpreted differently by the Parties. Libya stresses that only the international instruments in force on the date of the independence of Libya can be taken into account for the determination of the frontiers; and that, as the agreements mentioned in Annex 1 and relied on by Chad were, according to Libya, no longer in force on 24 December 1951, they could not be taken into consideration. It argues also that account could be taken of other instruments, relevant and in force, which were not listed in Annex I.

50. The Court is unable to accept these contentions. Article 3 does not refer merely to the international instruments "en vigueur"(in force) on the date of the constitution of the United Kingdom of Libya, but to the international instruments "en vigueur" on that date "tels qu'ils sont definis" [p25] (as listed) in Annex I. To draw up a list of governing instruments while leaving to subsequent scrutiny the question whether they were in force would have been pointless. It is clear to the Court that the parties agreed to consider the instruments listed as being in force for the purposes of Article 3, since otherwise they would not have referred to them in the Annex. The contracting parties took the precaution to determine by mutual agreement which were the instruments in force for their purposes. According to the restrictive formulation employed in Annex I, "il s'agit des textes" enumerated in that Annex. This drafting of Article 3 and Annex I excludes any other international instrument en vigueur, not included in the Annex, which might have concerned the territory of Libya. A fortiori is this the case of the non-ratified Treaty of 1935, which was never en vigueur and is not mentioned in the Annex. The Court may confine itself to taking account of the instruments listed in the Annex, without having to enquire whether those instruments, listed by agreement between France and Libya, were in force at the date of Libya's independence, or opposable to it.

51. The parties could have indicated the frontiers by specifying in words the course of the boundary, or by indicating it on a map, by way of illustration or otherwise; or they could have done both. They chose to proceed in a different manner and to establish, by agreement, the list of international instruments from which the frontiers resulted, but the course for which they elected presents no difficulties of interpretation. That being so, the Court's task is clear:

"Having before it a clause which leaves little to be desired in the nature of clearness, it is bound to apply this clause as it stands, without considering whether other provisions might with advantage have been added to or substituted for it." (Acquisition of Polish Nationality, Advisory Opinion. 1923. P.C.I.J. Series B. No. 7, p. 20.)

The text of Article 3 clearly conveys the intention of the parties to reach a definitive settlement of the question of their common frontiers. Article 3 and Annex I are intended to define frontiers by reference to legal instruments which would yield the course of such frontiers. Any other construction would be contrary to one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness (see, for example, the Lighthouses Case between France and Greece, Judgment, 1934, P.C.I.J. Series A/B. No. 62, p. 27; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 35, para. 66; and Aegean Sea Continental Shelf. I.C.J. Reports 1978, p. 22, para. 52).

52. Reading the 1955 Treaty in the light of its object and purpose one observes that it is a treaty of friendship and good neighbourliness concluded, according to its Preamble, "in a spirit of mutual understanding and on the basis of complete equality, independence and liberty". The parties stated in that Preamble their conviction that the signature of the [p26] treaty would "serve to facilitate the settlement of all such questions as arise for the two countries from their geographical location and interests in Africa and the Mediterranean", and that they were "Prompted by a will to strengthen economic, cultural and good-neighbourly relations between the two countries". The object and purpose of the Treaty thus recalled confirm the interpretation of the Treaty given above, inasmuch as that object and purpose led naturally to the definition of the territory of Libya, and thus the definition of its boundaries. Furthermore the presupposition that the Treaty did define the frontier underlies Article 4 of the Treaty, in which the parties undertake to take "all such measures as may be necessary for the maintenance of peace and security in the areas bordering on the frontiers". It also underlies Article 5 relating to consultations between the parties concerning "the defence of their respective territories". More particularly Article 5 adds that "With regard to Libya, this shall apply to the Libyan territory as defined in Article 3 of the present Treaty". To "define" a territory is to define its frontiers. Thus, in Article 5 of the Treaty, the parties stated their own understanding of Article 3 as being a provision which itself defines the territory of Libya.

53. The conclusions which the Court has reached are reinforced by an examination of the context of the Treaty, and, in particular, of the Convention of Good Neighbourliness between France and Libya, concluded between the parties at the same time as the Treaty. The Convention refers, in Article 1, to the "frontiers, as defined in Article 3 of the Treaty of Friendship and Good Neighbourliness". Title III of the Convention concerns "Caravan traffic and trans-frontier movements", and it begins with Article 9, which reads as follows:

"The Government of France and the Government of Libya undertake to grant freedom of movement to nomads from tribes that traditionally trade on either side of the frontier between Algeria, French West Africa and French Equatorial Africa, on the one hand, and Libya, on the other, so as to maintain the traditional caravan links between the regions of Tibesti, Ennedi, Borkou, Bilma and the Ajjers, on the one hand, and those of Koufra, Mourzouk, Oubari, Ghat, Edri and Ghadames, on the other."

This provision refers specifically to (inter alia) the frontier between French Equatorial Africa and Libya; and it is clear from its terms that, according to the parties to the Treaty, that frontier separates the French-ruled regions of Tibesti, Ennedi and Borkou (indicated on sketch-map No. 1 at p. 16 above), which are sometimes referred to as "the BET", on the one hand, and the Libyan regions of Koufra, Mourzouk, etc. on the other.

54. Article 10 of the Convention of Good Neighbourliness establishes a zone open to caravan traffic "on both sides of the frontier". This zone is bounded as follows: [p27]

"On French territory: by a line which, leaving the frontier to the west of Ghadames, runs through Tinfouchaye, Timellouline, Ohanet, Fort-Polignac, Fort-Gardel, Bilma, Zouar, Largeau, Fada and continues in a straight line as far as the Franco-Sudanese frontier.

On Libyan territory: by a line which, leaving Sinaouen, runs through Derj, Edri, El Abiod, Ghoddoua, Zouila, Ouaou En Namous, Koufra, and continues in a straight line as far as the Libyo-Egyptian frontier."

Libya has therefore expressly recognized that Zouar, Largeau and Fada lie in French territory. The position of those places is indicated on sketch-map No. 1, on page 16 above. Article 11 of the Convention stipulates that "caravan traffic permits shall be issued . . . [in] French territory [by the] administrative authorities of. . . Zouar, Largeau, Fada"; and in "Libyan territory [by the] administrative authorities of . . . Mourzouk, Koufra and the Oraghen Touareg". According to Article 13, nomads bearing a caravan traffic permit may "move freely across the frontier". The following expressions are also found in the Convention: "on either side of the frontier", "frontier zone" (Art. 15); "cross the frontier" (Art. 16); "the French and Libyan frontier authorities" (Arts. 17 and 20); "cross-border transit" (Art. 18). The use of these expressions is consistent with the existence of a frontier. In the view of the Court, it is difficult to deny that the 1955 Treaty provided for a frontier between Libya and French Equatorial Africa, when one of the appended Conventions contained such provisions governing the details of the trans-frontier movements of the inhabitants of the region.

55. The Court considers that it is not necessary to refer to the travaux preparatoires to elucidate the content of the 1955 Treaty; but, as in previous cases, it finds it possible by reference to the travaux to confirm its reading of the text, namely, that the Treaty constitutes an agreement between the parties which, inter alia, defines the frontiers. It is true that the Libyan negotiators wished at the outset to leave aside the question of frontiers, but Ambassador Dejean, Head of the French Delegation at the negotiations held in Tripoli in July-August 1955, insisted "that it was not possible to conclude the treaty without an agreement on the frontiers". On 28 July 1955, according to the Libyan minutes of the negotiations, the Libyan Prime Minister stated:

"that the question [of the frontiers] was not free from difficulty since the Italians had occupied many centres behind the existing frontier".

Ambassador Dejean stated "that Italy had exploited France's weakness during the last war" and "that it [Italy] had crossed over the borders which had been agreed upon under the Agreement of 1919 which were still valid . . .". The Libyan Prime Minister then proposed [p28]

"that the question of the frontiers be deferred at the present time until the Libyan side had had time to study the subject, and then experts could be despatched to work with French experts to reach an agreement on demarcation and he asked that it be considered sufficient to say that the Agreement of 1919 was acceptable and that the implementation of it be left to the near future".

56. It is clear from these minutes that the Libyan Prime Minister expressly accepted the agreement of 1919, the "implementation" of the agreement to be left "to the near future"; and in this context, the term "implementation" can only mean operations to demarcate the frontier on the ground. The Prime Minister spoke also of an agreement on "demarcation", which presupposes the prior delimitation in other words definition of the frontier. Use of the term "demarcation" creates a presumption that the parties considered the definition of the frontiers as already effected, to be followed if necessary by a demarcation, the ways and means of which were defined in Annex I.

*
57. Having concluded that the contracting parties wished, by the 1955 Treaty, and particularly by its Article 3, to define their common frontier, the Court must now examine what is the frontier between Libya and Chad (in 1955, between Libya and French Equatorial Africa) which results from the international instruments listed in Annex I, the text of which is set out in paragraph 40 above. It should however first be noted that, as already indicated (paragraph 50 above), the list in Annex I does not include the non-ratified Treaty of 1935. That Treaty provided in detail for a frontier made up of nine sectors (straight lines/crest lines, etc.) from Toummo to the intersection of the line of longitude 24 east of Greenwich with the line of latitude 18 45' north; this line is shown on sketch-map No. 2 on page 29 hereof, together with the 1919 Anglo-French Convention line (paragraph 59 below). Of the treaties prior to 1955 bearing upon a boundary line in this region, the non-ratified Treaty of 1935 was thus the most detailed. Yet it was not mentioned in Annex I. The omission is all the more significant inasmuch as, in February 1955, a few months before the execution of the 1955 Treaty in August, a Franco-Libyan incident which occurred at Aouzou had focused attention on the area lying to the south of the line of the 1919 Anglo-French Convention and to the north of the line of the non-ratified Treaty of 1935.

*[p29]

Sketch-Map No. 2 1935 Treaty Line-1919 Convention Line

[p30]
58. The first instrument mentioned in Annex I, the Franco-British Convention of 14 June 1898, bears no direct relation to the present dispute; it is mentioned in Annex I on account of the Additional Declaration of 21 March 1899. This Declaration of 1899, which complements the Convention of 1898, defines a line limiting the French zone (or sphere of influence) to the north-east in the direction of Egypt and the Nile Valley, already under British control, and is therefore relevant. The 1899 Declaration recites that "The IVth Article of the Convention of 14 June 1898 shall be completed by the following provisions, which shall be considered as forming an integral part of it". Among these provisions is paragraph 3:

"It is understood, in principle, that to the north of the 15th parallel the French zone shall be limited to the north-east and east by a line which shall start from the point of intersection of the Tropic of Cancer with the 16th degree of longitude east of Greenwich (13 40' east of Paris), shall run thence to the south-east until it meets the 24th degree of longitude east of Greenwich (21 40' east of Paris), and shall then follow the 24th degree until it meets, to the north of the 15th parallel of latitude, the frontier of Darfur as it shall eventually be fixed."

The text of this provision is not free from ambiguities, since the use of the words "in principle" raises some question whether the line was to be strictly south-east or whether some leeway was possible in establishing the course of the line. Different interpretations were possible, since the point of intersection of the line with the 24th degree of longitude east was not specified, and the original text of the Declaration was not accompanied by a map showing the course of the line agreed. As noted above (paragraph 28), a few days after the adoption of that Declaration, the French authorities published its text in a Livre jaune including a map; a copy of that map is attached to this Judgment. On that map, a red line, solid or interrupted, coupled with red shading, indicated, according to the map legend, the "limite des possessions franaises, d'apres la convention du 21 mars 1899". The red line was continuous where it reflected boundaries defined in that Convention, and a pecked line where it indicated the limit of the "French zone" defined in paragraph 3 of the Convention. The pecked line was shown as running, not directly south-east, but rather in an east-south-east direction, so as to terminate at approximately the intersection of the 24 meridian east with the parallel 19 of latitude north. The direct south-east line and the Livre jaune map line are shown for purposes of comparison on sketch-map No. 3 on page 32 hereof (together with the line defined in the Convention of 8 September 1919, dealt with below).

59. For the purposes of the present Judgment, the question of the position of the limit of the French zone may be regarded as resolved by [p31] the Convention of 8 September 1919 signed at Paris between Great Britain and France. As stated in the Convention itself, this Convention was

"Supplementary to the Declaration signed at London on March 21, 1899, as an addition to the Convention of June 14, 1898, which regulated the Boundaries between the British and French Colonial Possessions and Spheres of Influence to the West and East of the Niger."

It specified the boundary between Darfour and French Equatorial Africa, and contained various provisions relating to the possible extension eastwards of the French sphere, beyond the 24th degree of longitude. However, its concluding paragraph provided:

"It is understood that nothing in this Convention prejudices the interpretation of the Declaration of the 21st March, 1899, according to which the words in Article 3 '... shall run thence to the south-east until it meets the 24th degree of longitude east of Greenwich (21 40' east of Paris)' are accepted as meaning '. . . shall run thence in a south-easterly direction until it meets the 24th degree of longitude east of Greenwich at the intersection of that degree of longitude with parallel 19 30' degrees of latitude'."

This provision meant that the south-easterly line specified by the 1899 Declaration was not to run directly south-east but in an east-south-east direction so as to intersect with the 24th degree of longitude at a point more to the north than would a direct south-easterly line. This Convention, in thus accepting an east-south-east line rather than a strict southeast line, was in effect confirming the earlier French view that the 1899 Declaration did not provide for a strict south-east line, and was in fact, as to the eastern end-point, stipulating a line even further north than the line shown on the Livre jaune map. Sketch-map No. 3, attached below, shows, for ease of comparison, the relative positions of the three lines the strict south-east line, the Livre jaune line and the 1919 line.

60. There is thus little point in considering what was the pre-1919 situation, in view of the fact that the Anglo-French Convention of 8 September 1919 determined the precise end-point of the line in question, by adopting the point of intersection of the 24th degree of longitude east with the parallel 19 30' of latitude north. The text of the 1919 Convention presents this line as an interpretation of the Declaration of 1899; in the view of the Court, for the purposes of the present Judgment, there is no reason to categorize it either as a confirmation or as a modification of the Declaration. Inasmuch as the two States parties to the Convention are those that concluded the Declaration of 1899, there can be no doubt that the "interpretation" in question constituted, from 1919 onwards, [p32]

Sketch-Map No. 1919 Convention Line-Livre jaune Map Line-Strict South-East Line

[p33] and as between them, the correct and binding interpretation of the Declaration of 1899. It is opposable to Libya by virtue of the 1955 Treaty. For these reasons, the Court concludes that the line described in the 1919 Convention represents the frontier between Chad and Libya to the east of the meridian 16 east.

61. The Court now turns to the frontier west of that meridian. The Franco-Italian exchange of letters of 1 November 1902 refers both to the Anglo-French Declaration of 1899 and to the Franco-Italian exchange of letters of 1900 (paragraph 29 above). It states that

"the limit to French expansion in North Africa, as referred to in the above mentioned letter . . . dated 14 December 1900, is to be taken as corresponding to the frontier of Tripolitania as shown on the map annexed to the Declaration of 21 March 1899".

The map referred to could only be the map in the Livre jaune which showed a pecked line indicating the frontier of Tripolitania. That line must therefore be examined by the Court in determining the course of the frontier between Libya and Chad, to the extent that it does not result from the Anglo-French agreements of 1898, 1899 and 1919.

62. The Convention between the Tunisian Government and the Ottoman Government of 19 May 1910 (paragraph 30 above) concerns only the frontier between the Vilayet of Tripoli (which is now a part of Libya) and the Regency of Tunis (i.e., present-day Tunisia); and consequently, while appropriate for inclusion in Annex I to the 1955 Treaty, it has no bearing on the dispute between Libya and Chad. Similarly, since the Franco-Italian Arrangement of 12 September 1919 governs only the sector between Ghadames and Toummo, and thus does not directly concern the frontier between Chad and Libya, the Court finds it unnecessary to take it further into consideration here.

*

63. The Court will now indicate how the line which results from the combined effect of the instruments listed in Annex I to the 1955 Treaty is made up, as far as the territories of Chad and Libya are concerned. It is clear that the eastern end-point of the frontier will lie on the meridian 24 east, which is here the boundary of the Sudan. To the west, the Court is not asked to determine the tripoint Libya-Niger-Chad; Chad in its submissions merely asks the Court to declare the course of the frontier "as far as the fifteenth degree east of Greenwich". In any event the Court's decision in this respect, as in the Frontier Dispute case, "will . . . not be opposable to Niger as regards the course of that country's frontiers" (I.C.J. Reports 1986, p. 580, para. 50). Between 24 and 16 east of Greenwich, the line is determined by the Anglo-French Convention of 8 September 1919: i.e., the boundary is a straight line from the point of intersection of the meridian 24 east with the parallel 19 30' north to the [p34] point of intersection of the meridian 16 east with the Tropic of Cancer. From the latter point, the line is determined by the Franco-Italian exchange of letters of 1 November 1902, by reference to the Livre jaune map: i.e., this line, as shown on that map, runs towards a point immediately to the south of Toummo; before it reaches that point, however, it crosses the meridian 15 east, at some point on which, from 1930 onward, was situated the commencement of the boundary between French West Africa and French Equatorial Africa.

64. Confirmation of the line just described may be found in the Particular Convention annexed to the 1955 Treaty, which makes provision for the withdrawal of the French forces stationed in the Fezzan. Among the matters dealt with are the routes to be followed by the military convoys of French forces proceeding to or from Chad. Article 3 of the Particular Convention deals with the passage along Piste No. 5 of military convoys, and Annex III to the Treaty defines Piste No. 5 as the itinerary which, coming from the region of Ramada in Tunisia, passes certain specified points "and penetrates into territory of Chad in the area of Muri Idie". The available maps of the area reveal at least four different places with names which, while varying from one map to another, resemble Muri Idie, but two of these are situated well within undisputed Libyan territory, nowhere near what might in 1955 have been regarded as "territory of Chad". The other two are located to the south of the relevant part of the line on the Livre jaune map, west of the 16 meridian east. One, the Mouri Idie water-hole (guelta), is immediately to the south of that line; the other, the Mouri Idie area (deriving its name from the water-hole), is around 30 kilometres to the south. What is called Muri Idie in Annex III must therefore be identified as being either of these two places, thus confirming that the parties to the 1955 Treaty regarded the Livre jaune map line as being, west of the 16 meridian east, the boundary of "territory of Chad".

65. Chad, which in its submissions asks the Court to define the frontier as far west as the 15 meridian east, has not defined the point at which, in its contention, the frontier intersects that meridian. Nor have the Parties indicated to the Court the exact co-ordinates of Toummo in Libya. However, on the basis of the information available, and in particular the maps produced by the Parties, the Court has come to the conclusion that the line of the Livre jaune map crosses the 15 meridian east at the point of intersection of that meridian with the parallel 23 of north latitude. In this sector, the frontier is thus constituted by a straight line from the latter point to the point of intersection of the meridian 16 east with the Tropic of Cancer.

*

66. Having concluded that a frontier resulted from the 1955 Treaty, and having established where that frontier lay, the Court is in a position to consider the subsequent attitudes of the Parties to the question of fron-[p35]tiers. No subsequent agreement, either between France and Libya, or between Chad and Libya, has called in question the frontier in this region deriving from the 1955 Treaty. On the contrary, if one considers treaties subsequent to the entry into force of the 1955 Treaty, there is support for the proposition that after 1955, the existence of a determined frontier was accepted and acted upon by the Parties. The Treaty between Libya and Chad of 2 March 1966, like the Treaty of 1955, refers to friendship and neighbourly relations between the Parties, and deals with frontier questions. Articles 1 and 2 mention "the frontier" between the two countries, with no suggestion of there being any uncertainty about it. Article 1 deals with order and security "along the frontier" and Article 2 with the movement of people living "on each side of the frontier". Article 4 deals with frontier permits and Article 7 with frontier authorities. If a serious dispute had indeed existed regarding frontiers, eleven years after the conclusion of the 1955 Treaty, one would expect it to have been reflected in the 1966 Treaty.

67. The Agreement on Friendship, Co-operation and Mutual Assistance concluded between Chad and Libya on 23 December 1972 again speaks in terms of good relations and neighbourliness, and stresses adherence to the principles and objectives of the Organization of African Unity, and in Article 6 the parties undertake to make every effort to avoid disputes that may arise between them. They also pledge themselves to work towards the peaceful resolution of any problems that may arise between them, so as to accord with the spirit of the Charters of the Organization of African Unity and the United Nations. A further agreement was concluded between the two States on 12 August 1974, at a time when the present dispute had reached the international arena, with complaints having been made by Chad to the United Nations. While friendship and neighbourliness are again mentioned, Article 2 states that the

"frontiers between the two countries are a colonial conception in which the two peoples and nations had no hand, and this matter should not obstruct their co-operation and fraternal relations".

The Treaty of Friendship and Alliance that the Parties concluded on 15 June 1980 is one of mutual assistance in the event of external aggression: Libya agrees to make its economic potential available for the economic and military rehabilitation of Chad. The Accord between Libya and Chad of 6 January 1981 also implies the existence of a frontier between those States, since it provides in Article 11 that:

"The two Parties have decided that the frontiers between the Socialist People's Libyan Arab Jamahiriya and the Republic of Chad shall be opened to permit the unhindered and unimpeded freedom of movement of Libyan and Chadian nationals, and to weld together the two fraternal peoples."[p36]

68. The Court now turns to the attitudes of the Parties, subsequent to the 1955 Treaty, on occasions when matters pertinent to the frontiers came up before international fora. Libya achieved its independence nearly nine years before Chad; during that period, France submitted reports on this territory to the United Nations General Assembly. The report for 1955 (United Nations doc. ST/TRI/SER.A/I2, p. 66) shows the area of Chad's territory as 1,284,000 square kilometres, which expressly includes 538,000 square kilometres for the BET. Moreover United Nations publications from 1960 onward continued to state the area of Chad as 1,284,000 square kilometres (see for example Yearbook I960, p. 693, App. 1). As will be clear from the indications above as to the frontier resulting from the 1955 Treaty (paragraph 63), the BET is part of the territory of Chad on the basis of that frontier, but would not be so on the basis of Libya's claim. Libya did not challenge the territorial dimensions of Chad as set out by France.

69. As for Chad, it has consistently adopted the position that it does have a boundary with Libya, and that the territory of Chad includes the "Aouzou strip", i.e., the area between the 1919 and 1935 lines shown on sketch-map No. 2 on page 29 hereof. In 1977 Chad submitted a com-plaint to the Organization of African Unity regarding the occupation by Libya of the Aouzou strip. The OAU established an ad hoc committee to resolve the dispute (AHG/Dec. 108 (XIV)). Chad's complaint was kept before it for 12 years prior to the referral of the matter to this Court. Before the OAU, Libya's position was, inter alia, that the frontier defined by the Treaty of 1935 was valid.

70. In 1971, Chad complained in a statement to the United Nations General Assembly that Libya was interfering in its internal and external affairs. In 1977 it complained that the Aouzou strip had been under Libyan occupation since 1973. At the General Assembly's thirty-third session, in 1978, Chad complained to the Assembly of "the occupation by Libya of Aouzou, an integral part of our territory". In 1977 and 1978, and in each year from 1982 to 1987, Chad protested to the General Assembly about the encroachment which it alleged that Libya had made into its territory.

71. By a communication of 9 February 1978, the Head of State of Chad informed the Security Council that Libya had "to this day supplied no documentation to the OAU to justify its claims to Aouzou" and had in January 1978 failed to participate at the Committee of Experts (the Ad Hoc Committee) set up by the OAU. The Permanent Representative of Chad requested the President of the Security Council to convene a meeting as a matter of urgency to consider the extremely serious situation then prevailing. Chad repeated its complaints to the Security Council in 1983, 1985 and 1986. Libya has explained that, since it considered that the Security Council, being a political forum, was not in a position to judge the merits of the legal problems surrounding the territorial dispute, [p37] it did not attempt to plead its case before the Council. All of these instances indicate the consistency of Chad's conduct in relation to the location of its boundary.

*

72. Article 11 of the 1955 Treaty provides that:

"The present Treaty is concluded for a period of 20 years.

The High Contracting Parties shall be able at all times to enter into consultations with a view to its revision.

Such consultations shall be compulsory at the end of the ten-year period following its entry into force.

The present Treaty can be terminated by either Party 20 years after its entry into force, or at any later time, provided that one year's notice is given to the other Party."

These provisions notwithstanding, the Treaty must, in the view of the Court, be taken to have determined a permanent frontier. There is nothing in the 1955 Treaty to indicate that the boundary agreed was to be provisional or temporary; on the contrary it bears all the hallmarks of finality. The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court (Temple of Preah Vihear, I.C.J. Reports 1962, p. 34; Aegean Sea Continental Shelf I.C.J. Reports 1978, p. 36).

73. A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary. In this instance the Parties have not exercised their option to terminate the Treaty, but whether or not the option be exercised, the boundary remains. This is not to say that two States may not by mutual agreement vary the border between them; such a result can of course be achieved by mutual consent, but when a boundary has been the subject of agreement, the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed.

**

74. The Court concludes that the 15 line claimed by Libya as the boundary is unsupported by the 1955 Treaty or any of its associated instruments. The effect of the instruments listed in Annex I to the 1955 Treaty may be summed up as follows:

A composite boundary results from these instruments; it comprises two sectors which are separately dealt with in instruments listed in [p38] Annex I: a sector to the east of the point of intersection of the Tropic of Cancer with the 16th degree of longitude east of Greenwich, and a sector to the west of that point. This point is hereinafter referred to for convenience as point X, and indicated as such on sketch-map No. 4 on page 39 hereof.

The eastern sector of the boundary is provided by the Anglo-French Convention of 8 September 1919: a straight line between point X and the point of intersection of the 24th degree of longitude east of Greenwich with parallel 19 30' of latitude north; this latter point is indicated on sketch-map No. 4 on page 39 hereof as point Y.

The western sector of the boundary, from point X in the direction of Toummo, is provided by the Franco-Italian Accord of 1 November 1902. This sector is a straight line following the frontier of Tripolitania as indicated on the Livre jaune map, from point X to the point of intersection of the 15 meridian east and the parallel 23 north; this latter point is indicated on sketch-map No. 4 on page 39 hereof as point Z.

Four instruments listed in Annex I the Convention of 14 June 1898 coupled with the Declaration of 2] March 1899, the Accord of 1 November 1902 and the Convention of 8 September 1919 thus provide a complete frontier between Libya and Chad.

**

75. It will be evident from the preceding discussion that the dispute before the Court, whether described as a territorial dispute or a boundary dispute, is conclusively determined by a Treaty to which Libya is an original party and Chad a party in succession to France. The Court's conclusion that the Treaty contains an agreed boundary renders it unnecessary to consider the history of the "Borderlands" claimed by Libya on the basis of title inherited from the indigenous people, the Senoussi Order, the Ottoman Empire and Italy. Moreover, in this case, it is Libya, an original party to the Treaty, rather than a successor State, that contests its resolution of the territorial or boundary question. Hence there is no need for the Court to explore matters which have been discussed at length before it such as the principle of uti possidetis and the applicability of the Declaration adopted by the Organization of African Unity at Cairo in 1964.

76. Likewise, the effectiveness of occupation of the relevant areas in the past, and the question whether it was constant, peaceful and acknowledged, are not matters for determination in this case. So, also, the question whether the 1955 Treaty was declaratory or constitutive does not call for consideration. The concept of terra nullius and the nature of Senoussi, Ottoman or French administration are likewise not germane to the issue. For the same reason, the concepts of spheres of influence and of the hinterland doctrine do not come within the ambit of the Court's enquiry in
[p39]

Sketch-Map No. 4 Boundary Line Determined by the court's Judgment


[p40] this case. Similarly, the Court does not need to consider the rules of intertemporal law. This Judgment also does not need to deal with the history of the dispute as argued before the United Nations and the Organization of African Unity. The 1955 Treaty completely determined the boundary between Libya and Chad.

***

77. For these reasons,
The Court,

By 16 votes to I,

(1) Finds that the boundary between the Great Socialist People's Libyan Arab Jamahiriya and the Republic of Chad is defined by the Treaty of Friendship and Good Neighbourliness concluded on 10 August 1955 between the French Republic and the United Kingdom of Libya;

(2) Finds that the course of that boundary is as follows:

From the point of intersection of the 24th meridian east with the parallel 19 30' of latitude north, a straight line to the point of intersection of the Tropic of Cancer with the 16th meridian east; and from that point a straight line to the point of intersection of the 15th meridian east and the parallel 23 of latitude north;

these lines are indicated, for the purpose of illustration, on sketch-map No. 4 on page 39 of this Judgment.

In favour: President Sir Robert Jennings; Vice-President Oda; Judges Ago, Schwebel. Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola, Herczegh; Judge ad hoc Abi-Saab.

Against: Judge ad hoc Sette-Camara.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this third day of February, one thousand nine hundred and ninety-four, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Great Socialist People's Libyan Arab Jamahiriya and the Government of the Republic of Chad, respectively.

(Signed) R. Y. Jennings,
President.

(Signed) Eduardo Valencia-Ospina,
Registrar. [p41]

Judge AGO appends a declaration to the Judgment of the Court.

Judges Shahabuddeen and Ajibola append separate opinions to the Judgment of the Court.

Judge ad hoc Sette-Camara appends a dissenting opinion to the Judgment of the Court.

(Initialled) R.Y.J.
(Initialled) E.V.O.

[p42]

[Map]

[p43]

Declaration of judge Ago

[Translation]

My own view is still the conviction that, at the time of the independence of the new State of Libya, the southern frontier of that country with the French possessions of West Africa and Equatorial Africa, between Toummo and the frontier of the Anglo-Egyptian Sudan, had not yet been the subject of a treaty delimitation between the parties then directly concerned. I recognize however that by concluding the Treaty of 10 August 1955 with France, the Government of Libya, which was primarily interested in other aspects of the body of questions to be settled, implicitly recognized, with regard to that southern frontier, the conclusions which the French Government deduced from the instruments mentioned in Annex I to that Treaty.

It is for that reason that I have decided to add my vote to those of my colleagues who have pronounced in favour of the Judgment.

(Signed) Roberto Ago.

[p44]

Separate opinion of judge Shahabuddeen

The case at bar recalls a world now left behind. In telling flashes, it illuminates an age when international law tended to develop as a legal construct supportive of the global projection of the power of a single region; when in important respects it was both fashioned and administered by leading members of a select community; when that community, by itself called the international community, bore little resemblance to the world as it then stood, and even less to the world as it stands today. The record of the Court speaks of those days; it is not easy to recover the various standpoints of the period. Both Parties, however, correctly accepted that the legal manners of the times were not on trial. Thus, if it were necessary to examine some of the issues bequeathed by the past to the present, it is possible that it is the law as it then was which would still govern.

As it has turned out, there is no need to do so. This is because, interesting and important as those issues are, they stand foreclosed by the answer which the Court has returned to what both sides agreed was the threshold question, that is to say, whether the boundary claimed by Chad is supported by the 1955 Franco-Libyan Treaty. The Court's answer is, I think, inevitable. It results from the application of the normal principles of interpretation to the wording of Article 3 of the Treaty, as set out in paragraph 39 of the Judgment. The first part of the Article, up to the words "on the other", necessarily implies that the Parties (Chad claiming through France) recognize the existence of frontiers separating all of the territory of Libya from all of the French territories mentioned, inclusive of the territory of Chad. As to what those frontiers are, the Article refers the reader to the international instruments listed in Annex I to the Treaty. Absent compelling reasons to the contrary, those instruments must accordingly be construed so as to produce a comprehensive definition of the frontiers, including a frontier separating the territory of Libya from the territory of Chad, consistently with the above-mentioned recognition, impliedly made by the Parties, that frontiers exist in relation to all such territories.

A difficulty which I do, however, have concerns the principle of stability of boundaries, to which the Judgment refers: is the principle germane to the issue whether the 1955 Treaty can be considered to be a treaty establishing a boundary between Libya and Chad? The principle (by whatever name called) is of wide application in the field of boundary delimitation. Its utility is clear in considering the question, examined in paragraph 72 of the Judgment, concerning the permanence of a bound-[p45]ary established by treaty. But how far, if at all, does it aid in resolving a problem of interpretation as to whether a treaty can be considered to be a treaty establishing a specific boundary, and more especially a boundary of substantial length as in this case? As is pointed out in paragraph 46 of the Judgment, the use of the word ''frontiers" in the plural in Article 3 of the 1955 Treaty is

"to be explained by the fact that there were differences of legal status between the various territories bordering on Libya for whose international relations France was at the time responsible, and their respective frontiers had been delimited by different agreements".

I agree with the Court that that provision of the 1955 Treaty is nevertheless to be interpreted as meaning that it was "aimed at settling all the frontier questions, and not just some of them". The one small question which occurs to my mind is whether the principle of stability of boundaries helps to establish that interpretation (see paragraphs 47 and 48 of the Judgment).

The operation of the principle in this case has to be considered within the framework of the Court's Judgment, which rests on the 1955 Treaty, and not on effectivites or any other ground. Libya accepts that the 1955 Treaty is a boundary treaty as to some parts of its territory, but not as to all; in particular, it denies that the Treaty was intended to establish a boundary between its territory and that of Chad. That is the short issue before the Court: did the 1955 Treaty in one way or another establish such a boundary? It could only do so if it was intended to settle comprehensively the boundary between Libya and all adjacent French territories, which then of course included the territory of Chad. So the real question presented by recourse to the principle of stability of boundaries in proof of that proposition is whether the principle creates a presump-tion that a boundary treaty is intended to settle comprehensively all the boundaries between the contracting parties (see CR 93/32, pp. 18-20 and 31, Professor Cot, for Chad; and cf. CR93/27, p. 29, Sir Ian Sinclair, Q.C., for Libya).

The principle of stability of boundaries, as it applies to a boundary fixed by agreement, hinges on there being an agreement for the establishment of a boundary; it comes into play only after the existence of such an agreement is established and is directed to giving proper effect to the agreement. It does not operate to bring into existence a boundary agreement where there was none. Libya says that the 1955 Treaty was not a boundary treaty as between its territory and that of Chad; that, in effect, it made no boundary agreement relating to the territory of Chad. It begs the question so raised to seek to answer it by pleading the principle that parties to a boundary agreement are presumed to intend to establish a definite, complete and continuous boundary. Parties to what boundary agreement? Whether there was ever such an agreement is itself the issue. [p46]

In Sovereignty over Certain Frontier Land the Court first noted the existence of the Convention of 8 August 1843, and in particular the preamble thereof which recorded the common intention of the two States "to fix and regulate all that relates to the demarcation of the frontier between" them (I.C.J. Reports 1959, p. 221). It was in the light of the existence of this agreement for comprehensive demarcation of the frontier between the two kingdoms that the Court proceeded to consider the question whether the Mixed Boundary Commission established by the Convention could properly leave in suspense the issue of the right of either party to certain plots of land. An affirmative answer was excluded, as it would leave undemarcated part of the territory which the Convention required to be demarcated. The situation here is different: Libya denies that any agreement exists for the delimitation of its territory from that of Chad, let alone any agreement for demarcation.

Paragraph 47 of the Judgment quotes from the Advisory Opinion of the Permanent Court of International Justice in the Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne case the words:

"It is . . . natural that any article designed to fix a frontier should, if possible, be so interpreted that the result of the application of its provisions in their entirety should be the establishment of a precise, complete and definitive frontier." (P.C.I.J., Series B, No. 12, p. 20; emphasis added.)

The second part of that statement, relating to "the establishment of a precise, complete and definitive frontier", turns on the words in the first part "any article designed to fix a frontier"; it relates to the application of the provisions of an article which is designed to fix a frontier. It is only if it is first established that the article is "designed to fix a frontier" that the principle of stability of boundaries, referred to in the second part, begins to operate. The question here is whether Article 3 of the 1955 Treaty was an "article designed to fix a frontier" between Libya and Chad; the second part of the statement concerning the principle of stability of boundaries does not help to answer that preliminary question. On the contrary, that question must first be answered, and answered in the affirmative, before the principle can come into play.

To invoke the principle of stability of boundaries where the issue is whether the 1955 Treaty was a treaty which was intended to establish a boundary between Libya and Chad is really to make it say that every boundary treaty is to be interpreted as intended to delimit the entirety of the adjoining territories of the Parties. The Treaty of Lausanne case does not say that. There, Article 3, paragraph 2, of the Treaty read:

"From the Mediterranean to the frontier of Persia, the frontier of Turkey is laid down as follows:

(1) With Syria: [p47]

frontier described in Article 8 of the Franco-Turkish Agreement of October 20th, 1921;

(2) With Iraq:

The frontier between Turkey and Iraq shall be laid down in friendly arrangement to be concluded between Turkey and Great Britain within nine months.

In the event of no agreement being reached between the two Governments within the time mentioned, the dispute shall be referred to the Council of the League of Nations.

The Turkish and British Governments reciprocally undertake that, pending the decision to be reached on the subject of the frontier, no military or other movement shall take place which might modify in any way the present state of the territories of which the final fate will depend upon that decision." (P.C.I.J., Series B, No. 12, pp. 18-19.)

The main question for advice was this:

"What is the character of the decision to be taken by the Council in virtue of Article 3, paragraph 2, of the Treaty of Lausanne is it an arbitral award, a recommendation or a simple mediation?" (Ibid, p. 6.)

In other words, failing a consensual determination of the boundary between Turkey and Iraq, which was to be made by Turkey and Great Britain within nine months, could the Council of the League of Nations itself determine the boundary? Or could it only make a recommendation or act by way of mediation?

The Court was of opinion that

"the intention of the Parties was, by means of recourse to the Council, to insure a definitive and binding solution of the dispute which might arise between them, namely, the final determination of the frontier" (ibid., p. 19).

The first supporting reason which the Court gave was that Article 3 of the Treaty, as it clearly stated, "intended to lay down the frontier of Turkey from the Mediterranean to Persia" (original emphasis). As between the two undisputed terminal points thus established by the Treaty itself, the frontier necessarily had to be "continuous and definitive". It could be neither continuous nor definitive if any gaps left by failure of Turkey and Great Britain to agree on its course here and there could not be filled by a determination made by the Council. It was in these circumstances that the Court said:

"Not only are the terms used ('lay down', fixer, determiner), only to be explained by an intention to establish a situation which would be definitive, but, furthermore, the very nature of a frontier and of any convention designed to establish frontiers between two countries [p48] imports that a frontier must constitute a definite boundary line throughout its length." (P.C.I.J.. Series B, No. 12, p. 20.)

These remarks were directed to ascertaining the character of the function which fell to be performed by the Council of the League of Nations. They were not intended to suggest that every frontier agreement between parties was to be presumed to extend to the entirety of their adjacent territories. The Court was not concerned with any question as to what was the overall length of the agreed boundary. It was merely concerned with the mechanism for ensuring that, throughout its undisputed length, "From the Mediterranean to the frontier of Persia", the frontier should be definitive and continuous. This explains the terminal words "that a frontier must constitute a definite boundary line throughout its length", i.e., throughout whatever that length was under the agreement providing for the fixing of the frontier. In other words, the case was not about overall length, but about gaps within an undisputed overall length. By contrast, the issue here concerns not gaps within an overall length, but overall length itself: did this, or did this not, include the specific and very long frontier between Libya and Chad?

Nor is the foregoing reasoning at variance with the Jaworzina, also cited by Chad. There three pieces of territory were in dispute between Poland and Czechoslovakia. The settlement procedures involved a Decision given on 27 September 1919 by the Supreme Council of the Principal Allied and Associated Powers acting under enabling treaty provisions. The Decision delimited the three territories with a view to the settlement of the dispute through the holding of a plebiscite. The plebiscite was not held and recourse had to be made to other settlement procedures. Poland contended that the delimitation lost all value once it had been decided to abandon the plebiscite. Distinguishing between the delimitation as a first step in the application of the settlement procedures and the remainder of the settlement procedures, the Permanent Court of International Justice held

"that the Decision of September 27th, 1919, determined once and for all the territories in dispute and that the successive decisions taken with a view to the settlement of this very dispute must be considered as relating to the territories thus determined" (P.C.I.J., Series B, No. 8, p. 23).

Poland did not deny that the Decision of 27 September 1919 effected a delimitation; the issue which it raised was whether that delimitation was still in force. To resolve this point, the 1919 Decision could be helpfully construed on a footing consistent with the principle of stability of boundaries. Here, by contrast, Libya is not raising any question as to the continuance in force of a boundary agreement, if there was one; it is saying that there was simply no boundary agreement. The Jaworzina does not [p49]help to answer the question raised by Libya as to whether the 1955 Treaty was a boundary treaty in relation to its southern territories.

More to the point is the Monastery at Saint-Naoum, in which the Permanent Court of International Justice found that the London decision of 11 August 1913 had fixed certain parts of the Albanian frontier, but not the part relating to the frontier in the region of Saint-Naoum, which it found "had indeed remained undetermined . . ." (P.C.I.J., Series B, No. 9. p. 20). In reaching that conclusion the Court did not seek to beg the question by commencing the task of interpretation on the basis that the principle of stability of boundaries required the decision of 11 August 1913 to be interpreted as having been intended to fix all of the frontiers of Albania. Had it started out with any such presupposition, its conclusion might well have been different.

This understanding of the case-law is not at variance with the observation of this Court in the Temple of Preah Vihear:

"In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality." (I.C.J. Reports 1962, p. 34.)

The principle of stability of frontiers applies "when two countries establish a frontier between them". Libya says that France and Libya made no agreement establishing any frontier between Libya and Chad. It is only after it has been proved that Libya and France did make an agreement establishing such a frontier that the principle of stability of frontiers will apply. It will then apply so as to give due effect to the agreement establishing the frontier, and not in proof of the existence of the agreement. Also, in the Temple of Preah Vihear the question was, not what was the overall length of the boundary, but where was the boundary in a specific sector of its agreed overall length. The observation of the Court quoted above is not the same thing as saying:

"In general, when two countries establish a frontier between them, one of the primary objects is that it shall extend throughout all of their adjacent territories."

If there are elements which show that a treaty was intended to achieve a comprehensive delimitation, they can be taken into account to the extent admissible in the course of applying the normal canons of treaty interpretation, without the need to encumber the process of interpretation with any presupposition that the principle of stability of boundaries requires the treaty to be interpreted as intended to achieve a comprehensive delimitation. It is easy to think of cases in which the adjoining areas are so extensive as to make it both practical and sensible for parties to agree a boundary for some particular sector only. It would introduce an unnecessary complication if such an agreement had to be construed on [p50] the basis of a presumption that the boundary was intended to be comprehensive. The other legal authorities cited by counsel for Chad do not overthrow this conclusion and I do not propose to deal with them.

The principle of stability of boundaries is a valuable one. But where, as here, it is invoked in relation to a boundary said to be fixed by treaty, its proper use is in the interpretation and application of the treaty if it exists, and not in proof of the existence of the treaty. Apart from questions concerning the course of an agreed boundary in particular sectors, the principle may no doubt assist in resolving a question as to the precise location of the end-points of an agreed boundary; but, where the distances are on the scale of those involved in this case, it is not credible to assert that the argument is about the precise location of an end-point of an agreed boundary. The question raised by Libya is one as to whether there is any agreement establishing any boundary at all between its territory and that of Chad. The principle of stability of boundaries cannot be used to prove the existence of the contested agreement; that proof must be made in other ways.

As it happens, it is clear that there is a treaty relating to the boundary between Libya and Chad. This is because, as mentioned above, the text of the 1955 Treaty shows that the parties to the Treaty intended to establish a complete delimitation as between Libya and all adjacent French territories, including the territory of Chad. It is neither relevant nor necessary to import the principle of stability of boundaries to reach that conclusion; the normal principles of treaty interpretation suffice. To adapt the words used by Charles De Visscher on the subject of extensive or restrictive interpretations, to begin with a presumption that every boundary treaty is intended to be territorially comprehensive "c'est anticiper sur les resultats du travail interpretatif . . ." (Charles De Visscher, Problemes d'interpretation judiciaire en droit international public, 1963, p. 87).

(Signed) Mohamed Shahabuddeen. [p51]


Separate opinion of judge Ajibola

I. Introduction

(i) Delimitation or Attribution

1. I am generally in agreement with the Judgment of the Court, especially with its finding that the Treaty of Friendship and Good Neighbourliness between the French Republic and the United Kingdom of Libya of 10 August 1955 in effect determines the boundary dispute between the Great Socialist People's Libyan Arab Jamahiriya (hereinafter called "Libya") and the Republic of Chad (hereinafter called "Chad"). Primarily, this finding definitively settles the initial but funda-mental differences between the Parties as to whether this is a case of delimitation or of attribution.

2. Libya, in its notification to the Court, urged it

"to decide upon the limits of their respective territories in accordance with the rules of international law applicable in the matter" (emphasis added);

while Chad in its own notification asked the Court to

"determine the course of the frontier between the Republic of Chad and the Libyan Arab Jamahiriya, in accordance with the principles and rules of international law applicable in the matter as between the Parties" (emphasis added).

3. In effect, while Chad requested the Court to resolve a boundary or frontier dispute, Libya urged it to decide a territorial dispute. In the recent Land, Island and Maritime Frontier Dispute case (El Salvador/Honduras: Nicaragua intervening) (I.C.J. Reports 1992, p. 351), where no boundary had been determined in several areas of the land territory concerned, the Chamber of the Court dealt with the conflicting territorial claims of the parties first and subsequently carried out a delimitation exercise as a normal judicial assignment. By a similar progression the Court in the present case first eliminated the dispute of territorial attribution by deciding that the Parties were bound by the Treaty of 1955, then concluded without difficulty that the case was not one of attribution of territory but one of the delimitation of a boundary. [p52]

4. In this regard, I share the view of Professor AllotFN1 when he remarked that:

---------------------------------------------------------------------------------------------------------------------
FN1 Boundaries and the Law in Africa: African Boundary Problems, 1969, p. 9.
---------------------------------------------------------------------------------------------------------------------

"I feel that one can very easily lose one's way in a discussion on political problems in Africa, minority problems, territorial disputes, imperialism, etc. What we should be talking about is boundary disputes, not territorial disputes; in other words, disputes about the boundaries, about where the line is to be drawn. It is quite true that, as a consequence of a territorial dispute or a dispute over a minority, a re-drawing of a boundary may be required, but this is a secondary consequence of that particular dispute."

5. A cardinal consequence of that finding of the Court was the conclusion that Article 3 of the 1955 Treaty, with the Annex I attached thereto, in fact served to establish the frontier which was the subject-matter of the dispute between the Parties. I share the Court's interpretation of this particular Article; however, I shall have some further comments to make.

6. This separate opinion of mine is thus essentially supportive of the Court's Judgment and is meant to deal only with some peripheral but not unimportant aspects of the case. The Court has already dealt with the substantial issues of facts and law involved in the dispute. I, therefore, wish to make certain observations which I consider to be pertinent to this important case, in order to emphasize my individual point of view regarding the main issues placed before the Court and some of the reasoning which led me to support the Judgment.

(ii) African Boundary Problems

7. For about a century, perhaps since 1885 when it was partitioned, Africa has been ruefully nursing the wounds inflicted on it by its colonial past. Remnants of this unenviable colonial heritage intermittently erupt into discordant social, political and even economic upheavals which, some may say, are better forgotten than remembered. But this "heritage" is difficult, if not impossible to forget; aspects of it continue, like apparitions, to rear their heads, and haunt the entire continent in various jarring and sterile manifestations: how do you forget unhealed wounds? One aspect of this unfortunate legacy is to be seen in the incessant boundary disputes between African States.

8. The colonial penchant for geometric lines (as exemplified by Lord Salisbury's "horseshoe"-shaped Tripolitanian hinterland), has left Africa with a high concentration of States whose frontiers are drawn with little or no consideration for those factors of geography, ethnicity, economic convenience or reasonable means of communication that have played a [p53] part in boundary determinations elsewhere. A writer on African boundary problems has remarked:

"We find the Somalis distributed between Ethiopia, Somalia, Kenya and Djibouti, the Yorubas in Dahomey and Nigeria, the Ewes in Ghana and Togo. On the west coast of Africa we find a massive sandwich of French-speaking and English-speaking states whose economic contacts almost completely disregard the proximity of their borders. These examples can be multiplied." FN1

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FN1 Samuel Chime, Organization of African Unity and African Boundaries: African Boundary Problems, 1969, p. 65.
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9. It is therefore important to bear in mind that most African frontiers are purely artificial, and the boundary in dispute was no exception. In most cases they are boundaries put in place by the colonial powers as a result of agreements between them or with indigenous peoples or through conquest or occupation. I hasten to add that boundaries the world over are, most of them, artificial. But in Africa they are patently even more artificial than elsewhere, since most of them are merely straight lines traced on the drawing board with little relevance to the physical circum-stances on the ground. As far back as 1890, Lord Salisbury said:

"We have been engaged ... in drawing lines upon maps where no white man's feet have ever trod; we have been giving away mountains and rivers and lakes to each other, but we have only been hindered by the small impediment that we never knew exactly where those mountains and rivers and lakes were." (Memorial of Libya, Vol. 1, p. 25, para. 3.01: quoted from The Times, 7 August 1890.)

10. Consequently, some African countries on gaining their independence, especially in the 1950s and 1960s, began to question the ill-defined boundaries that ignored so many human factors, whether social, political or economic. Four countries then embarked upon irredentist policies, namely Somalia, Morocco, Ghana and Togo. It is important to note that at the time (i.e., before 1970) Libya was not among those countries. As a result of this policy, which in effect questioned the existing "colonial" boundaries and the resultant territorial partition, some major armed con-flicts erupted in Africa between Somalia and Kenya, Ethiopia and Somalia, Togo and Ghana, Morocco and Mauritania, Algeria and Morocco.

11. Professor C. G. Weeramantry in the chapter on "Legacies of Colonialism" in his book Equality and Freedom: Some Third World Perspectives alluded to the partition of Africa as a classic example of these "artificial divisions" which ultimately resulted in "several dozen frontier
[p54] disputes" which have "flared up, some involving heavy fighting between African Nations"FN1.

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FN1 Equity and Freedom: Some Third World Perspectives, Hansa Publishers Ltd., June 1976, at p. 46.
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12. Another writer on African boundary problems described the issue thus:

"One of the remarkable features of independent Africa today is the legacy of ill-defined colonial boundaries. As Ian Brownlie has rightly observed, the European expansion in Africa produced a territorial division which bore little or no relation to the character and distribution of the populations of the former colonies and protectorates. Thus, the international boundaries now inherited by the newly independent African States were arbitrarily imposed by ex-colonial European powers."FN2

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FN2A. Oye Cukwurah, "The Organisation of African Unity and African Territorial and Boundary Problems, 1963-1973", Indian Journal of International Law, Vol. 13, p. 178.
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It was against this background that Libya's claim fell to be understood.

II. Territorial Claim by Libya Examined

13. Libya's claim was premised on the thesis that at all the material times relevant to this dispute, the borderlands were never terra nullius, even before the arrival of France. Particularly in the "borderlands" to the south of Libya, dividing it from Chad, there had never been a defined boundary, either conventional or otherwise. Libya's other fundamental point was that France never acquired any title to the borderlands, either by treaty, by occupation or by conquest; and since Chad succeeded to France's territorial titles, a fortiori Chad held no title from France. But that was not to say, according to Libya, that title did not exist. It was at all time vested, Libya claimed, in the indigenous tribes, the Senoussiya and, on the international plane, in the Ottoman Empire, and it passed to Italy after the Treaty of Ouchy in 1912. It was this same title that passed to Libya on 24 December 1951, the date of its independence.

14. Significantly, Libya's argument that territories inhabited by tribes or peoples having social and political organizations are not to be regarded as terra nullius echoes the Court's comment in the Western Sahara case that:

"in the case of such territories the acquisition of sovereignty was not [p55]generally considered as effected unilaterally through 'occupation' of terra nullius by original title but through agreements concluded with local rulers" (I.C.J. Reports 1975, p. 39, para. 80).

15. Libya, having denied the existence of any established boundary to the south, claimed in its submissions that it had title:

"to all the territory north of the line shown on map 105 in Libya's Memorial . . . that is to say the area bounded by a line that starts at the intersection of the eastern boundary of Niger and 18 N latitude, continues in a strict south-east direction until it reaches 15 N latitude, and then follows this parallel eastwards to its junction with the existing boundary between Chad and Sudan" (CR 93/29, p. 72).

(i) Libya's Territorial Claim and "Litigation Strategy"

16. Libya's claim encompassed the regions of Borkou, Ennedi and Tibesti, including Erdi, Kanem and Ounianga, or what Libya described as the "borderlands":

"a handy geographical term of reference ... it is defined in the north by the 1919 Anglo-French Convention line claimed by Chad, and in the south by 15 N latitude" (CR 93/16, p. 12).

17. In support of this claim to the entire "borderlands", Libya in its Memorial and oral argument referred to economic, religious, geographic, climatic and security factors. As to the economic factor, mention was made of the Central Saharan trade routes from the Mediterranean coasts of Cyrenaica and Tripolitania to the hinterlands. Examples were given of such trade routes from Tripoli to Sokoto and Kano in Nigeria, via important places like Nalut, Ghadames, Ghat and Agades; another from Misuratah to Kuwka via Mourzouk and Bilma. A third ancient route started from Benghazi and reached Manssenya in Baguirmi via Koufra, Tekro (in Ennedi) and Abeche. It was the view of Libya that trade had since ancient times been the main factor in the contacts and relationships between the peoples of the northern and southern reaches of the Sahara.

18. Libya also suggested that geography provided a criterion for the Court to consider especially the geographical features of the terrain. In that connection it argued that the Court had the same discretion as a demarcation commission to effect the establishment of a boundary de novo where none existed, as allegedly in this case. As to religion, Libya placed much emphasis on its connection with the Senoussi and the Muslim Ottoman Empire, claiming that the northern part of Africa as well as [p56] the borderlands were predominantly Muslim, whereas to the south Chad was populated by Christians and animists. With regard to the climatic factor, Libya pointed out that, while the entire area of the borderlands shared a desert climate and vegetation with Cyrenaica and Tripolitania, the south of Chad enjoyed the Sudan climate, which is tropical in nature.

19. On the issue of security, Libya was of the opinion that the Tibesti Massif posed a potential danger to its petrochemical-industrial complex in the Sirt Basin hence from the viewpoint of Libya's national defence it was of utmost importance that the Tibesti Massif and the adjacent border be secure. Adducing the security consideration in support of its territorial claim, Libya submitted that:

"In carrying out the task of attribution of territory and determining which State has the better claim to title over territory falling within the General Setting of this dispute, it is the view of Libya that the security interests of each State in the light of all the facts are factors that should not be overlooked. Attributing to Libya the regions described in its submissions to which Libya claims to have clear title, would take full account of Libya's security interests, while at the same time leaving an extensive land area between such a Libyan frontier and the strategic and economic heartland of Chad what the French have called 'le Tchad utile'." (Memorial of Libya, Vol. 1, p. 68, para. 3.110.)

20. The above arguments, derived from human and physical considerations, may be seen as the first leg on which Libya's claim rested. The second leg was of a diplomatic nature and concentrated on the Rome Treaty of 1935, otherwise referred to as the Laval-Mussolini Treaty. This was the Treaty between France and Italy which specifically defined the boundary between Libya and the territories of French Equatorial Africa and French West Africa east of Toummo.

21. The 1935 Treaty did not enter into force formally because Italy refused to proceed with the exchange of the instruments of ratification. However, the argument of Libya was that this did not diminish the Treaty's importance or its relevance as an essential factor to be taken into consideration in the settlement of the dispute before the Court. The Parties disagreed as to who would have conceded territory to the other. The argument of Libya was that Italy made such concessions to France in return for a promise that the French would support the Italians' conquest of Ethiopia, and that it was the French refusal to keep to that agreement that led to Italy's refusal to exchange the instruments of ratification.
22. Chad claimed that it was France that in 1935 offered concessions of territory to Italy, based on the "colonial concession" promised under Article 13 of the London Treaty of 1915. However, that point is of less [p57] importance to the argument of Libya that the Court could take this Treaty into consideration in arriving at a just and equitable decision.

23. Libya claimed that the 1935 Treaty was the only international instrument which throughout the history of this dispute was intended to plot a line defining once and for all the boundary in the area in dispute and which actually would have attained its purpose but for the non-exchange of the instruments of ratification. It was a Treaty, Libya claimed further, that had been fully negotiated and concluded by two States which both effectively exercised sovereignty over the territories to be delimited. Libya thus asserted that valuable indications could be gleaned from a delimitation treaty which reached the very brink of enforceability. Indeed, Libya highlighted the ebb and flow of Franco-Italian negotiations between 1912 and 1935 as furnishing an equitable consideration in its favour. Chad might well have suggested that the Accord-Cadre allowed the Court to operate solely within the bounds of law, stricto sensu, but according to Libya:

"ce constat n'exclut nullement le recours l'aequitas infra legem, qui au contraire est toujours approprie, comme votre Cour l'a dit et repete tant propos des delimitations maritimes que des delimitations terrestres" (CR 93/20, p. 40).

24. A clear picture of Libya's claim has now emerged: that there was no existing boundary between Libya and Chad, either through French conquests or occupation or by virtue of the Treaty of 1955, particularly Article 3 with the list of international instruments annexed thereto; that the Court was therefore in a position to decide a territorial dispute rather than a boundary dispute; that in doing so the Court should take into consideration the Rome Treaty of 1935 even though the instruments of ratification had not been exchanged; that the territory in dispute was at no time a terra nullius but that at all material times title was vested in the indigenous peoples and the Senoussi while on the international plane title was vested in the Ottoman Empire, which eventually passed it to Italy. Hence Libya concluded that its territorial claim should extend as far south as 15 N latitude.

25. There is little doubt that Chad was taken aback at the extent of Libya's claim, which it had expected to be limited to the 1935 line that Libya had relied upon since 1977 before the Security Council, the General Assembly and the Organization of African Unity. Hence it asserted that:

"To get half of Chad would be splendid, but really Libya would be satisfied with everything north of the 1935 line. That line could not be argued for as such, because of the non-ratification of that Treaty. So the dispute would be turned into one about territory rather than frontiers, large territorial claims would be made, and [p58] then on the very last day of the oral argument Libya would reinsert the 1935 line as a species of equity " (CR 93/21, p. 55, para. 63.)

26. Chad remarks that over the years Libya has not been consistent regarding its territorial claim. Libya's submission to this remark is to the effect that the past policies of its Government on this matter had little to do with the present case, when only the pleadings and submissions before the Court are relevant. I was not persuaded by this line of argument: on the contrary, I am of the opinion that the converse is the position in international law.

27. My view finds confirmation in the case-law of the Court. For example, in the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), the Court, in interpreting very recently the 1965 Agreement between Norway and Denmark, took into consideration the text which the Norwegian Government submitted for parliamentary debate in 1979-1980:

"This absence of relationship between the 1965 Agreement and the 1979 Agreement is confirmed by the terms of the official communication of the latter text to Parliament by the Norwegian Government. Proposition No. 63 (1979-1980) to the Storting states that:

'On 8 December 1965 Norway and Denmark signed an agreement concerning the delimitation of the continental shelf between the two States.

The agreement did not cover the delimitation of the continental shelf boundary in the area between Norway and the Faroe Islands.'

Since, as noted above, the 1965 Agreement did not contain any specific exclusion of the Faroe Islands area, or of any other area, this statement is consistent with an interpretation of the 1965 Agreement as applying only to the region for which it specified a boundary line defined by co-ordinates and a chart, i.e., the Skagerrak and part of the North Sea." (I.C.J. Reports 1993, p. 51, para. 29.)

28. Another example that strongly confirms my view is to be found in the Nuclear Tests cases in 1974 when the Court concluded that the statement of the French Government that it would not carry out any further atmospheric nuclear testing had legal implications.

(ii) The Salient Questions

That said, what Chad styled as Libya's "litigation strategy" (CR 93/21, p. 55, para. 64) deserved to be evaluated with the aid of four pertinent questions: [p59]

1. How much reliance could Libya now place on the 1935 Rome Treaty?

2. How sound was the thesis of Libya that there was no boundary between it and Chad?

3. Was Libya correct in its interpretation of the provision of Article 3 (with its Annex I) of the 1955 Treaty?

4. How strong were the claims and submissions of Libya regarding the BET region?

(iii) The Rome Treaty and Equity

29. Among the conventional boundaries involved in this dispute the Rome Treaty might have been regarded as the "second best", in the sense that the Court would have been compelled to look more closely into it in the event of the absence or invalidity of the 1955 Treaty. In such a situation, a certain application of equitable "principles might have become a necessity, but where equity has a role in a boundary dispute, that role is invariably limited. Equity may be applied only to fill in a gap. It could be aequitas infra legem or aequitas secundum legem but not aequitas praeter legem or contra legem. Both Parties virtually agreed that this was the position in international law. But since a conventional boundary had been recognized by the 1955 Treaty and the Rome Treaty's instruments of ratification had not been exchanged, equity had in fact no role to play in this matter; to apply it would have been to apply equity extra legem and in any case, equity follows the law.

30. Even in maritime delimitation cases, where the Court has developed the law considerably on this issue with regard to equitable principles and equitable factors, equity does not operate contra, legem but infra legem. In conclusion here, one can say that equity had no role to play in this particular case and that the Rome Treaty, though of some historical interest, was never in force and was therefore not applicable de jure.

(iv) Libya's "No Conventional Boundary" Thesis

31. This point is touched upon here in order to highlight the shifting positions taken by Libya from the inception of the dispute. First there was the period of silence and acquiescence, then the period of denial of occupation of part of the Tibesti region, followed by a claim that Libya had a right to such action under the Rome Treaty of 1935. Then before the Court Libya argued that, while no boundary had been established, the Rome Treaty ought to be taken into account from the standpoint of equitable considerations. But no matter what justifications could be found for each of those stances, the allegation of the non-existence of a [p60] conventional boundary stood or fell with the interpretation of the 1955 Treaty.

(v) Libya's Interpretation of the 1955 Treaty

32. All that needs to be said here is that it appears to me that Libya denied neither the validity of the 1955 Treaty nor the fact that it was relevant to the present dispute. The Court has meanwhile found that it may be applied so as to define a conventional boundary, a conclusion with which I am in full agreement.

(vi) How Strong Was the Claim of Libya Regarding the BET Region?

33. Having decided that there is a conventional boundary established between Chad and Libya, one might consider it redundant to examine this question. Nevertheless it may not be entirely out of place to do so, because of the importance of this case in Africa.

34. Assuming for a moment, therefore, that the Treaty of 1955 did not create a boundary, it might still have been very difficult to find in favour of Libya on the basis of the historic, religious, economic, geographic and security considerations it placed before the Court. Earlier in this opinion, I have expressed my view on this point, referring to the history of Africa and its colonization. The colonial powers did not take all those factors into consideration when the partitioning took place in the nineteenth and twentieth centuries. Tribes and indigenous peoples are spread all over Africa without regard for boundaries or the entity of States.

35. President Tsiranana, the then Head of State of Madagascar said in 1963FN1:

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FN1 ICAS Summit/Gen/Inf/14, p. 4; see also Boutros Boutros-Ghali, Les conflits de frontieres en Afrique, 1972.
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"It is no longer either possible or desirable to modify the frontiers of nations in the name of racial or religious criteria ... if we were to take as a criterion of our frontiers either race, tribe, or religion certain States in Africa would be wiped off the map." (Emphasis added.)

36. Take for example the Senoussi Order, whose grand patron hailed from Algeria: the influence of this Order stretched across the whole of Northern Africa, especially Algeria, Morocco and Egypt. The influence of the Order also stretched to the south through the length and breadth of the present Chad and beyond. As early as 1856 a Senoussi zawiya was established in Kuka Bornou. The logical consequence of Libya's claim based on Senoussi title alone could involve the integration of about eight nations altogether as one State in Africa. So much for religious and cul-tural factors. Economic and geographical considerations would present [p61] even more fluid and unreliable guides. Besides, they would often conflict with findings drawn from considerations of an ethno-cultural nature.

37. That is why I am in entire agreement with the view of the Chamber of the Court in the case of the Frontier Dispute (Burkina Faso/Republic of Mali):

"The Chamber would however stress more generally that to resort to the concept of equity in order to modify an established frontier would be quite unjustified. Especially in the African context, the obvious deficiencies of many frontiers inherited from colonization, from the ethnic, geographical or administrative standpoint, cannot support an assertion that the modification of these frontiers is necessary or justifiable on the ground of considerations of equity." (I.C.J. Reports 1986, p. 633, para. 149; emphasis added.)

38. To conclude, I found it difficult to support any of the submissions presented to the Court by Libya in the present case.

III. Chad's Case

39. Chad's general submission on this case was that it concerned the delimitation of the common boundary between the two Parties. As far as Chad was concerned, the Franco-Libyan Treaty of 10 August 1955 defined the frontier between it and Libya. In his opening address, the Agent for Chad expressed the view of the Government of Chad as follows:

"In Chad's view, the Treaty of 10 August 1955 is the key to the dispute. Libya negotiated, signed and ratified it freely. The Treaty cannot be sidestepped, it is decisive. Its implementation suffices to settle the dispute." (CR 93/21, p. 14.)

40. Chad put forward two subsidiary theses in support of this submission. It contended that, even if the Franco-Libyan Treaty of 1955 had not been concluded or were inapplicable, the frontier definition resulting from certain international instruments would be the same. Alternatively Chad argued that the same frontier line would result from French effectives in the borderlands, assuming that the first two lines of contention failed. Chad further buttressed its claim that a conventional boundary actually existed with allegations of acquiescence and estoppel against Libya. The issue of uti possidetis juris was also raised by Chad, referring to the Cairo Declaration of the Organization of African Unity in 1964, and a part of the decision of a Chamber of this Court in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (I.C.J. Reports 1986, p. 554). [p62]

IV. The 1955 Treaty and the Stand of the Parties

41. Libya agreed with Chad that the starting point in this case should be the Franco-Libyan Treaty of 1955 (hereinafter called "the 1955 Treaty"). Counsel stated on its behalf:

"'Article 3 of the 1955 Treaty is directly pertinent to resolving the present dispute' (Reply of Libya, para. 5.04); and, indeed, Libya suggests that 'The Court may well regard the 1955 Treaty as the logical starting point in its consideration of how to resolve the territorial dispute in this case' (ibid, para. 5.01). Since both Libya and Chad (although the latter with some reservations) regard the 1955 Treaty as being of critical importance to the resolution of the present dispute, Libya will begin by analysing Article 3 of that Treaty." (CR 93/ 15, p. 15.)

42. Chad, for its part, made it clear at the opening of its oral arguments that its most important thesis was that the Treaty of 1955 "quite unambiguously identified a boundary line" (CR 93/21, p. 28). Counsel added: "Let us begin at the beginning. And the legal beginning and also the end is the Treaty of 10 August 1955 between France and Libya." (CR 93/21, p. 29.)

V. Interpreting the 1955 Treaty

43. The Judgment of the Court dealt adequately with the interpretation of Article 3 of the 1955 Treaty which I need not repeat in this opinion, but I shall only touch on some areas of it which I think are supportive of the Judgment.

(i) Object and Purpose of the 1955 Treaty

In the interpretation of any treaty it is equally essential to look into its actual object and purpose (cf. Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties).

44. As far as the 1955 Treaty is concerned, Libya's view on this point is straightforward its own object was to secure the removal of the French army from Fezzan in order to give effective meaning to Libyan independence. All other considerations were secondary and in fact un-important. To say the least, Libya was not then interested in the delimitation of the southern boundary, and would have preferred not to have anything to do with the issue of delimitation of the frontier. Reference was made to the fact that Libya was ill-equipped for such exercise in 1955, and in particular lacked appropriate experts.

45. Mr. Kamel Maghur for Libya said that:

"When the negotiations that ultimately led to the 1955 Treaty [p63] started in January 1955, I would estimate there were not more than five lawyers in Libya. Only one lawyer, Mr. Fekini, fresh from law school in Tunisia, with no experience of any kind, was assigned to assist the Libyan team . . . Like Mr. Fekini, I knew nothing about matters of international law and international boundaries when I graduated from law school." (CR 93/14, p. 67.)

46. It is alleged by Libya that France also was loath to go into the issue of delimitation. Mention was persistently made of the letter of 2 May 1955 from the Governor-General of French Equatorial Africa to the Ministre de la France d'Outre-Mer. The letter advised: "la necessite de faire reconnatre par ce pays [la Libye] les frontieres resultant de la declaration franco-britannique de 1899" (Memorial of Libya, Vol. 1, p. 370, para. 5.437).

47. But the letter did not stop there. It went further to state clearly the objective of France with regard to the southern frontier of Libya with Chad at this crucial time, which was about four months before the signing of the 1955 Treaty. According to Libya, this corresponded to the French thesis that had first been formulated and fully articulated in 1921-1922 in response to the Italian protest against the 1919 Anglo-French Convention. Thus the French thesis on the frontier, as explained in the letter, is said to be as follows:

" that Libya should be considered to be a successor State to Italy not to Turkey;
that Libya's southern boundaries were determined by the 1899 Anglo-French Additional Declaration, as modified by the 1919 Anglo-French Convention;
that Italy had formally recognized the 1899 Additional Declaration in the 1900-1902 Franco-Italian Accords; and
that Libya could base no claim on the 1935 Treaty because these accords 'n'ont jamais ete executes'." (Ibid. ; emphasis added.)

48. The letter of 10 May 1955 which the French Embassy in London sent to the British Foreign Office, and which Libya quoted in its Memorial, suggests moreover that both parties took the same attitude towards delimitation, for it states:

"Les deux gouvernements conviennent de s'en tenir, en ce qui concerne le trace des frontieres separant les territoires franais et libyen, aux stipulations generales des textes internationaux en vigueur la date de la creation de l'Etat libyen." (Ibid., p. 375, para. 5.445.)

49. May one perhaps deduce therefrom that there was no disagreement as to the object and purpose of the Treaty? Libya at the last moment agreed that the boundary had been fixed by the international acts. Libya, mentions that:[p64]

"Libya did, at the last moment, agree to this proposed rectification, under considerable pressure from the French negotiators; and the text of what was agreed by way of identification of these points was embodied in Annex I to the 1955 Treaty." (CR 93/15, p. 38.)

50. What was the purpose and object of this 1955 Treaty according to Chad? As far as Chad is concerned, it was a package deal to ensure peace and stability within that region. In the eyes of Chad, it was a Treaty of Friendship and Good Neighbourliness between France and Libya. As stated in Chad's Counter-Memorial:

"it comes in the form of a body of provisions concerning a great variety of subjects: the presence of French troops on Libyan territory, economic, financial and cultural co-operation, frontier regime, etc. Its object is very generally to facilitate relations between the parties and establish co-operation between them." (Counter-Memorial of Chad, Vol. I, p. 505, para. 11.68.)

51. In the terms of the title, text and content of the Treaty, the view of Chad seems to me to be the correct approach, even though each of the parties could aim at a kind of quid pro quo. This was expressed in a letter of 5 January 1955 from the British Embassy in Paris to the Foreign Office in London, based on the information provided by Mr. Jerbi, one of the members of the Libyan delegation at the negotiations of the Treaty. According to the letter:

"the French Government had taken the view at the outset of the January negotiations that France was willing to withdraw its forces from Fezzan provided certain related questions were settled at the same time, one of them being that 'the frontier between Fezzan and French territory must be properly delimited'" (Memorial of Libya, Vol. 1, p. 375, para. 5.446).

52. It should also be remembered that at this time between 1953 and 1954, Britain and the United States of America had concluded agreements on security and alliance with Libya, while France was left out.

53. Whatever may be the motive of the parties independently, there is no doubt that the object and purpose of the 1955 Treaty was to ensure friendship and good neighbourliness between the parties. The special rule of interpretation of treaties regarding boundaries is that it must, failing contrary evidence, be supposed to have been concluded in order to ensure peace, stability and finality. Many multilateral conventions have provisions safeguarding and ensuring stability and finality with regard to boundary treaties. An example of such treaties is the 1978 Convention on the Succession of States in Respect of Treaties (which I referred to above) especially Article 11 therein, which stipulates that a succession of States does not alter or affect a boundary established by a treaty, and neither does it affect the obligations and rights established by such a treaty when [p65] it involves the issue of boundaries. Similarly, in the 1969 Vienna Convention on the Law of Treaties, Article 62, paragraph 2 (a), provides:

"A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty

(a) if the treaty established a boundary.'' (Emphasis added.)

54. Furthermore, Article 62, paragraph 2, of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations also created an exemption regarding boundary treaties by stating that:

"A fundamental change of circumstances may not be invoked as ground for terminating or withdrawing from a treaty between two or more States and one or more international organizations if the treaty establishes a boundary." (Emphasis added.)

55. The 1955 Treaty does not exclusively deal with the issue of boundaries, nevertheless it is common ground that it is partially a boundary treaty in view of Article 3 of the Treaty and Annex I thereto. Failing proof to the contrary, this Article must be viewed as a provision inserted by both parties to establish and ensure some degree of stability and finality with regard to their boundary.

56. The jurisprudence of the Court in matters of conventional boundaries lends firm support to the above analysis. The celebrated authority on this point is the clear pronouncement of the Court in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand), decided in June 1962. The Court in that case established the principle of stability and finality as follows:

"In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality. This is impossible if the line so established can, at any moment, and on the basis of a continuously available process, be called in question, and its rectification claimed, whenever any inaccuracy by reference to a clause in the parent treaty is discovered. Such a process could continue indefinitely, and finality would never be reached so long as possible errors still remained to be discovered. Such a frontier, so far from being stable, would be completely precarious." (I.C.J. Reports 1962, p. 34.)

57. Perhaps this decision of the Court, with its judicial flavour of quieta non movere, was aimed at ensuring finality and certainty on any dispute presented to it, and thereby preventing protracted and endless litigation which at times provoke hostilities and armed conflict. [p66]

58. The object and purpose of the 1955 Treaty as a whole was undoubtedly multiple, since it was a Treaty with so many dimensions, containing inter alia a particular convention on good neighbourliness spelling out how to effect "good-neighbourly relations'", by, for example, ensuring the free movement of citizens from one territory to the other; a convention on economic co-operation; and also a cultural convention on education, language, etc. It also contains many annexes to spell out the objects and purposes of the Treaty comprehensively. But it is equally clear that a part of the object and purpose of the Treaty was to establish once and for all the Libyan southern boundary. This was in fact, to my mind, accomplished.

(ii) Integration Approach

59. While it is not my wish to treat the "intention approach" as a distinct heading of interpretation in this opinion if only because such an approach may be over-subjective and thus undesirable (the Court has never followed this approach either) whatever substance, if any, can be derived therefrom can easily be discussed and subsumed under the integration approach, which may perhaps highlight the intention of both Parties. The integration approach will equally deal adequately with the entire content of the 1955 Treaty in the way expressed thus in Article 31, paragraph 2, of the 1969 Vienna Convention on the Law of Treaties:

"The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty." (Emphasis added.)

60. Handling the interpretation of the 1955"Treaty under what is here referred to as an integration approach cannot but touch on some of the points earlier referred to under "object and purpose", which I do not intend to repeat. Again, it must be observed that each Party, in the pres-entation of its case to the Court, submitted volumes of diplomatic documents, including correspondence, agreements, notes or proces verbaux, and maps. These documents were effectively used during the oral proceedings. On the diplomatic documents relating to the period from January to August 1955, some important and pertinent observations can be made. It may be appropriate to start from the Laval-Mussolini Treaty of 1935, which was in the limelight between 1935 and 1955. That Treaty undoubtedly featured a boundary which gave Libya some advantage or concession (even though this was disputed by Libya). It went with a map which put the entire "Aouzou strip" within the territory of Libya. Even [p67] though the Treaty was signed it was not exchanged between the parties. Italy refused to do so because it accused France of a breach of faith with regard to what was agreed on the concession to be granted to Italy, in connection with its colonies in Eritrea and Somalia.

61. This 1935 Treaty underlay a map that indicated the boundary which Italy, and subsequently Libya, erroneously relied upon for some time and which brought about a conflict of opinions between Italy and France before 1947, and between Libya and France before the signing of the 1955 Treaty.

62. Thus, between 1935 and 10 August 1955, two incidents occurred which clearly gave an indication of the stands of both parties with regard to the boundary south of Libya. The incidents were the Jef-Jef incident in 1938 and Aouzou incident on 28 February 1955. Even though the facts were disputed by the Parties, it is obvious that while France was relying on the 1899/1919 frontier as Libya's boundary to the south with Chad, Italy still relied on the 1935 line. These incidents are significant for two reasons. On the Jef-Jef incident, there was a tacit understanding that Italy (and Libya for that matter) could not rely on the 1935 Treaty, the ratification of which was not exchanged. On the Aouzou incident, there was also a tacit understanding that, since the 1935 line was no longer in place, the parties agreed to revert to the 1899/1919 line.

63. Between January and 10 August 1955 (when the 1955 Treaty was signed) there were as many as 64 documents dealing with negotiations on the draft text or what should be the agreed context of the Treaty. Seventeen deal with the Aouzou incident, while others deal with maps, controversies and the movement of French troops from Fezzan. Even though there are conflicting views and different interpretations attached to these documents by the Parties, a reasonable formulation of what may be considered as a consensus ad idem clearly emerged. On the Libyan side, the most important issue was the movement of the French troops out of Fezzan, and it was equally prepared to give "concessions" if this movement out of Fezzan could be completed as soon as possible. Libya was also interested in any form of assistance from France. France, for its part, made the issue of the Libyan southern boundary a conditio sine qua non, and as far as it was concerned the 1899/1919 lines had to be recognized as the frontier line.

64. Furthermore, contrary to the submission made during the oral proceedings by Libya, France was not, in my opinion, absolutely happy about the 1955 Treaty. The situation and circumstances of that period gave a clear indication that France just had to swallow a bitter pill by signing such an agreement. Reading all the relevant documents, it is clear that what France wanted at the material time was not a treaty of friendship and good neighbourliness, but a treaty of alliance with Libya like the ones it signed with Britain in 1953 and the United States of America in [p68]
1954. Take, for example, the Defence Committee of the French Union which, while giving as part of its conditions for the ratification of the 1955 Treaty, stated as follows:

"1. Any Franco-Libyan agreement must, on account of its military and good neighbourliness conventions, take the form of a treaty of alliance, so as to constitute de jure recognition by the Libyan State of the sovereignty of France over its African territories.

2. This treaty must recognize our right to bring Fezzan under military occupation again in time of war or in the event of a crisis, the definition of which will have to cover our African security in the vicinity of this region." (Memorial of Libya, Vol. 6, Exhibit 76, p. 1051.)

65. In fact, the Assembly of the French Union expressed regret with regard to the draft Treaty of 1955, when it expressed an opinion as follows:

"(a) that the insufficiency of Western solidarity has not allowed France to preserve its position in Fezzan as would have been appropriate, such shortcomings in solidarity being liable to compromise the Atlantic Alliance" (ibid., p. 1050).

66. In the overall context of the Treaty, therefore, France did not, in fact, achieve its aim, and a careful reading of what transpired in its Parliament, especially during the debates of the meeting of 22 November 1955, will throw some light on this view. In his explanation to the National Assembly of France on the Treaty, Mr. Daniel Mayer, the Chairman of the Foreign Affairs Commission and Rapporteur, touched on what France would have wanted from Libya, regarding such a Treaty, if it could have had its way:

"At the time, France sought to conclude with the new Federal Kingdom an alliance that would have placed her, in Fezzan, in a situation analogous to that of Great Britain in Tripolitania and Cyrenaica.

It was unfortunately impossible to accomplish that objective since the Agreements signed in 1953 with Great Britain and the following year with the United States, had amply provided our interlocutors with the resources they needed and enabled them to disregard the very modest quid pro quo we were able to propose to them in exchange for a right of permanent occupation of Fezzan, where our troops had been stationed since 1942." (Ibid., Exhibit 71, p. 5017; emphasis added.)

67. Mr. Mayer went further in his address to the French National Assembly, lamenting the possible political and psychological consequences of the failure of France to secure the best deal from Libya and its having to content itself with the second best agreement the 1955 Treaty:
[p69]

"Admittedly, this treaty can give rise to criticism and it involves, on our part, concessions liable to hurt our pride in certain respects.

Since our troops covered themselves with glory in the Fezzan, our African army will no doubt be sensitive to the withdrawal of our forces from there." (Memorial of Libya, Vol. 6, Exhibit 71, pp. 5017-5018; emphasis added.)

68. There is no doubt that Fezzan was a very thorny issue in this Treaty, when Libya was in fact prepared to pay the price to get rid of the French troops (about 450 soldiers in all) from its territory and France was most reluctant to leave Fezzan. To France, Fezzan was a strategic area of importance with regard to its colonies in North Africa vis--vis Equatorial Africa. France even considered that she was left out in the cold, because while British and American troops were being welcomed into Libya, her own troops were being asked to move out under this 1955 Treaty. But at the same time France understood that it would be better to move out honourably and free from Fezzan than:

"to evacuate it within a few weeks, perhaps within a few days, after being condemned by a near-unanimous vote in the United Nations, where, it cannot be denied, we would be very hard put to find any argument in support of our continued occupation of the area . . ." (ibid., p. 5025).

69. In fact. Mr. Jacques Soustelle, in the National Assembly referred to the 1955 Treaty as follows: "Treaty of Friendship? What friendship is this?" (Ibid, p. 5022.)

70. Nevertheless, it remained clearly expedient and desirable for France to sign such an agreement with Libya. In the absence of an alliance, France needed peace and good neighbourliness from Libya with its own new and powerful "allies" Britain and the United States of America. This was clearly reflected in the debate at the French National Assembly:

"True, there is no more praiseworthy aim than that of establishing or consolidating peace and good neighbourly relations in any part whatsoever of areas containing so many hotbeds of violence." (Ibid., p. 5020; emphasis added.)

71. It is therefore my view that in order to establish an atmosphere of peace and stability between the two nations, a clear and distinct delimitation of their respective boundaries was a conditio sine qua non. Hence the importance of Article 3 with Annex I of the 1955 Treaty, which in my opinion clearly established a frontier as agreed to and never denied either by Libya or France until recently (by Libya). If, on the other hand, one considers the entire content of the negotiations that took place between France and Libya before the signing of the 1955 Treaty on 10 August, [p70] there is no doubt whatsoever that both parties reached agreement to establish a boundary between them as indicated in Article 3 of the Treaty.

72. As early as 2 January 1955, the Libyan negotiator, Mr. Mustapha Halim, while discussing the question of negotiation with France, said:

"I am asking for the final and unconditional evacuation of Fezzan and I shall not go back on what has already been said.

As you [France] are afraid that there may be disturbances on your frontier, 1 am resolved to conclude an agreement with you." (Reply of Libya, Vol. 3, Exhibit 6.4, p. 2.)

73. The overall or general consideration which was to form the basis of their negotiations and which ultimately led to the agreement of the 1955 Treaty, was thus made clear by Libya from the inception. One can see the necessary element of quid pro quo between both parties. Another important point prior to the commencement of this negotiation must also be kept in view. The agreement that France signed with Libya on its independence (24 December 1951) with regard to the French troops on the soil of Libya (in Fezzan) expired on 31 December 1954 and France was expected to evacuate its troops from Fezzan.

74. The record of the initial negotiations between France and Libya of 8 March 1955 shows very clearly what each party agreed to. While France gave an undertaking to: "withdraw its military forces currently stationed in Fezzan within a period of 12 months after the entry into force of the treaty" (ibid., "Negociations franco-libyennes Projet de proces-verbal", p. 2), this was qualified by Libya which considered that such evacuation should be completed "by 31 December 1955 or, at the latest, ten months after the signature of the treaty, which should be concluded as early as possible" (ibid.).

75. The issue of the frontier was also dealt with in the same draft agreement. In section IV of the same summary record of Franco-Libyan negotiations, Libya definitively agreed with France as follows:

"The two Governments agree, so far as the frontier line between the French and Libyan territories is concerned, to abide by the general provisions contained in the international instruments in force on the date of the establishment of the Libyan State." (Ibid., p. 5; emphasis added.)

76. There are some important points to be noted in the text of this negotiation. In the first case, some of the words employed are similar, if not the same, as those contained in the final text of Article 3 of the 1955 Treaty. Words like "frontier", "territories", "in force" and "international instruments" are common to both texts, which clearly shows that Libya all along desired to negotiate an agreement on the frontier issue. Furthermore, Libya agreed to "abide by" the general provisions of the relevant international instruments. This clearly indicates that even though Libya might before then have been nursing some doubts about this particular frontier, it then agreed to stand by it. It should also be [p71] observed here that, unlike the final text of the 10 August 1955 Treaty, this draft negotiation record referred to the "frontier line between the French and Libyan territories", which is a clear and unambiguous reference to the southern boundary of Libya. About this time, a letter from one of the French High Commissioners in French Equatorial Africa, Mr. Chauvet, vividly demonstrated the way France wished to couple the evacuation of French troops from Fezzan to the delimitation of the boundary to the south of Libya. In his letter he advised as follows:

"In order to anticipate any subsequent claim by Libya to the portion of Tibesti then ceded to Italy, Mr. Colombani considers that the withdrawal of the French troops from Fezzan, if this should be decided, should be made conditional on the fixing and demarcation of the frontier line as defined by the Franco-British Declaration of 21 March 1899." (Reply of Libya, Vol. 3, Exhibit 6.5, Letter of 10 February 1955, p. 1; emphasis added.)

77. By July 1955, the position of both parties was very clear, as may be ascertained from the preliminary draft of the "Treaty of Friendship and Good Neighbourliness" negotiated in Tripoli, which served as the basis of the final text in August (ibid., Exhibit 6.6, p. 1).

78. In conclusion on this part, there is no doubt that both parties, just as they agreed that France should evacuate its troops from Fezzan, equally and undoubtedly agreed that the frontier to the south of Libya should be delimited, and in fact, they carried out this intention within the context of the Treaty.

(iii) Good Faith

79. The principle of good faith is a fundamental one in interpretation of treaties. In this context good faith is essentially the good faith of all the parties to the treaty. It is a principle that is closely interwoven with the principle of pacta sunt servanda, as clearly stated in Article 26 of the 1969 Vienna Convention on the Law of Treaties which says that "every treaty in force is binding upon the Parties to it and must be performed by them in good faith" (emphasis added). In addition to this, certain provisions of the United Nations Charter give very strong support to this principle. A part of its preamble states that the United Nations would:

"establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained".

Furthermore, Article 2, paragraph 2, of the Charter enjoins:

"All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obli-[p72]gations assumed by them in accordance with the present Charter." (Emphasis added.)

80. Elias, in his book FN1referred to some of the arbitral and judicial decisions on this point. Such an example is the North Atlantic Fisheries caseFN2. In this case, after the Arbitral Tribunal had observed that the principle of international law is that treaty obligations are to be executed in good faith, it further held:

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FN1 T. O. Elias, The Modern Law of Treaties, 1974, p. 41.
FN2 United Nations, Reports of International Arbitral Awards (UNRIAA), Vol. XI, p. 188.
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"But from the Treaty results an obligatory relation whereby the right of Great Britain to exercise its right of sovereignty by making regulations is limited to such regulations as are made in good faith, and are not in violation of the Treaty."

81. The Permanent Court of International Justice also made many pronouncements on the principle of good faith FN3. The Court applied it, in the case concerning the Rights of Nationals of the United States of America in Morocco, to the interpretation of Articles 95 and 96 of the Act of Algeciras, pronouncing as follows: "The power of making the valuation rests with the Customs authorities, but it is a power which must be exercised reasonably and in good faith." (I.C.J. Reports 1952, p. 212.)

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FN3 Examples arc (1) Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 28; (2) Minority Schools in Albania, Advisory Opinion, 1935, P.C.I.J., Series A/B. No. 64, pp. 19-20.
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82. If there is an obligation on the part of all the parties not to defeat the object and purpose of a treaty prior to its entry into force (Article 18 of the Vienna Convention), the parties are a fortiori also under obligation not to defeat such objects and purposes of a treaty when it has ultimately entered into force. In fact, the original International Law Commission draft of Article 18 of the Vienna Convention contained a provision, subsequently discarded as unnecessary, that the parties to a treaty (after its execution) must refrain from any act that may prevent its applicationFN4.



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FN4 Yearbook of the International Law Commission, 1952, Vol. II, p. 7.
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83. In final analysis, execution in good faith is essential to the protection of the "considerations" mutually granted by and between the parties in a treaty, to use a term from the Law of Contracts in Common Law. "Good faith" implies that all parties to a treaty must comply with and perform all their obligations. They may not pick and choose which obligations they would comply with and which they would refuse to perform, ignore or disregard. Treaties like any agreement may contain obligations "beneficial" or "detrimental" to a particular party or parties, neverthe-[p73]
less, all the obligations, whether executory or not, must be performed. Hence Elias remarked further:

"Accordingly, performance in good faith means not only mere abstention from acts likely to prevent the due performance of the treaty, but also presupposes a fair balance between reciprocal obligations." FN1

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FN1 Op. cit., p. 43.
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84. In order to sustain the necessary compromissory equilibrium, or what Elias called "fair balance", in this case, each of the Parties must be seen to carry out all its part of the obligations. Libya cannot pick and choose which obligations it would perform, neither can France. The fun-damental considerations in this Treaty of 1955, the quid pro quo, are the issue of France's evacuation from Fezzan and the issue of Libya accepting that Article 3, with Annex I, of the 1955 Treaty had recognized and established the Libyan southern boundary with Chad. This is the fundamental basis of the package deal, as joint and indivisible obligations opposable to both parties. Rosenne, in one of his articlesFN2 remarked on good faith thus:

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FN2 "The Election of Five Members of the International Court of Justice in 1981", 76 American Journal of International Law, 1982, pp. 365-366.
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"It is a cardinal principle of interpretation that a treaty should be interpreted in good faith and not lead to a result that would be manifestly absurd or unreasonable. The interpretation by the Secretary-General and by the Security Council of the provisions of the Statute on the filling of casual vacancies in this case may be held up as an illustration of an interpretation meeting this condition." (Emphasis added.)

85. A second look at the 1955 Treaty plainly indicates many obligations on the part of France to be performed which are all quite beneficial to Libya and which were in fact performed. Some of these obligations are contained in the Convention on Economic Co-operation and also Annex V to the Treaty. In Annex VIII, for example, France transferred to Libya:
"I. Those buildings, which were formerly Italian, together with the buildings erected by the French forces (with the exception of the group of buildings marked 'G' on the attached plan) shall be transferred to the full ownership of the Libyan authorities." (Memorial of Libya, Vol. 2, Exhibit 28, p. 15.)

86. This content of Annex VIII was replied to by Mustapha Ben Halim on the same date 10 August 1955, confirming "that the Government of Libya is in agreement with these proposals" (ibid). This [p74] is a clear example where a part of the obligation and benefit contained in the Treaty had been executed. One wonders why any other obligation contained in the same Treaty should be treated differently. McNair describes good faith as follows:

"The performance of treaties is subject to an over-riding obligation of mutual good faith. This obligation is also operative in the sphere of the interpretation of treaties, and it would be a breach of this obligation for a party to make use of an ambiguity in order to put for-ward an interpretation which it was known to the negotiators of the treaty not to be the intention of the parties." FN1 (Emphasis added.)

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FN1The Law of Treaties, 1961, p. 465.
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87. This, perhaps, summarizes the situation in this case, where negative interpretation is now being placed on a part of an Article (Article 3 with its Annex I) by Libya in this matter, while some aspects of it are considered operative and effective. To interpret this Treaty, therefore, in good faith one must treat all aspects of it and particularly Article 3, with its Annex I, as equally valid, and as equally binding.

(iv) Travaux Preparatoires

88. In the interpretation of treaties, preparatory work and the circumstances of their conclusion are considered as secondary or supplementary means, either for confirming the primary meaning or for determining the same when other means of interpretation lead to results which are either obscure, or ambiguous, manifestly absurd or unreasonable. This is stated in Article 32 of the Vienna Convention. For actually determining the meaning, I doubt that there is any need at all to resort to the travaux, firstly because the primary means of interpretation do not leave any residue of ambiguity or absurdity, and secondly because the voluminous items of correspondence, maps, negotiation documents, reports and parliamentary debates presented to us as forming part of the travaux preparatoires are themselves frequently subject to conflicting interpretations.

(v) The Subsequent Acts of the Parties

89. In rounding off my opinion on the interpretation of the 1955 Treaty, I must consider whether the situation or the acts of the Parties after the Treaty had come into effect have any relevance. The need for this transpires from paragraph 3 of Article 31 of the Vienna Convention on the Law of Treaties of 1969 which states as follows:

"There shall be taken into account, together with the context:[p75]

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation."

90. Some international instruments were mentioned by the Parties, but given different interpretations. The Agreement of 26 December 1956 took the form of an exchange of letters concerning delimitation of the Franco-Libyan frontier with regard to the boundary between Algeria and Libya. It amounted to a modification or rectification of the boundary line established on 12 September 1919 between Italy and France. This boundary negotiation and the subsequent Accord has nothing to do with the frontier in issue in this case.

91. The linkage of this Agreement with the 1955 Treaty is that the line of September 1919, which is mentioned in the said letter of 26 December 1956 addressed to the Minister for Foreign Affairs of Libya, Mr. Ali Sahli by Mr. Jacques Dumarcay, and positively replied to on the same date, is one of the six frontier lines mentioned in Annex I to Article 3. This also is the frontier line agreed to by both parties as establishing a boundary between Libya and Algeria. If there is any conclusion to be deduced from this Agreement at all, it may be considered as still somehow supportive of the effective validity of the 1955 Treaty, otherwise this is an Agreement that is clearly separate from the boundary in dispute. This fact is confirmed by Libya in its Memorial thus:

"The 1956 Agreement concerned the Algerian-Libyan frontier between Ghadames and Ghat. It is relevant to the territorial dispute between Libya and Chad because it has an important bearing on the 1955 Treaty, just as does the provision of Annex I ... of the Libyan frontier further south, between Ghat and Toummo. Since neither frontier sector concerned the present frontier area between Libya and Chad, the rectifications of these sectors of the Libyan boundary are not part of the territorial dispute between Libya and Chad." (Memorial of Libya, Vol. 1, p. 393, para. 5.485.)

92. The next international instrument to be considered is the 1966 Accord. It is the Treaty of Good Neighbourliness and Friendship between the Republic of Chad and the United Kingdom of Libya. It is significant to note that the Parties entered into this Accord when both of them had secured their independence, Libya on 24 December 1951 and Chad on 11 August 1960. It is equally important to note that before and after Chad's independence and even until the signing of this 1966 Accord, Libya had never challenged nor protested the boundary line established in the 1955 Treaty, neither did it claim that no boundary had been established. On the contrary, there are all the indications in the 1966 Accord that lend credence to the idea that Libya knew and accepted that the [p76] frontier between it and Chad had already been established. For example, in the 1966 Accord the word "frontier" was mentioned seven times. Reading through the Agreement as ratified, one finds an unequivocal indication within the content of the Accord that both Parties were aware of the establishment of their common frontier and that they intended to keep to it where it had already been delimited. Articles 1 and 2 of the Accord throw sufficient light on this fact.
"Article 1

The Government of the Kingdom of Libya and the Government of the Republic of Chad undertake to take all necessary measures to ensure the maintenance of order and security along the frontier between their two countries through contact and co-operation between their respective security authorities, such measures not to affect the right of asylum as recognized in international practice.

Article 2

The Government of the Kingdom of Libya and the Government of the Republic of Chad undertake to facilitate the movement of people living on both sides of the frontier between the two countries within the geographical area bounded by the following points . . ." (Memorial of Libya, Vol. 2, Exhibit 32, p. 2; emphasis added.)

93. Then this Article goes on to state specified places within the territory of Libya as Koufra, Gatroun, Mourzouq, Oubari and Ghat and others within Chadian territory as Zouar, Largeau and Fada. Whatever may be the argument on the interpretation of the 1955 Treaty, it seems to me very clear from this Article that both Parties are perfectly aware of the location and establishment of their common boundary. Otherwise, if there is no frontier or such frontier is unknown, it is apparently inconceivable that both Parties would mention in the 1966 Treaty, the issue of "maintenance of order and security" or undertaking "to facilitate the movement of people living on both sides of the frontiers between the two countries". Even though Libya tried to explain this fact in its Memorial, it admitted in paragraph 5.541 on page 416 thereof that "in dealing with these questions, the 1966 Accord supports and confirms the 1955 Treaty without any doubt".

94. The last of the international acts is the notification of Chad to the Court dated 3 September 1990. Here the argument of Libya is that since Chad had included in it two other agreements, viz., the Protocol of 10 January 1924 and the Declaration of 21 January 1924, which were not included in Annex I to Article 3 of the 1955 Treaty, the listing of such international acts is not exclusive, and no boundary could possibly have been established. This argument of Libya is contained in its Memorial at paragraph 5.475. This, to me, is not an impressive argument at all. Whatever Chad may attempt to add in a separate context to the list featured [p77] in Annex I, cannot ex hypothesi form part of that Annex as attached to Article 3. It is not necessary to read into Annex I or for that matter Article 3, what is not contained therein. The Article as it stands, with the six international instruments, sufficiently established the necessary boundaries as intended by both parties. It is, therefore, not difficult for me to conclude on this point that, notwithstanding contrary arguments, the subsequent acts of the Parties support and confirm the frontiers as indicated in Article 3, with its Annex I, of the 1955 Treaty.

95. I have now in support of the decision of the Court, concluded what I may call my intrinsic interpretation of the 1955 Treaty, and in particular the provision of Article 3, with Annex I thereof, and my view is that the Treaty has inter alia established the frontier between Libya and Chad. What I now wish to examine are other means of verification of my conclusion, and this I have decided to call extrinsic interpretation. Before I conclude this separate opinion, I therefore wish to examine the role that the principles like acquiescence, estoppel, recognition and uti possidetis juris could possibly play in this matter. The analogous concept of preclusion or foreclusion may also be touched upon.

VI. Estoppel, Acquiescence, Preclusion and Recognition

96. Estoppel in international law is a developing principle that it may be difficult to classify at this moment, either as forming part of customary international law or as belonging to the general principles of international law. It has its historic root, perhaps not only in the common law but also in civil law systems, which also include among their concepts "preclusion" or "foreclusion". Hence, in international arbitral or judicial tribunals estoppel and preclusion have tended to be referred to interchangeably or indiscriminately. In many instances they are bound up with the doctrine of acquiescence, which is at times described as absence of protest. MacGibbon, who considers acquiescence as an estoppel, said:

"The growing frequency with which use is made of arguments based upon the principle of estoppel affords a valuable indication of the extent to which the doctrine of acquiescence itself constitutes a precept for equitable conduct in which considerations of good faith are predominant." FN1

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FN1 "The Scope of Acquiescence in International Law", British Year Book of International Law, Vol. XXXI, 1954, p. 147.
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97. Judge Sir Hersch Lauterpacht also expressed the view that absence [p78] of protest may in itself become a source of legal right in relation to estoppel or prescriptionFN1.

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FN1 British Year Book of International Law, Vol. XXVII, 1950, pp. 395-396.
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98. In other words, acquiescence amounts to tacit or implied consent, which may constitute an admission or recognition. This I believe to be apposite to the present case. As an acquiescent State, Libya is precluded from denying or challenging the validity of the boundary established by the 1955 Treaty. What then, precisely, is estoppel in international law? McNair expressed the principle in a simple way thus:

"It is reasonable to expect that any legal system should possess a rule designed to prevent a person who makes or concurs in a statement upon which another person in privity with him relies to the extent of changing his position, from later asserting a different state of affairs. Allegans contraria non est audiendus, or in the vernacular: 'You cannot blow hot and cold.'"FN2

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FN2 The Law of Treaties, 1961, Chap. XXIX, p. 485.
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Elias expressed a similar view thus:

"Equally, a state must be precluded from subsequently invoking any ground of which he had become aware but in which it has acquiesced. This would amount to what in certain legal systems is called estoppel by conduct."FN3

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FN3The Modern Law of Treaties, 1974, p. 141.
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99. In short, estoppel entails reliability, good faith, finality, stability and consistency. As Judge Anzilotti once remarked, the silence maintained by a State may mean consent after a situation has been notified or become generally knownFN4. Verykios confirmed the statement of Anzilotti when he also remarked that it is generally admitted that long silence maintained without reason is equivalent to consentFN5.

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FN4 Cours de droit international, 1929, p. 344.
FN5 La prescription et droit international, 1934, p. 26.
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100. Recognition is also considered as an aspect of estoppel. It has generally been admitted that every act of recognition creates an estoppel FN6. There are also provisions in the Vienna Convention on the Law of Treaties of 1969 which give sufficient indication as to the justification and legitimacy of these principles. For example, Article 45 deals with the loss of right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty.

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FN6 Schwarzenberger, "The Fundamental Principles of International Law", Collected Courses of the Hague Academy of International Law, 1955, Vol. 87, p. 253.
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101. Article 45 states that such a right may be lost if by reason of the conduct of a State it can be considered that it has acquiesced in the validity of the treaty or in its maintenance in force or in operation as the case may be.[p79]

102. We may now ask what has been the attitude of both the Court and the Permanent Court of International Justice regarding these principles. One can say that there are about six such cases, mostly involving territorial claims and one dealing with the procedural question of jurisdiction. I shall now deal with some of these cases highlighting important aspects of them with regard to estoppel, acquiescence, recognition, etc.

(i) Legal Status of Eastern GreenlandFN1
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FN1 Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 22.
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103. In 1933, the Permanent Court of International Justice had to decide on the issue of the Danish claim of sovereignty over Greenland. The Court held that Norway could not object to the Danish claim because the Norwegian official had previously made a statement which is not consistent with such claim. The pronouncement of the Court was clear:

"The Court considers it beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs." (P.C.I.J., Series A/B, No. 53, p. 71.)

104. The Court in its Judgment made it clear that even though the undertaking given by Mr. Ihlen may not constitute a definitive recognition of Danish sovereignty, but at least it did constitute an engagement obliging Norway to refrain from occupying any part of Greenland which in effect is tantamount to estoppel.

(ii) Fisheries case (United Kingdom v. Norway)FN2

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FN2 I.C.J. Reports 1951, p. 116. See also (1) Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), I.C.J. Reports I960, p. 192; (2) Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 253; (3) Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), I.C.J. Reports 1984, p. 246.
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105. It is in this case that the Court first pronounced on international estoppel without actually saying so in 1951. Norway effected the delimitation of its coastline along the North Sea which was objected to by the United Kingdom, hence the filing of the Application by the latter. The Court observed that Norway had consistently, for a period of over 60 years, been exercising such a right of delimitation without any protest or the same being contested by the United Kingdom, who must have had [p80] notice of the same. The Court held that the United Kingdom's silence for such a long period amounted to acquiescence hence Judgment was given in favour of Norway. The Court held:

"The Court notes that in respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government refrained from formulating reservations.

The notoriety of the facts, the general toleration of the international community, Great Britain's position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway's enforcement of her system against the United Kingdom." (I.C.J. Reports 1951, p. 139.)

(iii) Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) FN1

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FN1 I.C.J. Reports 1962, p. 6.
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106. In 1962, the Court also had the opportunity to pronounce on international principles of estoppel in this case between Cambodia and Thailand with regard to their boundary dispute. As a result of the Agreement entered into in 1904 between the then French Indochina and Siam (now Thailand), the surveyors produced 11 maps which were sent to the Thai Government who never objected to them. Consequently, it was realized later that the valuable and important Preah Vihear promontory together with the Temple was on the Cambodian side of the frontier. The Court held that Thailand's failure to object to the particular map when it ought to do so compelled it to recognize the boundary as established. The conclusion of the Court (which is similar to the situation in this case with regard to the 1955 Treaty), is very remarkable and impor-tant to note:

"The Court will now state the conclusions it draws from the facts as above set out.

Even if there were any doubt as to Siam's acceptance of the map in 1908, and hence of the frontier indicated thereon, the Court would consider, in the light of the subsequent course of events, that Thailand is now precluded by her conduct from asserting that she did not accept it. She has, for fifty years, enjoyed such benefits as the Treaty of 1904 conferred on her, if only the benefit of a stable frontier." (I.C.J. Reports 1962, p. 32.)

107. The Court established this principle of international estoppel definitively for all time in the case quoted above as follows:

"In fact, as will be seen presently, an acknowledgment by conduct was undoubtedly made in a very definite way; but even if it were [p81] otherwise, it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui facet consentire vide tur si loqui debuisset ac potuisset." (I.C.J. Reports 1962, p. 23.)

108. There are many awards of international tribunals also supporting the principles of estoppel or acquiescence in the sense of silence or absence of protest. To mention a few, one may refer to the Alaskan Boundary case, where the occupation and possession of Alaska for over 60 years, first by Russia and then by the United States of America, disentitled Great Britain to its claim over the territory, since there was never any British objection or protest at such occupation. In the Delagoa Bay Arbitration of 1875, the Award was given in favour of Portugal against the Dutch and the Austrians, because of Portugal's continued claims to sovereignty without any objection or protest on the part of Austria or the Netherlands. The same result was given in the Guatemala/Honduras Boundary Arbitration in favour of Guatemala.
109. In 1909, in the Grisbadarna Arbitration between Sweden and Norway, the Permanent Court of Arbitration in its award decided that Norway had acquiesced in certain acts of Sweden; consequently, the claim of Sweden was upheld. To complete this picture of international awards, mention must be made of the celebrated Award of Judge Huber in the Island of Palmas Arbitration, where the arbitrator adjudged that, as between the Netherlands and the United States of America, the latter had a better title to the disputed island, because of its continuous and peaceful display of State authority during a long period of time, which Spain and others had acquiesced in.

110. All these legal, judicial as well as arbitral references fortify my view, based on the principle of estoppel, that the silence or acquiescence of Libya from the date of signing the 1955 Treaty to the present time, without any protest whatsoever, clearly militates against its claim.

111. There were many occasions, some of which I have referred to, when Libya could have protested to Chad or even France (between 1955 and 1960) that the Treaty was invalid or had failed to create the expected boundary, yet Libya was silent. Since 1955, Libya had many opportunities to protest against this frontier but it did nothing. Instead, it signed another Treaty with Chad in 1966 without making mention of any defect or presenting a case of nullity or even raising any objection whatsoever against the 1955 Treaty. On the contrary, the Treaty of 1966 apparently [p82] confirmed the boundary established by the 1955 Treaty because in 1966 it recognized that there was a boundary in place. Another opportunity that knocked at the door of Libya was in 1964, during the Cairo Conference of the Organization of African Unity, when at least four nations, including Somalia and Morocco, protested at the Cairo Declaration, but Libya did not. It did not oppose the Declaration based by the Conference on the principle of intangibility of frontiers.

112. Perhaps one should have started with 11 August 1960, when Chad secured her independence. That was a unique opportunity for Libya to protest the boundary of Chad as presented by France to the United Nations. But on the contrary, all that Libya did was to welcome Chad into the fold of independent States there was no protest of any kind. Next, one may ask what Libya did all the time that it was being repeatedly accused of aggression before international and regional bodies? Chad, on many occasions, presented its case against Libya before the General Assembly and the Security Council. It also took its case before the Organization of African Unity. But Libya continued either to flatly deny occupying Aouzou or (at a later stage) claimed the 1935 Laval-Mussolini frontier, and. of course, that is a line not accepted by both Parties, because the ratifications were not exchanged. Chad started from the 1970s to take its case to appropriate international bodies which dealt politically and legally with inter-State disputes. But Libya did nothing.

113. Libya submits that Chad is estopped from claiming any longer the Aouzou strip. But Chad kept protesting all along against what it considered an illegal occupation by Libya. Chad, at the General Assembly of the United Nations, accused Libya of acts of aggression in 1971, 1973 and 1974. It was part of Chad's case that it made its complaint to the Organization of African Unity in 1977 and kept the same before that body for 11 years, but Libya's reaction, according to Chad, was merely evasive. It may be necessary to quote Chad's list of protests, some of which Libya even confirmed:
"Of course, Chad, too, insisted that there was a frontier, the frontier described by the 1955 Treaty and its annexed instruments, and it protested Libya's violation of that line. Chad complained to the United Nations General Assembly as early as 1971 that Libya harboured expansionist aims; it had not actually arrived yet. Thereafter it protested vociferously against Libya's invasion: at first to Libya, as we have seen from Professor Sorel, then to the General Assembly in 1977, 1978, 1982, 1983, 1984, 1985, 1986 and 1987, and the Security Council in 1978, 1983, 1985 and 1986. It stated that Libyan forces had crossed the 1955 line, that the invaders were still there, [p83] and that they ought to be required to withdraw back behind that frontier." (CR 93/31, p. 80.)

114. The sum total of my view on the issue of estoppel, acquiescence, recognition, etc., is that while 1 do not agree with Libya's claim of acquiescence against Chad over its (Libya's) occupation of Aouzou, I am convinced that, by the silence and conduct of Libya, there is, without doubt, a strong case for saying, in favour of Chad, that Libya is estopped from denying the 1955 Treaty boundary since it has acquiesced in and in fact recognized it.

VII. UTI POSSIDETIS

115. The term uti possidetis juris has its historical origin in Roman law. It was designated as a formal order of the Praetor which forbade the disturbance of any immovables between two individuals once it could be proved that the possessor of such immovables was in peaceful possession without use of force and had not clandestinely obtained permission given by the claimant (n vi, n clam, n precario ab adversario). Niebuhr opined that the origin of the procedure was to protect the occupants of the public land even though they could not show original titles and hence could not sustain an action in title or ownership. The writ is therefore designed to give such people the recognition and sanction of the State. The possessor, once issued with this award, was forever free from any molestation or claim by the adversary because this interdict served as the possessor's title. Soon it became an auxiliary process used in determining which of two claimants had a better title. The Praetor framed the formula thus:

"Uti eas aedes, quibus de agitur, n vi n clam, n precario alter ab altero possidetis, quominus ita possideatis, vim fieri veto. "

Standardly translated to mean:

"Whichever party has possession of the house in question, without violence, clandestinely or permission in respect of the adversary, the violent disturbance of his possession I prohibit." FN1

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FN1John Bassett Moore, Memorandum on Uti Possidetis, 1911, p. 6.
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116. The final text of the decree is formulated in a very elegantly worded manner as follows "uti possidetis, ita possideatis" "as you possess, so may you possess". This principle has, however, been developed in [p84] international law not as a mere recognition of possession, but also as a justification of territorial rights and sovereignty.

117. Nowhere in the world has the principle of uti possidetis been more greatly developed than in Latin America, with regard to the settlement of States' boundaries at the beginning of the nineteenth century, especially in the former Spanish colonies in South and Central America.

118. The doctrine of uti possidetis in this region of the world is based on the concept that there was nothing like terra nullius even during the Spanish and Portuguese colonial rule and regardless of whether the territory in question was physically occupied at the material time or not. The assumption here, as a general principle, is that boundaries must remain as they were in law at the declaration of independence, namely, 1810 with regard to the Spanish colonies in South America and 1822 for those in Central America. Before going further it must be observed that hitherto the idea of uti possidetis used to be employed by international lawyers to connote a method of determining the territorial changes that had occurred as a result of an armed conflict. But it cannot be denied that it was in Latin America that uti possidetis was given a definitive meaning and application because of its apparent advantages. It was a convenient principle to apply within such a region where all the emerging independent States (with the exception of Brazil which was a former colony of Portugal) were formerly under Spanish rule. Uti possidetis is based on constructive possession since the Spanish administrative provinces were not effectively occupied to the knowledge and understanding of the new independent States. A very clear picture of this principle is reflected in the Colombia-Venezuela Arbitral Award of 1922, where the Swiss Federal Council remarked:

"When the Spanish colonies of Central and South America proclaimed themselves independent in the second decade of the nineteenth century, they adopted a principle of constitutional and international law to which they gave the name Uti Possidetis Juris of 1810, with the effect of laying down the rule that the bounds of the newly created Republics should be the frontiers of the Spanish Provinces for which they were substituted. This general principle offered the advantage of establishing an absolute rule that there was not in law in the old Spanish America any territory without a master; while there might exist many regions which had never been occupied by the Spaniards and many unexplored or inhabited by non-civilized aborigines, these regions were reputed to belong in law to whichever of the Republics succeeded to the Spanish Province to which these territories were attached by virtue of the old Royal Ordinances of the Spanish Mother Country. These territories although not occupied in fact were by common consent deemed as occupied in law [p85]from the first hour by the new Republic. Encroachments and untimely attempts at colonization on the part of the adjacent State, as well as occupations in fact became without importance and without consequence in law. This principle had also the advantage of suppressing as it was hoped, disputes as to limits between the new states ..."FN1

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FN1 UNRIAA, Vol. I, p. 228, or Hyde, international Law, Vol. I, p. 503, note 16.
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119. Thus the doctrine formed part of the constitutional and international law of the States in Latin America. However, at least in principle the doctrine served many advantageous functions; it may be considered as an extension of the Monroe Doctrine, in order to ward off possible re-colonization of the territories by declaring there was no res nullius, and it also served as a just and equitable foundation for the settlement of all their boundary disputes. For example, in 1847 uti possidetis was by and large accepted by the Latin American community as basis for the delimitation of their boundaries, as reflected in the Treaty of Confederation signed at the Congress of Lima that year. Article 7 of the Treaty reads inter alia as follows:

"The Republics of the Confederation recognize, as a principle based on law, the uti possidetis of 1810 for the determination of their respective boundaries and in order to demarcate such limits, where they are not natural and clear, agree that the Governments of the two Republics concerned will name commissioners, who having examined the disputed territory, shall fix the boundary between the two Republics according to the water-sheds, the thalweg or other natural boundaries, as far as the terrain would permit . . "FN2

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FN2 Footnote of Nederlands Tijdschrift voor Internationaal Recht, Vol. XX, 1973, p. 269.
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120. Nevertheless, there are two schools of thought on this principle at least in its interpretation. There are those who argued that uti possidetis must mean merely a juridical line or constructive occupation uti possidetis juris or "de jure". While the other, to which Brazil apparently belongs hold the contrary view that the principle must be based on a rightful and actual occupation of the territory uti possidetis de facto.

121. It must however be observed that the uti possidetis juris doctrine is not an exception in the field of international law. Similar principles are shared with other norms of the law like the principle of terra nullius already mentioned and as enunciated in the case of Western Sahara earlier mentioned; the doctrine of hinterland of an occupied territory which as reflected in this case led France to enter into treaties with Britain and other powers to secure for themselves zones or spheres of influence.[p86] It may also be mentioned that in the Greenland case, Denmark's claim to the entire island was adjudged as recognized by Norway even though only part of the island was then occupied by Denmark. With regard, therefore, to the issue of delimitation or demarcation of boundaries between former colonies of Spain in Latin America, it can be generally expressed, that they all succeeded to the colonial territories devoid of any limitation based on terra nullius on the basis of constructive rather than actual possession. It was a kind of legal fiction, hence the use of the word "juris".

122. It must however be pointed out that the application of this principle is not without its difficulties on the ground, especially where the administrative boundaries are not clear, but at least it can be said that it gave a definitive starting point. While there is no doubt that, at least, in principle the doctrine of uti possidetis juris is applicable and applied among all the former Spanish colonies, one cannot say so regarding non-former Spanish territories. A case in mind is that of Brazil which is a former Portuguese colony. Even though Brazil accepts in principle the doctrine of uti possidetis her interpretation, as already mentioned, is that there must be actual physical possession or occupation of the territory in question. As a result it was the interpretation of this doctrine as accepted by Brazil that was adopted in all the boundary dispute cases between it and other former Spanish colonial countries in Latin America as reflected in some Arbitral Awards i.e., Argentina-Brazil in 1895. Furthermore, the treaties which Brazil finally concluded with her Spanish-speaking neighbours for the fixing of new boundaries were based on "the actual possession of the respective countries when they acquire independence" FN1.

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FN1 Hyde, International Law, Vol. I, p. 502.
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123. After giving a full background of the doctrine of uti possidetis it is now essential to relate its relevance to this dispute between Libya and Chad. Even though the Court did not consider it necessary to deal with this doctrine and its bearing on the present case despite the fact that both Parties mentioned it significantly in their arguments, I consider it expedient to deal with it in this separate opinion, without in any way detracting from my support for the Court's Judgment.

124. What then is the bearing and the relevance of uti possidetis to this dispute? Is the doctrine of uti possidetis of universal application and therefore applicable to all boundary disputes in Africa and therefore the dispute herein? Is the issue of intangibility of frontiers existing at the time of independence of African States mere political rhetoric with no [p87] legal effect in international law? In applying the principle of uti possidetis to boundary disputes in Africa should it be de facto or de jure? What role if any can effectivites play in this regard? What is the significance of some of the recent case-laws on this doctrine? These questions and more have to be examined with regard to this case.

125. First, there is need to examine the inroad of this doctrine into Africa. There is no doubt that Africa is the most partitioned continent in the entire world. It is, therefore, not surprising to learn that as early in the history of the Organization of African Unity as 25 May 1963, by its Charter, it solemnly declares the principle of respect for the sovereignty and territorial integrity of each State and its inalienable right to independent existence Article II, paragraph 3. This was followed by the Declaration adopted by the Assembly of the African Heads of State and Government at the Cairo Conference on 17 July 1964, which states inter alia:

"Considering that border problems constitute a grave and permanent factor of dimension,

Conscious of the existence of extra-African manuvres aimed at dividing African States,

Considering further that the borders of African States, on the day of their independence, constitute a tangible reality,

Recalling the establishment in the course of the Second Ordinary Session of the Council of the Committee of Eleven charged with studying further measures for strengthening African Unity,

Recognizing the imperious necessity of settling, by peaceful means and within a strictly African framework, all disputes between African States,

Recalling further that all Member States have pledged, under Article VI of the Charter of African Unity, to respect scrupulously all principles laid down in paragraph 3 of Article III of the Charter of the Organisation of African Unity,

1. Solemnly reaffirms the strict respect by all Member States of the Organisation for the principles laid down in paragraph 3 of Article III of the Charter of the Organisation of African Unity;

2. Solemnly declares that all Member States pledge themselves to respect the borders existing on their achievement of national independence." FN1

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FN1 Ian Brownlie, African Boundaries: A Legal and Diplomatic Encyclopaedia, p. 11.
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126. Many Heads of State at the Cairo Conference explained in their statements the reason why it is necessary for Africa to adhere to the prin-[p88]ciple of intangibility of frontiers. Many of them stressed the need for realism, stability and the desire to ensure finality on the issue. They considered this principle as the only means of reducing incessant disputes among the emerging nations of Africa. The Ethiopian Prime Minister said:

"It is in the interest of all Africans now to respect the frontiers drawn on the maps, whether they are good or bad, by the former colonizers."FN1

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FN1 McEwen, International Boundaries of East Africa, p. 24.
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The President of Mali gave a similar warning and advised thus:

"we must take Africa as it is, and we must renounce any territorial claims, if we do not wish to introduce what we might call black imperialism in Africa . . . African unity demands of each one of us complete respect for the legacy that we have received from the colonial system, that is to say: maintenance of the present frontiers of our respective states . . . Indeed, if we take certain parts of Africa in the pre-colonial period, history teaches us that there existed a myriad kingdoms and empires. .. which today have transcended, in the case of certain states, tribal and ethnic differences to constitute a nation, a real nation ... if we desire that our nations should be ethnic entities, speaking the same language and having the same psychology, then we shall find no single veritable nation in Africa."FN2

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FN2 Ibid.
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127. In their dissenting opinions in the case of Sovereignty over Certain Frontier Land (Belgium/Netherlands) both Judges Armand-Ugon and Moreno Quintana agreed that the uti possidetis principle should be treated as a general principle of law. This stand has since been taken by the Chamber of the Court in the Frontier Dispute case (Burkina Faso/Republic of Mali)FN3. Considering the position of newly independent States anywhere in the world, but particularly in Africa, the Chamber felt that the application of this principle ought to be universal wherever it may occur. In support of this view, one may add that it was supported in the Temple of Preah Vihear case and Rann of Kutch Arbitration which are boundary disputes relating to territories outside Africa, in the Indian subcontinent. The rationale behind this decision, as was stated by the Chamber, is not far-fetched; to prevent the independence and stability of the new States from incessant boundary disputes and endless armed conflicts, once the colonial powers had left. It is for this reason that it was thought desirable and in accord with international law by the Chamber that the new Afri-[p89]can States should respect and abide by the administrative boundaries established by their former colonial power. In strongly supporting the view of the Chamber of the Court in this case, the uti possidetis principle should no longer be viewed as a principle limited in its application and scope to Latin America and African States, but one of general scope and universality which has now finally emerged as a principle of customary international law. Regardless of whether some Members of the Organization of African Unity objected to this principle in 1963 and after, it is now considered to be a principle of general application to the entire boundary disputes in Africa in particular, unless parties to any dispute of this nature specifically agree to the contrary that the principle of uti possidetis should not be applied.

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FN3 I.C.J. Reports 1986, p. 554.
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128. It is argued that the principle of uti possidetis as applied in Latin America de jure cannot be applied in Africa where effective occupation is required. It is futile to enter into any controversy generally on this argument and I shall not do so, but it may be sufficient to say that this is not applicable to the case in hand. There is sufficient and at times incontrovertible evidence of French effectivites from 1930 to 1943, from 1951 to 1954 and up to the time of the independence of Chad in 1960. The effectivites continued up to 1971-1973 when Libya occupied the Aouzou area. It can therefore be said that if the French effectivites was in doubt in 1912 it was not at all the material time, i.e., in 1951, when Libya had her independence, in 1955 when France and Libya signed and ratified the Treaty of Friendship and Good Neighbourliness, and 1960 when Chad gained her independence. But does it matter seriously whether the principle is uti possidetis juris or uti possidetis de facto with regard to its application in Africa? In its Judgment on 22 December 1986, the Chamber of the Court emphasized that what is paramount is the maintenance of the status quo at the time of independence and the principle of respect for the boundaries established as a result of treaties and those resulting from mere administrative divisions. The Judgment undoubtedly gave preference to uti possidetis juris as a legal right over actual or effective occupation as the yardstick for title to a territory. Nevertheless it does not deny the fact that effective occupation could be taken into consideration (see the case of the Frontier Dispute (Burkina Faso/Republic of Mali), I.C.J. Reports 1986, pp. 565-566, paras. 22-24, and p. 586, para. 63). After the Chamber of the Court had dealt extensively with the history, nature, purpose and rationale of uti possidetis juris it went on to remark in this case thus:

"There is no doubt that the obligation to respect pre-existing [p90]international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis. Hence the numerous solemn affirmations of the intangibility of the frontiers existing at the time of the independence of African States, whether made by senior African statesmen or by organs of the Organization of African Unity itself, are evidently declaratory rather than constitutive: they recognize and confirm an existing principle, and do not seek to consecrate a new principle or the extension to Africa of a rule previously applied only in another continent" (I.C.J. Reports 1986, p. 566, para. 24; emphasis added.)

129. There is another important argument put forward in this case. Since Libya obtained her independence in 1951 and Chad in 1960 (the so-called critical dates) could one expect a Declaration passed in 1963 and 1964 (four years later in the case of Chad and thirteen years later in the case of Libya) to be binding on them? How could one expect a subsequent act and a declaration for that matter to alter the boundary situation of the Parties. It should also be observed that that was about nine years after the 1955 Treaty. In fact Libya did mention this fact in its oral argument that the Declaration was in effect already applied in advance:

"What Libya and France were doing in Article 3 of the 1955 Treaty was precisely to apply in advance, in their mutual relations, the terms of the Cairo Declaration to be adopted nine years later in 1964. That is why Libya never had any problems with the Cairo Declaration; she had already accepted the principles which it embodied in the 1955 Treaty with France." (CR 93/27, p. 57.)

130. This approach must have been taken into consideration by the Chamber in the Frontier Dispute case since Burkina Faso and Mali achieved independence like Chad in 1960, before the adoption of the Organization of African Unity Charter of 1963 and the Cairo Declaration of 1964. This point was definitively referred to by the Chamber in this case under discussion as follows:

"Thus the principle of uti possidetis has kept its place among the most important legal principles, despite the apparent contradiction which its coexistence alongside the new norms implied. Indeed it was by deliberate choice that African States selected, among all the classic principles, that of uti possidetis. This remains an undeniable fact. In the light of the foregoing remarks, it is clear that the applicability of uti possidetis in the present case cannot be challenged merely because in I960, the year when Mali and Burkina Faso achieved independence, the [p91] Organization of African Unity which was to proclaim this principle did not yet exist, and the above-mentioned resolution calling for respect for the pre-existing frontiers dates only from 1964." (I.C.J. Reports 1986, p. 567, para. 26; emphasis added.)
131. The Chamber also considered another principle in international law that conflicts with uti possidetis juris the right of people to self-determination, but observed that the overriding interest of preserving the independence that has been achieved by much sacrifice and the mainte-nance of the status quo in terms of African boundary should be seen as the wisest course that was taken by African statesmen. The Chamber remarked that:

"The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples." (Ibid., p. 567, para. 25.)

132. Another issue to be considered here as it relates to the dispute is to answer the question of what is the critical date. There are few important dates to be considered. Libya achieved her independence on 24 December 1951; as far as Libya is concerned that must be the critical date in this regard and it is her argument that there was no boundary conventional or otherwise on this date between her and Chad. The critical date for Chad is 1960 when she obtained her independence. Since this is the last of the two dates can one therefore consider this to be the critical date? This may be a very persuasive argument since on this date the Treaty of 1955 had already established a boundary to the south of Libya.

133. Only last year the Chamber of the Court further elucidated on the principle of uti possidetis vis-a-vis subsequent treaties and the notion of the critical date, in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) when the Chamber held thus:

"There has also been some argument between the Parties about the 'critical date' in relation to this dispute. The principle of uti possidetis juris is sometimes stated in almost absolute terms, suggesting that the position at the date of independence is always determinative; in short, that no other critical date can arise. As appears from the discussion above, this cannot be so. A later critical date clearly may arise, for example, either from adjudication or from a boundary treaty." (I.C.J. Reports 1992, p. 401, para. 67.)

134. Thus it can be concluded that the 1955 Treaty accords with the principle of uti possidetis and that the Parties to this dispute are bound [p92] by it. Consequently, Article 3 with Annex I of the 1955 Treaty established the frontier between the two Parties. The objective of the principle uti possidetis is not in doubt; whether de facto or de jure the methods of approach are similar in effect because its aim is to provide, ultimately, a stable and permanent solution of boundary problems.

(Signed) Bola Ajibola. [p93]


Dissenting opinion of judge Sette-Camara

I regret that I have been unable to agree with the Court's majority in the present Judgment in its appraisal of the facts, in its reasoning and in its conclusions, and therefore feel under the obligation to explain why I see this case differently.

The disputed zone is the so-called Libya-Chad borderlands, bounded to the north-east by the east-south-east line of the Anglo-French Convention of 8 September 1919, to the south by the 15 north latitude parallel, to the west by the 24 E meridian and to the east by the 16 E meridian. It covers an area of some 530,000 km2 and encompasses the Borkou-Ounianga, the Ennedi and the Tibesti, what Chad refers to as the BET (excluding northern Kanem). The population of the area is under 100,000, compared with Chad's population of some 5.4 million, including the BET. The area contains 2 per cent of Chadian local population and it is a poor, bare and inhospitable region.

In spite of the desertic nature of this zone, that we shall for convenience continue to call the borderlands, it was never a terra nullius, open to occupation according to international law. The two Parties concur as to that, and echo herein the analogous finding of the Court in the Western Sahara case. The land was occupied by local indigenous tribes, confederations of tribes, often organized under the Senoussi Order. Furthermore, it was under the distant and laxly exercised sovereignty of the Ottoman Empire, which marked its presence by delegation of authority to local people.

That was the background of the dispute: the human presence prior to its beginning was constituted by the indigenous peoples and the Sublime Porte. Although the cabinets of the great European Powers were engrossed with the task of carving up Africa for the sake of their colonial designs, they did not go beyond their distribution of future spheres or zones of influence, since the non-existence of areas of terra nullius excluded the possibility of occupation, short of outright conquest by armed forces.

The fact is, on the one hand, that it was not until the year following the 1912 Treaty of Ouchy, which put an end to the war between Italy and the Ottoman Empire, that any French intrusion beyond the de facto boundary line agreed upon with the Ottomans occurred. By 1913 France had not completed its military action in the borderlands. And before 1919 there was nothing resembling a civil administration. As far as Tibesti is concerned, it was not even militarily occupied until 1930. France had abandoned the Tibesti in 1916. Anyway, even the French military pres-[p94]ence from 1913 to 1919 did not extend north of the strict south-east line.

On the other hand, Italy, in spite of its long-standing ambitions over Cyrenaica and Tripolitania the subject of secret arrangements with France in 1900 and 1902 did not possess any actual hold on any territory in North Africa until 1911.

Therefore the sovereignty over the whole region appertained to the Porte which, furthermore, claimed, as Tripolitanian hinterland, vast expanses to the south covering most of what is today Chad. The hinterland doctrine was contested by the colonial Powers which nevertheless made use of it whenever it chimed with their interests (e.g., Algerian and Egyptian hinterlands). But short of the hinterland, the sovereignty of the Ottoman Empire over the present disputed area was beyond contention. So historic title over the region belonged first to the indigenous peoples, tribes, confederations of tribes, sometimes organized under the Senoussiya, and eventually passed to the Ottoman Empire before the colonial Powers set foot in the area.

But the European Powers did not wait long to implement their designs on the African continent. The ambitious policies of France were to unite the French territories of north, west and central Africa and to link the Atlantic Ocean to the Red Sea by a continuous belt of French-dominated territories. France had already conquered Algeria through a long war (1830-1871) and through the Treaty of Bardo of May 1881 had made Tunisia a French protectorate. On its side Great Britain had occupied Egypt in 1882, making it a protectorate, against the wishes of France, traditionally interested in Egypt. The two colonial Powers were also disputing the domination of the Sudanic countries extending as far as west Africa.

In this scenario of colonial ambitions, frictions were bound to arise, and they led to the Fashoda incident, which brought France and Great Britain to the brink of war. To soften the shock of the confrontation of their ambitions the Powers felt bound to negotiate conventional solutions.

In 1910 France and the Ottoman Empire reached agreement on the delimitation of the western frontier of Tripolitania, contiguous to Tunisia, running south from Ras Ajdir on the Mediterranean coast to Ghad-ames. The Convention "fixant la frontiere entre la regence de Tunis et le vilayet de Tripoli" was a very detailed delimitation agreement. It was demarcated by the emplacement of 333 boundary pillars. The section of the western frontier of Tripolitania, running from Ghadames in the direction of Toummo, corresponds to the wavy dashed line considered to be the south-western frontier of the Vilayet of Tripoli, which is represented on the Livre jaune map, and referred to in the 1902 exchange of letters between France and Italy (the Prinetti-Barrere Agreement). If one appraises the frontier situation in 1902, it is surprising that Chad should [p95] now try to upgrade a frontier line agreed upon by France and Italy. Indeed the whole region comprised within the wavy dashed line was under the sovereignty of the Ottoman Empire. How could France, at the time still hundreds of kilometres south of Tripolitania, and Italy, at the other side of the Mediterranean, conclude a treaty that would establish a frontier between them? A treaty inter alios acta? Moreover, the reference in the 1902 exchange of letters to the frontier of Tripolitania is clearly to a limit to future French expansion, not to any conventional frontier.

In fact, in the present case there were two key questions to be resolved:

1. Is there, or has there ever been, a conventional boundary between Libya and Chad east of Toummo leading to the Sudanese frontier?

2. Are the Conventions listed in Annex I to the 1955 Libya-France Treaty of Friendship and Good Neighbourliness actually boundary treaties to which the provisions of the Cairo Declaration of 1964 and Article 11 of the 1978 Vienna Convention on Succession of States in Respect of Treaties apply, that is to say, do they ipso facto escape the application of the tabula rasa general rule?
As to the first question, I am convinced that there is not, nor has there ever been, a boundary line conventionally established marking the southern frontier of Libya east of Toummo. Neither Party has produced evidence of any treaty or agreement covering that part of the Libyan frontier. The only attempt at drawing a frontier described in detail from Toummo eastwards towards the Sudan was the 1935 Laval-Mussolini Treaty. The fact that there was no prior boundary east of Toummo was explicitly and clearly recognized by the French Government when it presented its Expose cies motifs to the French Parliament in relation to the ratification of the 1935 Treaty. That 1935 line could have been a real frontier according to the principles of international law. But since the treaty in question never entered into force for lack of ratification due to the political evolution of events at the time, the line never became a conventionally agreed frontier, although it still appears on many maps, some relatively recent, and is resorted to by Chad itself as the southern limit of the so-called "Aouzou strip".

As to the second question, I am likewise convinced that the 1899 line of the Additional Declaration tagged to Article 4 of the 1898 Franco-British Convention was never considered as a boundary line. It was aimed at dividing spheres of influence between the two big colonial Powers, France and Great Britain. Furthermore, Lord Salisbury, Prime Minister and Minister for Foreign Affairs of Great Britain, recognized that it was less than a division of spheres of influence. It was merely a line establishing the limits of the French expansion northwards and eastwards, [p96] laboriously negotiated and agreed upon under the shadow of the Fashoda incident. Therefore, according to him, it had a purely negative purpose, and it would be difficult to consider it a boundary line at that time or now because, as I submit, there is no question of any effectivites that could modify the nature of the line so as to endow it with any such status.

As to the Convention of 8 September 1919, between France and Great Britain, supplementary to the Declaration of 21 March 1899, it deals mostly with the frontier between Chad and the Anglo-Egyptian Sudan, and not with the Libya-Chad boundary. Hence the fact that it is known as the Wadai-Darfour Convention. It is therefore more related to Article 2 of the 1899 Declaration than to its Article 3. Indeed, the Expose des motifs of the draft law submitting to the French Parliament the text of the Agreement calls it Traite de delimitation entre le Ouadai et le Darfour.

The only proviso that bears any relation to Article 3 of the 1899 Declaration is its final paragraph, which reads:

"It is understood that nothing in this Convention prejudices the interpretation of the Declaration of the 21st March, 1899, according to which the words in Article 3 '. . . shall run thence to the south-east until it meets the 24th degree of longitude east of Greenwich (21 40' east of Paris)' are accepted as meaning '. . . shall run thence in a south-easterly direction until it meets the 24th degree of longitude east of Greenwich at the intersection of that degree of longitude with parallel 19 30' of latitude."' (Memorial of Libya, "International Accords and Agreements Annex", Vol. 2, No. 17, p. 165.)

The line of Article 3 of the 1899 Declaration, in following a strict south-east direction and that seems to have been the intention of the negotiators in the light of the travaux preparatoires , would intersect the 24 E meridian at 15 35' N of latitude, approximately where it meets the Wadi Howa. The same line as depicted on the Livre jaune map would meet the 24 E meridian at the latitude of 19 N. According to the 1919 Franco-British Convention, the intersection would occur at 19 30' N, and Chad maintains that it was never a strict south-east line, but an east-south-east line. So there would be a substantive modification in the course of the line, which would have been pushed northwards some four degrees.

It is therefore not surprising that Italy protested against this Convention, negotiated and concluded without its knowledge, which would have amputated some 180,000 km2 of Libyan territory. Moreover, if the paragraph opens with the statement that "nothing in this Convention prejudices the interpretation of the Declaration of the 21st March, 1899", it is obvious that the 1919 line has the same nature as the 1899 line, namely both were intended to divide spheres of influence and by no means could be interpreted as constituting international boundaries. [p97]

In the eyes of Chad, the Treaty of Friendship and Good Neighbourliness concluded by France and Libya on 10 August 1955, which it considered the most important and decisive document in the dossier, provided the evidence of the southern frontier of Libya east of Toummo. The negotiations on the Treaty took place in two stages: in Paris from 4 to 6 January 1955 and in Tripoli from 9 July to 10 August of the same year. Prime Minister Mendes-France and his Libyan counterpart, Mustapha Ben Halim, participated in the Paris session and Ben Halim and Ambassador Dejean participated in the second stage in Tripoli. The perusal of the existing minutes of these encounters, which are far from complete, reveal the adamant positions of the parties: France fighting for the establishment of the frontier line and Libya insisting on the with-drawal of the French forces from the Fezzan. Libya regarded that as having constituted the main objective of the Treaty, described as an "evacuation treaty". At the end of the negotiations and the minutes do not explain how or with what arguments the text of Article 3 of the Treaty was approved, according to which the frontiers were those arising from the international acts in force at the date of Libya's independence, which were listed in Annex I to the Treaty. The Annex, agreed upon by exchange of letters, lists six international acts. During the oral proceed-ings Chad reduced that list to three main instruments: the 1899 Additional Declaration, the 1902 Prinetti-Barrere Agreement and the 1919 Anglo-French Convention.

In spite of the Chadian arguments I still doubt whether any of these three instruments can be considered a boundary treaty. The 1899 Declaration, as has been said, divided the spheres of influence or. as Lord Salisbury, the chief British negotiator, contended, not even that. The objective of the line was a negative one, namely to mark the limits of the French expansion northwards and eastwards. The 1902 exchange of letters between Prinetti and Barrere, a follow-up of the 1900 exchange of letters between Visconti-Venosta and the same Barrere, had little to do with the southern frontier problem. It dealt with reciprocal respect for French interests in Morocco and future Italian ambitions in Tripolitania and Cyrenaica. It includes, nevertheless, a reference to the frontier of Tripolitania, appearing as a wavy dashed line on the Livre jaune map, but only as a limit to French expansion northwards. As to the 8 September 1919 Convention between France and Great Britain, said to be "supplementary to the Declaration of 21 March 1899", it should again be recalled that its last proviso read: "nothing in this Convention prejudices the interpretation of the Declaration of the 21st March, 1899". But this text is ambiguous: whose interpretation? Besides, the 1919 Convention in adopting an east-south-east line changed considerably the terminal point of the line. Furthermore, if "nothing . . . prejudices the interpretation of the Declaration of the 21st March, 1899", the consequence would be that the 1919 line also divided spheres of influence and not frontiers. [p98]

On the other hand, the point whether the treaties listed in Annex I were en vigueur also deserves examination. The 1902 Franco-Italian exchange of letters, for one, besides being alien to the frontier problem, was a secret agreement whose survival after the League of Nations' con-demnation of secret treaties is, to say the least, doubtful. I have also doubts whether originally secret agreements were ever accepted for registration with the United Nations Secretariat.

My conclusion, therefore, is that none of the three treaties invoked by Chad qualifies for international recognition as a frontier treaty or could consequently benefit from the exceptional treatment enshrined in the Cairo Declaration and in Article 11 of the 1978 Vienna Convention on Succession of States in Respect of Treaties.

As to the 1955 Treaty, it had an agreed duration of 20 years, a duration which was explicitly established by the parties for each of the concessions made to France. Now, Article 54 of the Vienna Convention on the Law of Treaties provides, inter alia, that the termination of a treaty takes place in conformity with the provisions of the treaty. Therefore the 1955 Treaty lapsed in 1975. The Parties were discreet in discussing its Article 11. But the Chadian Counter-Memorial dealt with it, accepting the fact that the Treaty lapsed in 1975, though only to contend that the provisions of Article 3 and Annex I survive the Treaty because the latter contains boundary agreements and consequently benefits from the exception to the tabula rasa rule reserved for dispositive and territorial treaties. But the character of those provisions cannot be taken for granted, and their role in providing an internationally recognized frontier remains to be proved.

It is important to recall that France made the ratification of the 1955 Treaty conditional on the conclusion of the 1956 Agreement on the rectification of the Franco(Algerian)-Libyan frontier that would turn over to France the oil field of Edjele. Indeed the French Parliament approved the Isorni Amendment, that added the following article to the proposed law authorizing ratification: "Les instruments de ratification seront deposes lorsque sera intervenu l'accord fixant la frontiere entre le Royaume-Uni de Libye et l'Algerie." (Memorial of Libya, Vol. 1, p. 398.)

That is why the 1955 Treaty was not ratified before 1957. And once the rectification of the Libyan-Algerian border had been settled, France did not bother to register the 1955 Treaty with the United Nations Secretariat until 1991.

I now turn to the question of effectives, that is to say, to the peaceful and continuous exercise of State power, to use the language of Max Huber in the Island of Palmas arbitration. Until the Italo-Turkish war of 1911 and the Treaty of Ouchy of 1912 there is no doubt that the colonial effectivites in the disputed area were exercised by the Ottoman Empire, through a distant and lax system based on the delegation of its powers to local administrations. It is contended in the dossier that there was a shared sovereignty between the Ottomans and the local indigenous peoples, especially those organized and directed by the Senoussiya. Chad [p99] contests the validity of these effectiviles, but the fact is that there was no French presence in the area prior to the Treaty of Ouchy and the withdrawal of the Ottomans. It was only afterwards, namely in 1913, that the French incursions trespassed beyond the modus vivendi line established with the Ottomans. In successive incursions the French occupied the key points, attacked and destroyed zawiyas and tried to establish a domination of the borderlands, especially of the BET. But the resistance of the local tribes, and particularly of the Senoussi, never allowed the establishment of the exercise of peaceful and continuous State power by France. It was always a military occupation, and authority was exercised by military officers. Even after the independence of Chad, French military were retained in the administration of local oases. Moreover, Chad did not provide any documentary proof of the exercise of peaceful State power. No documentation appears in the dossier, in contrast to the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) in which volumes of certified documentation were provided as evidence of the peaceful and continuous exercise of State power.

The fact is that no concrete evidence of effectiviles was presented in the case-file, of either Ottoman, French or Italian effectivites and, of course, still less of Senoussi effectivites. So I believe that any invocation of effectiviles should simply be disregarded. Chad's suggestion that there existed a sui generis type of effectivites, owing to the peculiar geographical circumstances of a desertic and inhospitable area, is not convincing. It does not match up to the famous criteria on the role of effectivites enshrined in the Frontier Dispute (Burkina Faso/Republic of Mali) case.

The Chadian Memorial quoted French documents which confirm that the occupation of the BET was carried out for the enforcement of their hold on the zones of influence, and not to effect an occupation such as could underpin a peaceful and continuous exercise of State power. For instance, in 1913 the French forces occupied Zouar and Bardai, the main town of Tibesti. But they withdrew as early as 1916 and did not come back until 1930. The "reconnaissance patrols", tournees militaires, sporadically conducted with long intervals, could not suffice to establish the existence of any genuine effectivites.

Chad on various occasions invoked the Jef-Jef incident of 1938 and the Aouzou-Moya incident of 1955 as evidence of French sovereignty in the area. In fact, these were minor incidents whose importance was inflated on purpose. In the first incident a few unarmed Italian workers drilling a well were expelled by French troops. In the second a civilian Libyan group accompanied by a few soldiers, escorting a United Nations statistics specialist, were likewise forced to withdraw to the claimed French frontier.[p100]

I believe that the reasons aligned by Libya to contend that effectivites could not play a decisive role in this case were valid. The basic question was a question of title, and the legal title has been shown to reside first with the indigenous population, especially the Senoussi peoples, the Otto-man Empire, and later Italy. This was the title that Libya inherited. France never occupied the Libya-Chad borderlands (whether by peaceful means or by conquest) until after 1929, by which time occupation by force was unlawful under international law. In any event, the territories in question were not terra nullius, so that the occupation by a French military presence was, to use the words of Chief Justice Hughes of the United States Supreme Court, "a mere usurpation".

Moreover, one should recall that the 1955 Franco-Libyan Treaty, which according to Chad was the rock on which the whole Chadian case rested, disregards completely the question of effectivites, relying exclusively on the conventions in force at the date of Libyan independence for the purpose of defining the borderline east of Toummo.

I now turn to the so-called "Aouzou strip". The Chadian Memorial itself (Vol. I, p. 17) recognizes that the expression "Aouzou strip" is of recent use, appearing at the end of the 1970s because of "usage journalis-tique". It encompasses the region that would have been "ceded" by France to Italy under the terms of the Laval-Mussolini Treaty. It is delimited by two lines: the 1935 Treaty line and the 1899 Franco-British Convention line. It is curious that Chad should have invoked the line of the 1935 Treaty, describing in full detail the southern limit of the "Aouzou strip". For the northern limit, it relied on the 1899 line as it appears on the Livre jaune map. The "Aouzou strip", including a small intrusion into the territory of Niger, covers an area of 144,000 kmFN2 1,040 km long and 140 km wide. The strip is divided into parts corresponding to the Borkou, the Ennedi and the Tibesti; in other words, it is the BET.

The position of the French Government concerning the sovereignty over the "bande d'Aouzou" is somewhat dubious. For instance, on 27 March 1985, the Minister of Defence, Charles Hernu, said in an interview:

"La bande d'Aouzou est hors du Tchad. Cela, tout le monde en est d'accord. Mme le president Habre le reconnat. C'est une affaire qui remonte 1934." (See Counter-Memorial of Libya, Vol. 1, p. 312.)

Therefore, nobody less than the Minister of Defence of France confirmed the clear-cut statement of President Tombalbaye in his disputed letter to the Libyan Head of State.

As has been said, the Parties disagreed on the nature of the task that lay before the Court. Libya contended for a distribution of territories, [p101] having in mind the historic colonial titles. Chad maintained that the southern frontier of Libya existed, and resulted from the international instruments en vigueur at the time of Libya's independence. Indeed, according to Chad, the task of the Court was confined to the choice of one of the two lines limiting the Aouzou strip, despite the fact that in the Accord-Cadre there is not the slightest mention of the "Aouzou strip". Chad contended that whatever the task of the Court might be, it would have to establish a frontier line.

Chad agreed that by virtue of the Treaty of Ouchy, confirmed by the 1923 Lausanne Peace Treaty, Italy inherited all the sovereign rights of the Ottoman Empire, yet Chad denied that the Porte had any sovereign rights over the BET.

Libya appealed to considerations of equity if the Court had to establish ex novo a boundary line, urging it to produce a line which was practical, fair and sensible, taking into consideration the interests of the Parties and the peoples of the region. Chad categorically rejected any resort to considerations of equity, even infra legem.

The relationship between the two countries has been far from peaceful. Early in 1963 the internal situation in Chad was conducive to a rebellion that triggered the creation of the FROLINAT (Front de liberation national). In the same year a treaty of friendship between Chad and Libya was concluded, dealing mainly with security of communications, but providing nothing on frontiers.

By 1955 the discovery of oil and the promulgation of the first Libyan Petroleum Regulation opened the door to a brighter future for Libya. By 1971 Chad, alleging interference in internal questions, had broken off relations with Libya, but relations were resumed in 1972 when a new treaty of co-operation and mutual assistance was signed. Again there was no mention of frontiers. It was around then that the episode of the Tom-balbaye letter occurred. Following the 1972 Treaty other agreements between Libya and Chad were concluded. In the 1974 Treaty the only reference to frontiers was a condemnation of the arbitrarily established colonial frontiers, obviously in contradiction to the 1964 Cairo Declaration. A new treaty was signed in 1980 and again there was no mention of the presence of Libyan troops on Chadian territory. Yet another treaty was signed in 1981, ignoring the "invasion" by Libyan troops of the "Aouzou strip". (On the Chadian internal front, the Accord de Lagos sur la reconciliation nationale au Tchad, concluded in Lagos on 13-18 August 1979, by all Chadian political parties, assisted by the representatives of Cameroon, Libya, Niger, Nigeria, Senegal, Sudan, Congo, Liberia, Benin, Central Africa and the representative of the Organization of African Unity, had not dealt at all with the occupation of the "Aouzou strip" by Libyan troops. Its objective was a cease-fire and the creation of the Gouvernement d'union nationale de transition (GUNT).) The complaints presented by Chad to the United Nations Security Council produced no solution but were apparently conducive to the conclusion of the Accord-[p102] Cadre of 31 August 1989, by virtue of which the present case came to the Court.

I believe that the titles to the territory asserted by Libya are valid. Neither France nor Chad could present any sounder titles than the three layers of title enuring to Libya, namely those of the peoples inhabiting the territory, tribes, confederations of tribes and the Senoussi Order, the Ottoman Empire's sovereignty over the area, passing to Italy in 1912 and thence to Libya in 1951.

The argument of Chad that the claim of Libya would involve half of Chadian territory was unimpressive. Not only does it beg the question but it also works the other way around, since Chad's claim involves a substantial part of Libyan territory.

The claim of Libya represented on map 105 of the Libyan Memorial was based on succession to Ottoman claims that went much farther to the south.

The concluding paragraph of the Judgment, paragraph 76, invokes the pacta sunt servanda rule to justify the line enshrined in the operative part, which would result from the 1955 Treaty. Nobody would challenge this fundamental rule of international law, what Hans Kelsen established as the Grundnorm of international law. But it obviously applies only to treaties in force, and Article 11 of the 1955 Treaty renders its validity after the 20 years deadline, to say the least, debatable.

Paragraph 77, containing the dispositif, resorts to the line of the 1919 Franco-British Convention, the so-called "Wadai-Darfour Convention" which, incidentally, dealt with the southern frontier of Libya with the French territories, moving it northward. The 1899 strict south-east line was indeed progressively moved northward: first with the Livre jaune map, in a unilateral modification of the original line, without consultation with the British, something which, according to the handwritten note of Lord Thomas Sanderson, Permanent Under-Secretary of State for Foreign Affairs, "did not matter much". The fact is that the 1899 line, following a strict south-east direction and that seems to have been the intention of the negotiators in the light of the travaux preparatoires would intersect the 24 E meridian at 15 35' N of latitude, approxi-mately at the place where it meets the Wadi Howa. The same line, as depicted on the Livre jaune map, would meet the 24 E meridian at the latitude of 19 N. According to the Franco-British Convention, the intersection would occur at 19 30' N. Chad contended that it was not a strict south-east line, but an east-south-east line. Therefore there is a substantive modification in the course of the line, which has been pushed northward some four degrees. And that is the line which the dispositif of the Judgment takes as the basis for defining the boundary between the Republic of Chad and the Libyan Arab Jamahiriya.[p103]

But one could not exclude a compromise solution which, regrettably, neither the Parties nor the Court explored. There were two possibilities for drawing a fair and equitable line: the first would have been the line of United Nations map No. 241, which is close to the 1935 line but not iden-tical to it. Given that Chad had not scrupled to use the 1935 line as the southern limit of the "Aouzou strip", I cannot see why it would have objected to its use for a boundary ex novo.

The second solution would have been to revert to the 1899 strict southeast line, which was at the origin of the dispute, and which continues to appear on very recent maps, for instance, the 1988 OAU map attached to its Sub-Committee's report on the Libya-Chad dispute. This, in my view, is the most obvious, and perhaps the most equitable, line.

Both those lines would have afforded the advantage of dividing the Tibesti Massif between the two countries. And it is not necessary to emphasize the importance of the Tibesti Massif for the possible defence of one country or the other, as repeatedly asserted by both Parties.

(Signed) Jose Sette-Camara.

 
     

 

 

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