51

SEPARATE OPINION OF JUDGE AJIBOLA

I. INTRODUCTION

(i) Delimitation or Attribution

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

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

“to decide upon the limits of their respective ‘erritories in accordance
with the rules of international law applicable in the matter” (empha-
sis added);

while Chad in its own notification asked the Court to

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

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

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52 TERRITORIAL DISPUTE (SEP. OP. AJIBOLA)

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

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

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

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

(ii) African Boundary Problems

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

8. The colonial penchant for geometric lines (as exemplified by Lord
Salisbury’s “horseshoe”-shaped Tripolitanian hinterland), has left Africa
with a high concentration of States whose frontiers are drawn with little
or no consideration for those factors of geography, ethnicity, economic
convenience or reasonable means of communication that have played a

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

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53 TERRITORIAL DISPUTE (SEP. OP. AJIBOLA)

part in boundary determinations elsewhere. A writer on African bound-
ary problems has remarked:

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

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

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

10. Consequently, some African countries on gaining their indepen-
dence, especially in the 1950s and 1960s, began to question the ill-defined
boundaries that ignored so many human factors, whether social, political
or economic. Four countries then embarked upon irredentist policies,
namely Somalia, Morocco, Ghana and Togo. It is important to note that
at the time (1.e., before 1970) Libya was not among those countries. As a
result of this policy, which in effect questioned the existing “colonial”
boundaries and the resultant territorial partition, some major armed con-
flicts erupted in Africa between Somalia and Kenya, Ethiopia and Soma-
lia, Togo and Ghana, Morocco and Mauritania, Algeria and Morocco.

Il. Professor C. G. Weeramantry in the chapter on “Legacies of Colo-
nialism” in his book Equality and Freedom: Some Third World Perspec-
tives alluded to the partition of Africa as a classic example of these “arti-
ficial divisions” which ultimately resulted in “several dozen frontier

' Samuel Chime, Organization of African Unity and African Boundaries: African
Boundary Problems, 1969, p. 65.

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disputes” which have “flared up, some involving heavy fighting between
African Nations” !.
12. Another writer on African boundary problems described the issue

thus:

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

It was against this background that Libya’s claim fell to be understood.

Il. TERRITORIAL CLAIM BY LIBYA EXAMINED

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

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

“in the case of such territories the acquisition of sovereignty was not

' Equity and Freedom: Some Third World Perspectives, Hansa Publishers Ltd.,
June 1976, at p. 46.

2 A. Oye Cukwurah, “The Organisation of African Unity and African Territorial
and Boundary Problems, 1963-1973”, fmdian Journal of International Law, Vol. 13,
p. 178.

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generally considered as effected unilaterally through ‘occupation’ of
terra nullius by original title but through agreements concluded with
local rulers” (C.J. Reports 1975, p. 39, para. 80).

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

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

(i) Libya’s Territorial Claim and “Litigation Strategy”

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

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

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

18. Libya also suggested that geography provided a criterion for the
Court to consider especially the geographical features of the terrain. In
that connection it argued that the Court had the same discretion as a
demarcation commission to effect the establishment of a boundary de
novo where none existed, as allegedly in this case. As to religion, Libya
placed much emphasis on its connection with the Senoussi and the Mus-
lim Ottoman Empire, claiming that the northern part of Africa as well as

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the borderlands were predominantly Muslim, whereas to the south Chad
was populated by Christians and animists. With regard to the climatic
factor, Libya pointed out that, while the entire area of the borderlands
shared a desert climate and vegetation with Cyrenaica and Tripolitania,
the south of Chad enjoyed the Sudan climate, which is tropical in nature.

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

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

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

21. The 1935 Treaty did not enter into force formally because Italy
refused to proceed with the exchange of the instruments of ratification.
However, the argument of Libya was that this did not diminish the
Treaty’s importance or its relevance as an essential factor to be taken
into consideration in the settlement of the dispute before the Court. The
Parties disagreed as to who would have conceded territory to the other.
The argument of Libya was that Italy made such concessions to France in
return for a promise that the French would support the Italians’ conquest
of Ethiopia, and that it was the French refusal to keep to that agreement
that led to Italy’s refusal to exchange the instruments of ratification.

22. Chad claimed that it was France that in 1935 offered concessions
of territory to Italy, based on the “colonial concession” promised under
Article 13 of the London Treaty of 1915. However, that point is of less

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importance to the argument of Libya that the Court could take this
Treaty into consideration in arriving at a just and equitable decision.

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

“ce constat n’exclut nullement le recours à l’aequitas infra legem, qui
au contraire est toujours approprié, comme votre Cour l’a dit et
répété tant à propos des délimitations maritimes que des délimita-
tions terrestres” (CR 93/20, p. 40).

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

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

“To get half of Chad would be splendid, but really Libya would
be satisfied with everything north of the 1935 line. That line could
not be argued for as such, because of the non-ratification of that
Treaty. So the dispute would be turned into one about territory
rather than frontiers, large territorial claims would be made, and

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then on the very last day of the oral argument Libya would reinsert
the 1935 line as a species of equity.” (CR 93/21, p. 55, para. 63.)

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

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

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

‘On 8 December 1965 Norway and Denmark signed an agree-
ment concerning the delimitation of the continental shelf between
the two States.

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

Since, as noted above, the 1965 Agreement did not contain any spe-
cific exclusion of the Faroe Islands area, or of any other area, this
statement is consistent with an interpretation of the 1965 Agreement
as applying only to the region for which it specified a boundary line
defined by co-ordinates and a chart, 1.e., the Skagerrak and part of
the North Sea.” (4 CJ. Reports 1993, p. SI, para. 29.)

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

(ii) The Salient Questions

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

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59 TERRITORIAL DISPUTE (SEP. OP. AJIBOLA)
1. How much reliance could Libya now place on the 1935 Rome Treaty?

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

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

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

(iil) The Rome Treaty and Equity

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

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

(iv) Libya’s “No Conventional Boundary” Thesis

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

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conventional boundary stood or fell with the interpretation of the 1954
Treaty.

(v) Libya's Interpretation of the 1955 Treaty

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

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

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

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

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

“It is no longer either possible or desirable to modify the frontiers
of nations in the name of racial or religious criteria . . . if we were to
take as a criterion of our frontiers either race, tribe, or religion certain
States in Africa would be wiped off the map.” (Emphasis added.)

36. Take for example the Senoussi Order, whose grand patron hailed
from Algeria: the influence of this Order stretched across the whole of
Northern Africa, especially Algeria, Morocco and Egypt. The influence
of the Order also stretched to the south through the length and breadth
of the present Chad and beyond. As early as 1856 a Senoussi zawiya was
established in Kuka Bornou. The logical consequence of Libya’s claim
based on Senoussi title alone could involve the integration of about eight
nations altogether as one State in Africa. So much for religious and cul-
tural factors. Economic and geographical considerations would present

' ICAS Summit/Gen/Inf/14. p. 4; see also Boutros Boutros-Ghali, Les conflits de
frontières en Afrique, 1972.

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even more fluid and unreliable guides. Besides, they would often conflict
with findings drawn from considerations of an ethno-cultural nature.

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

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

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

III. CuHap’s CASE

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

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

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

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IV. THE 1955 TREATY AND THE STAND OF THE PARTIES

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

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

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

V. INTERPRETING THE 1955 TREATY

43. The Judgment of the Court dealt adequately with the interpre-
tation of Article 3 of the 1955 Treaty which I need not repeat in this
opinion, but 1 shall only touch on some areas of it which I think are
supportive of the Judgment.

(1) Object and Purpose of the 1955 Treaty

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

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

45. Mr. Kamel Maghur for Libya said that:

“When the negotiations that ultimately led to the 1955 Treaty

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

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

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

— that Libya should be considered to be a successor State to Italy
not to Turkey;

— that Libya’s southern boundaries were determined by the 1899
Anglo-French Additional Declaration, as modified by the
1919 Anglo-French Convention;

— that Italy had formally recognized the 1899 Additional Decla-
ration in the 1900-1902 Franco-Italian Accords; and

— that Libya could base no claim on the 1935 Treaty because
these accords ‘n'ont jamais été exécutés’.” (Ibid. ; emphasis added.)

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

“Les deux gouvernements conviennent de s’en tenir, en ce qui con-
cerne le tracé des frontières séparant les territoires français et libyen,
aux stipulations générales des textes internationaux en vigueur à la
date de la création de l'Etat libyen.” {Jbid., p. 375, para. 5.445.)

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

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

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

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

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

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

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

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

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it involves the issue of boundaries. Similarly, in the 1969 Vienna Conven-
tion on the Law of Treaties, Article 62, paragraph 2 (a), provides:

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

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

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

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

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

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

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

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

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

(ii) Integration Approach

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

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

(a) any agreement relating to the treaty which was made between
all the parties in connection with the conclusion of the treaty:

(b) any instrument which was made by one or more parties in con-
nection with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.” (Emphasis
added.)

60. Handling the interpretation of the 1955 Treaty under what is here
referred to as an integration approach cannot but touch on some of the
points earlier referred to under “object and purpose”, which I do not
intend to repeat. Again, it must be observed that each Party, in the pres-
entation of its case to the Court, submitted volumes of diplomatic docu-
ments, including correspondence, agreements, notes or procès verbaux,
and maps. These documents were effectively used during the oral pro-
ceedings. On the diplomatic documents relating to the period from Janu-
ary to August 1955, some important and pertinent observations can be
made. It may be appropriate to start from the Laval-Mussolini Treaty of
1935, which was in the limelight between 1935 and 1955. That Treaty
undoubtedly featured a boundary which gave Libya some advantage or
concession (even though this was disputed by Libya). It went with a map
which put the entire “Aouzou strip” within the territory of Libya. Even

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though the Treaty was signed it was not exchanged between the parties.
Italy refused to do so because it accused France of a breach of faith with
regard to what was agreed on the concession to be granted to Italy, in
connection with its colonies in Eritrea and Somalia.

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

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

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

64. Furthermore, contrary to the submission made during the oral
proceedings by Libya, France was not, in my opinion, absolutely happy
about the 1955 Treaty. The situation and circumstances of that period
gave a clear indication that France just had to swallow a bitter pill by
signing such an agreement. Reading all the relevant documents, it is clear
that what France wanted at the material time was not a treaty of friend-
ship and good neighbourliness, but a treaty of alliance with Libya like the
ones it signed with Britain in 1953 and the United States of America in

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1954. Take, for example, the Defence Committee of the French Union
which, while giving as part of its conditions for the ratification of the
1955 Treaty, stated as follows:

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

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

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

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

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

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

It was unfortunately impossible to accomplish that objective since
the Agreements signed in 1953 with Great Britain and the following
year with the United States, had amply provided our interlocutors
with the resources they needed and enabled them to disregard the
very modest quid pro quo we were able to propose to them in
exchange for a right of permanent occupation of Fezzan, where our
troops had been stationed since 1942.” (fbid., Exhibit 71, p. S017;
emphasis added.)

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

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69 TERRITORIAL DISPUTE (SEP. OP. AJIBOLA)

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

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

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

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

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

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

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

71. It is therefore my view that in order to establish an atmosphere of
peace and stability between the two nations, a clear and distinct delimi-
tation of their respective boundaries was a conditio sine qua non. Hence
the importance of Article 3 with Annex | of the 1955 Treaty, which in my
opinion clearly established a frontier as agreed to and never denied either
by Libya or France until recently (by Libya). If, on the other hand, one
considers the entire content of the negotiations that took place between
France and Libya before the signing of the 1955 Treaty on 10 August,

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there is no doubt whatsoever that both parties reached agreement to
establish a boundary between them as indicated in Article 3 of the Treaty.

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

“Tam asking for the final and unconditional evacuation of Fezzan
and J shall not go back on what has already been said.

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

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

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

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

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

76. There are some important points to be noted in the text of this
negotiation. In the first case, some of the words employed are similar, if
not the same, as those contained in the final text of Article 3 of the
1955 Treaty. Words like “frontier”, “territories”, “in force” and “inter-
national instruments” are common to both texts, which clearly shows
that Libya all along desired to negotiate an agreement on the frontier
issue. Furthermore, Libya agreed to “abide by” the general provisions of
the relevant international instruments. This clearly indicates that even
though Libya might before then have been nursing some doubts about
this particular frontier, it then agreed to stand by it. It should also be

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observed here that, unlike the final text of the 10 August 1955 Treaty, this
draft negotiation record referred to the “frontier line between the French
and Libyan territories”, which is a clear and unambiguous reference to the
southern boundary of Libya. About this time, a letter from one of the
French High Commissioners in French Equatorial Africa, Mr. Chauvet,
vividly demonstrated the way France wished to couple the evacuation of
French troops from Fezzan to the delimitation of the boundary to the
south of Libya. In his letter he advised as follows:

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

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

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

(ii) Good Faith

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

“establish conditions under which justice and respect for the obliga-
tions arising from treaties and other sources of international law can
be maintained”.

Furthermore, Article 2, paragraph 2, of the Charter enjoins:
“All Members, in order to ensure to all of them the rights and
benefits resulting from membership, shall fulfil in good faith the obli-

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gations assumed by them in accordance with the present Charter.”
(Emphasis added.)

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

“But from the Treaty results an obligatory relation whereby the
right of Great Britain to exercise its right of sovereignty by making
regulations is limited to such regulations as are made in good faith,
and are not in violation of the Treaty.”

81. The Permanent Court of International Justice also made many
pronouncements on the principle of good faith *. The Court applied it, in
the case concerning the Rights of Nationals of the United States of America
in Morocco, to the interpretation of Articles 95 and 96 of the Act of Alge-
ciras, pronouncing as follows: “The power of making the valuation rests
with the Customs authorities, but it is a power which must be exercised
reasonably and in good faith.” (4 C.J. Reports 1952, p. 212.)

82. If there is an obligation on the part of all the parties not to defeat
the object and purpose of a treaty prior to its entry into force (Article 18
of the Vienna Convention), the parties are a fortiori also under obligation
not to defeat such objects and purposes of a treaty when it has ultimately
entered into force. In fact, the original International Law Commission
draft of Article 18 of the Vienna Convention contained a provision, sub-
sequently discarded as unnecessary, that the parties to a treaty (after its
execution) must refrain from any act that may prevent its application +.

83. In final analysis, execution in good faith is essential to the protec-
tion of the “considerations” mutually granted by and between the parties
in a treaty, to use a term from the Law of Contracts in Common Law.
“Good faith” implies that all parties to a treaty must comply with and
perform all their obligations. They may not pick and choose which obli-
gations they would comply with and which they would refuse to perform,
ignore or disregard. Treaties like any agreement may contain obligations
“beneficial” or “detrimental” to a particular party or parties, neverthe-

IT. O. Elias, The Modern Law of Treaties, 1974, p. 41.

? United Nations, Reports of International Arbitral Awards (UNRIAA ). Vol. XI,
p. 188.

> Examples are (1) Treatment of Polish Nationals and Other Persons of Polish Origin
or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.1.J., Series A/B, No. 44,
p. 28; (2) Minority Schools in Albania, Advisory Opinion, 1935, P.C.LJ., Series A/B,
No. 64, pp. 19-20.

4 Yearbook of the International Law Commission, 1952, Vol. I, p. 7.

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less, all the obligations, whether executory or not, must be performed.
Hence Elias remarked further:

“Accordingly, performance in good faith means not only mere
abstention from acts likely to prevent the due performance of the
treaty, but also presupposes a fair balance between reciprocal obli-
gations.” !

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

“It is a cardinal principle of interpretation that a treaty should be
interpreted in good faith and not lead to a result that would be mani-
festly absurd or unreasonable. The interpretation by the Secretary-
General and by the Security Council of the provisions of the Statute
on the filling of casual vacancies in this case may be held up as an
illustration of an interpretation meeting this condition.” (Emphasis
added.)

85. A second look at the 1955 Treaty plainly indicates many obliga-
tions on the part of France to be performed which are all quite beneficial
to Libya and which were in fact performed. Some of these obligations are
contained in the Convention on Economic Co-operation and also
Annex V to the Treaty. In Annex VIII, for example, France transferred
to Libya:

“I. Those buildings, which were formerly Italian, together with the
buildings erected by the French forces (with the exception of the
group of buildings marked ‘G’ on the attached plan) shall be trans-
ferred to the full ownership of the Libyan authorities.” (Memorial of
Libya, Vol. 2, Exhibit 28, p. 15.)

86. This content of Annex VIII was replied to by Mustapha Ben
Halim on the same date — 10 August 1955, confirming “that the Gov-
ernment of Libya is in agreement with these proposals” (ibid). This

' Op. cit., p. 43.
? “The Election of Five Members of the International Court of Justice in 1981”,
76 American Journal of International Law, 1982, pp. 365-366.

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is a clear example where a part of the obligation and benefit contained in
the Treaty had been executed. One wonders why any other obligation
contained in the same Treaty should be treated differently. McNair
describes good faith as follows:

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

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

(iv) Travaux Préparatoires

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

(v) The Subsequent Acts of the Parties

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

“There shall be taken into account, together with the context:

! The Law of Treaties, 1961, p. 465.

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(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpre-
tation.”

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

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

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

92. The next international instrument to be considered is the
1966 Accord. It is the Treaty of Good Neighbourliness and Friendship
between the Republic of Chad and the United Kingdom of Libya. It is
significant to note that the Parties entered into this Accord when both of
them had secured their independence, Libya on 24 December 1951 and
Chad on 11 August 1960. It is equally important to note that before and
after Chad’s independence and even until the signing of this 1966 Accord,
Libya had never challenged nor protested the boundary line established
in the 1955 Treaty, neither did it claim that no boundary had been estab-
lished. On the contrary, there are all the indications in the 1966 Accord
that lend credence to the idea that Libya knew and accepted that the

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frontier between it and Chad had already been established. For example,
in the 1966 Accord the word “frontier” was mentioned seven times.
Reading through the Agreement as ratified, one finds an unequivocal
indication within the content of the Accord that both Parties were aware
of the establishment of their common frontier and that they intended to
keep to it where it had already been delimited. Articles | and 2 of the
Accord throw sufficient light on this fact.

“Article 1

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

Article 2

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

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

94. The last of the international acts is the notification of Chad to the
Court dated 3 September 1990. Here the argument of Libya is that since
Chad had included in it two other agreements, viz., the Protocol of
10 January 1924 and the Declaration of 21 January 1924, which were not
included in Annex 1 to Article 3 of the 1955 Treaty, the listing of such
international acts is not exclusive, and no boundary could possibly have
been established. This argument of Libya is contained in its Memorial at
paragraph 5.475. This, to me, is not an impressive argument at all. What-
ever Chad may attempt to add in a separate context to the list featured

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in Annex I, cannot ex Aypothesi form part of that Annex as attached
to Article 3. It is not necessary to read into Annex I or for that matter
Article 3, what is not contained therein. The Article as it stands, with
the six international instruments, sufficiently established the necessary
boundaries as intended by both parties. It is, therefore, not difficult for
me to conclude on this point that, notwithstanding contrary arguments,
the subsequent acts of the Parties support and confirm the frontiers as
indicated in Article 3, with its Annex I, of the 1955 Treaty.

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

VI. ESTOPPEL, ACQUIESCENCE, PRECLUSION AND RECOGNITION

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

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

97. Judge Sir Hersch Lauterpacht also expressed the view that absence

' “The Scope of Acquiescence in International Law”, British Year Book of Inter-
national Law, Vol. XXXI, 1954, p. 147.

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of protest may in itself become a source of legal right in relation to estop-
pel or prescription '.

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

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

Elias expressed a similar view thus:

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

99. In short, estoppel entails reliability, good faith, finality, stability
and consistency. As Judge Anzilotti once remarked, the silence main-
tained by a State may mean consent after a situation has been notified or
become generally known‘. Verykios confirmed the statement of Anzilotti
when he also remarked that it is generally admitted that long silence
maintained without reason is equivalent to consent *.

100. Recognition is also considered as an aspect of estoppel. It has
generally been admitted that every act of recognition creates an estop-
pelf. There are also provisions in the Vienna Convention on the Law of
Treaties of 1969 which give sufficient indication as to the justification and
legitimacy of these principles. For example, Article 45 deals with the loss
of right to invoke a ground for invalidating, terminating, withdrawing
from or suspending the operation of a treaty.

101. Article 45 states that such a right may be lost if by reason of the
conduct of a State it can be considered that it has acquiesced in the valid-
ity of the treaty or in its maintenance in force or in operation as the case
may be.

Î British Year Book of International Law, Vol. XXVIII, 1950, pp. 395-396.

2 The Law of Treaties, 1961, Chap. XXIX, p. 485.

3 The Modern Law of Treaties, 1974, p. 141.

4 Cours de droit international, 1929, p. 344.

5 La prescription et droit international, 1934, p. 26.

6 Schwarzenberger, “The Fundamental Principles of International Law”, Col-
lected Courses of the Hague Academy of International Law, 1955, Vol. 87, p. 253.

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

(i) Legal Status of Eastern Greenland!

103. In 1933, the Permanent Court of International Justice had to
decide on the issue of the Danish claim of sovereignty over Greenland.
The Court held that Norway could not object to the Danish claim
because the Norwegian official had previously made a statement which is
not consistent with such claim. The pronouncement of the Court was
clear:

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

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

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

105. It is in this case that the Court first pronounced on international
estoppel without actually saying so in 1951. Norway effected the delimi-
tation of its coastline along the North Sea which was objected to by the
United Kingdom, hence the filing of the Application by the latter. The
Court observed that Norway had consistently, for a period of over
60 years, been exercising such a right of delimitation without any protest
or the same being contested by the United Kingdom, who must have had

' Legal Status of Eastern Greenland, Judgment, 1933, P.C.LJ., Series A/B, No. 53,
22

p. 22.

2 LC.J. Reports 1951, p. 116. See also (1) Arbitral Award Made by the King of Spain
on 23 December 1906 (Honduras v. Nicaragua), LC.J. Reports 1960, p. 192;
(2) Nuclear Tests ( Australia v. France), C.J. Reports 1974, p. 253; (3) Delimitation
of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of
America), LC.J. Reports 1984, p. 246.

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notice of the same. The Court held that the United Kingdom’s silence for
such a long period amounted to acquiescence hence Judgment was given
in favour of Norway. The Court held:

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

The notoriety of the facts, the general toleration of the interna-
tional community, Great Britain’s position in the North Sea, her
own interest in the question, and her prolonged abstention would in
any case warrant Norway’s enforcement of her system against the
United Kingdom.” (2 CJ. Reports 1951, p. 139.)

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

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

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

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

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

“In fact, as will be seen presently, an acknowledgment by conduct
was undoubtedly made in a very definite way; but even if it were

'LCJ. Reports 1962, p. 6.

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otherwise, it is clear that the circumstances were such as called for
some reaction, within a reasonable period, on the part of the Siamese
authorities, if they wished to disagree with the map or had any
serious question to raise in regard to it. They did not do so, either
then or for many years, and thereby must be held to have acquiesced.
Qui tacet consentire videtur si loqui debuisset ac potuisset.” (LCJ.
Reports 1962, p. 23.)

108. There are many awards of international tribunals also supporting
the principles of estoppel or acquiescence in the sense of silence or
absence of protest. To mention a few, one may refer to the Alaskan
Boundary case, where the occupation and possession of Alaska for over
60 years, first by Russia and then by the United States of America, dis-
entitled Great Britain to its claim over the territory, since there was never
any British objection or protest at such occupation. In the Delagoa Bay
Arbitration of 1875, the Award was given in favour of Portugal against
the Dutch and the Austrians, because of Portugal’s continued claims to
sovereignty without any objection or protest on the part of Austria or the
Netherlands. The same result was given in the Guatemala/Honduras Bound-
ary Arbitration in favour of Guatemala.

109. In 1909, in the Grisbadarna Arbitration between Sweden and
Norway, the Permanent Court of Arbitration in its award decided that
Norway had acquiesced in certain acts of Sweden; consequently, the
claim of Sweden was upheld. To complete this picture of international
awards, mention must be made of the celebrated Award of Judge Huber
in the Island of Palmas Arbitration, where the arbitrator adjudged that, as
between the Netherlands and the United States of America, the latter had
a better title to the disputed island, because of its continuous and peace-
ful display of State authority during a long period of time, which Spain
and others had acquiesced in.

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

111. There were many occasions, some of which I have referred to,
when Libya could have protested to Chad or even France (between 1955
and 1960) that the Treaty was invalid or had failed to create the expected
boundary, yet Libya was silent. Since 1955, Libya had many opportuni-
ties to protest against this frontier but it did nothing. Instead, it signed
another Treaty with Chad in 1966 without making mention of any defect
or presenting a case of nullity or even raising any objection whatsoever
against the 1955 Treaty. On the contrary, the Treaty of 1966 apparently

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confirmed the boundary established by the 1955 Treaty because in 1966 it
recognized that there was a boundary in place. Another opportunity that
knocked at the door of Libya was in 1964, during the Cairo Conference
of the Organization of African Unity, when at least four nations, includ-
ing Somalia and Morocco, protested at the Cairo Declaration, but Libya
did not. It did not oppose the Declaration based by the Conference on
the principle of intangibility of frontiers.

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

113. Libya submits that Chad is estopped from claiming any longer
the Aouzou strip. But Chad kept protesting all along against what it con-
sidered an illegal occupation by Libya. Chad, at the General Assembly of
the United Nations, accused Libya of acts of aggression in 1971, 1973
and 1974. It was part of Chad’s case that it made its complaint to the
Organization of African Unity in 1977 and kept the same before that
body for 11 years, but Libya’s reaction, according to Chad, was merely
evasive. It may be necessary to quote Chad’s list of protests, some of
which Libya even confirmed:

“Of course, Chad, too, insisted that there was a frontier, the fron-
tier described by the 1955 Treaty and its annexed instruments, and it
protested Libya’s violation of that line. Chad complained to the
United Nations General Assembly as early as 1971 that Libya har-
boured expansionist aims; it had not actually arrived yet. Thereafter
it protested vociferously against Libya’s invasion: at first to Libya,
as we have seen from Professor Sorel, then to the General Assembly
in 1977, 1978, 1982, 1983, 1984, 1985, 1986 and 1987, and the Secu-
rity Council in 1978, 1983, 1985 and 1986. It stated that Libyan
forces had crossed the 1955 line, that the invaders were still there,

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and that they ought to be required to withdraw back behind that
frontier.” (CR 93/31, p. 80.)

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

VII. Uri POSSIDETIS

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

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

Standardly translated to mean:

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

116. The final text of the décree is formulated in a very elegantly
worded manner as follows “uti possidetis, ita possideatis” “as you possess,
so may you possess”. This principle has, however, been developed in

' John Bassett Moore, Memorandum on Uti Possidetis, 1911, p. 6.

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international law not as a mere recognition of possession, but also as a
justification of territorial rights and sovereignty.

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

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

“When the Spanish colonies of Central and South America pro-
claimed themselves independent in the second decade of the nine-
teenth century, they adopted a principle of constitutional and inter-
national law to which they gave the name Uti Possidetis Juris of
1810, with the effect of laying down the rule that the bounds of the
newly created Republics should be the frontiers of the Spanish Prov-
inces for which they were substituted. This general principle offered
the advantage of establishing an absolute rule that there was not in
law in the old Spanish America any territory without a master; while
there might exist many regions which had never been occupied by
the Spaniards and many unexplored or inhabited by non-civilized
aborigines, these regions were reputed to belong in law to whichever
of the Republics succeeded to the Spanish Province to which these
territories were attached by virtue of the old Royal Ordinances of
the Spanish Mother Country. These territories although not occu-
pied in fact were by common consent deemed as occupied in law

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from the first hour by the new Republic. Encroachments and
untimely attempts at colonization on the part of the adjacent State,
as well as occupations in fact became without importance and with-
out consequence in law. This principle had also the advantage of
suppressing as it was hoped, disputes as to limits between the new
states. . .”!

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

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

120. Nevertheless, there are two schools of thought on this principle at
least in its interpretation. There are those who argued that uti possidetis
must mean merely a juridical line or constructive occupation — uti pos-
sidetis juris or “de jure”. While the other, to which Brazil apparently
belongs hold the contrary view that the principle must be based on a
rightful and actual occupation of the territory — uti possidetis de facto.

121. It must however be observed that the uti possidetis juris doctrine is
not an exception in the field of international law. Similar principles are
shared with other norms of the law like the principle of terra nullius
already mentioned and as enunciated in the case of Western Sahara
earlier mentioned; the doctrine of hinterland of an occupied territory
which as reflected in this case led France to enter into treaties with Britain
and other powers to secure for themselves zones or spheres of influence.

' UNRIAA, Vol. I, p. 228, or Hyde, International Law, Vol. 1, p. 503, note 16.
? Footnote of Nederlands Tijdschrift voor Internationaal Recht, Vol. XX, 1973,
p. 269.

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It may also be mentioned that in the Greenland case, Denmark’s claim to
the entire island was adjudged as recognized by Norway even though
only part of the island was then occupied by Denmark. With regard,
therefore, to the issue of delimitation or demarcation of boundaries
between former colonies of Spain in Latin America, it can be generally
expressed, that they all succeeded to the colonial territories devoid of any
limitation based on terra nullius on the basis of constructive rather than
actual possession. It was a kind of legal fiction, hence the use of the word
“juris”.

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

123. After giving a full background of the doctrine of uti possidetis it is
now essential to relate its relevance to this dispute between Libya and
Chad. Even though the Court did not consider it necessary to deal with
this doctrine and its bearing on the present case despite the fact that both
Parties mentioned it significantly in their arguments, I consider it expe-
dient to deal with it in this separate opinion, without in any way detract-
ing from my support for the Court’s Judgment.

124. What then is the bearing and the relevance of uti possidetis to this
dispute? Is the doctrine of uti possidetis of universal application and
therefore applicable to all boundary disputes in Africa and therefore the
dispute herein? Is the issue of intangibility of frontiers existing at the
time of independence of African States mere political rhetoric with no

! Hyde, /nternational Law, Vol. I, p. 502.

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legal effect in international law? In applying the principle of uti possidetis
to boundary disputes in Africa should it be de facto or de jure? What role
if any can effectivités play in this regard? What is the significance of some
of the recent case-laws on this doctrine? These questions and more have
to be examined with regard to this case.

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

“Considering that border problems constitute a grave and perma-
nent factor of dimension,

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

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

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

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

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

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

2. Solemnly declares that all Member States pledge themselves to
respect the borders existing on their achievement of national inde-
pendence.” !

126. Many Heads of State at the Cairo Conference explained in their
statements the reason why it is necessary for Africa to adhere to the prin-

' Tan Brownlie, African Boundaries: A Legal and Diplomatic Encyclopaedia, p. 11.

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ciple of intangibility of frontiers. Many of them stressed the need for
realism, stability and the desire to ensure finality on the issue. They con-
sidered this principle as the only means of reducing incessant disputes
among the emerging nations of Africa. The Ethiopian Prime Minister
said:

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

The President of Mali gave a similar warning and advised thus:

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

127. In their dissenting opinions in the case of Sovereignty over Certain
Frontier Land ( Belgium/Netherlands) both Judges Armand-Ugon and
Moreno Quintana agreed that the uti possidetis principle should be treated
as a general principle of law. This stand has since been taken by the
Chamber of the Court in the Frontier Dispute case ( Burkina Faso/Republic
of Mali)?. Considering the position of newly independent States any-
where in the world, but particularly in Africa, the Chamber feit that the
application of this principle ought to be universal wherever it may occur.
In support of this view, one may add that it was supported in the Temple
of Preah Vihear case and Rann of Kutch Arbitration which are boundary
disputes relating to territories outside Africa, in the Indian subcontinent.
The rationale behind this decision, as was stated by the Chamber, is not
far-fetched; to prevent the independence and stability of the new States
from incessant boundary disputes and endless armed conflicts, once the
colonial powers had left. It is for this reason that it was thought desirable
and in accord with international law by the Chamber that the new Afri-

; McEwen, International Boundaries of Eust Africa, p. 24.
Ibid.
+ 1C4. Reports 1986, p. 554.

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can States should respect and abide by the administrative boundaries
established by their former colonial power. In strongly supporting the
view of the Chamber of the Court in this case, the uti possidetis principle
should no longer be viewed as a principle limited in its application and
scope to Latin America and African States, but one of general scope and
universality which has now finally emerged as a principle of customary
international law. Regardless of whether some Members of the Organi-
zation of African Unity objected to this principle in 1963 and after, it is
now considered to be a principle of general application to the entire
boundary disputes in Africa in particular, unless parties to any dispute of
this nature specifically agree to the contrary that the principle of wti
possidetis should not be applied.

128. It is argued that the principle of uti possidetis as applied in Latin
America — de jure — cannot be applied in Africa where effective occu-
pation is required. It is futile to enter into any controversy generally on
this argument and I shall not do so, but it may be sufficient to say that
this is not applicable to the case in hand. There is sufficient and at times
incontrovertible evidence of French effectivités from 1930 to 1943, from
1951 to 1954 and up to the time of the independence of Chad in 1960.
The effectivités continued up to 1971-1973 when Libya occupied the
Aouzou area. It can therefore be said that if the French effectivités was in
doubt in 1912 it was not at all the material time, 1.e., in 1951, when Libya
had her independence, in 1955 when France and Libya signed and rati-
fied the Treaty of Friendship and Good Neighbourliness, and 1960 when
Chad gained her independence. But does it matter seriously whether the
principle is uti possidetis juris or uti possidetis de facto with regard to its
application in Africa? In its Judgment on 22 December 1986, the Cham-
ber of the Court emphasized that what is paramount is the maintenance
of the status quo at the time of independence and the principle of respect
for the boundaries established as a result of treaties and those resulting
from mere administrative divisions. The Judgment undoubtedly gave
preference to uti possidetis juris as a legal right over actual or effective
occupation as the yardstick for title to a territory. Nevertheless it does
not deny the fact that effective occupation could be taken into consid-
eration (see the case of the Frontier Dispute (Burkina Faso/Republic of
Mali), LCJ. Reports 1986, pp. 565-566, paras. 22-24, and p. 586,
para. 63). After the Chamber of the Court had dealt extensively with the
history, nature, purpose and rationale of uti possidetis juris it went on to
remark in this case thus:

“There is no doubt that the obligation to respect pre-existing

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international frontiers in the event of a State succession derives from
a general rule of international law, whether or not the rule is
expressed in the formula uti possidetis. Hence the numerous solemn
affirmations of the intangibility of the frontiers existing at the time of
the independence of African States, whether made by senior African
Statesmen or by organs of the Organization of African Unity itself, are
evidently declaratory rather than constitutive: they recognize and con-
firm an existing principle, and do not seek to consecrate a new principle
or the extension to Africa of a rule previously applied only in another
continent.” (LC_J. Reports 1986, p. 566, para. 24; emphasis added.)

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

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

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

“Thus the principle of uti possidetis has kept its place among the
most important legal principles, despite the appurent contradiction which
its coexistence alongside the new norms implied. Indeed it was by
deliberate choice that African States selected, among all the classic
principles, that of uti possidetis. This remains an undeniable fact. In
the light of the foregoing remarks, it is clear that the applicability of
uti possidetis in the present case cannot be challenged merely because in
1960, the year when Mali and Burkina Faso achieved independence, the

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Organization of African Unity which was to proclaim this principle did
not yet exist, and the above-mentioned resolution calling for respect for
the pre-existing frontiers dates only from 1964.” (1. C.J. Reports 1986,
p. 567, para. 26; emphasis added.)

131. The Chamber also considered another principle in international
law that conflicts with uti possidetis juris — the right of people to self-
determination, but observed that the overriding interest of preserving the
independence that has been achieved by much sacrifice and the mainte-
nance of the status guo in terms of African boundary should be seen as
the wisest course that was taken by African statesmen. The Chamber
remarked that:

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

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

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

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

134. Thus it can be concluded that the 1955 Treaty accords with the
principle of uti possidetis and that the Parties to this dispute are bound

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by it. Consequently, Article 3 with Annex I of the 1955 Treaty established
the frontier between the two Parties. The objective of the principle
uti possidetis is not in doubt: whether de facto or de jure the methods of
approach are similar in effect because its aim is to provide, ultimately, a
stable and permanent solution of boundary problems.

(Signed) Bola AJIBOLA.

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