                     97

                                            SEPARATE OPINION
                                       OF JUDGE CANÇADO TRINDADE

                                                  table of contents
                                                                                Paragraphs

                          I. Prolegomena1-5
                       II. Provisions of Treaties after Independence in 1960 Express-
                           ing Concern with the Local Populations                           6-10

                      III. Concern of the Parties with the Local Populations in the
                           Written Phase of Proceedings                                    11-22
                      IV. Communiqués after Independence in 1960 Expressing Con-
                          cern with the Local Populations                                  23-26

                          V. Views of the Parties Concerning Villages                      27-31
                      VI. Concern of the Parties with the Local Populations in the
                          Oral Phase of Proceedings (First and Second Rounds of
                          Oral Arguments)                                                  32-34
                     VII. Concern of the Parties with the Local Populations in the
                          Responses of the Parties to Questions from the Bench             35-54

                             1. Questions from the Bench                                   35-36
                             2. Responses from Burkina Faso                                37-40
                             3. Responses from Niger                                       41-45
                             4. General assessment                                         46-54
                     VIII. Some Remarks on the Tracing of the Frontier Line in the
                           IGN Map                                                         55-62
                      IX. The Human Factor and Frontiers                                   63-69
                       X. Admission by the Parties that They Are Bound by Their
                          Pledge to Co‑operation in Respect of Local Populations           70-86
                             1. In multilateral African fora71-79
                             2. In bilateral agreements     80-82
                             3. The régime of transhumance  83-86
                      XI. Population and Territory Together : Conformation of a
                          “System of Solidarity”                                           87-98

                     57

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                            1. Transhumance and the “system of solidarity”    88
                            2. People and territory together               89-94
                            3. Solidarity in the jus gentium95-98
                     XII. Concluding Observations                                        99-105

                                                          *
                                                 I. Prolegomena

                        1. I have voted in favour of the adoption of the present Judgment in
                     the case of the Frontier Dispute between Burkina Faso and Niger, whereby
                     the International Court of Justice (ICJ) has, at the request of the Parties,
                     determined the course of their frontier. Although I have agreed with the
                     Court’s majority as to the findings and resolutory points of the Court in
                     its present Judgment, yet there are certain points — to which I attribute
                     much importance — which are not properly reflected in the reasoning of
                     its Judgment, or which have not been sufficiently stressed therein, as
                     much as I think they should have been.
                        2. In respect of those points, I do not find the Judgment just adopted
                     by the Court today entirely satisfactory, and I pursue a distinct reason-
                     ing, particularly in respect of the relationship between the territory at
                     issue and the local (nomadic and semi‑nomadic) populations. This being
                     so, I feel thus obliged to dwell upon them in the present separate opinion,
                     so as, on the basis of the documentation conforming the dossier of the
                     present case (not wholly reflected in the present Judgment), to clarify the
                     matter dealt with by the Court, and to present the foundations of my
                     personal position thereon.

                        3. My reflections, developed in the present separate opinion, pertain to
                     the following points, in relation to which I do not find the reasoning of
                     the Court entirely satisfactory or complete, namely : (a) provisions of
                     treaties (after independence in 1960) expressing concern with the local
                     populations ; (b) concern of the Parties with the local populations in the
                     written phase of proceedings ; (c) communiqués (after independence
                     in 1960) expressing concern with the local populations ; and (d) views of
                     the Parties concerning villages.

                       4. Moving from the written to the oral phase of proceedings, I shall
                     then turn attention to the following points : (a) concern of the Parties
                     with the local populations in the oral phase of proceedings (first and sec-
                     ond rounds of oral arguments) ; (b) concern of the Parties with the local
                     populations in the responses of the Parties to questions from the bench ;
                     and (c) the tracing of the frontier line in the IGN map. May I here
                     observe that there is a wealth of materials, in the dossier of the present
                     case, in the responses provided by the Parties to questions from the bench,
                     not fully or sufficiently reflected in the present Judgment of the Court.

                     58

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                        5. My next line of considerations will focus on : (a) the human factor
                     and frontiers ; (b) admission by the Parties that they are bound by their
                     pledge to co‑operation in respect of local populations (in multilateral
                     African fora, and in bilateral agreements, conforming the régime of trans-
                     humance) ; and (c) population and territory together, conforming a “sys-
                     tem of solidarity” (encompassing transhumance and the “system of
                     solidarity” ; people and territory together ; and solidarity in the jus gen
                     tium). The way will then be paved for the presentation of my concluding
                     observations.

                                      II. Provisions of Treaties after Independence
                                               in 1960 Expressing Concern
                                              with the Local Populations

                        6. In the present Judgment in the case of the Frontier Dispute between
                     Burkina Faso and Niger, the ICJ begins by pointing out that the dispute
                     at issue is set within a historical context marked by the accession to inde
                     pendence of the two contending Parties (Burkina Faso and Niger), which
                     were formerly part of French West Africa (para. 12). In my reasoning in
                     the present separate opinion, I ascribe particular importance to the docu-
                     ments after their independence in 1960. The Court further recalls that, in
                     the colonial period, the two countries concerned were “made up of basic
                     units called cercles” ; each cercle, in turn, was composed of subdivisions,
                     which “comprised cantons, which grouped together a number of villages”
                     (ibid.).

                       7. In effect, in my view, it is commendable that the two contending
                     Parties, Burkina Faso and Niger, deemed it fit to insert, into treaties they
                     concluded after their independence in 1960, provisions expressing their
                     concern with the local populations. Thus, their 1964 Protocol of Agree-
                     ment (concluded in Niamey, on 23 June 1964) 1, contains a provision, on
                     “population movements”, which states that

                                 “2. Provided they are carrying the official identity documents of
                              their State, nationals (within the meaning of the Nationality Code of
                              the State concerned) of the Contracting Parties may move freely from
                              one side of the frontier to the other.
                                 All nationals of either of the Contracting Parties may enter the
                              territory of the other, travel on that territory, establish their residence
                              there in the place of their choice and leave the territory, without being
                              obliged to obtain a visa or residence permit of any kind.

                          1   Memorial of Niger, Annex A1.

                     59

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                                 However, transhumant nationals of one State travelling to the
                              other State must have a transhumance certificate stating the compo-
                              sition of their family and the number of their animals.
                                 The two Contracting Parties shall communicate to each other all
                              documents concerning transhumance, in particular details of routes
                              followed and movement calendars. (. . .)”
                       8. Years later, the Agreement between Burkina Faso and Niger
                     of 28 March 1987, on the demarcation of the frontier between the two
                     countries 2, contained a provision to (Article 5) the effect that “[r]ights of
                     peoples living along the frontier in respect of the utilization of farmland,
                     pasturage, waterpoints, saline lands and economic trees shall be defined
                     in the Protocol of Agreement”. This Protocol of Agreement, celebrated
                     by those two States on the same date 3, provides (Article 19) that

                                 “After demarcation of the frontier has been completed, nationals
                              of each State who are not originally from the State where they are
                              residing, and who decide to remain there, shall forthwith become sub-
                              ject to the jurisdiction, laws and regulations of the latter State.”
                       9. And Article 20 of the same 1987 Protocol of Agreement adds that :
                                 “Nationals of one State residing on the territory of the other who
                              decide to return to their country of origin shall have a maximum of
                              five (5) years in which to do so, with effect from the date on which
                              their presence is recorded ; during that period they shall not be subject
                              to any form or taxation or other charge” 4.
                        10. In addition, the Protocol of Agreement Establishing a Consulta-
                     tion Framework between Burkina Faso and Niger, celebrated at Tillabéry
                     on 26 January 2003 5, extends such consultation to “cross‑border trans-
                     humance” (Article 1), and explains, in Article 2 that

                          2 Memorial of Niger, Annex A4.
                          3 Ibid.
                        4 Moreover, Article 13 of the aforementioned 1987 Protocol of Agreement determines

                     that :
                                 “Use and/or ownership rights of nationals of the two Parties in respect of land
                              situated along the frontier in regard to farming and pasturage, including the right to
                              exploit economic trees such as the néré and the karaté, shall be governed by the laws
                              of the country where the land is located and, on a subsidiary basis, by customary law.”
                       And Article 14 adds that :
                                 “Rights of utilization in respect of wells, rivers and waterpoints along the frontier
                              shall likewise be governed by law and, subsidiarily, by the customs of the country
                              where such wells, rivers and waterpoints are located. The régime governing frontier
                              watercourses shall remain that applicable under the relevant international law.”
                        5 Replies of Burkina Faso and Niger to the Questions Put by Judge Cançado Trindade

                     at the End of the Public Sitting Held on 17 October 2012, doc. of 16 November 2012
                     [Niger’s Response].

                     60

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                              “The purpose of the consultation framework on cross‑border
                          transhumance is to :
                             — manage transhumance between the two States ; (. . .)
                             — promote consultation and exchange between the two States
                               with respect to transhumance and the management of natural
                               resources ;
                             — propose all appropriate steps to promote and support the
                               development and implementation of a regional 6 inter‑State
                               transhumance policy.”

                             III. Concern of the Parties with the Local Populations
                                       in the Written Phase of Proceedings

                         11. In my perception, a significant feature of the documentation form-
                     ing the dossier of the present case (written and oral phases) of the Frontier
                     Dispute opposing Burkina Faso to Niger lies in the attention dispensed to
                     the human factor — the local population — considered together with the
                     territory under contention (cf. Part IX, infra). Niger has been attentive to
                     it from the very start, since its Memorial of April 2011, whilst Burkina Faso
                     has likewise turned attention to it as from its Counter-Memorial of Janu-
                     ary 2012. Niger invokes the constant displacements of population in
                     order to interpret the inter‑colonial line, as fixed by the 1927 Arrêté and
                     Erratum, taking into account the position of the villages at that time.

                        12. Burkina Faso, for its part, contends that such constant displace-
                     ments of population per se have rendered it impossible to take into account
                     the segments of the population at issue in drawing the frontier line. Thus,
                     in Burkina Faso’s view, the frontier was deliberately artificial, and the
                     effectivités cannot, in its view, provide a basis for the interpretation of the
                     1927 Arrêté. Yet, the ICJ itself has pondered, in its Judgment (of 22 Decem-
                     ber 1986) in the Frontier Dispute between Burkina Faso and Mali, that in
                     the hypothesis of a legal title not being precise as to the extent of the cor-
                     responding frontier, the effectivités can play “an essential role” to indicate
                     how a legal title ought to be interpreted in practice (para. 63).
                        13. Some specific points, raised by both Niger and Burkina Faso in the
                     written phase in the cas d’espèce, as to the ineluctable relationship between
                     territory and population, should not, in my view, pass unnoticed here. In its
                     aforementioned Memorial of April 2011, for example, Niger observes that the
                     frontier ensuing from the 1927 Arrêté and Erratum, from the very beginning
                          “raised problems for the nomadic populations, who were accustomed
                          to travelling within a unitary area, which was now divided into two

                        6 So as to ensure a proper implementation of Decision A/DEC.5/10/98 of 31 October

                     1998 regulating transhumance between ECOWAS member States (cf. infra).

                     61

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                          separate colonies. In order to retain their customary transhumant
                          routes, or even to cultivate their croplands which overlapped the
                          boundary, they had to pass from one colony to the other. (. . .)
                             On the other hand, very quickly, the nomadic or semi‑nomadic
                          populations became aware of the advantages that they could derive
                          from the situation in order to escape taxes or other services required
                          by the colonial power, or enlistment in the armed forces. (. . .)”
                          (Para. 2.5.)
                        14. Niger holds that the 1927 Arrêté and the Erratum have not been
                     sufficiently precise to fix the frontier at issue (paras. 2.1‑4), and adds that
                     this latter has raised problems for the nomadic populations (concerning,
                     e.g., cultivation of croplands and tax collection — paras. 2.5‑8), in their
                     “customary transhumant routes”, which they wanted to retain (para. 2.5).
                     Niger argues so, without questioning the principle of the “intangibility of
                     boundaries” (as inherited by the colonial administration — paras. 5.1‑2).

                        15. From then onwards — Niger proceeds — “[a]t all times, the
                      dministrators sought to determine the boundaries of their cantons”
                     A
                     (para. 5.11). There have occurred different kinds of transhumance ; for
                     example, in the Say sector (not so much populated) — Niger adds —
                     there have been : (a) “major transhumance, . . . generally practiced by the
                     Bororo and related Peulhs” ; (b) a movement over short and medium
                     distances, generally carried out in order to exploit the pastureland be-
                     side rivers and pools” ; (c) commercial transhumance, concerning
                     “small flocks” “for the purpose of increasing milk production and taking
                     advantage of the pasturage provided by fallow croplands” (para. 7.7).
                     This longstanding activity — Niger remarks — is nowadays regu-
                     lated within ECOWAS, of which Niger and Burkina Faso are members
                     (ibid.).

                        16. Moreover, Niger argues that the territorial colonial partitions con-
                     stituted “socially disruptive factor”, which provoked “population move-
                     ments motivated by the preservation of communal or cultural identities,
                     or the safeguard of interests” (para. 6.6). And it adds :

                            “The instability of the populations of areas close to the shared
                          boundaries or territories resulted in multiple registrations and the use
                          of contradictory criteria for defining administrative links (place of
                          temporary settlement or village of origin).
                            Apart from traditional nomadic movements or the search for new
                          land, there were various factors impelling populations to change from
                          one territory to another : differences in régime as between colonies in
                          the matter of compulsory service or of human or livestock taxation,
                          the existence of basic infrastructure in the neighbouring territory
                          (access to water, vaccination facilities for livestock, schools, health
                          centres, etc.), power relationships within tribes, etc. Thus, all along

                     62

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                              the frontier, a game of cat‑and‑mouse developed between colonial
                              administrators and frontier populations.” (Para. 6.6.)
                       17. Niger further remarks that the Téra/Dori frontier zone, for exam-
                     ple, has been inhabited by sedentary, nomadic and semi‑nomadic peoples
                     (para. 6.7). It then added that
                              “[t]he problems of the frontier area are conditioned by various dom-
                              inant forms of production, namely : itinerant nomadism, seasonal
                              trans‑frontier pastoral transhumance, conducted on a pendular basis,
                              semi‑nomadism, sedentary field agriculture, itinerant agriculture,
                              gold prospection and extraction” (para. 6.7).
                        18. For its part, Burkina Faso, in its Memorial (of 20 April 2011) con-
                     cedes that the boundary created by the 1927 Arrêté and Erratum was
                     deliberately an artificial one (“artificial in nature” — para. 2.38). It adds
                     that such has been the practice in the fixing of borders by the colonial
                     administrations (paras. 2.36‑39), the primary goal being stability, so as to
                     reach the consolidation of peace and security in the region (para. 3.37).
                        19. In its Counter-Memorial (of January 2012), Niger contends that,
                     even in the colonial times, the administrators took into due account “the
                     human factor/l’élement humain” 7, with regard to a possible change of
                     limits between Upper Volta and Niger (para. 1.1.11). The transfer of ter-
                     ritory between the two colonies — it proceeds — was effected on the basis
                     not of straight lines, but rather of transferring cantons between them
                     (paras. 1.1.14‑15), with attention to local traditions (paras. 1.1.24‑25).
                     Burkina Faso, in turn, in its Counter-Memorial (of 20 January 2012),
                     retorted that the 1927 Arrêté and Erratum never intended to base the
                     delimitation on the then existing limits of cantons, not to allocate villages
                     to one or the other colony ; if that was the intention — it added — it
                     would have been explicit (paras. 3.53‑55).

                        20. By and large, one may distinguish two main trends of thinking, in
                     the briefs of the Parties, on the relationship between the population con-
                     cerned and the territory under contention, namely : (a) the reasoning on
                     the impact of the presence of the population on the fixing of the frontier ;
                     and (b) the historical accounts of the displacements of the populations in
                     the frontier surroundings. While Niger generally upholds that local popu-
                     lations are to be taken into account in the fixing of the boundary,
                     Burkina Faso sustains the opposite, adding that, in any case, such popu-
                     lations are nomadic, and their continuous displacement renders it difficult
                     to take them into account for the fixing of the border.

                       21. From its perspective, it is thus not surprising to find that
                     Burkina Faso does not refer in its Memorial to the population spreading
                     on the land in both parts of the frontier. Niger, on the other hand, dedi-

                          7   In relation to a letter by the administrator of the Dori cercle.

                     63

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                     cates a part of its Memorial 8 to an examination of the distribution of
                     those populations 9 and to their historical belonging to one or another
                     State. It thus challenges the “artificial nature” of the frontier invoked by
                     Burkina Faso.
                       22. In turn, in its Counter-Memorial (of 20 January 2012), Burkina Faso
                     dismisses the practice — and the effectivités invoked by Niger — subse-
                     quent to the 1927 Arrêté and Erratum (paras. 3.56‑64) 10. It insists that,
                              “[i]n actual fact, the colonial authorities were fully aware that the
                              ‘artificial’ colonial boundary which had been adopted could not
                              reflect the complex situations on the ground, far removed from any
                              ideas of frontier division” (para. 3.60).
                       Burkina Faso concedes that
                                 “It is indeed an undisputed fact that the human geography of the
                              frontier area has always been characterized by mobility on the part of
                              the local people. This is an everyday occurrence and also follows a
                              more general pattern. Population groups move according to weather
                              conditions or the economic situation. The consequence is the existence
                              of ‘fossilized’ or ‘ghost’ villages, and also a degree of vagueness with
                              regard to the names of places in the frontier zone, to mention just these
                              two aspects. Besides, even the most sedentary groups may live in dif-
                              ferent villages according to the season, and those villages may in some
                              instances be on different sides of the colonial frontier.” (Para. 3.61.) 11
                     Yet, Burkina Faso’s conclusion is that, given all these complexities, “[i]n
                     such circumstances, the choice of an artificial boundary, despite its alleged
                     disadvantages, probably turned out to be the wisest one” (para. 3.63).

                                     IV. Communiqués after Independence in 1960
                                                Expressing Concern
                                            with the Local Populations

                       23. In addition to the aforementioned treaty provisions expressing
                     concern with the local populations, references were made, in the course

                          8Passages in Chapters VI‑VII.
                          9Niger examines the movements of populations on the sectors of Téra and Say, and
                     warns that to adopt straight lines throughout, making abstraction of the villages therein,
                     would have the effect of “uprooting” some villages of Niger, by placing them on the terri-
                     tory of Burkina Faso.
                         10 It further dismisses Niger’s argument that some of the local villages (such as Bangaré)

                     allegedly belonged always to Niger ; Burkina Faso argues lack of evidence to that end
                     (cf. infra).
                         11 Burkina Faso adds that “the territories to which the native groupements lay claim, in

                     particular in semi‑desert savannah areas, have traditional boundaries which are somewhat
                     imprecise” (para. 3.61).

                     64

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                     of the written phase of proceedings, also to communiqués between
                     Burkina Faso and Niger (after independence in 1960), concerning free-
                     dom of movement of local populations (free circulation of persons and
                     goods ; trade, transportation and customs). Thus, in the Ministerial Meet-
                     ing between Niger and Upper Volta in January 1968, the two parties
                     agreed “henceforth to dispense with the movement calendar require-
                     ment”, as that clause was difficult to put into practice” ; instead, they
                     decided that the local administrative authorities were to “communicate to
                     each other all documents concerning transhumance” 12.
                        24. Subsequently, in their meeting at Ouagadougou, of 12‑14 Febru-
                     ary 1985, Niger’s Minister Delegate for the Interior and Burkina Faso’s
                     Minister for Territorial Administration and Security, reached a modus
                     vivendi on transit (of livestock), in the ambit of ECOWAS, including
                     trade and customs 13. Shortly afterwards, in another meeting,
                     on 9 April 1986, Burkina Faso’s Minister for Territorial Administration
                     and Security and Niger’s Minister Delegate for the Interior agreed on
                     directives concerning free circulation of persons and goods, public health
                     (including campaigns of vaccination), animal health, reciprocal recogni-
                     tion of documents, water and protected zones 14.
                        25. One decade later, the report of the meeting held at Kompienga,
                     on 5‑6 December 1997, between the Ministers for Territorial Administra-
                     tion and Security of Niger and Burkina Faso, addressed specific issues
                     that needed further consideration on their part, concerning free circula-
                     tion of persons and goods, documentation for transhumance policy, vac-
                     cination cards, public health (before vaccination), customs harmonization
                     and public security. These issues admittedly required the continuing
                     co‑operation between the authorities of the two bordering States. Accord-
                     ingly,
                                  “With a view to enhancing the free movement of people and goods,
                               the meeting of Kompienga urges : the harmonization of regulations
                               and procedures in force ; the interconnection of road networks ; the
                               involvement of transporters in the management of transportation and
                               transit problems ; the monitoring of the application of ECOWAS
                               Conventions concerning inter-State transport and transit routes.” 15
                        26. Subsequently, in their meeting held at Tenkodogo, on 24-26 May
                     2000, Niger’s Minister for the Interior and Burkina Faso’s Minister for
                     Territorial Development agreed on fostering the “integration among the
                     populations in border areas”, with particular attention to the “free circu-
                     lation of persons and goods” in the ambit of “transhumance” 16.

                          12 Memorial of Burkina Faso, Annex 54.2.
                          13 Memorial of Niger, Annex A2.
                          14 Memorial of Burkina Faso, Annex 68.
                          15 Ibid., Annex 92.
                          16 Ibid., Annex 93.

                     65

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                                    V. Views of the Parties concerning Villages

                       27. Both Niger and Burkina Faso have conveyed to the ICJ consider-
                     able additional information and their views on the villages in their border
                     surroundings 17, in their responses to the questions I deemed fit to pose to
                     them, at the end of the public sitting of 17 October 2012. Niger’s claims
                     over some villages in the region at issue were challenged by Burkina Faso
                     on five grounds, namely :

                     (a) the documents produced purportedly supporting Niger’s claim that
                         certain villages belonged to it, in its view, did not demonstrate “any-
                         thing” claimed by Niger (sector of Téra : villages of Petelkolé,
                         Ihouchaltane [Ouchaltan], Bangaré, Beina, Mamassirou, Ouro
                         Gaobé, Yolo, Paté Bolga ; and sector of Say : Fombon, Tabaré, Latti,
                         Dissi, Boborgou Saba [Dogona]) 18;
                     (b) certain villages were mentioned in Niger’s written pleadings, but no
                         documents were cited in support of the claim that they were “Niger”
                         villages (sector of Téra : villages of Tindiki, Lolnango, Hérou Bou-
                         laré, Nababori) ;
                     (c) the basis for Niger’s claim over the villages had not, in its view, been
                         provided by Niger (sector of Téra : Bambaré, Imoudakan 1, Imouda-
                         kan 2 or Kogonyé, Dankama, Zongowaétan Gourmantché, Bourou-
                         guita, Tchintchirguel, Mandaw ; and sector of Say : Kankani,
                         Nioumpalma, Bounga Bounga, Foltiangou, Mangou, Bandiolo,
                         Kerta, Danbouti, Golongana, Kakao Tamboulé, Koguel, Hanti
                         kouta, Déba, Béla) ;
                     (d) Niger had, in its view, attributed the villages to Burkina Faso in
                         Niger’s written arguments (sector of Téra : Komanti, Kamanti
                         [Ouro Toupé], Gourel Manma, Sénobellabé, Hérou Bouléba) ; and
                     (e) there were, at last, in its view, those which were encampments, and
                         not villages (sector of Téra : Débéré Bagna or Débéré Siri N’gobé
                         [Ousalta peul], Komanti, Zongowaétan [Fété Tao], Ouro Tambella
                         [Dingui Dingui]). 19
                       28. One can consider, without precision or certainty, that certain vil-
                     lages belonged to Niger or else to Burkina Faso, at the time of their
                     accession to independence in 1960. Moreover, there were villages (e.g.,

                        17 Mainly in the sectors of Téra (about 150 km long), relatively more populated, and of

                     Say (about 160 km long), not so much populated, with “a relatively hostile natural envi-
                     ronment” ; cf., e.g., Niger’s Counter-Memorial, of January 2012, para. 2.0.
                        18 Burkina Faso did not expressly refer to these villages, but this information can be

                     understood from other information provided in : Written Comments of Burkina Faso
                     on Niger’s Replies to the Questions Put by Judge Cançado Trindade at the End of the
                     Hearing Held on 17 October 2012 (hereinafter “Written Comments of Burkina Faso”),
                     doc. of 23 November 2012, p. 4, para. 12 (v).
                        19 Ibid., pp. 3‑4, para. 12 (i‑v).

                     66

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                     Tokalan and Tankouro) that seem to have disappeared during the period
                     contemporary of the Arrêté and Erratum of 1927, and thus can no longer
                     be taken into account in the determination of the frontier nowadays
                     (cf. sketch-map No. 1, p. 108).
                        29. It further appears, adding to uncertainties, that some of the villages
                     in the region at issue were at times designated by different names 20. By
                     and large, the documentation forming part of the dossier of the present
                     case, as to the distribution of the local populations (and the administra-
                     tion of villages) on both sides of the frontier, in sum, is not amenable to
                     clear conclusions as to their belonging to Burkina Faso or Niger. It is not
                     my intention to proceed to an examination of the present situation of
                     each of those villages for the purposes of the present separate opinion ; it
                     is beyond its scope.

                        30. The present case before the Court is far more specific, and concerns
                     the tracing of a part of the frontier between Burkina Faso and Niger. My
                     purpose herein is to demonstrate and sustain that people and territory are
                     related to each other, that they go together, that the tracing of the fron-
                     tier in the present context cannot be made in abstracto. To this end, the
                     consideration of the local populations and of the surrounding villages in
                     the frontier zone is necessary and suffices. The determination of the fron-
                     tier line is thus to take into account the transhumant movement of per-
                     sons across the border, so as to secure its freedom. Frontier line fixing
                     and free movement of persons, in the present African context, do not
                     exclude each other.

                        31. More important than the aforementioned challenges, controver-
                     sies, uncertainties, is the fact that, when it comes to take into account the
                     fulfilment of the needs of the peoples (nomadic or semi‑nomadic), living
                     in, and moving around, the region across the border, both Burkina Faso
                     and Niger appear to converge in their acknowledgement of a shared and
                     common duty to that end (cf. Part VII, infra). More than that, they have
                     recognized to be bound by their duty of co‑operation in this respect
                     (cf. Part X, infra). Such engagement in securing the freedom of movement
                     of those persons is, in my perception, highly significant, and stands to the
                     credit of both Niger and Burkina Faso.

                                VI. Concern of the Parties with the Local Populations
                                           in the Oral Phase of Proceedings
                                    (First and Second Rounds of Oral Arguments)

                        32. In their two rounds of oral arguments before the Court, the
                     contending Parties retook their respective lines of reasoning on the rela-

                          20   As pointed out by Niger, in its oral arguments ; cf. CR 2012/26, of 17 October 2012,
                     p. 56.

                     67

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                             Separate Opinion of Judge Cançado Trindade: Sketch Map 1:
                              PARTIES’ CLAIMS AND LINE DEPICTED ON THE 1960 IGN MAP
                              This sketch map has been prepared for illustrative purposes only

                     68

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                     tionship between people and territory in the cas d’espèce. In the first
                     round of those arguments, Burkina Faso, for its part, referred to the
                     demographic, ecological and economic elements of the region 21, and to
                     the fact that the nomadic peoples lived therein, in the frontier area, off
                     pastoralism 22. It explained that they tend to settle in easily dismountable
                     huts, so that they can move according to the pastoral calendar 23.
                     Burkina Faso recalled that Niger and itself are member States of
                     ECOWAS, which has adopted agreements concerning cross‑border move-
                     ments of livestock 24. Having said that, it insisted on its position based on
                     legal title, discarding Niger’s reliance on effectivités 25.
                        33. Niger, in turn, dismissed Burkina Faso’s reliance on a deliberately
                     “artificial” frontier line, and invoked the cantons’ borders (created by
                     going from one village to another), which, in its view, showed the aware-
                     ness of colonial administrators of the fact that villages had been estab-
                     lished on both sides of the frontier, and had been taken into account for
                     the frontier’s delimitation 26. According to Niger, the limits established by
                     the 1927 Arrêté and its Erratum ought to be presumed to have followed
                     the limits of the cantons 27. Niger then invoked the effectivités to the effect
                     of interpreting the legal title in practice 28.
                        34. In the second round of oral arguments, the two contending Parties
                     devoted much of their attention to the argument on the effectivités. Once
                     again, Niger supports recourse to these latter, as it sees the legal title
                     unclear ; Burkina Faso, on the other hand, opposes such recourse to the
                     effectivités, as it regards the historical title as being clear 29. That was not,
                     however, the end of the exchanges between the contending Parties in the
                     procedure of the cas d’espèce.

                                 VII. Concern of the Parties with the Local Populations
                               in the Responses of the Parties to Questions from the Bench

                                                1. Questions from the Bench
                       35. At the end of the public sittings before the Court, on 17 Octo-
                     ber 2012, I deemed it fit to put to the contending Parties the following
                     questions :
                          21
                           CR 2012/19, of 8 October 2012, p. 33.
                          22
                           Ibid., pp. 34 and 36.
                        23 Ibid., p. 40.
                        24 Ibid., p. 38.
                        25 CR 2012/20, of 8 October 2012, pp. 34‑45 ; and CR 2012/21, of 9 October 2012,

                     pp. 10‑13.
                        26 CR 2012/22, of 11 October 2012, pp. 50‑51 and 53.
                        27 Ibid., pp. 55‑56.
                        28 CR 2012/23, of 12 October 2012, pp. 45 and 48.
                        29 Cf., as to the arguments of Niger, CR 2012/26, of 17 October 2012, pp. 21‑23,

                     25‑29, 33, 35‑36 and 38‑41. And, as to the arguments of Burkina Faso, cf. CR 2012/22, of
                     11 October 2012, pp. 23 and 50 ; and CR 2012/25, of 15 October 2012, pp. 24 and 26‑36.

                     69

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                                 “For the purposes of precision as to the factual context of the pres-
                               ent case, I pose the following questions to both Parties :

                               (1) First, could the Parties indicate in a map the location areas of
                                   nomadic populations at the epoch of accession to independence
                                   and nowadays, and indicate with precision to what extent will the
                                   fixing of the frontier have a bearing on those populations ?
                               (2) In which radius around the frontier between the two States do the
                                   populations’ movements take place ? Would you please indicate
                                   in a map, if possible, which are precisely the portions of the fron-
                                   tier at issue.
                               (3) Which are the villages susceptible of being affected by the fixing
                                   of the frontier claimed by the Parties ?” 30
                        36. In response to my questions, Burkina Faso and Niger have pro-
                     vided the Court — in three rounds of responses to my questions 31 — with
                     considerable additional information (a file of 140 pages), containing rele-
                     vant details for the consideration of the present case. Certain passages of
                     their responses were particularly enlightening — in particular those per-
                     taining to nomadic populations — as we shall see next (infra). Both
                     Burkina Faso and Niger thus disclosed a commendable spirit of proce-
                     dural co‑operation before the Court.

                                               2. Responses from Burkina Faso
                        37. Burkina Faso has provided responses to each of the questions I
                     posed to both Parties 32. In response to the question concerning the areas
                     through which nomadic populations used to move, during the period
                     when they became independent and today, Burkina Faso submits that,
                     despite its efforts, it is unable to indicate in a map the areas used by the
                     nomads at the time of independence since it was not able to find this
                     information in the colonial archives and studies consulted ; it does how-
                     ever provide indications of nomadic existence in the border area in the
                     years close to the States’ independence 33. As to the nomads in the “Téra
                     sector”, Burkina Faso claims that although it cannot identify the precise

                          30CR 2012/26, of 17 October 2012, pp. 59‑60.
                          31Cf. Replies of Burkina Faso and Niger to the Questions Put by Judge Cançado Trin-
                     dade at the End of the Public Sitting Held on 17 October 2012, doc. of 16 November 2012,
                     pp. 1‑150 ; Burkina Faso’s Response to the Questions Put by Judge Cançado Trindade
                     at the End of the Public Sitting Held on 17 October 2012, doc. of 23 November 2012,
                     pp. 1-2 ; Written Comments of Burkina Faso on Niger’s Replies to the Questions Put by
                     Judge Cançado Trindade at the End of the Public Sitting Held on 17 October 2012, doc. of
                     23 November 2012, pp. 1‑7.
                         32 Replies of Burkina Faso and Niger to the Questions Put by Judge Cançado Trindade

                     at the End of the Public Sitting Held on 17 October 2012, doc. of 16 November 2012 [here-
                     inafter referred to as “Burkina Faso’s Response to the Questions Put by Judge Cançado
                     Trindade”].
                         33 Ibid., paras. 1‑3.

                     70

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                     nomadic areas at the time of independence, it asserts that the Parties have
                     engaged, since their independence, in the facilitation of freedom of circu-
                     lation from each side of the border 34.

                        38. As to the question as to how the frontier could affect these popula-
                     tions, Burkina Faso claims that, in general, the reduction of pastoral
                     spaces posed by international borders may cause difficulties to the
                     nomads, while stating that, in the present case, any frontier that is deter-
                     mined between it and Niger will have no detrimental effect on the popula-
                     tions (nomads or otherwise) living in the border area 35. As to the question
                     concerning the movement of nomadic populations in the border area,
                     between the two countries, Burkina Faso submits a map depicting the
                     itineraries of transhumance at present time 36. Then, in relation, more spe-
                     cifically, to the radius of areas of movement of the nomadic populations,
                     Burkina Faso claims that it can be calculated on the basis of a description
                     of the transhumance movements. It explains that transhumance is dic-
                     tated by nature and natural resources, without taking into account border
                     lines between States ; and, it adds, transhumance is also based on solidar
                     ity 37 (cf. infra).

                        39. Burkina Faso next submits that States take political, technical and
                     judicial measures concerning transhumance, and that regional organiza-
                     tions develop initiatives to promote breeding. Burkina Faso adds that the
                     available statistics are poor, which leads it to rely on scattered studies to
                     examine the question of transhumance movements. Between Burkina Faso
                     and Niger, transhumance movements arrive, depart and transit through
                     the border regions of Tillabéry, Niamey and Dosso, for Niger, and the
                     Sahel and Est for Burkina Faso 38.
                        40. Burkina Faso adds that the radius of movement of nomadic popu-
                     lations depends on the richness of the pasture, watering points and salt
                     licks, animal health conditions and commercial facilities (livestock and
                     animal produce markets) 39. And — last but not least — as to the question
                     of villages susceptible to be affected by the frontier, Burkina Faso simply
                     claims that because the 1987 Agreement confirms that the legal title is the
                     Erratum of 1927, no village is susceptible of being affected by the frontier,
                     since the delimitation has remained the same between 1927 and the pres-
                     ent date 40.

                        34 Burkina Faso’s Response to the Questions Put by Judge Cançado Trindade,

                     paras. 4‑15.
                        35 Ibid., paras. 16‑17 and 19.
                        36 Ibid., paras. 53‑55.
                        37 Ibid., para. 59.
                        38 Ibid. It submits two maps showing first the movements in West Africa and secondly

                     between Burkina Faso and Niger.
                        39 Ibid., paras. 56‑65.
                        40 Ibid., p. 23, par. 66.

                     71

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                                                   3. Responses from Niger
                        41. For its part, Niger, likewise, has provided responses to the ques-
                     tions I put to both Parties 41. As to the questions concerning nomadic
                     populations, Niger explains that the relevant area from the Niger River to
                     the south of Dori is populated by sedentary, nomads and semi‑nomads. It
                     adds that these populations remain the same at this date and that they are
                     currently located in the new administrative sections (the Téra sector, and
                     the provinces of Oudalan, Séno and Yagha). It further points out that the
                     disputed area is not occupied exclusively by nomadic populations. Niger
                     further asserts that transhumance across borders is regulated in numerous
                     documents annexed to Niger’s Memorial, ensuring the liberty of move-
                     ment of nomads 42.

                        42. In relation to my first question 43, Niger submits that it was not
                     able to find maps adequately addressing the question ; it thus relies on the
                     documents used in the proceedings 44, and it submits two maps indicating
                     first the areas through which nomadic populations used to move during
                     the period when they became independent, and another map indicating
                     the areas of movement today. It notes that, during the colonial and

                         41 Replies of Burkina Faso and Niger to the Questions Put by Judge Cançado Trindade

                     at the End of the Public Sitting Held on 17 October 2012 (hereinafter “Niger’s Response to
                     the Questions Put by Judge Cançado Trindade”), doc. of 16 November 2012.
                         42 Ibid., pp. 1‑3.
                         43 Which reads as follows : “indicate in a map the areas through which nomadic popula-

                     tions used to move, during the period when they became independent and today”.
                         44 Mainly in its Memorial. The documents referred to are the following : (a) Letter

                     No. 96 from the Commander of Dori cercle to the Commander of Upper Volta
                     dated 23 April 1929, which Niger claims to highlight transhumance movement between
                     Dori and Téra ; (b) Letter No. 367 from the Commander of Dori cercle to the Governor
                     of Upper Volta dated 31 July 1929 and previous correspondence, wherein Niger claims
                     the links which exist between populations and the places where they were established or
                     had pastures ; (c) Report No. 416 from the Commander of Dori cercle on the difficul-
                     ties created by the delimitation established in 1927 between the Colonies of Niger and
                     Upper Volta (Arrêté of 31 August 1927) regarding the boundaries between Dori cercle
                     and Tillabéry cercle, 7 July 1930 ; (d) Niger claims that this Report highlights the problem
                     of the distribution of the nomadic populations between Téra and Dori ; (e) Directory
                     (of 1941) of Villages of Téra Subdivision (villages of Kel Tamared, Kel Tinijirt, Logo-
                     maten Assadek, Logomaten Allaban), in respect to which Niger argues all the nomadic
                     tribes, their pasture areas and watering points are mentioned ; (f) Report of Delimitation
                     Operations between Dori and Tillabéry cercles, dated 8 December 1943, stating : “[T]here is
                     traditionally a cross‑movement of Yagha and Diagourou herds. At the start and end of the
                     rainy season, the herds from the central area of the Yagha go to Taka Pool, in Diagourou,
                     for the salt lick, while, during the same periods, the Diagourou herds travel to the banks of
                     Yiriga Pool for the same purpose” ; (g) Report from the Head of Téra Subdivision on the
                     Census of Diagourou canton, dated 10 August 1954, in relation to which Niger claims that
                     the sheets of place names show the historical background and the places of establishment
                     of certain villages and certain tribes.

                     72

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                     post‑colonial periods, there was little transhumance movement between
                     Burkina Faso and the Say cercle, as during the colonial and the post‑
                     colonial periods pastoral activities were prohibited 45.

                        43. As to the question concerning the extent to which the frontier will
                     affect these populations, Niger explains first the current régime (in the
                     absence of a definite frontier). It states that the movement of populations
                     and the access to natural resources follows the modus vivendi between the
                     authorities of both States, which does not apply very rigorously the regu-
                     lations for the movement of populations (such as, e.g., the requirement of
                     an identity card, or else a vaccination booklet) ; it refers, in this regard, to
                     paragraph 2 of Protocol of Agreement of 1964.

                        44. As to the future movement of populations, Niger asserts that the
                     free circulation of populations and goods between the two States will be
                     guaranteed by the bilateral and multilateral agreements concerning the
                     liberty of movement and access to natural resources between member
                     States. Niger refers in this regard to documents submitted with its
                     response, explaining the transhumance movements and the organization
                     of the transhumance régime conceived on the basis of international agree-
                     ments. It then concludes that such agreements guarantee that the nomadic
                     populations that move across the border between Niger and Burkina Faso
                     will be able to keep their modus vivendi 46.
                        45. And, last but not least, as to the question of which villages are
                     susceptible of being affected by the frontier which each Party is claiming,
                     in addressing the question from its point of view, Niger distinguishes a
                     scenario in which there is a change in the current national status of vil-
                     lages that have always been considered to be in Niger’s territory and
                     which it continues to claim to be located in its territory ; and villages with
                     Nigerien populations located in territory that Niger implicitly admits, by
                     excluding them from its claim, will no longer be part of the State of Niger.
                     Niger submits four maps (two for each scenario), as well as a list of vil-
                     lages with respective co‑ordinates 47.

                                                    4. General Assessment
                        46. The Parties’ responses have shed light on some important ques-
                     tions that, earlier on, were not entirely clear. Some observations can be
                     made in view of the responses of the Parties. As to the nomadic and
                     semi‑nomadic populations, both Parties have submitted that : (a) there

                          45
                           Niger’s Response to the Questions Put by Judge Cançado Trindade, pp. 4‑8.
                          46
                           Ibid., pp. 9‑11. As to the question concerning the radius of the areas of movement of
                     nomadic populations along the border between the two States concerned, Niger indicates
                     such movement in a map which it submits with its response ; cf. ibid., pp. 11‑12.
                        47 Ibid., pp. 13‑21.

                     73

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                     are nomads and semi‑nomads located in the border area and in the
                     region ; (b) the nomadic populations move across the areas where any of
                     the frontiers claimed by the Parties would be located ; (c) the Parties are
                     willing and are bound (by their membership in regional organizations and
                     by their bilateral engagements), to continue to guarantee free movement
                     to the nomadic populations.

                        47. In this light, any frontier to be determined does not seem likely to
                     have an impact on the population, as long as both States continue to
                     guarantee the free movement to the nomads and semi‑nomads, and their
                     living conditions do not change as a consequence of the fixing of the fron-
                     tier (by the Court). It is important, in this connection, that the Judgment
                     makes use of the extensive information now available in the case file and
                     refers to the guarantees both States have given that they will not curtail
                     the living conditions of the nomads and semi‑nomads of the region.

                        48. As to the question relating to villages which are susceptible to be
                     affected by the frontier, each Party claims, according to the responses
                     provided by Niger (as Burkina Faso practically evaded the question,
                     without providing much information in this regard), taking the claims of
                     Niger at face value, there appear to be many Niger villages that would be
                     on Burkina Faso’s side were the Court to adopt a straight line between
                     Tao and Bossébangou (i.e., as proposed by Burkina Faso). Furthermore,
                     it is to be noted that Niger made the distinction in its response between
                     villages that in its view have always belonged to Niger and should con-
                     tinue so, and villages that have a Nigerien population but that it does not
                     claim to be on Niger’s side.

                       49. This is a point which was not entirely clear before. Niger provided
                     specific (and helpful) co‑ordinates for most villages to which it refers,
                     which is very helpful to locate these villages in a map. Yet, there remains
                     a question which the Parties’ responses did not clarify entirely : whether
                     there is sufficient evidence in the case file that these villages have been as
                     Niger claims Nigerien. Niger, in its response, limits itself to providing the
                     names and co‑ordinates of villages it claims to be Nigerien (and maps to
                     this effect), without however providing evidence that these villages are
                     indeed Nigerien. The next question to consider is that of the possible
                     courses of the frontier in the area between Tao and Bossébangou, where
                     most villages are located.

                        50. The area between the Tao astronomic marker and Bossébangou, in
                     particular, seems to be the most complex portion of the frontier to be
                     determined. This is so because first, the text of the Erratum is not entirely
                     clear in its description of the course of the frontier. Secondly, another dif-
                     ficulty of determining the frontier in this area concerns the presence of
                     villages located near the border and claimed by Niger. I propose thus to
                     share some reflections concerning this section of the frontier, in light of

                     74

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                     the responses of the Parties previously discussed. My observations are
                     informed by the principle that the territory exists for the people that
                     inhabit it.
                        51. The responses of the Parties were necessary in order to form a clear
                     opinion on the border in this area, where the majority of concerned villages
                     are located. As to methodology, the point of start should be the Erratum.
                     In this regard, however, the text of the Erratum does not appear entirely
                     clear as to the course of the frontier in this area (except concerning the end-
                     ing point, which the text is clear that the line “reach[es] the River Sirba at
                     Bossébangou”). It gives some indications (frontier points, direction, and
                     that the line “turns”) ; yet, these indications of the Erratum do not necessar-
                     ily lead to a straight line on the basis of the text of the Erratum.
                        52. Thus, as the text of the Erratum is not by itself clear as to the fron-
                     tier line, other elements of the case file — which do not seem to clarify
                     further the exact course of the frontier — need to be assessed to interpret
                     the text of the Erratum. As to the top part of the frontier between Tong-
                     Tong to Tao, both Parties propose a straight line, there appearing to exist
                     enough elements to justify it, connecting Tong-Tong and Tao.

                        53. It is the area between Tao and Bossébangou, as already stated, that
                     is the more complex one, in particular due to the presence of villages. On
                     the basis of the clarifying responses of the Parties concerning the villages
                     in question, many villages seem to be susceptible to be affected by the
                     frontier if a straight line were to connect the Tao astronomic marker and
                     the Bossébangou area. Recourse can thus be made, in my view, to the line
                     of the 1960 IGN map (given the insufficiency of the Erratum to determine
                     the course of the frontier — supra), pursuant to the 1987 Agreement.

                        54. As to the part of the frontier between Tao and Bossébangou, the
                     text of the Erratum does not appear entirely clear in its description. It
                     gives some indications (frontier points, direction) ; yet it does not state the
                     shape of the line. It is, however, clear that the line should reach the River
                     Sirba at Bossébangou (the ending point of this section of the frontier). In
                     face of a text that is not entirely clear, it is necessary to have recourse to
                     other elements of the case file, so as to interpret the text in an attempt to
                     clarify its meaning. As to the bottom part of the section of the frontier
                     (from Tao to Bossébangou), if the text of the Erratum and the elements
                     of the case file do not appear sufficient to clarify the meaning of the text,
                     it would thus appear necessary to have recourse to the 1960 IGN map to
                     determine the course of the frontier.

                                       VIII. Some Remarks on the Tracing
                                      of the Frontier Line in the IGN Map

                        55. Reference has already been made to the line of the map (1960 edition)
                     of the Institut géographique national de France (IGN) in the factual context

                     75

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                     of the present case (supra). In effect, the IGN map had already drawn the
                     attention of the ICJ Chamber in the earlier case of the Frontier Dispute
                     between Burkina Faso and Mali (Judgment of 22 December 1986, para. 61).
                     The Chamber expressly referred to one of the documents in the dossier of
                     that case, namely, a Note of 27 January 1975, compiled by the IGN, on the
                     positioning of the frontiers on the maps (para. 61). In its Judgment, the
                     Chamber quoted only an extract of that Note ; its full text is in the archives
                     of this Court. In effect, having researched on the archives of the ICJ, bearing
                     in mind the present case between Burkina Faso and Niger, I have found out
                     that there are some other related and supporting documents (pertaining to
                     the previous Frontier Dispute between Burkina Faso and Mali, 1986), of
                     pertinence and relevance for the adjudication of the cas d’espèce 48.
                        56. For example, one such document of the IGN (letter of 24 June 1975)
                     expressly refers to difficulties in the tracing of frontiers, solved, on most
                     occasions, with the obtaining of information provided in loco to the
                     “opérateurs sur le terrain” by the “chefs des circonscriptions frontalières,
                     les chefs de villages et les populations locales” 49. In this way, local popu-
                     lations and their representatives gave their contribution to the tracing of
                     the frontiers in the region they lived, as set in the IGN map, — as the
                     documentation of the previous Frontier Dispute between Burkina Faso
                     and Mali, kept in the archives of this Court, indicates.

                        57. In the course of the proceedings (written and oral phases) of the
                     present Frontier Dispute case between Burkina Faso and Niger, the point
                     was stressed by Niger. Thus, in its Counter-Memorial (of January 2012),
                     Niger observes that, from the cartographical standpoint, the 1960 IGN
                     map rests on “solid technical bases”, being as complete as “knowledge of
                     occupation on the ground allowed. [T]he indications of the boundaries
                     are based on information obtained from the local authorities”
                     (para. 1.1.32).
                        58. In its oral argument in the public sitting before the Court
                     of 11 October 2012, Niger added that the 1960 IGN map, prepared “at
                     the dawn of decolonization”, was the one to be relied upon. After all, it
                     was compiled, as far as possible, not only on the basis of “detailed topo-
                     graphical surveys”, but also on the basis of “information provided by the
                     local authorities on the boundaries of their cantons”. In its view, all those
                     elements, “garnered on the eve of independence”, were therefore “highly
                     relevant” 50.

                         48 Namely, besides the aforementioned Note of 27 January 1975 (doc. D/134), the

                     following ones : (a) letter of 31 January 1975, accompanying the aforementioned Note
                     (doc. D/135) ; (b) document (D/136) of 25 February 1975 (on the insufficiency of the
                     Arrêté and the Erratum) ; (c) telegram of 9 June 1975 (on the need of observation in loco,
                     doc. D/137) ; (d) letter of 24 June 1975 (doc. D/138), on information obtained in loco ; and
                     (e) letter of 5 September 1978 (doc. D/139), on the need of new cartography.
                          49   Doc. D/138, p. 3, para. 4.
                          50   CR 2012/22, of 11 October 2012, p. 30, para. 17.

                     76

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                       59. Furthermore, again in its Counter-Memorial, Niger retorted the
                     usual argument that its frontier with Burkina Faso, like other frontiers in
                     the African continent, had a rather “artificial and arbitrary” character.
                     Niger dismissed this argument by remarking that
                             “It is of course well known that the colonial powers, particularly
                          in Africa, did have recourse to straight lines of an artificial and arbi-
                          trary character in drawing the boundaries of colonial territories. This
                          was the case across deserts, uninhabited regions and regions that
                          remained unexplored before or after conquest. One needs only to
                          think of the boundaries of Western Sahara, Mauritania, Algeria,
                          Libya, Chad, etc., to cite just a few examples. [P. 13.]

                            However, this is not at all the case in respect of the boundaries
                          concerned here. The circumstances in which the boundary between
                          Niger and Upper Volta was established reveal, on the contrary, a true
                          concern to respect local inhabitants and pre‑existing administrative
                          divisions. The historical context and map archives prove this.”
                          (Para. 1.1.7.)
                       60. Also in relation to the present case, Niger further stated in the
                     Counter-Memorial that
                            “It was thus not a question of drawing (straight or curved) geo
                          metric lines through unknown regions, but rather of incorporating
                          pre‑existing cantons into the territory of one colony or the other. The
                          areas comprising these cantons — inhabited by indigenous peoples
                          and consisting of villages, crop and pastureland, and nomad routes —
                          did not in principle follow abstract lines, but were based on land
                          occupation and followed the configuration or nature of the ground.”
                          (Para. 1.1.15.)
                        61. In sum, in my perception, in the area between the Tao astronomic
                     marker and Bossébangou, the IGN line appears, from the perspective of
                     the relations between people and territory, as the appropriate one. All
                     evidence available in the dossier of the present case, as well as in the
                     archives of this Court, points to the fact that the IGN line was drawn
                     taking into account the consultations undertaken in loco by IGN cartog-
                     raphers with village chiefs and local people 51.
                        62. People and territory stand together ; it is clear, in contemporary jus
                     gentium, that territorial or frontier disputes cannot be settled making
                     abstraction of the local populations concerned. As it can be seen
                     (cf. sketch-map No. 2, p. 119), the IGN line, and indeed the course of the
                     frontier determined by the Court in the cas d’espèce in the area between
                     the Tao astronomic marker and Bossébangou, cuts across the width of

                        51 Cf., to this effect, e.g., case of the Frontier Dispute (Burkina Faso/Republic of Mali),

                     Judgment, I.C.J. Reports 1986, pp. 585‑586, para. 61.

                     77

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                     the areas of population movements today in a balanced way, equitably
                     within the orbit of their present‑day movements’ areas.

                                       IX. The Human Factor and Frontiers

                        63. It ensues from all the aforesaid that, in circumstances of the kind
                     of the present case, or of inhabited territories in general, people and terri-
                     tory go together (cf. Part XI, infra). In the case of nomadic peoples, in
                     distinct regions of the world, it has been observed that nomads “have
                     become the prisoners of an annual climatic and vegetational cycle (. . .).
                     They have not, indeed, passed across the stage of the histories of civiliza-
                     tions without having left their mark.” 52 This has been pondered by
                     Arnold J. Toynbee, in his masterful, if not epic, 10-volume A Study of
                     History (1934‑1957). He then added that

                          “in spite of (. . .) occasional incursions into the field of historical
                          events, Nomadism is essentially a society without a history. Once
                          launched on its annual orbit, the Nomadic horde revolves in it there-
                          after and might go on revolving forever if an external force against
                          which Nomadism is defenceless did not eventually bring the horde’s
                          movements to a standstill and its life to an end. This force is the
                          pressure of the sedentary civilizations round about.” 53

                        64. May I add, in this respect, that this may happen to any commu-
                     nity, in any part of the world, for example, those who have lived on agri-
                     culture for generations and then decide to migrate into (new) industrialized
                     centres, in the quest for, or illusion of, a “better” life. Furthermore, as the
                     present case illustrates, nomadic, semi‑nomadic and sedentary peoples
                     may co‑exist harmoniously in the same region. In any case, it is not sur-
                     prising to me to find learned historians of the twentieth century (such as
                     Arnold J. Toynbee and F. Braudel, among others) approaching their dis-
                     cipline from the outlook of lifecycles, or, in a longer‑time scale, of cul-
                     tural cycles.

                        65. Nomads may not have a history of big events, but they surely have
                     their history, their modus vivendi, projected in time immemorial. History
                     is included in civilization, which, in Fernand Braudel’s outlook, further
                     requires, in order to be understood, the combined endeavours of all
                     the social sciences, and encompasses climate, vegetation, animal species,
                     natural or other elements ; it, moreover, comprises and considers what
                     the human beings concerned have made of such basic conditions as “agri-

                       52 A. J. Toynbee, A Study of History (abridged by D. C. Somervell), Oxford/London,

                     Oxford University Press, 1960 [reimpr.], p. 169.
                       53 Ibid., p. 169.

                     78

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                     119 	      frontier dispute (sep. op. cançado trindade)
                             Separate Opinion of Judge Cançado Trindade: Sketch Map 2:
                                 COURSE OF THE FRONTIER AS DECIDED BY THE COURT
                              This sketch map has been prepared for illustrative purposes only

                     79

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                     120 	          frontier dispute (sep. op. cançado trindade)

                     culture, stock‑breeding, food, shelter, clothing, communications, industry
                     and so on” 54. One can then identify the “underlying structures” of civili-
                     zations, namely, “religious beliefs, family life, attitudes towards life and
                     death, timeless peasantry, attitudes towards work and leisure” 55.

                        66. Nomadic groups constitute one of the most ancient forms of com-
                     munity, as aptly recalled by Toynbee. He added that nomadic shepherds
                     move or displace themselves in a “fixed annual orbit” ; they have never
                     been able to become “technologically or economically independent” from
                     the type of community or society they came from 56, nor did they seem to
                     have wanted to become so. He further observed that the members of
                     those ancient agricultural communities never broke up into serious con-
                     flict with each other, nor even with their more distant neighbours 57.
                        67. Another learned historian (and anthropologist) of the last century,
                     the Senegalese scholar Cheikh Anta Diop, in one of his thoughtful mono-
                     graphs, L’unité culturelle de l’Afrique noire (1959), pondered that seden-
                     tary and nomadic ways of life (in distinct regions) have led to two distinct
                     types of family life (matriarchal and patriarchal) and to distinct organiza-
                     tions of social collectivities, leading later to distinct forms of State 58.
                     Nomadic life soon disclosed needs of its own, and everything seemed
                     linked to the earlier conditions of existence (and survival), with the notion
                     of justice only emerging later on, in time perspective ; distinct social ideas
                     derived from nomadic and sedentary ways of life 59.

                        68. Cheikh Anta Diop added that private law emerged first, and only
                     much later on, with the passing of time, public law was to take its place
                     in order to regulate social relations, then followed by the rise of the States,
                     marked by the séquelles of the earlier historical periods 60. As observed,
                     for his part, by the archaeologist Félix Sartiaux in 1938, in ancient times
                     nomadic populations exerted influence upon sedentary populations ; the
                     two forms of modus vivendi (pastoral life and agriculture) were to co‑exist,
                     and, with the passing of time, sedentary populations gained increasing
                     importance and were to influence others 61.
                        69. Yet — as the present case bears witness of — nomadic populations
                     never vanished, and their way of life and their spirit survive nowadays,

                        54 F. Braudel, A History of Civilizations, N.Y./London, Penguin Books, 1995, pp. 9‑10,

                     and cf. pp. 18 and 25.
                        55 Ibid., p. 28.
                        56 A. J. Toynbee, Le changement et la tradition, Paris, Payot, 1969, pp. 33‑34 and 73.
                        57 Ibid., p. 119.
                        58 Cheikh Anta Diop, L’unité culturelle de l’Afrique noire [1959], 2nd rev. ed., Dakar/

                     Paris, Ed. Présence africaine, 1982, pp. 135‑136.
                        59 Ibid., pp. 150, 152, 154 and 167, and cf. pp. 185‑186.
                        60 Ibid., pp. 139‑140.
                        61 F. Sartiaux, La civilisation, Paris, Libr. A. Colin, 1938, pp. 40‑42, 72‑73 and 182.

                     80

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                     “in the agitation and disquiet of modern times” 62. In my perception, even
                     in the determination of frontiers in regions inhabited by human groups of
                     such dense cultural features, one should not simply draw entirely and
                     admittedly “artificial” lines, overlooking the human element ; the central-
                     ity, in my view, is of human beings.

                     X. Admission by the Parties that They Are Bound by Their Pledge
                            to Co‑operation in Respect of Local Populations

                        70. In the present Judgment on the Frontier Dispute case between
                     Burkina Faso and Niger, the Court has expressed “its wish” that each
                     Party has due regard to the needs of the population concerned, in par-
                     ticular those of the nomadic or semi‑nomadic populations (para. 112).
                     This is very reassuring. In effect, the contending Parties themselves have,
                     in response to my questions, indicated that they regard themselves bound
                     to do so, by virtue of their acknowledgment of their duty of co‑operation
                     in respect of local populations (in particular nomadic and semi‑nomadic
                     ones), as manifested in multilateral African fora, as well as in bilateral
                     agreements, conforming the régime of transhumance (with freedom of
                     movement of those local populations across their borders).

                                             1. In Multilateral African Fora
                        71. In their responses to questions I have deemed it fit to put to both
                     of them at the end of the public sittings before this Court, on 17 Octo-
                     ber 2012, Burkina Faso points out, together with Niger, that both States
                     are parties to numerous regional co‑operation and integration organiza-
                     tions establishing freedom of movement of populations, goods and ser-
                     vice, as well as the right of residence and establishment 63. Burkina Faso
                     refers, in this regard, to the Economic Community of West African States
                     (ECOWAS), the West African Economic and Monetary Union
                     (WAEMU), the Permanent Interstate Committee for Drought Control in
                     the Sahel (CILSS), the Liptako-Gourma Integrated Development Author-
                     ity (LGA), the Niger Basin Authority (NBA) and the Conseil de l’entente.

                        72. As to the ECOWAS, in explaining the nature of the organization,
                     Burkina Faso notes in particular its objective of suppressing obstacles to
                     the free movement of people, goods and services, as well as the right of
                     residence. Burkina Faso contends that the Heads of State and Government

                          62
                           F. Sartiaux, La civilisation, Paris, Libr. A. Colin, 1938, p. 73.
                          63
                           Replies of Burkina Faso and Niger to the Questions Put by Judge Cançado Trindade
                     at the End of the Public Sitting Held on 17 October 2012, doc. of 16 November 2012,
                     paras. 18‑19.

                     81

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                     of ECOWAS adopted Protocol A/P.1/5/79, in Dakar, on 29 May 1979 64,
                     on freedom of movement of persons, the right of residence and establish-
                     ment in the ECOWAS area, which reasserted and clarified the details of the
                     freedom of movement of persons as well as the right of residence and estab-
                     lishment. In this regard, it also invokes Protocol A/P.3/5/82, of 29 May 1982,
                     on the definition of community citizenship 65.
                        73. Moreover, it cites other documents of the ECOWAS concerning
                     the free circulation of persons 66. Burkina Faso further argues that free-
                     dom of movement is accorded to nomadism or cross‑border transhu-
                     mance, which is subject to a minimum amount of regulatory legislation 67.
                     Burkina Faso also notes that ECOWAS authorities have organized
                     awareness‑raising and outreach seminars, and workshops concerning
                     freedom of movement, residence and establishment within the ECOWAS
                     member States 68.

                        74. As to the West African Economic and Monetary Union (WAEMU),
                     in recalling that it is a regional economic and monetary union composed
                     of eight West African countries, Burkina Faso notes, in particular, that
                     its objective is to create a common market based, inter alia, on the free
                     circulation of people, goods, services, capitals, and the right of establish-
                     ment of people conducting an independent or paid activity, as well as
                     external tariff and a common trade policy. Burkina Faso further claims
                     that several texts issued by the Conference of the Heads of State and
                     Government, the Council of Ministers, the Commission and the President
                     of the Commission, supplement and further clarify the nature and scope
                          64   Burkina Faso’s Response to the Questions Put by Judge Cançado Trindade, Annex 2.

                          65
                           Ibid., Annex 3.
                          66
                           Namely, Supplementary Protocol A/SP.1/7/85, signed in Lomé, on 6 July 1985, on
                     the code of conduct for the implementation of the Protocol on free movement of persons,
                     the right of residence and establishment ; Decision A/DEC.2/7/85, of 6 July 1985, on
                     the establishment of the ECOWAS travel certificate for member States ; Supplementary
                     Protocol A/SP.1/7/86, signed in Abuja, on 1 July 1986, on the second phase (right of resi-
                     dence) of the Protocol on free movement of persons, the right of residence and establish-
                     ment ; Supplementary Protocol A/SP.2/5/90, signed in Banjul, on 29 May 1990, on the
                     implementation of the third phase (right of establishment) of the Protocol on free move-
                     ment of persons, right of residence and establishment ; Decision A/DEC.2/5/90, adopted
                     in Banjul, on 30 May 1990, establishing a residence card in the ECOWAS member States ;
                     Decision C/DEC.3/12/92, adopted in Abuja, on 5 December 1992, on the introduction of
                     a harmonized immigration and emigration form in the ECOWAS member States ; and the
                     adoption of the ECOWAS Embarkation and Disembarkation Form, used by the airport
                     police services of the various ECOWAS member States.
                        67 Burkina Faso cites, in this regard, the Decision A/DEC.5/10/98, of 31 October 1998,

                     regulating transhumance between the ECOWAS member States, and the Regulation C/
                     REG.3/01/03 on the implementation of the regulation of transhumance between the
                     ECOWAS member States, submitted as Annexes 4 and 5 of Burkina Faso’s Response.
                        68 Burkina Faso’s Response to the Questions Put by Judge Cançado Trindade,

                     paras. 20‑30.

                     82

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                     of the freedom of movement and the right of establishment and residence
                     in the WAEMU area 69.
                        75. As to the Permanent Interstate Committee for Drought Control in
                     the Sahel (CILSS), Burkina Faso points out that a transhumance agree-
                     ment has been concluded among its member States 70. And as to the Con
                     seil de l’entente, Burkina Faso refers to the free movement of people and
                     goods, the right of residence and of establishment (recognized in Article 2
                     and 3 of the Charter of the Conseil), and to a Protocol of Agreement
                     adopted by member States in 1989 relating to an international transhu-
                     mance certificate in the Conseil member States, and highlighting transit
                     through the entry and exit points established by the States and the health
                     protection and security conditions to cross borders 71.
                        76. As to the Liptako-Gourma Integrated Development Authority
                     (LGA), in recalling that it is a sub‑regional organization composed of
                     Burkina Faso, Mali and Niger (created by a Protocol of Agreement,
                     signed in Ouagadougou on 3 December 1970), Burkina Faso remarks
                     that this institution is the most active on the ground concerning nomadic
                     populations of member States and transhumance movements. It further
                     claims that LGA, in partnership with the ECOWAS (financial develop-
                     ment partners), non‑governmental organizations (NGOs) and profes-
                     sional agro‑pastoral organizations and associations, organized a regional
                     workshop on the findings of a study concerning existing legislation gov-
                     erning transhumance in the Organization’s member States 72.
                        77. For its part, in response to a question I have deemed it fit to put to
                     the two contending Parties, on 17 October 2012, at the end of the public
                     sittings before this Court, Niger refers to ECOWAS Decision A/
                     DEC.5/10/98, of 31 October 1998, which purports to regulate transhu-
                     mance between ECOWAS member States, in the “communitarian space”
                     (preamble). The Decision 73 provides, inter alia (Article 3), that
                             “The crossing of terrestrial frontiers for purposes of transhumance
                          is authorized between all countries of the Community for bovine,
                          ovine, caprine, cameline and asine species under the conditions laid
                          down in the present Decision. (. . .)”
                        78. To regulate transhumance harmoniously — it proceeds — an
                     ECOWAS certificate, with public health indications (Article 5), provides
                     for the protection of the rights of the “beneficiaries of transhumance”, as
                     set forth in Article 16, which states that
                            “Transhumant pastoralists who have lawfully been admitted to the
                          country shall be entitled to the protection of the authorities in the

                        69 Burkina Faso’s Response to the Questions Put by Judge Cançado Trindade,

                     paras. 31‑34.
                        70 Ibid., paras. 35‑36.
                        71 Ibid., paras. 37‑40.
                        72 Ibid., paras. 41‑46.
                        73 Niger’s Response to the Questions Put by Judge Cançado Trindade, Annex A.

                     83

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                               host country, and their basic rights shall be guaranteed by the judicial
                               institutions of the host country. (. . .)”
                        79. Furthermore, Niger refers to the general report on the Consulta-
                     tion Meeting on Cross‑Border Transhumance, held in Dori, Burkina Faso,
                     on 19‑20 December 2002. The report 74 was prepared following that meet-
                     ing, on animal transhumance, which gathered ministers “responsible for
                     animal husbandry”, from ECOWAS member States, held in Ouagadou-
                     gou, Burkina Faso, on 9‑10 October 2002.

                                                  2. In Bilateral Agreements
                        80. In response to a question I have deemed it fit to put to the contend-
                     ing Parties at the end of the public sittings before this Court, on 17 Octo-
                     ber 2012, Burkina Faso further adds that the two States have developed
                     bilateral relations concerning this question. In this regard, Burkina Faso
                     cites the 1964 Protocol of Agreement which recognized the free move-
                     ment of populations and it also asserts that the two States have never
                     ceased to co‑operate to further improve and facilitate the conditions and
                     modalities of free circulation of people and transhumance movements.
                     Burkina Faso concludes that the frontier will not affect the nomads par-
                     ticularly since both States’ membership in regional integration and
                     co‑operation institutions recognizes the freedom of movement and resi-
                     dence rights to the populations 75.
                        81. For its part, Niger states, in its response to my question, that
                                 “As regards the future, the free movement of persons and goods
                               between the two States will remain safeguarded under the conventions
                               binding the two States within a bilateral framework and under inter-
                               national agreements establishing freedom of movement and free
                               access to natural resources between member States.” 76
                        82. The admission by the contending Parties, that they are bound by
                     their pledge to co‑operation — at multilateral and bilateral levels — in
                     respect of local populations, is, in my perception, very significant indeed.
                     However harmonious human relations might be in the interior of nomadic
                     and semi‑nomadic communities (cf. supra), it is not surprising to find that
                     their relations with the public power of the State may at times disclose
                     tension and some degree of mistrust 77. Yet, this seems also to be sur-
                     mountable, and renders it much to the credit of both Burkina Faso and
                     Niger to have found the way to establish a régime of transhumance and a
                     true “system of solidarity” (cf. infra), so as to fulfil the needs of the local

                          74
                           Niger’s Response to the Questions Put by Judge Cançado Trindade, Annex B.
                          75
                           Burkina’s Faso’s Response to the Questions Put by Judge Cançado Trindade,
                     paras. 47‑52.
                        76 Niger’s Response to the Questions Put by Judge Cançado Trindade, p. 6.
                        77 For a recent account, cf. inter alia, e.g., B. Oumarou, Pasteurs nomades face à l’Etat

                     du Niger, Paris, L’Harmattan, 2011, pp. 69‑74, 168‑175, 198‑206 and 215‑216.

                     84

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                     populations (and to preserve their modus vivendi, whether nomadic,
                     semi‑nomadic or sedentary), within themselves and in their international
                     relations.

                                              3. The Régime of Transhumance
                       83. Besides transmitting to the Court important elements such as the
                     ones reviewed in the present separate opinion (supra), the two contending
                     Parties, also in their responses to the questions I have deemed it fit to put to
                     both of them at the end of the public sittings before this Court, on 17 Octo-
                     ber 2012, added some thoughts which leave no doubt as to their clear pledge
                     to co‑operation with regard to the living conditions of the population over
                     the territory at issue. Thus, in this respect Burkina Faso ponders that
                          “it is the practice of nomadism in Africa and, more generally, the
                          movement of pastoralists and their herds as part of transhumance
                          (. . .), which led Niger and Burkina, once they had achieved independ-
                          ence, to undertake to facilitate the freedom of movement on either
                          side of the frontier” 78.
                        84. Burkina Faso assures that the living conditions of the local popula-
                     tions will not be affected by the tracing of the frontier line between itself
                     and Niger. In its own words,
                             “[C]ommunity law in West Africa, as deriving from the legal pro-
                          visions of the instruments establishing the sub‑regional organizations
                          which Burkina Faso and Niger have joined, and as deriving from the
                          regulatory instruments of the organs of those organizations, as well
                          as the practices followed or observed by the States of the sub‑region,
                          Burkina Faso is in a position to respond that the frontier line between
                          Burkina Faso and Niger will not affect the life or fate of the nomadic
                          populations living on either side of the border.” 79
                       85. For its part, in basically the same general line of thinking, Niger
                     contends that
                            “The current system of transhumance is as described hereafter. In
                          the absence of a precise frontier line, movements and access to natu-
                          ral resources on either side of the frontier are unrestricted under a
                          modus vivendi arrangement between the authorities of the two States,
                          which do not strictly apply the rules in force concerning the movement
                          of persons and livestock (requirement for an identity card, laissez‑
                          passer, vaccination certificate, etc.).” 80

                        78 Burkina Faso’s Response to the Questions Put by Judge Cançado Trindade,

                     para. 15. Burkina Faso adds that “the area frequented by nomads goes way beyond the
                     frontier zone” (para. 54) ; in referring to their free circulation between itself and Niger,
                     Burkina Faso adds that the “transhumance routes” correspond to the “zones currently
                     frequented by nomads” (para. 55).
                        79 Ibid., par. 52.
                        80 Niger’s Response to the Questions Put by Judge Cançado Trindade, p. 8.

                     85

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                        86. Despite not coinciding in their submissions as to the specific aspects
                     of the tracing of the frontier line, Burkina Faso and Niger agree as to the
                     assurance of freedom of movement of nomadic populations across their
                     borders. Thus, in its additional comments to the responses given by Niger
                     to the questions I put to both contending Parties at the close of the public
                     sittings before the ICJ, on 17 October 2012, Burkina Faso ponders, inter
                     alia, that
                          “it should be pointed out that both Parties agree that the rules in force
                          and effectively applied between the two States allow for — and widely
                          facilitate — cross‑border transhumance. Niger describes this as a
                          modus vivendi arrangement (. . .) : whatever its precise significance,
                          that expression does not give an accurate representation of the situa-
                          tion. As shown by Burkina Faso in its own reply 81, and confirmed by
                          the additional information given by Niger, the freedom of nomadic
                          movement and transhumance is established (and supported) by an
                          effective legal framework, which guarantees its continuity.” 82

                             XI. Population and Territory Together : Conformation
                                          of a “System of Solidarity”

                        87. All the aforementioned discloses that the two Parties, in response
                     to my questions, have confirmed their understanding of the conformation
                     of a régime of transhumance, described, by one of them, as a true “system
                     of solidarity”. The ICJ now sees that people and territory go together
                     (infra) ; the latter cannot make abstraction of the former, in particular
                     in cases of such a cultural density as the present one. After all, since the
                     time of its “founding fathers”, the law of nations (jus gentium) has
                     born witness of the presence of solidarity in its corpus juris, as we shall
                     see next.

                                    1. Transhumance and the “System of Solidarity”
                       88. May I single out, at this stage, a passage of the responses of
                     Burkina Faso to the questions that I put to both Parties at the end of the
                     public sittings before this Court, on 17 October 2012 ; in dwelling upon
                     the phenomenon of transhumance, Burkina Faso observes that

                        81 Burkina Faso’s Response to the Questions Put by Judge Cançado Trindade, paras.

                     17-52.
                        82 Written Comments of Burkina Faso on Niger’s Replies to the Questions Put by

                     Judge Cançado Trindade at the End of the Public Sitting Held on 17 October 2013, doc. of
                     23 November 2012, para. 4.

                     86

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                            “Transhumance is a traditional herding system based on longstand-
                          ing routes and itineraries which are still in use today. The volume of
                          movement varies in terms of both time and space, depending on the
                          year and more particularly, periods of drought. (. . .)

                             Livestock are moved in search of pasture, watering points and salt
                          licks. Those movements of livestock take no account of national fron-
                          tiers. Livestock movements are dependent solely upon nature, natural
                          resources and their capacity to feed their stock. (. . .)

                             The resources shared by herders are never appropriated by one
                          community to the detriment of another. All depend on the rainfall
                          and its vagaries ; no one knows in advance when fodder resource con-
                          ditions will fail. A system of solidarity, of tontine (mutual assistance)
                          exists, where each welcomes the other when the conditions are better
                          in his area, in the certainty of being welcomed in turn in other areas
                          when nature is more favourable there.” (Paras. 57‑59.)

                     After explaining that the radius of movement or displacement of the
                     nomadic populations depends on “the richness of the pasture, watering
                     points and salt licks, animal health conditions and commercial facilities”,
                     it concludes on this matter that Burkina Faso and Niger are, “at the same
                     time, and reciprocally, host and transit zones for livestock moving
                     between the countries” (para. 65).

                                           2. People and Territory Together
                        89. It is reassuring that, even a classic subject like territory, is seen
                     today — even by the International Court of Justice — as going together
                     with the population. In this respect, it should not pass unnoticed that, in
                     its Order of Provisional Measures of Protection (of 18 July 2011) in the
                     Request for Interpretation of the Judgment of 15 June 1962 in the Case
                     concerning the Temple of Preah Vihear (Cambodia v. Thailand), the ICJ
                     approached territory together with the (affected) population, and
                     ordered — in an unprecedented way in its case law — the creation of a
                     demilitarized zone in the surroundings of the aforementioned Temple
                     (near the borderline between the two countries).
                        90. In my separate opinion appended thereto, I observed that such
                     demilitarized zone seeks to protect not only the territory at issue, but also
                     the segments of the populations that live thereon 83. Beyond the classic
                     territorialist approach is the “human factor” ; this paves the way, I pro-
                     ceeded, for protecting, by means of such provisional measures, the right
                     to life of the members of the local populations as well as the spiritual
                       83 As well as a set of monuments situated thereon (conforming the Temple) which

                     nowadays integrate — by decision of UNESCO — the cultural and spiritual heritage of
                     humankind (I.C.J. Reports 2011 (II), pp. 588‑598, paras. 66‑95).

                     87

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                     128 	        frontier dispute (sep. op. cançado trindade)

                     heritage of humankind (paras. 96‑113). Underlying this jurisprudential
                     construction, I added, is the principle of humanity, orienting the search for
                     the improvement of the conditions of living of the societas gentium and
                     the attainment and realization of the common good (paras. 114‑115), in
                     the framework of the new jus gentium of our times (para. 117).

                       91. In my aforementioned separate opinion, I further pondered that
                     “the needs of protection of people comprise all their needs”, including
                     their modus vivendi, their “right to live with dignity” (para. 102), and I
                     added that
                             “Cultural and spiritual heritage appears more closely related to a
                          human context, rather than to the traditional State‑centric context ; it
                          appears to transcend the purely inter‑State dimension, that the Court
                          is used to. I have made this point also on other occasions, in the
                          adjudication of distinct cases lodged with the Court. For example,
                          two weeks ago, in the Court’s Order of 4 July 2011 in the case of the
                          Jurisdictional Immunities of the State (Germany v. Italy) (intervention
                          of Greece), I sustained, in my separate opinion, that rights of States
                          and rights of individuals evolve pari passu in contemporary jus gen
                          tium (I.C.J. Reports 2011 (II), pp. 506‑530, paras. 1‑61), to a greater
                          extent than one may prima facie realize or assume.

                             In any case, beyond the States are the human beings who organize
                          themselves socially and compose them. The State is not, and has never
                          been, conceived as an end in itself, but rather as a means to regulate
                          and improve the living conditions of the societas gentium, keeping in
                          mind the basic principle of humanity, amongst other fundamental
                          principles of the law of nations, so as to achieve the common good.
                          Beyond the States, the ultimate titulaires of the right to the safeguard
                          and preservation of their cultural and spiritual heritage are the col-
                          lectivities of human beings concerned, or else humankind as a whole.”
                          (I.C.J. Reports 2011 (II), p. 606, paras. 113‑114.)
                     After all — I concluded — “[c]ultures, like human beings, are vulnerable,
                     and need protection” in all their diversity, and such protection is “well in
                     keeping with the jus gentium of our times” (ibid., para. 117).
                        92. The ICJ’s 2011 decision in the case of the Temple of Preah Vihear
                     is not the only example to this effect. Reference could further be made to
                     a couple of other recent ICJ decisions acknowledging likewise the need to
                     take into account people and territory together. For example, earlier on,
                     in its Judgment (of 13 July 2009) on the Dispute relating to Navigational
                     and Related Rights (Costa Rica v. Nicaragua), the ICJ upheld the cus-
                     tomary right of fishing for subsistence (Judgment, I.C.J. Reports 2009,
                     p. 266, paras. 143‑144) of the inhabitants of both margins of the River
                     San Juan. Such fishing for subsistence was never objected to (by the
                     respondent State). And, ultimately, those who fish for subsistence are not
                     the States, but rather the human beings affected by poverty. The ICJ thus

                     88

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                     turned its attention, beyond strictly territorial inter‑State outlook, also
                     towards the affected segments of the local populations concerned. This
                     was reassuring, bearing in mind, in historical perspective, that States exist
                     for human beings, and not vice versa.

                        93. Shortly afterwards, in its Judgment (of 20 April 2010) in the case
                     concerning the Pulp Mills on the River Uruguay (Argentina v. Uruguay),
                     the ICJ, in examining the arguments and evidence produced by the par-
                     ties (on the environmental protection in the River Uruguay), took into
                     account aspects pertaining to the affected local populations, and the con-
                     sultation to these latter. I drew attention to this point in my separate
                     opinion (I.C.J. Reports 2010 (I), pp. 192‑207, paras. 153‑190), wherein I
                     pondered that, once again, it was necessary to go beyond the purely ter-
                     ritorial inter‑State dimension, and to take in due account the imperatives
                     of human health and the well‑being of the peoples concerned, the role of
                     civil society in environmental protection 84, as well as the emergence of the
                     obligations of objective character (beyond reciprocity) in environmental
                     protection, to the benefit of present and future generations.

                        94. In the present case of the Frontier Dispute between Burkina Faso
                     and Niger, the Court has taken yet another step in the right direction, to
                     the same effect of caring about the fulfilment of the needs of the popula-
                     tions concerned, in pointing out, in paragraph 112 of the Judgment just
                     delivered today, that
                             “Having determined the course of the frontier between the two
                           countries (. . .), as the Parties requested of it, the Court expresses its
                           wish that each Party, in exercising its authority over the portion of
                           the territory under its sovereignty, should have due regard to the
                           needs of the populations concerned, in particular those of the nomadic
                           or semi‑nomadic populations, and to the necessity to overcome diffi-
                           culties that may arise for them because of the frontier. The Court
                           notes the co‑operation that has already been established on a regional
                           and bilateral basis between the Parties in this regard, in particular
                        84 In that same separate opinion, I deemed it fit to recall that, before that case had

                     become an inter‑State dispute by the end of 2003, in its origins was the initiative, two
                     years earlier (end of 2001), of an Argentinean non‑governmental organization (NGO), of
                     expressing its preoccupation to an international entity (CARU), with a subject of consi-
                     derable public interest (the alleged environmental risks), affecting the local populations.
                     Subsequently, several NGOs (both Argentinean and Uruguayan) manifested themselves in
                     this respect. This disclosed the artificiality of a simply inter‑State outlook when one is faced
                     with challenges of public or general interest (such as those pertaining to environmental
                     protection).

                     89

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                     130 	           frontier dispute (sep. op. cançado trindade)

                           under Chapter III of the 1987 Protocol of Agreement, and encourages
                           them to develop it further.”

                                                3. Solidarity in the Jus Gentium
                        95. Working in a hectic and short‑sighted milieu of droit d’étatistes,
                     who can only behold State sovereignty (without knowing what it exactly
                     means), I feel that some words of caution and serenity are here called for,
                     in the light of the circumstances and lessons of the cas d’espèce. In his-
                     torical perspective, may I recall herein that the “founding fathers” of the
                     law of nations (in the sixteenth and seventeenth centuries) propounded a
                     universalist outlook (encompassing totus orbis), in a world marked by
                     diversification (of peoples and cultures) and by pluralism (of ideas and
                     cosmovisions), seeking thereby to secure the unity of the societas gentium.

                        96. The jus gentium they conceived was for everyone, all peoples, indi-
                     viduals and groups of individuals, as well as States (then, only then,
                     emerging), all “fractions” of humankind 85. They endeavoured to pave the
                     way for the prevalence of a true jus necessarium, transcending the tradi-
                     tional limitations of the jus voluntarium. The gradual and felicitous
                     encounter of scholastic knowledge with humanism propitiated further
                     perennial insights. This is, in my perception, an appropriate moment to
                     rescue herein a couple of them.

                       97. Thus, one of the most learned of the “founding fathers” of the law
                     of nations (droit des gens), Francisco Suárez, in Book II (on “The Eter-
                     nal Law, the Natural Law, and the Jus Gentium”) of his masterful De
                     Legibus, Ac Deo Legislatore (1612), in upholding the unity of the human
                     kind (wherefrom jus gentium emanates), singled out the “natural precept”
                     (praeceptum naturale) of mutual “affection and mercy” [solidarity] (mutui
                     amoris et misericordiae) 86, applying to everyone. There was awareness of
                     sociability and mutual interdependence as limits to State sovereignty, to
                     the benefit of the populations concerned, who stood in need of each other
                     and could hardly live (or survive) in an isolated way.

                       98. “Natural precepts” of the kind found expression by the force of
                     “natural reflection”, under the “pressure of necessity”, rather than as a

                         85 A. A. Cançado Trindade, “Totus Orbis : A Visão Universalista e Pluralista do Jus

                     Gentium : Sentido e Atualidade da Obra de Francisco de Vitoria”, 24 Revista da Academia
                     Brasileira de Letras Jurídicas — Rio de Janeiro (2008), No. 32, pp. 197‑212 ; Association
                     Internationale Vitoria‑Suarez, Vitoria et Suarez — Contribution des théologiens au droit inter
                     national moderne, Paris, Pedone, 1939, pp. 169‑170 ; A. Truyol y Serra, “La conception de
                     la paix chez Vitoria et les classiques espagnols du droit des gens”, in : A. Truyol y Serra and
                     P. Foriers, La conception et l’organisation de la paix chez Vitoria et Grotius, Paris, Libr. Philos.
                     J. Vrin, 1987, pp. 243, 257, 260 and 263 ; A. Gómez Robledo, “Fundadores del Derecho
                     Internacional — Vitoria, Gentili, Suárez, Grocio”, Obras — Derecho, Vol. 9, Mexico,
                     Colegio Nacional, 2001, pp. 434‑442, 451‑452, 473, 481, 493‑499, 511‑515 and 557‑563.
                         86 Chapter XIX, para. 9 ; and cf. Chapter XX, paras. 2‑3.

                     90

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                     131 	         frontier dispute (sep. op. cançado trindade)

                     result of “deliberate will”. After all, in the jus gentium, reason stands
                     above the will. The foundation of law lies in the recta ratio (evoking Cice-
                     ro’s De Legibus, 52‑43 bc), and solidarity and mutual interdependence are
                     always present in the regulation of the relations among the members of
                     the universal societas. In the words of F. Suárez himself,

                          “equity and justice must be observed in the precepts of the jus gentium.
                          For such observance is included in the essential character of every
                          true law (. . .) ; and the rules pertaining to the jus gentium are indeed
                          true law (. . .) ; it is impossible that these precepts of the jus gentium
                          should be contrary to natural equity.” 87
                     In sum, solidarity has always had a place in the jus gentium, in the law of
                     nations. And the circumstances of the cas d’espèce before the ICJ between
                     Burkina Faso and Niger bear witness of that today, in so far as their
                     nomadic and semi‑nomadic (local) populations are concerned.

                                            XII. Concluding Observations

                        99. The basic lesson I extract from the present case of the Frontier Dis
                     pute between Burkina Faso and Niger is that — as the present Judgment
                     of the ICJ shows — it is perfectly warranted and viable to determine a
                     frontier line keeping in mind the needs of the local populations. In the cas
                     d’espèce, the contending Parties themselves, disclosing a commendable
                     spirit of procedural co‑operation, have provided the Court with the ele-
                     ments needed for its determination, taking into account people and terri-
                     tory together. Both Burkina Faso and Niger have expressed their common
                     concern with the local populations (on both sides of their border and
                     constantly moving across it) in their arguments before the Court in the
                     written and oral phases of the proceedings. They have expressed their
                     common concern with the villages in the region, focusing on territory and
                     their inhabitants together.
                        100. Both Niger and Burkina Faso have referred to provisions of trea-
                     ties, as well as communiqués, after independence in 1960, likewise giving
                     expression to their common concern with the local populations. Signifi-
                     cantly, they have jointly admitted that they are bound by their pledge to
                     co‑operate in respect of local populations, as expressed in multilateral
                     African fora as well as at bilateral level, in respect of the régime of trans-
                     humance. They have made it clear that this latter amounts to a “system
                     of solidarity”, to be pursued, encompassing people and territory together.

                        101. The Court, for its part, has rightly expressed its wish that each
                     Party kept its attention to “the needs of the populations concerned, in

                       87 F. Suárez, Selections from Three Works — De Legibus, Ac Deo Legislatore (1612),

                     Vol. II, Oxford/London, Clarendon Press/H. Milford, 1944, p. 352.

                     91

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                     132 	          frontier dispute (sep. op. cançado trindade)

                     particular those of the nomadic or semi‑nomadic populations, and to the
                     necessity to overcome difficulties that may arise for them because of the
                     frontier” (para. 112). Moreover, as to the River Sirba in the area of
                     Bossébangou, the Court has pointed out that “the requirement concerning
                     access to water resources of all the people living in the riparian villages is
                     better met by a frontier situated in the river than on one bank or the
                     other” (para. 101). The ICJ has thus indicated, in the Judgment that it has
                     just adopted today on the Frontier Dispute between Burkina Faso and
                     Niger, that the age of resolving territorial disputes in the abstract, not tak-
                     ing into account the needs of local populations, is fortunately over.
                        102. The ghost of the outcome of the Berlin Conference (1885
                     onwards) 88 has at last vanished, and is no longer haunting Africa, with its
                     secular cultures. The complexities of African boundary problems 89 can-
                     not be reduced to the tracing simply of “artificial” straight lines every-
                     where. In the present case of the Frontier Dispute between Burkina Faso
                     and Niger, the ICJ has found that, in the area between the Tao astro-
                     nomic marker and Bossébangou, the IGN line was the one which consti-
                     tutes the course of their frontier. The IGN line in that area is indeed the
                     appropriate frontier line therein, for all the reasons that I have pointed
                     out in the present separate opinion, from the perspective of the relations
                     between people and territory.

                        103. The ICJ could have examined such relations to a far greater depth,
                     had it dwelt upon — as I think it should have done — more attentively,
                     the wealth of information on this matter (a dossier of 140 pages) transmit-
                     ted to it by the Parties in response to the questions I deemed it fit to put to
                     them at the end of the public sittings before the Court, on 17 October 2012.
                     In any case (keeping in mind that the optimum is enemy of the bonum), the
                     Court has moved a significant step ahead, in expressly acknowledging that
                     territorial problems, such as the one raised in the cas d’espèce, are to be
                     properly tackled taking into account the fulfilment of the needs of the
                     local (nomadic, semi‑nomadic and sedentary) populations.
                        104. Law cannot be applied mechanically ; the unending work of jurists
                     and magistrates appears to me — paraphrasing Isaiah Berlin 90 — like
                     swimming against the current, and consideration of frontiers cannot
                         88 Cf. N. J. Udombana, “The Ghost of Berlin Still Haunts Africa ! The ICJ Judgment

                     on the Land and Maritime Boundary Dispute between Cameroon and Nigeria”, 10 African
                     Yearbook of International Law (2003), pp. 13‑61. The Berlin Conference itself lasted
                     from 15 November 1884 to 26 February 1885.
                         89 Cf., inter alia, e.g., S. Tägil, “The Study of Boundaries and Boundary Disputes”,

                     in C. G. Widstrand (ed.), African Boundary Problems, Uppsala, Scandinavian Institute
                     of African Studies, 1969, pp. 22‑32 ; A. Allott, “Boundaries and the Law in Africa”, in
                     ibid., pp. 9‑21 ; A. C. McEwen, International Boundaries of East Africa, Oxford, Clarendon
                     Press, 1971, pp. 21‑27 and 285‑290 ; and cf. the well‑known monograph (of 1962) of the
                     agronomic engineer René Dumont, L’Afrique noire est mal partie, Paris, Seuil, 2012 [reed.],
                     pp. 7‑264 ; among others.
                         90 I. Berlin, Against the Current — Essays in the History of Ideas, N.Y., Viking Press,

                     1980 [reed.], pp. 1‑355.

                     92

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                     133 	        frontier dispute (sep. op. cançado trindade)

                     ignore or overlook the human factor. After all, in historical or temporal
                     perspective, nomadic and semi‑nomadic, as well as sedentary, popula-
                     tions have largely antedated the emergence of States in classic jus gentium.
                     This latter, the law of nations (droit des gens), cannot be reduced to the
                     inter‑State cosmos of the plaideurs of the great‑small world of the
                     Peace Palace here at The Hague and of the legal profession “specialized”
                     on inter‑State litigation and its idiosyncrasies.

                        105. The fact remains that States, in turn, are not perennial entities,
                     not even in the history of the law of nations. States were conceived, and
                     gradually took shape, in order to take care of human beings under their
                     respective jurisdictions, and to strive towards the common good. States
                     have human ends. Well beyond State sovereignty, the basic lesson to be
                     extracted from the present case is, in my perception, focused on human
                     solidarity, pari passu with the needed juridical security of frontiers. This is
                     in line with sociability, emanating from the recta ratio in the foundation
                     of jus gentium. Recta ratio marked presence in the thinking of the “found-
                     ing fathers” of the law of nations, and keeps on echoing in human con-
                     science in our days.

                                             (Signed) Antônio Augusto Cançado Trindade.

                     93

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