                      COUR INTERNATIONALE DE JUSTICE

                          RECUEIL DES ARRÊTS,
                   AVIS CONSULTATIFS ET ORDONNANCES

                     DIFFÉREND FRONTALIER
                         (BURKINA FASO/NIGER)

                         ARRÊT DU 16 AVRIL 2013

                             2013
                      INTERNATIONAL COURT OF JUSTICE

                        REPORTS OF JUDGMENTS,
                     ADVISORY OPINIONS AND ORDERS

                        FRONTIER DISPUTE
                         (BURKINA FASO/NIGER)

                       JUDGMENT OF 16 APRIL 2013

6 CIJ1042.indb 1                                       8/04/14 08:34

                                          Mode officiel de citation :
                                  Différend frontalier (Burkina Faso/Niger),
                                       arrêt, C.I.J. Recueil 2013, p. 44

                                               Official citation :
                                    Frontier Dispute (Burkina Faso/Niger),
                                     Judgment, I.C.J. Reports 2013, p. 44

                                                                               1042
                                                                No de vente:
                   ISSN 0074-4441                               Sales number
                   ISBN 978-92-1-071157-9

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                                          16 AVRIL 2013

                                             ARRÊT

                   DIFFÉREND FRONTALIER
                   (BURKINA FASO/NIGER)

                     FRONTIER DISPUTE
                   (BURKINA FASO/NIGER)

                                          16 APRIL 2013

                                          JUDGMENT

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                                                                                44

                                            TABLE OF CONTENTS

                                                                                Paragraphs

                    Chronology of the Procedure                                             1-10
                       I. Historical and Factual Background                                11-34
                      II. The Request concerning the Two Sectors Running, in the
                          North, from the Heights of N’Gouma to the Tong-Tong
                          Astronomic Marker and, in the South, from the Begin-
                          ning of the Botou Bend to the River Mekrou                       35-59
                         A. The request of Burkina Faso                                    35-38
                         B. The position of Niger                                          39-40
                         C. Consideration by the Court                                     41-59
                     III. The Course of the Section of the Frontier Remaining
                          in Dispute                                                      60-112
                         A. Applicable law                                                 60-69
                         B. The course of the frontier                                    70-112
                            1. The course of the frontier between the Tong‑Tong and
                               Tao astronomic markers                                      72-79
                            2. The course of the frontier between the Tao astronomic
                               marker and the River Sirba at Bossébangou                   80-99
                            3. The course of the frontier in the area of Bossébangou     100-107
                            4. The course of the southern part of the frontier           108-112
                     IV. Nomination of Experts                                               113
                    Operative Clause                                                         114

                                                                                4

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                                                                                45

                                   INTERNATIONAL COURT OF JUSTICE

                                                      YEAR 2013                                             2013
                                                                                16 April
                                                     16 April 2013                                       General List
                                                                                No. 149

                                          FRONTIER DISPUTE
                                            (BURKINA FASO/NIGER)

                       Historical and factual background.
                       Arrêté of 31 August 1927 and its Erratum of 5 October 1927 — Agreement and
                    Protocol of Agreement of 28 March 1987 — Work of the Joint Technical Com
                    mission on Demarcation of the Frontier — Special Agreement — Exchange of let
                    ters on the delimited sectors of the frontier.

                                                            *
                       Request concerning the two demarcated sectors of the frontier.
                       Power of the Court to ascertain whether final submissions remain within the
                    limits of a special agreement — Interpretation of points 1 and 3 of the final sub
                    missions of Burkina Faso — Interpretation of Article 2, point 2, of the Special
                    Agreement — Request to place on record in the dispositif of the Court’s Judgment
                    the Parties’ agreement concerning demarcated sectors of the frontier — Absence
                    of a dispute — Request not compatible with the Court’s judicial function.

                                                            *
                       Course of the section of the frontier remaining in dispute.
                       Applicable law — Article 6 of the Special Agreement — Article 38, para
                    graph 1, of the Statute — Principle of intangibility of boundaries inherited from
                    colonization — Agreement of 28 March 1987 — Arrêté as clarified by its Erratum
                    is the instrument to be applied for delimitation of the boundary — Map of the
                    Institut géographique national de France (IGN map) — No other document
                    “accepted by joint agreement of the Parties”.
                       Course of the frontier between Tong‑Tong and Tao astronomic markers —
                    Location of Tao astronomic marker — Arrêté not sufficient to determine the
                    course of the frontier — Irrelevance of Vibourié marker — Frontier follows
                    straight line.

                                                                                5

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                                            frontier dispute (judgment)                            46

                       Course of the frontier between the Tao astronomic marker and the “River Sirba
                    at Bossébangou” — Meaning of the expression “River Sirba at Bossébangou” —
                    Reference to straight lines in Arrêté for other sectors — Relevance of the Decree
                    of 28 December 1926 on the basis of which the Arrêté was issued — Colonial
                    practice with respect to villages of Bangaré, Petelkolé and Oussaltane not rele
                    vant — Arrêté cannot be interpreted as drawing a straight line in this sector —
                    Arrêté not sufficient to determine the course of the frontier — Frontier follows
                    IGN map.
                       Course of the frontier in the area of Bossébangou and beyond — Frontier
                    reaches median line of the River Sirba — Frontier then follows the River Sirba —
                    Arrêté not sufficient to determine point where frontier leaves the River Sirba and
                    course of frontier beyond that point — Recourse to the IGN map — Say paral
                    lel — Intersection of River Sirba and Say parallel — Meridian passing through
                    this point.
                       Course of the southern part of the frontier — No agreement or acquiescence of
                    the Parties — Clarity of the Arrêté — Frontier follows straight line.

                                                            *
                      Nomination of experts.

                                                     JUDGMENT

                    Present : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                               Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                               Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari ;
                               Judges ad hoc Mahiou, Daudet ; Registrar Couvreur.

                      In the case concerning the frontier dispute,
                      between
                    Burkina Faso,
                    represented by
                      H.E. Mr. Jérôme Bougouma, Minister for Territorial Administration, Decen-
                         tralization and Security,
                      as Agent ;
                      H.E. Ms Salamata Sawadogo/Tapsoba, Minister of Justice and Keeper of the
                         Seals,
                      H.E. Mr. Frédéric Assomption Korsaga, Ambassador of Burkina Faso to the
                         Kingdom of the Netherlands,
                      as Co‑Agents ;

                                                                                6

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                                           frontier dispute (judgment)                           47

                      H.E. Mr. Alain Edouard Traoré, Minister of Communication, Government
                         Spokesman,
                      as Special Adviser ;
                      Ms Joséphine Kouara Apiou/Kaboré, Director‑General of Territorial Admin-
                         istration,
                      Mr. Claude Obin Tapsoba, Director‑General of the Geographical Institute of
                         Burkina,
                      Mr. Benoît Kambou, Professor at the University of Ouagadougou,
                      Mr. Pierre Claver Hien, Historian, Researcher at the National Science and
                         Technology Research Centre,
                      as Deputy‑Agents ;
                      Mr. Mathias Forteau, Professor at the University of Paris Ouest, Nanterre‑La
                         Défense, Member of the International Law Commission,
                      Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre‑La
                         Défense, former Chairman of the International Law Commission, associ-
                         ate member of the Institut de droit international,
                      Mr. Jean‑Marc Thouvenin, Professor at the University of Paris Ouest, Nan-
                         terre‑La Défense, Director of the Centre de droit international de Nanterre
                         (CEDIN), member of the Paris Bar (Cabinet Sygna partners),
                      as Counsel and Advocates ;
                      Mr. Halidou Nagabila, Surveying Engineer,
                      Mr. André Bassolé, Geomatics Expert,
                      Mr. Dramane Ernest Diarra, Civil Administrator,
                      Maître Benoît Sawadogo, Avocat à la Cour,
                      Maître Héloïse Bajer‑Pellet, member of the Paris Bar,
                      Mr. Romain Pieri, International Law Researcher,
                      Mr. Ludovic Legrand, Researcher at the Centre de droit international de
                         Nanterre (CEDIN), Lawyer (Cabinet Sygna partners),
                      Mr. Simplice Honoré Guibila, Director‑General of Legal and Consular
                         Affairs,
                      Mr. Daniel Bicaba, Minister‑Counsellor, Embassy of Burkina Faso in Brussels,
                      as Advisers,
                      and
                    the Republic of Niger,
                    represented by
                      H.E. Mr. Mohamed Bazoum, Minister of State for Foreign Affairs, Co‑oper-
                         ation, African Integration and Nigeriens Abroad, Chairman of the Sup-
                         port Committee to Counsel for Niger,
                      as Head of Delegation and Agent ;
                      H.E. Mr. Abdou Labo, Minister of State for the Interior, Public Security,
                         Decentralization and Religious Affairs,
                      as Co‑Agent ;
                      H.E. Mr. Karidio Mahamadou, Minister of National Defence,
                      H.E. Mr. Marou Amadou, Minister of Justice, Keeper of the Seals, Govern-
                         ment Spokesman,
                      as Deputy Co‑Agents ;

                                                                                7

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                                         frontier dispute (judgment)                            48

                    Mr. Sadé Elhadji Mahaman, Curator of Archives and Libraries, Co‑ordinator
                        of the Permanent Secretariat of the Support Committee to Counsel for Niger,
                    as Deputy Agent ;
                    Mr. Jean Salmon, Professor emeritus of the Université libre de Bruxelles,
                        member of the Institut du droit international, Member of the Permanent
                        Court of Arbitration,
                    as Lead Counsel ;
                    Mr. Maurice Kamto, Professor agrégé of Public Law, member of the Paris
                        Bar, former Dean of the Faculty of Law and Political Science at the Uni-
                       versity of Yaoundé II, Member and former Chairman of the International
                       Law Commission, associate member of the Institut de droit international,
                       Member of the Permanent Court of Arbitration,
                    Mr. Pierre Klein, Professor of Law at the Université libre de Bruxelles,
                       Deputy‑Director of the Centre of International Law,
                    Mr. Amadou Tankoano, Professor of International Law, former Dean of the
                        Faculty of Economic and Legal Science, Lecturer and Researcher at Abdou
                        Moumouni University in Niamey,
                    as Counsel ;
                    Ms Martyna Falkowska, Researcher at the Centre of International Law, Uni-
                        versité libre de Bruxelles,
                    as Assistant ;
                    General Maïga Mamadou Youssoufa, Governor of the Region of Tillabéri,
                    Mr. Amadou Tcheko, Director‑General of Legal and Consular Affairs at the
                        Ministry of Foreign Affairs, Co‑operation, African Integration and Nige-
                        riens Abroad, Deputy Co‑ordinator of the Support Committee to Counsel
                        for Niger,
                    Col. (retired) Mahamane Koraou, Permanent Secretary to the National
                        Boundaries Commission, member of the Support Committee to Counsel
                        for Niger,
                    Mr. Mahamane Laminou Amadou Maouli, Magistrat, Rapporteur of the
                        Support Committee to Counsel for Niger,
                    Mr. Hassimi Adamou, Chief Surveyor, Director‑General of the National
                        Geographical Institute of Niger (NGIN), member of the Support Commit-
                        tee to Counsel for Niger,
                    Mr. Hamadou Mounkaila, Chief Surveyor at the National Boundaries Com-
                        mission, member of the Support Committee to Counsel for Niger,

                    Mr. Mahamane Laminou, Chief Surveyor, Expert at the National Geograph-
                      ical Institute of Niger (NGIN), member of the Support Committee to
                      Counsel for Niger,
                    Mr. Soumaye Poutia, Magistrat, member of the Support Committee to Coun-
                      sel for Niger,
                    Mr. Idrissa Yansambou, Director of the National Archives of Niger, member
                      of the Support Committee to Counsel for Niger,
                    Mr. Belko Garba, Surveyor, member of the Support Committee to Counsel
                      for Niger,
                    General Yayé Garba, Ministry of National Defence, member of the Support
                      Committee to Counsel for Niger,

                                                                                8

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                                            frontier dispute (judgment)                             49

                      Mr. Seydou Adamou, Technical Adviser to the Minister of State for Foreign
                       Affairs, Co‑operation, African Integration and Nigeriens Abroad,

                      Mr. Abdou Abarry, Director‑General of Bilateral Relations, Ministry of For-
                       eign Affairs, Co‑operation, African Integration and Nigeriens Abroad,

                      Col. Harouna Djibo Hamani, Director of Military Co‑operation and
                         Peace‑Keeping Operations, Ministry of Foreign Affairs, Co‑operation,
                         African Integration and Nigeriens Abroad,
                      as Experts ;
                      Mr. Ado Elhadji Abou, Minister‑Counsellor, Embassy of Niger in Brussels,
                      Mr. Chitou Boubacar, Protocol Officer, Embassy of Niger in Brussels,
                      Mr. Salissou Mahamane, Accountant of the Support Committee to Counsel
                         for Niger,
                      Mr. Abdoussalam Nouri, Principal Secretary, Permanent Secretariat of the
                         Support Committee to Counsel for Niger,
                      Ms Haoua Ibrahim, Secretary, Permanent Secretariat of the Support Com-
                         mittee to Counsel for Niger,
                      as Support Staff,

                      The Court,
                      composed as above,
                      after deliberation,
                      delivers the following Judgment :
                       1. By a joint letter of notification dated 12 May 2010 and filed in the Registry
                    of the Court on 20 July 2010, Burkina Faso and the Republic of Niger (herein-
                    after “Niger”) transmitted to the Registrar a Special Agreement between the
                    two States which was signed at Niamey on 24 February 2009 and entered into
                    force on 20 November 2009, whereby the Governments of the two States agreed
                    to submit to the Court the frontier dispute between them over a section of their
                    common boundary. Attached to this letter were the Protocol of Exchange of the
                    Instruments of Ratification of the Special Agreement and an exchange of Notes
                    placing on record the agreement (“entente”) between the two States on the
                    delimited sectors of the frontier, dated 29 October and 2 November 2009.
                       2. The text of the Special Agreement reads as follows :
                            “The Government of Burkina Faso and the Government of the Republic
                         of Niger, hereinafter referred to as the ‘Parties’ ;
                            Whereas, by agreements signed at Niamey on 23 June 1964 and at Oua-
                         gadougou on 28 March 1987, the two Governments agreed to mark out
                         their common boundary and to that end created a Joint Technical Commis-
                         sion on Demarcation ;
                            Whereas Articles 1 and 2 of the Agreement of 28 March 1987 provide as
                         follows :
                                                         ‘Article 1
                             The frontier between the two States shall run from the heights of
                           N’Gouma, situated to the north of the Kabia ford, to the intersection of

                                                                                9

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                                         frontier dispute (judgment)                               50

                         the former boundary of the cercles of Fada and Say with the course of
                         the Mekrou, as described in the Arrêté [order] of 31 August 1927, as
                         clarified by the Erratum of 5 October 1927.
                                                            Article 2
                            The frontier shall be demarcated by boundary markers following the
                         course described by Arrêté 2336 of 31 August 1927, as clarified by Erra-
                         tum 2602/APA of 5 October 1927. Should the Arrêté and Erratum not
                         suffice, the course shall be that shown on the 1:200,000‑scale map of the
                         Institut géographique national de France, 1960 edition, and/or any other
                         relevant document accepted by joint agreement of the Parties’ ;
                       Whereas thanks to the work of the Joint Technical Commission
                    on Demarcation established pursuant to these provisions, the Parties have
                    been able to reach agreement in respect of the following sectors of the fron-
                    tier :
                    (a) from the heights of N’Gouma to the astronomic marker of Tong‑Tong ;
                    (b) from the beginning of the Botou bend to the River Mekrou ;
                       Whereas the two Parties accept the results of the work carried out in those
                    sectors as definitive ;
                       Desirous of resolving this dispute once and for all in the spirit of fraternity
                    between brotherly peoples and neighbourliness characterising their relations
                    and in compliance with the principle of the intangibility of frontiers inher-
                    ited from colonization ;
                       Thus applying Article 8 of the Agreement of 28 March 1987 referred to
                    above ;
                    Have agreed as follows :

                                                         Article 1
                                       Referral to the International Court of Justice
                    1.     The Parties submit the dispute defined in Article 2 below to the Inter-
                           national Court of Justice.
                    2.     Each of the Parties will exercise the right conferred upon it by Arti-
                           cle 31, paragraph 3, of the Statute of the Court to choose a judge ad
                           hoc.

                                                       Article 2
                                                Subject of the Dispute
                         The Court is requested to :
                    1.     determine the course of the boundary between the two countries in the
                           sector from the astronomic marker of Tong‑Tong (latitude 14° 25´ 04˝ N ;
                           longitude 00° 12´ 47˝ E) to the beginning of the Botou bend (lati-
                           tude 12° 36´ 18˝ N ; longitude 01° 52´ 07˝ E) ;
                    2.     place on record the Parties’ agreement [“leur entente”] on the results
                           of the work of the Joint Technical Commission on Demarcation
                           of the Burkina Faso‑Niger boundary with regard to the following sec-
                           tors :

                                                                                10

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                                       frontier dispute (judgment)                              51

                         (a) the sector from the heights of N’Gouma to the astronomic marker
                             of Tong‑Tong ;
                         (b) the sector from the beginning of the Botou bend to the River
                             Mekrou.
                                                     Article 3
                                               Written Proceedings
                    1.   Without prejudice to any question as to the burden of proof, the Parties
                         request the Court to authorize the following procedure for the written
                         pleadings :
                         (a) a Memorial filed by each Party not later than nine (9) months after
                             the seising of the Court ;
                         (b) a Counter‑Memorial filed by each Party not later than nine
                             (9) months after exchange of the Memorials ;
                         (c) any other written pleading whose filing, at the request of either
                             of the Parties, shall have been authorized or directed by the Court.

                    2.   Pleadings submitted to the Registrar of the Court shall not be trans-
                         mitted to the other Party until the Registrar has received the corre-
                         sponding pleading from that Party.
                                                        Article 4
                                                   Oral Proceedings
                       The Parties shall agree, with approval from the Court, on the order in
                    which they are to be heard during the oral proceedings ; if the Parties fail
                    to agree, the order shall be prescribed by the Court.
                                                        Article 5
                                             Language of the Proceedings
                      The Parties agree that their written pleadings and their oral argument
                    shall be presented in the French language.
                                                        Article 6
                                                    Applicable Law
                       The rules and principles of international law applicable to the dispute
                    are those referred to in Article 38, paragraph 1, of the Statute of the
                    International Court of Justice, including : the principle of the intangibility
                     of boundaries inherited from colonization and the Agreement of
                     28 March 1987.
                                                        Article 7
                                                 Judgment of the Court
                    1.   The Parties accept the Judgment of the Court given pursuant to this
                         Special Agreement as final and binding upon them.
                    2.   From the day on which the Judgment is rendered, the Parties shall have
                         eighteen (18) months in which to commence the work of demarcating
                         the boundary.

                                                                                11

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                                             frontier dispute (judgment)                              52

                         3.    In case of difficulty in the implementation of the Judgment, either Party
                               may seise the Court pursuant to Article 60 of its Statute.
                         4.    The Parties request the Court to nominate, in its Judgment, three
                               (3) experts to assist them as necessary in the demarcation.
                                                             Article 8
                                                          Entry into Force
                            The present Special Agreement is subject to ratification. It shall enter into
                         force on the date on which the last notice of ratification is received.
                            The Parties nevertheless agree to apply Article 10 of this Special Agree-
                         ment as from the date of signing.
                                                             Article 9
                                                   Registration and Notification
                         1.    The present Special Agreement shall be registered with the Secretariat
                               of the United Nations pursuant to Article 102 of the Charter of the
                               United Nations by the more diligent party.
                         2.    In accordance with Article 40 of the Statute of the Court, this Special
                               Agreement shall be notified to the Registrar of the Court by a joint
                               letter from the Parties.
                         3.    If such notification is not effected in accordance with the preceding
                               paragraph within one month from the entry into force of the present
                               Special Agreement, it shall be notified to the Registrar of the Court by
                               the more diligent Party.
                                                             Article 10
                                                        Special Undertaking
                            Pending the Judgment of the Court, the Parties undertake to maintain
                         peace, security and tranquillity among the populations of the two States in
                         the frontier region, refraining from any act of incursion into the disputed
                         areas and organizing regular meetings of administrative officials and the
                         security services.
                            With regard to the creation of socio‑economic infrastructure, the Parties
                         undertake to hold preliminary consultations prior to implementation.
                            In witness whereof, the present Special Agreement, drawn up in two orig-
                         inal copies, has been signed by the plenipotentiaries.
                              Done at Niamey, 24 February 2009.”
                       3. In accordance with Article 40, paragraph 3, of the Statute of the Court
                    and Article 42 of the Rules of Court, the Registrar transmitted copies of the
                    joint letter of notification, the Special Agreement, the Protocol of Exchange of
                    the Instruments of Ratification and the exchange of Notes placing on record the
                    agreement (“entente”) between the two States on the delimited sectors of the
                    frontier, dated 29 October and 2 November 2009, to the Secretary‑General of
                    the United Nations, the Members of the United Nations and other States enti-
                    tled to appear before the Court.
                       4. By letter of 24 September 2010, the Agent of Burkina Faso notified the
                    Court that his Government had chosen Mr. Jean‑Pierre Cot to sit as judge
                    ad hoc in the case. By letter of 4 August 2010, the Agent of Niger notified the
                    Court that his Government had chosen Mr. Ahmed Mahiou to sit as judge

                                                                                12

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                                            frontier dispute (judgment)                             53

                    ad hoc in the case. Following the resignation of Mr. Cot, the Agent of
                    Burkina Faso notified the Court by letter of 25 April 2012 that its Government
                    had chosen Mr. Yves Daudet.
                       5. By Order of 14 September 2010, the Court fixed 20 April 2011 as the
                    time‑limit for the filing of a Memorial by each Party and 20 January 2012 as the
                    time‑limit for the filing of a Counter‑Memorial by each Party. The Memorials
                    and Counter‑Memorials were duly filed within the time‑limits thus fixed. The
                    Parties then informed the Court that they did not consider it necessary to sub-
                    mit additional written pleadings, but that they wished to reserve the right to
                    produce further documents if required, under Article 56 of the Rules of Court.
                    No request for the production of such documents has been received by the
                    Court.

                       6. In accordance with Article 53, paragraph 2, of the Rules of Court, the
                    Court, after ascertaining the views of the Parties, decided that copies of the
                    pleadings and documents annexed should be made accessible to the public on
                    the opening of the oral proceedings.
                       7. Hearings were held from Monday 8 to Wednesday 17 October 2012, dur-
                    ing which the Court heard the oral arguments and replies of :
                    For Burkina Faso : H.E. Mr. Jérôme Bougouma,
                                        Mr. Jean‑Marc Thouvenin,
                                        Mr. Claude Obin Tapsoba,
                                        Mr. Alain Pellet,
                                        Mr. Mathias Forteau.
                    For Niger :         H.E. Mr. Mohamed Bazoum,
                                        Mr. Amadou Tankoano,
                                        Mr. Jean Salmon,
                                        Mr. Maurice Kamto,
                                        Mr. Pierre Klein.
                       8. At the hearings, Members of the Court put questions to the Parties, to
                    which replies were given orally and in writing, in accordance with Article 61,
                    paragraph 4, of the Rules of Court. As provided for in Article 72 of the Rules
                    of Court, each Party presented written observations on the replies received from
                    the other.

                                                            *
                      9. In the written proceedings, the following submissions were presented by
                    the Parties :
                    On behalf of the Government of Burkina Faso,
                    in the Memorial :
                           “5.1. In view of all the above considerations, Burkina Faso requests the
                         Court to adjudge and declare that the frontier between Burkina Faso and
                         the Republic of Niger follows the course described hereafter :
                         1.   from the heights of N’Gouma to the Tong‑Tong astronomic marker,
                              the frontier takes the following course : a series of straight lines con-
                              necting the following points in turn 1: Mount N’Gouma
                              (Lat. 14° 54´ 46.0˝ N ; Long. 00° 14´ 36.4˝ E), Kabia ford

                                                                                13

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                                          frontier dispute (judgment)                                   54

                         (Lat. 14° 53´ 09.8˝ N ; Long. 00° 13´ 06.3˝ E), Mount Arwaskoye
                         (Lat. 14° 50´ 44.7˝ N ; Long. 00° 10´ 35.8˝ E), Mount Bellé Banguia
                         (Lat. 14° 45´ 05.2˝ N ; Long. 00° 14´ 09.6˝ E), Takabougou
                         (Lat. 14° 37´ 54.5˝ N ; Long. 00° 10´ 16.1˝ E), Mount Douma Fendé
                         (Lat. 14° 32´ 00.6˝ N ; Long. 00° 09´ 42.1˝ E) and the Tong‑Tong astro-
                         nomic marker (Lat. 14° 24´ 53.2˝ N ; Long. 00° 12´ 51.7˝ E) ;
                            1 The co‑ordinates which follow are those adopted in the record of the work

                         of the Joint Survey Mission of the erected markers, 3 July 2009, Ann. MBF 101.
                         The co‑ordinates were measured by GPS.

                    2.   from the Tong‑Tong astronomic marker to the beginning of the Botou
                         bend, the frontier takes the following course :
                    — a straight line as far as the Tao astronomic marker (Lat. 14° 03´ 04.7˝ N ;
                      Long. 00° 22´ 51.8˝ E) 2;
                            2 The co‑ordinates of this point were measured by GPS by Burkina. The

                         co‑ordinates of this marker on the Clarke 1880 ellipsoid are : Lat. 14° 03´ 13˝ N ;
                         Long. 00° 22´ 53˝ E.

                    — from that point, a straight line up to the point where the frontier reaches
                      the River Sirba at Bossébangou (Lat. 13° 21´ 06.5˝ N ; Long. 01°
                      17´ 11.0˝ E)3 ;
                           3 The co‑ordinates of this point, and the following ones, are given on the

                         Clarke 1880 ellipsoid.

                    — from that point, the frontier follows the right bank of the River Sirba,
                      from east to west, up to the point on the right bank with the co‑
                      ordinates : Lat. 13° 19´ 53.5˝ N ; Long. 01° 07´ 20.4˝ E ;
                    — from that point, the frontier follows the line on the 1:200,000‑scale map
                      of the Institut géographique national de France, 1960 edition, as far as
                      the point with the co‑ordinates : Lat. 13° 22´ 30.0˝ N ; Long.
                      00° 59´ 40.0˝ E ;
                    — from that point, the frontier runs south in a straight line, ending at the
                      intersection of the right bank of the River Sirba with the Say parallel
                      (Lat. 13° 06´ 10.7˝ N ; Long. 00° 59´ 40.0˝ E) ;
                    — from that point, the frontier runs in a straight line up to the beginning
                      of the Botou bend (Tyenkilibi) (Lat. 12° 36´ 19.2˝ N ; Long.
                      01° 52´ 06.9˝ E)4.
                            4 The co‑ordinates of this point, and the following ones, are those adopted in

                         the record of the work of the Joint Survey Mission of the markers erected,
                         3 July 2009, Ann. MBF 101. The co‑ordinates were measured by GPS
                         (WGS84 ellipsoid).

                    3.   from the beginning of the Botou bend as far as the River Mekrou, the
                         frontier takes the following course :
                    — a series of straight lines connecting the following points in turn : Jackal
                      Mountain (Lat. 12° 41 33.1˝ N ; Long. 01° 55´ 43.9˝ E), Laguil
                      (Lat. 12° 41´ 31.9˝ N ; Long. 01° 57´ 01.3˝ E) and Nonbokoli
                      (Lat. 12° 44´ 12.9˝ N ; Long. 01° 58´ 47.0˝ E) ;

                                                                                14

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                        — from the latter point, the frontier follows the median line of the Dan-
                          tiabonga marigot, passes to the south of Dantiandou and then follows
                          the line of the Yoga Djoaga hills as far as the confluence of the Dyamon-
                          gou and Dantiabonga rivers (Lat. 12° 43´ 15.1˝ N ; Long. 02° 05´ 14.9˝ E) ;
                        — from that point, the frontier follows the median line of the River
                          Dyamongou as far as the confluence of the Dyamongou marigot and
                          the Boulel Fouanou (Lat. 12° 43´ 44.0˝ N ; Long. 02° 06´ 23.9˝ E ;
                        — from that point, the frontier runs in a series of straight lines connecting the
                          following points in turn : Boulel (Lat. 12° 42´ 15.1˝ N ; Long. 02° 06´ 53.3˝ E),
                          Boulel East (Teylinga) (Lat. 12° 41´ 09.5˝ N ; Long. 02° 09´ 43.2˝ E), Dyap-
                          ionga North (Lat. 12° 39´ 42.3˝ N ; Long. 02° 09´ 37.3˝ E), Dyapionga
                          South (Lat. 12° 38´ 55.4˝ N ; Long. 02° 09´ 08.1˝ E), Kanleyenou
                          (Lat. 12° 37´ 21.7˝ N ; Long. 02° 11´ 57.1˝ E), Niobo Farou (Caiman Pool)
                          (Lat. 12° 35´ 19.6˝ N ; Long. 02° 13´ 23.9˝ E), the eastern crests of Mount
                          Tambouadyoaga (Lat. 12° 31´ 19.7˝ N ; Long. 02° 13´ 48.0˝ E), Banindy-
                          ididouana (Lat. 12° 27´ 52.7˝ N ; Long. 02° 16´ 27.2˝ E) and the confluence
                          of the Banindyidi Fouanou and Tapoa Rivers (Lat. 12° 25´ 30.5˝ N ;
                          Long. 02° 16´ 40.6˝ E) ;
                        — from the latter of those points, the frontier follows the median line of
                          the River Tapoa as far as the point where it intersects with the former
                          boundary of the Fada and Say cercles5 (Lat. 12° 21´ 04.88˝ N ;
                          Long. 02° 04´ 12.77˝ E) ;

                               5 The co‑ordinates of the following points are those adopted in the record of

                            the meeting to ascertain the co‑ordinates of the unmarked points in Sector B,
                            15 October 2009, Ann. MBF 105. They were derived from the IGN France
                            1:200,000‑scale map (Clarke 1880).

                        — from the latter point, the frontier runs in a straight line, corresponding
                          to the former boundary of the Fada and Say cercles, up to the point
                          where it intersects with the River Mekrou (Lat. 11° 54´ 07.83˝ N ;
                          Long. 02° 24´ 15.25˝ E).
                          5.2. Pursuant to Article 7, paragraph 4, of the Special Agreement, Bur-
                        kina Faso further requests the Court, in its Judgment, to nominate three
                        experts to assist the Parties as necessary for the purposes of demarcation.”
                    in the Counter‑Memorial :
                           “5.1. In view of all the considerations contained in its Memorial and in
                        the present Counter‑Memorial, Burkina Faso stands by the submissions set
                        forth in paragraphs 5.1 and 5.2 of its Memorial in their entirety and requests
                        the Court to find in its favour and to reject any contrary submissions from
                        the Republic of Niger.”
                    On behalf of the Government of Niger,
                    in the Memorial :
                           “The Republic of Niger requests the Court to adjudge and declare that
                        the frontier between the Republic of Niger and Burkina Faso in the Téra
                        sector takes the following course :
                        — starting from the Tong‑Tong astronomic marker (co‑ordinates :
                          14° 25´ 04˝ N, 00° 12´ 47˝ E) ;

                                                                                15

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                                      frontier dispute (judgment)                            56

                    — from that point : a straight line as far as the Vibourié marker (co‑ordi-
                      nates : 14° 21´ 44˝ N, 00° 16´ 25˝ E) ;
                    — from that point : a straight line as far as the Tao astronomic marker
                      (co‑ordinates : 14° 03´ 02.2˝ N, 00° 22´ 52.1˝ E) ;
                    — from that point the frontier follows the 1960 IGN line (Téra sheet) as
                      far as the point having co‑ordinates 14° 01´ 55˝ N, 00° 24´ 11˝ E ;
                    — from that point, it runs in a straight line to the frontier point on the
                      new Téra‑Dori road (co‑ordinates : 14° 00´ 04.2˝ N, 00° 24´ 16.3˝ E) ;
                    — it then meets a river arm at the point with co‑ordinates 13° 59´ 03˝ N,
                      00° 25´ 12˝ E. The frontier then passes through a frontier point called
                      Baobab (13° 58´ 38.9˝ N, 00° 26´ 03.5˝ E), then follows the IGN line,
                      leaving Tindiki (13° 57´ 15.4˝ N, 00° 26´ 23.6˝ E) to Niger, as far as the
                      break in the line of crosses north of Ihouchaltane (Oulsalta) on the
                      1960 IGN map (Sebba sheet), at the point with co‑ordinates
                      13° 55´ 54˝ N, 00° 28´ 21˝ E ;
                    — from this point the frontier follows the loop formed by the river to the
                      west as far as the point having co‑ordinates 13° 55´ 32˝ N, 00° 27´ 07˝ E,
                      and passes through a point situated on the Sidibébé‑Kalsatouma road
                      having co‑ordinates 13° 52´ 32.8˝ N, 00° 28´ 13.5˝ E. From that point,
                      it rejoins the IGN line at the point having co‑ordinates 13° 53´ 24˝ N,
                      00° 29´ 58˝ E, which it follows as far as the break in the line of crosses
                      at the point having co‑ordinates 13° 52´ 04˝ N, 00° 31´ 00˝ E ;
                    — the frontier then turns to the south again as far as the point having
                      co‑ordinates 13° 48´ 55˝ N, 00° 30´ 23˝ E situated on the arm of the
                      river to the west of Komanti, passes through a point south‑west of Ouro
                      Toupé (Kamanti) with co‑ordinates 13° 46´ 31˝ N, 00° 30´ 27˝ E, then
                      to the north of Ouro Sabou to a point on the arm of the tributary of
                      the Tyekol Dyongoytol whose co‑ordinates are 13° 46´ 18˝ N,
                      00° 32´ 47˝ E. The frontier then follows this tributary until its conflu-
                      ence with the Tyekol Dyongoytol at the point having co‑ordinates
                      13° 46´ 51˝ N, 00° 35´ 53˝ E. From there it follows the 1960 IGN line
                      until it reaches the level of Bangaré (Niger) on the River Folko at the
                      point having co‑ordinates 13° 46´ 22.5˝ N, 00° 37´ 25.9˝ E ;
                    — from that point the frontier follows the IGN line, following the water-
                      courses where there are no crosses, passing between Kolangoldagabé
                      (Burkina Faso) (co‑ordinates 13° 43´ 52.3˝ N, 00° 36´ 14.5˝ E) and
                      Lolnando (Niger) (co‑ordinates 13° 43´ 50.3˝ N, 00° 36´ 49.0˝ E). The
                      line leaves the hamlet known as Kolnangol Nore Ole to Niger, Gourel
                      Manma to Burkina Faso and Pate Bolga to Niger ;
                    — the frontier then follows the 1960 IGN line (Sebba sheet) as far as the
                      point with co‑ordinates 13° 37´ 20˝ N, 00° 50´ 47˝ E and then to the
                      point with co‑ordinates 13° 34´ 47˝ N, 00° 58´ 20˝ E, leaving to Burkina
                      Faso the current site of Hérou Bouléba and to Niger that of Hérou
                      Boularé ;
                    — from there it follows the IGN line, connecting the gaps between con-
                      tinuous sections with straight lines, as far as the tripoint of the former
                      boundaries of the cercles of Say, Tillabéry and Dori (co‑ordinates
                      13° 29´ 08˝ N, 01° 01´ 00˝ E) ;
                    — from that point, the frontier runs in a straight line as far as the point
                      having co‑ordinates 13° 04´ 52˝ N, 00° 55´ 47˝ E, then from that point
                      a straight line passing through a point situated 4 km to the south‑west
                      of Dogona with co‑ordinates 13° 01´ 44˝ N, 01° 00´ 25˝ E, as far as the

                                                                                16

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                                            frontier dispute (judgment)                               57

                             frontier marker with co‑ordinates 12° 37´ 55.7˝ N, 01° 34´ 40.7˝ E, and
                             finally from there to the point fixed by agreement between the Parties,
                             the co‑ordinates of which are the following : 12° 36´ 18˝ N, 01° 52´ 07˝ E.”
                    in the Counter‑Memorial :
                            “The Republic of Niger requests the Court to adjudge and declare that
                         the frontier between the Republic of Niger and Burkina Faso takes the
                         following course :
                           In the Téra sector :
                         — starting from the Tong‑Tong astronomic marker (co‑ordinates :
                           14° 25´ 04˝ N, 00° 12´ 47˝ E) ;
                         — from that point : a straight line as far as the Vibourié marker (co‑ordi-
                           nates : 14° 21´ 44˝ N, 00° 16´ 25˝ E) ;
                         — from that point : a straight line as far as the Tao astronomic marker
                           (co‑ordinates : 14° 03´ 02.2˝ N, 00° 22´ 52.1˝ E) ;
                         — from that point the frontier follows the 1960 IGN line (Téra sheet) as
                           far as the point having co‑ordinates 14° 01´ 55˝ N, 00° 24´ 11˝ E ;
                         — from that point, it runs in a straight line to the frontier point on the
                           new Téra‑Dori road (co‑ordinates : 14° 00´ 04.2˝ N, 00° 24´ 16.3˝ E) (to
                           the west of Petelkolé) ;
                         — from that point, it runs in a straight line to the point with co‑ordinates
                           13° 59´ 03˝ N, 00° 25´ 12˝ E ; and reaches the IGN line (at the point
                           with co‑ordinates 13° 58´ 38.9˝ N, 00° 26´ 03.5˝ E), which it follows as
                           far as the break in the line of crosses north of Ihouchaltane (Oulsalta
                           on the 1960 IGN map, Sebba sheet), at the point with co‑ordinates
                           13° 55´ 54˝ N, 00° 28´ 21˝ E ;
                         — from this point the frontier skirts Ihouchaltane (Oulsalta), passing
                           through the points with co‑ordinates 13° 54´ 42˝ N, 00° 26´ 53.3˝ E, then
                           13° 53´ 30˝ N, 00° 28´ 07˝ E ;
                         — from that point, it rejoins the IGN line (at the point having co‑ordinates
                           13° 53´ 24˝ N, 00° 29´ 58˝ E), which it follows as far as the tripoint of
                           the former boundaries of the cercles of Say, Tillabéry and Dori (co‑or-
                           dinates 13° 29´ 08˝ N, 01° 01´ 00˝ E).
                            Where there are gaps in the course of the IGN line, these will be filled by
                         straight lines or, where there is a watercourse, by following its bed.

                           In the Say sector :
                         — starting from the tripoint of the former boundaries of the cercles of
                             Say, Tillabéry and Dori (co‑ordinates 13° 29´ 08˝ N, 01° 01´ 00˝ E), the
                             frontier runs in a straight line as far as the point having co‑ordinates
                             13° 04´ 52˝ N, 00° 55´ 47˝ E (where it cuts the River Sirba at the level
                             of the Say parallel), then from that point a straight line passing through
                             a point situated 4 km to the south‑west of Dogona with co‑ordinates
                             13° 01´ 44˝ N, 01° 00´ 25˝ E, as far as the frontier marker with co‑or-
                             dinates 12° 37´ 55.7˝ N, 01° 34´ 40.7˝ E, and finally from there to the
                             point fixed by agreement between the Parties, the co‑ordinates of which
                             are the following : 12° 36´ 18˝ N, 01° 52´ 07˝ E.”
                      10. At the oral proceedings, the following final submissions were presented
                    by the Parties :

                                                                                17

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                                          frontier dispute (judgment)                         58

                    On behalf of the Government of Burkina Faso,
                    At the hearing of 15 October 2012 :
                      The submissions read at the hearing were identical to those presented by
                    Burkina Faso in its written pleadings.
                    On behalf of the Government of Niger,
                    At the hearing of 17 October 2012 :
                      The submissions read at the hearing were identical to those presented by
                    Niger in its Counter‑Memorial, with the exception of the following paragraph
                    which was added :
                           “In accordance with Article 7, paragraph 4, of the Special Agreement,
                        Niger also requests the Court to nominate, in its Judgment, three experts
                        to assist our two countries as necessary in the demarcation of the common
                        frontier.”

                                                            *
                                                       *        *

                                   I. Historical and Factual Background

                       11. The Court will begin with a brief description of the historical and
                    factual background to the present case.
                       12. The frontier dispute between the Parties is set within a historical
                    context marked by the accession to independence of the countries that
                    were formerly part of French West Africa. From the beginning of the
                    century up to the entry into force of the French Constitution of 27 Octo-
                    ber 1946, the territorial administration of French West Africa was cen-
                    tralized. It was headed by a governor‑general and divided into colonies,
                    whose creation or abolition fell within the executive power of the French
                    Republic. Each of these colonies was headed by a “colonial governor”
                    with the title of “lieutenant‑governor”. The colonies were themselves
                    made up of basic units called cercles which were administered by com
                    mandants de cercle ; the creation and abolition of the cercles were the sole
                    prerogative of the governor‑general, who decided their overall extent.
                    Each cercle in turn was composed of subdivisions, administered by chefs
                    de subdivision. Finally, the subdivisions comprised cantons, which grouped
                    together a number of villages. The creation and abolition of subdivisions
                    and cantons within any particular cercle came within the jurisdiction
                    of the lieutenant‑governor of the colony of which the cercle formed part
                    (see Frontier Dispute (Burkina Faso/Republic of Mali), Judgment,
                    I.C.J. Reports 1986, p. 569, para. 31).

                      13. By a Decree dated 18 October 1904, the purpose of which was to
                    reorganize the administration of French West Africa, the President of the
                    French Republic established the Colony of Haut‑Sénégal et Niger. This
                    newly created colony was composed of cercles, which were under civil

                                                                                18

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                                                frontier dispute (judgment)                 59

                    administration, as well as an area under military administration called the
                    “Military Territory of Niger”.
                       14. By an Arrêté of the Governor‑General of French West Africa
                    dated 21 June 1909, Dori cercle, part of the Military Territory of Niger,
                    was incorporated into the Civil Territory of Haut‑Sénégal et Niger. By an
                    Arrêté of 22 June 1910, the region of Timbuktu and parts of Gao, Till-
                    abéry 1 and Djerma cercles which also belonged to the Military Territory
                    of Niger were incorporated into the Civil Territory of Haut‑Sénégal et
                    Niger to form the cercles of Timbuktu (sedentary and nomadic popula-
                    tions), Gourma and Say. The cantons of Tillabéry situated on the right
                    bank of the River Niger were also incorporated into Dori cercle.

                       15. On 7 September 1911, the President of the French Republic issued
                    a further Decree which separated the Military Territory of Niger from the
                    Colony of Haut‑Sénégal et Niger and established it as a separate admin-
                    istrative subdivision under the authority of the Governor‑General of
                    French West Africa.
                       16. By virtue of a Decree of the President of the French Republic dated
                    1 March 1919, the cercles of Gaoua, Bobo‑Dioulasso, Dédougou, Ouaga-
                    dougou, Dori, Say and Fada N’Gourma, which had until then been part
                    of Haut‑Sénégal et Niger, were established as a separate colony with the
                    name of Upper Volta.
                       17. By a Decree of the President of the French Republic dated
                    4 December 1920, the Military Territory of Niger was turned into the
                    Territory of Niger, with effect from 1 January 1921. It was then made an
                    autonomous colony by Decree of 13 October 1922.
                       18. By a Decree of the President of the French Republic dated
                    28 December 1926, certain territories belonging to the Colony of Upper
                    Volta, namely “Say cercle, with the exception of Gourmantché Botou
                    canton”, and “[t]he cantons of Dori cercle which were formerly part of the
                    Military Territory of Niger in the Téra and Yatacala regions, and [which]
                    were detached from it by the Arrêté of the Governor‑General of 22 June
                    1910” (see paragraph 14 above), were incorporated into the Colony of
                    Niger. The Decree also provided that an Arrêté of the Governor‑General
                    “shall determine the course of the boundary of the two Colonies in this
                    area”.
                       19. On 31 August 1927, the Governor‑General ad interim of French
                    West Africa issued an Arrêté intended to “[fix] the boundaries of the Col-
                    onies of Upper Volta and Niger”. The text of that Arrêté read as follows :

                                                        “Article 1
                            The boundaries of the Colonies of Niger and Upper Volta shall
                          henceforth be determined as follows :

                      1   Also referred to by the Parties as Tillabéri.

                                                                                19

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                                    frontier dispute (judgment)                         60

                    1. Boundaries between the Tillabéry cercle and Upper Volta :
                          This boundary is determined to the north by the current boun-
                      dary with Sudan (Gao cercle) as far as the heights of N’Gourma,
                      and to the west by a line passing through the Kabia ford, Mount
                      Darouskoy and Mount Balébanguia, west of the ruins of the vil-
                      lage of Tokébangou, and Mount Doumafondé, which then turns
                      [‘s’infléchit’] towards the south‑east, leaving the ruins of
                      Tong‑Tong to the east and descending in a north‑south direction,
                      cutting the Téra‑Dori motor road to the west of the Ossolo Pool,
                      until it then joins the River Sirba (boundary of Say cercle), near
                      to and to the south of Boulkalo.
                    2. Boundaries between the Say cercle and Upper Volta :
                         The villages of Botou canton are excluded from this boundary.
                         To the north and to the east, by the current boundary with
                      Niger (Niamey cercle), from Sorbohaoussa to the mouth of the
                      River Mekrou.
                         To the north‑west, by the River Sirba from its mouth as far as
                      the village of Bossébangou. From this point a salient, including
                      on the left bank of the Sirba the villages of Alfassi, Kouro, Taka-
                      lan and Tankouro.
                         To the south‑west, a line starting approximately from the Sirba
                      at the level of the Say parallel and running as far as the Mekrou.
                         To the south‑east, by the Mekrou from that point as far as its
                      confluence with the Niger.
                    3. Boundaries of Botou canton :
                         To the west : the furthest point is marked by the intersection of
                      the Fada‑Say road with the former boundary of the two cercles
                      and the Tiéguelofonou marigot. That point is located 1,200 m
                      west of the village of Tchenguiliba.
                         From that point, the boundary turns back up towards the
                      north, running in a straight line in a marked SSW‑NNE direction.
                         It passes approximately 2 km west of the village of Berni‑Oueli
                      and terminates in the north approximately 2 km south of the vil-
                      lage of Vendou Mama at the top of the northernmost spur of the
                      Héni‑Djoari (Gourma) massif or Jackal Mountain.
                         To the north : the boundary runs in a marked west‑east direc-
                      tion. It passes 1 km south of Mount Tambado Djoaga, follows the
                      course of the Dantiabonga marigot, passes south of Dantiandou,
                      follows the line of the Yoga Djoaga hills as far as the confluence of
                      the Dantiabouga and Diamoungou marigots, and continues along
                      the latter up to the confluence of the Diamoungou and Boulelfo-
                      nou marigots approximately 5 km north of the latter village.
                         To the north‑east : the boundary follows the crests of the Djoa-
                      pienga hills up to the source of the Boulelfonou marigot, runs up

                                                                                20

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                                         frontier dispute (judgment)                          61

                           the north slope of the Tounga Djoaga massif and terminates at
                           the point known as Niobo‑Farou (Caiman Pool), a sort of broad
                           basin, which is traversed during the dry season by the track from
                           Botou to Fombonou.
                              To the east : the boundary follows the eastern crests of the
                           Tounga Djoaga massif and runs towards the River Tapoa in a pre-
                           cise north‑south direction. It passes approximately 5 km east of the
                           village of Royori (a relatively dispersed farming village) and reaches
                           the Tapoa at a point which it is not possible to define precisely.
                              To the south‑east and to the south : the boundary follows the
                           course of the Tapoa upstream until it meets the former boundary
                           of the Fada and Say cercles.
                              This endpoint cannot be defined, as the southern region of
                           Botou is completely empty, and virtually unexplored.
                                                      Article 2
                           The Lieutenant‑Governors of Upper Volta and Niger are respon-
                        sible for implementing the present Arrêté, which shall be recorded,
                        published and publicized in all appropriate quarters.”
                      20. The Arrêté was the subject of an Erratum dated 5 October 1927,
                    which stated as follows :
                          “Article 1 of the Arrêté of 31 August 1927 fixing the boundaries of
                        the Colonies of Niger and Upper Volta, published in the Official Jour
                        nal of French West Africa No. 1201, of 24 September 1927, page 638,
                        should read as follows :
                                                    Article 1
                          The boundaries of the Colonies of Niger and Upper Volta are
                        determined as follows :
                          A line starting from the heights of N’Gouma, passing through the
                        Kabia ford (astronomic point), Mount Arounskoye and Mount
                        Balébanguia, to the west of the ruins of the village of Tokebangou,
                        Mount Doumafende and the Tong‑Tong astronomic marker ; this line
                        then turns [‘s’infléchit’] towards the south‑east, cutting the Téra‑Dori
                        motor road at the Tao astronomic marker located to the west of the
                        Ossolo Pool, and reaching the River Sirba at Bossébangou. It almost
                        immediately turns back up towards the north‑west, leaving to Niger,
                        on the left bank of that river, a salient which includes the villages of
                        Alfassi, Kouro, Tokalan, and Tankouro ; then, turning back to the
                        south, it again cuts the Sirba at the level of the Say parallel.
                          From that point the frontier, following an east‑south‑east direction,
                        continues in a straight line up to a point located 1,200 m to the west
                        of the village of Tchenguiliba.
                          From that point it turns back up in a straight line that runs in a
                        marked SSW‑NNE direction ; it passes approximately 2 km west of
                        the village of Birniouoli and, approximately 2 km to the south of the

                                                                                21

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                                         frontier dispute (judgment)                        62

                        village of Vendou Mama, reaches the top of the northernmost spur
                        of the Heni‑Djouri (Gourma) massif or Jackal Mountain.

                           Running then in a west‑east direction, it passes 1 km south of
                        Mount Tambado Djoaga, follows the course of the Dantiabonga mar
                        igot, passes south of Dantiandou, follows the line of the Yoga Djoaga
                        hills as far as the confluence of the Dantiabonga and Diamongou
                        marigots, and runs along the latter as far as the confluence of the
                        Dialongou and Boulelfonou marigots approximately 5 km north of
                        the latter village.
                           From that point, the boundary follows the crests of the Djoapionga
                        hills as far as the source of the Boulolfonou marigot, runs up the
                        northern slope of the Tounga and Djoaga massif and terminates at
                        the point known as Niobo-Farou (Caiman Pool), a sort of broad
                        basin, which is traversed during the dry season by the track from
                        Botou to Fombonou.
                           It is then determined by the eastern crests of the Tounga Djoaga
                        massif, before running towards the River Tapoa in a precise
                        north‑south direction. It passes approximately 5 km east of the village
                        of Kogori and reaches the Tapoa approximately 4 km south of the
                        aforementioned village.
                           It then follows the course of the Tapoa upstream until it meets the
                        former boundary of the Fada and Say cercles, which it follows as far
                        as the point where it intersects with the course of the Mekrou.”
                       21. By a Decree of the President of the French Republic dated 5 Sep-
                    tember 1932, the Colony of Upper Volta was dissolved and its territory
                    was divided among Niger, French Sudan and Côte d’Ivoire. Upper Volta
                    was subsequently reconstituted within its 1932 boundaries by
                    Law No. 47‑1707 of 4 September 1947, which abrogated the Decree of
                    5 September 1932.
                       22. In 1958, the Colonies of Upper Volta and Niger became, respec-
                    tively, the Republic of Upper Volta and the Republic of Niger, members
                    of the “Community” established by the French Constitution of 1958.
                    Niger gained independence on 3 August 1960 and Upper Volta on
                    5 August 1960. On 4 August 1984, Upper Volta took the name Burkina
                    Faso.
                       23. Following their independence, the two States concluded the Proto-
                    col of Agreement of 23 June 1964 concerning the delimitation of their
                    common frontier. According to that Protocol, it was decided to take as
                    basic documents for the determination of the frontier the 1927 Arrêté, as
                    clarified by the Erratum of the same year, and the 1:200,000‑scale map
                    produced by the French Institut géographique national in 1960 (herein
                    after the “IGN map” or the “1960 map”). The Protocol of Agreement
                    also established a Joint Commission to demarcate the frontier on the
                    ground. However, the Joint Commission did not succeed in accomplish-
                    ing this task.

                                                                                22

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                                         frontier dispute (judgment)                       63

                       24. The negotiation process between the two States over the course of
                    their common frontier was relaunched in the mid‑1980s, resulting in the
                    conclusion of the Agreement of 28 March 1987 (registered with the
                    United Nations by Burkina Faso on 7 October 2010 under registration
                    number I‑47964), supplemented by a Protocol of Agreement of the same
                    date (registered with the United Nations by Burkina Faso on 7 Octo-
                    ber 2010 under registration number I‑47965). According to Article 1 of
                    the 1987 Protocol of Agreement, the frontier between the two States
                    “shall run” as described in the Arrêté, as clarified by the Erratum (see
                    paragraph 64 below). Moreover, according to Article 2, common to both
                    the Agreement and Protocol of Agreement, that frontier “shall be demar-
                    cated” following the course described in the Arrêté, as clarified by the
                    Erratum. This second provision, relating to demarcation, also added that
                    “[s]hould the Arrêté and Erratum not suffice, the course shall be that
                    shown on the [IGN map], and/or any other relevant document accepted
                    by joint agreement of the Parties”.
                       25. The 1987 Protocol of Agreement also created a Joint Technical
                    Commission on Demarcation of the Frontier (hereinafter the “Joint
                    Technical Commission”) and a Demarcation Fund, and dealt with certain
                    questions concerning the rights of individuals affected by the demarca-
                    tion. The Joint Technical Commission began its work in May 1987, and
                    in March 1988 it set up a field team comprising 42 experts from the two
                    States to conduct topographical work. The Joint Technical Commission
                    held a meeting in Niamey in September 1988 to plot on a map the line
                    resulting from the field surveys carried out by that team of experts. The
                    Parties disagree as to the results of this meeting. Burkina Faso is of the
                    view that the report established a “consensual line”, which was later con-
                    tested by Niger on the grounds that it was contrary to both the Arrêté
                    and Erratum. Niger, for its part, maintains that, while the two Parties
                    agreed on various proposals for the frontier line in dispute, they never
                    agreed on a “consensual line”. Furthermore, Niger contends that the pro-
                    visional line proposed in 1988 has never been formalized in a binding
                    legal instrument.

                       26. At the conclusion of a ministerial consultative and working meet-
                    ing held in May 1991, the Minister of the Interior of Niger and the Min-
                    ister for Territorial Administration of Burkina Faso issued a Joint
                    Communiqué, dated 16 May 1991, which stated that :
                       “1. From the Tong‑Tong astronomic marker to the River Sirba at
                           Bossébangou, passing through the Tao astronomic marker, the
                           frontier shall consist of a series of straight lines.
                        2. From the River Sirba at Bossébangou to the River Mekrou, the
                           course of the frontier adopted shall be that shown on the [IGN
                           map].”

                                                                                23

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                       27. At a meeting of the Joint Technical Commission from 2 to
                    4 November 1994, however, Niger called into question the solution set
                    forth in the Joint Communiqué on the grounds that it was not consistent
                    with the terms of Articles 1 and 2 of the 1987 Protocol of Agreement.
                    Burkina Faso contested Niger’s point of view during the same meeting.
                    Thereafter, the text of the Joint Communiqué was not submitted to the
                    ratification procedure required by Article 7 of the 1987 Agreement.
                       28. At the fourth ordinary session of the Joint Technical Commission,
                    in July 2001, it was concluded, inter alia, that :

                       “1. The frontier was clearly defined from the heights of [Mount]
                              N’Gouma to the astronomic marker of Tong‑Tong, with the
                              exception of the ruins of Tokébangou, which the frontier passes
                              to the west. These ruins were not identified in the course of the
                              survey of the frontier line.
                        �����������������������������������������������������������������������������������������������������������������
                        2. The frontier was clearly defined from Tchenguiliba to the River
                              Mékrou, subject to the survey team’s verification of the position
                              of the village of Kogori.
                        3. From the Tong‑Tong astronomic marker to the River Sirba at
                              Bossébangou, the phrase ‘this line then turns [‘s’infléchit’] towards
                              the south‑east, cutting the Téra-Dori motor road at the Tao
                              astronomic marker located to the west of the Ossolo Pool, and
                               reaching the River Sirba at Bossébangou’ has resulted in two
                               interpretations :
                              (a) the frontier is composed of two (2) straight lines :
                                     — from the Tong‑Tong astronomic marker to the Tao
                                            astronomic marker ;
                                     — from the Tao astronomic marker to the River Sirba at
                                            Bossébangou.
                              (b) the frontier consists of a curved line, starting from the
                                     Tong‑Tong astronomic marker, passing through the Tao
                                     marker and terminating at the River Sirba at Bossébangou.
                        �����������������������������������������������������������������������������������������������������������������
                        4. From Bossébangou to Tchenguiliba, the Commission noted prob-
                              lems of interpretation associated with the failure to identify the
                              villages referred to in the Erratum and with the identification of
                              the point at which the frontier again cuts the River Sirba at the
                              level of the Say parallel. The technical survey team will also visit
                              the area in order to identify these villages or their 1927 sites. The
                              villages concerned are Alfassi, Kouro, Tokalan and Tankouro.”
                       29. The Joint Technical Commission consequently decided to appoint
                    a field survey team to locate in particular the ruins of the village of Tokéb-
                    angou and the villages of Kouro, Alfassi, Tokalan, Tankouro and Kogori.

                                                                                24

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                    However, that decision was never implemented, and the differences of
                    opinion persisted with regard to the course of the frontier between the
                    Tong‑Tong astronomic marker and a point located 1,200 m to the west of
                    the village of Tchenguiliba (referred to in the Special Agreement as the
                    “beginning of the Botou bend”).
                       30. At a meeting held on 24 February 2009, the Governments of
                    Burkina Faso and Niger signed the Special Agreement whereby they
                    agreed to submit the dispute to the Court (see paragraph 1 above).
                       31. From 23 June to 3 July 2009, experts of the two countries con-
                    ducted a joint survey mission to record the co‑ordinates of the markers
                    constructed on the Burkina Faso‑Niger frontier in the sectors running
                    from Mount N’Gouma to the Tong‑Tong astronomic marker and from
                    the beginning of the Botou bend to the River Mekrou. The results were
                    set out in a report signed on 3 July 2009. A second joint mission was car-
                    ried out in October 2009, in order to ascertain the co‑ordinates of the
                    points which had still to be marked in the two above‑mentioned sectors,
                    namely the point where the course of the Tapoa intersects with the former
                    boundary of Fada and Say cercles, and the point where that boundary
                    intersects with the course of the Mekrou. The results of this second mis-
                    sion were set out in a report signed on 15 October 2009.

                       32. In a letter of 29 October 2009, the Acting Minister for Foreign
                    Affairs and Regional Co‑operation of Burkina Faso proposed to the
                    Minister for Foreign Affairs and Co‑operation of Niger that these two
                    reports be considered as representing the agreement request between the
                    two Governments within the meaning of Article 2 of the Special Agree-
                    ment. The Niger Minister for Foreign Affairs and Co‑operation replied in
                    a letter dated 2 November 2009, in which she confirmed “the agreement
                    of the Government of Niger to this proposal”, so that the above‑men-
                    tioned letter of 29 October 2009 and her own letter “constitute[d] an
                    agreement (‘accord’) placing on record the agreement (‘entente’) between
                    Burkina Faso and the Republic of Niger on the delimited sectors of the
                    frontier between the two countries”. Niger carried out the internal proce-
                    dure to enable the ratification of the exchange of letters, informed Burkina
                    Faso accordingly by a letter of its Minister for Foreign Affairs dated
                    13 February 2012 and proposed that the exchange of instruments of rati-
                    fication take place as soon as possible.
                       33. As far as the Special Agreement is concerned, the Protocol of
                    Exchange of the Instruments of its Ratification was signed by representa-
                    tives of the two Governments on 20 November 2009. The Special Agree-
                    ment itself, which entered into force on the same day, was notified to the
                    Court on 20 July 2010. It was accompanied by the above‑mentioned
                    exchange of letters dated 29 October and 2 November 2009, under the
                    title “Exchange of Notes embodying the agreement of the Parties on the
                    delimited sectors of the frontier” (see paragraph 1 above).

                                                         *
                                                                                25

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                       34. The Parties request the Court to settle the dispute between them
                    regarding the course of their common frontier between the astronomic
                    marker of Tong‑Tong and the beginning of the Botou bend, on the basis
                    of Article 2, point 1, of the Special Agreement (see paragraph 2 above)
                    (see sketch‑map No. 1, p. 67). The Court will examine that dispute in
                    Part III of the present Judgment. Before doing so, it will deal, in Part II
                    below, with the request submitted to it by Burkina Faso, on the basis of
                    Article 2, point 2, of the Special Agreement, regarding the two sectors of
                    the frontier which have already been demarcated, lying north of the
                    Tong‑Tong astronomic marker and south of the beginning of the Botou
                    bend (see sketch‑map No. 1).

                           II. The Request concerning the Two Sectors Running,
                                 in the North, from the Heights of N’Gouma
                         to the Tong-Tong Astronomic Marker and, in the South,
                        from the Beginning of the Botou Bend to the River Mekrou

                                         A. The Request of Burkina Faso
                       35. In points 1 and 3 of its final submissions, Burkina Faso requests
                    the Court to adjudge and declare that its frontier with Niger follows, in
                    the sector situated between the heights of N’Gouma and the Tong‑Tong
                    astronomic marker, and in the sector situated between the beginning of
                    the Botou bend and the River Mekrou, a course which consists of lines
                    linking points whose co‑ordinates it provides (see the text of the final sub-
                    missions of Burkina Faso in paragraph 10 above).
                       36. In submitting this request, Burkina Faso does not claim that there
                    still exists, at the present time, a dispute between itself and Niger regard-
                    ing these two sectors of their common frontier. It acknowledges that the
                    Joint Technical Commission, created by the 1987 Protocol of Agreement,
                    reached conclusions in 2001 that were accepted by both Parties concern-
                    ing the two sectors in question, situated respectively in the northern and
                    southern parts of their common frontier. The co-ordinates of the points
                    which Burkina Faso requests the Court to adopt in order to draw the
                    frontier line in these two sectors correspond to those recorded in 2009 by
                    the joint mission appointed by the two States and given the task of con-
                    ducting surveys based on the work of the Joint Technical Commission
                    relating to the sectors in question.
                       37. Burkina Faso nevertheless requests the Court to include in the
                    operative part of its Judgment the line of the common frontier in the two
                    sectors on which the Parties have agreed, so as to endow this line with the
                    force of res judicata. Hence, according to Burkina Faso, the two Parties
                    will indisputably be bound in accordance with their agreement (“entente”)
                    on those two sectors, in the same way that they will be bound with regard
                    to the frontier line which the Court will determine with regard to the sec-
                    tor that remains in dispute.

                                                                                26

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                                                                 frontier dispute (judgment)                                                                                67
                                                                                Sketch Map 1:
                                               PARTIES’ CLAIMS AND LINE DEPICTED ON THE 1960 IGN MAP
                                               This sketch map has been prepared for illustrative purposes only
                    0º 00’

                                                0º 30’

                                                                   1º 00’

                                                                                1º 30’

                                                                                2º 00’

                                                                                2º 30’

                                                                                3º 00’
                                                                                delimited sectors of the frontier
                                 M A L I                                                                                line claimed by Burkina Faso
                                                                                line claimed by Niger
          15º 00’                                                                                line shown on the 1960 IGN map                             15º 00’
                                                                                SB : point where the frontier “reach[es] the
                                     Mount N’Gouma
                                                                                River Sirba at Bossébangou”
                                                                                P : point 1,200m west of Tchenguiliba,
                                                                                marking the beginning of the Botou bend
                                                                                0             20            40       60          80     100km
          14º 30’                                                                                scale true at 13º30’ N                      14º 30’
                                     Tong-Tong astronomic marker                                                                                WGS84 Ellipsoid and Datum

                                                                                Tillabéri

                                             Tao astronomic marker
          14º 00’             Téra-Dori                   Téra                                                                                14º 00’
                             motor road                                                                 R
                               in 1927                                                                      iv
                                                                                e
                                                                                r
                                                                                N
                                                                  N I G E R                                                  ig
                                                                                er

                                                                                NIAMEY
                                                                                a

          13º 30’                                                                                13º 30’
                                                                                rb
                                                                                Si

                                                                                SB
                                                                                Bossébangou
                                                                                r
                                                                                e
                                                                            iv

                                                                                Say
                                                                            R

          13º 00’                                                                                13º 00’

                              B U R K I N A
                                 F A S O
                                                                                P
          12º 30’                                                                                12º 30’

                                                                                rou
                                                                                ék
                                                                                M

                                          Fada N’Gourma

          12º 00’                                                                                12º 00’
                                                                                er
                                                                                iv
                                                                                R

          11º 30’                                                                                B E N I N                   11º 30’

                                                                                11º 00’
                    0º 00’

                                                0º 30’

                                                                   1º 00’

                                                                                1º 30’

                                                                                2º 00’

                                                                                2º 30’

                                                                                3º 00’

                                                                                27

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                      38. In order to found the Court’s jurisdiction in respect of the two sec-
                    tors already demarcated by mutual agreement, Burkina Faso relies on
                    Article 2, point 2, of the Special Agreement, under the terms of which the
                    Court is requested to :
                        “2. place on record the Parties’ agreement [‘leur entente’] on the
                            results of the work of the Joint Technical Commission on Demar-
                            cation of the Burkina Faso‑Niger boundary with regard to the
                            following sectors :
                        (a) the sector from the heights of N’Gouma to the astronomic marker
                            of Tong‑Tong ;
                        (b) the sector from the beginning of the Botou bend to the River
                            Mekrou.”

                                             B. The Position of Niger
                       39. Without expressly asking the Court to reject the request made by
                    Burkina Faso in points 1 and 3 of its final submissions, Niger does not
                    join in it.
                       According to Niger, since there already exists an agreement between
                    the Parties regarding the two sectors in question, there is no need for the
                    Court to include in the operative part of its Judgment a reference to those
                    sectors. Niger indicates that it accepted the inclusion of Article 2, point 2,
                    in the Special Agreement for the sake of reaching an agreement that
                    would allow the Court to be seised, and because of Burkina Faso’s insis-
                    tence on this point. However, it takes the view that the Court should note
                    the agreement in question in the reasoning of its Judgment and settle the
                    only dispute which remains between the Parties, namely that relating to
                    the part of the frontier in respect of which the Joint Technical Commis-
                    sion was unable to conclude its work successfully, and on which the Par-
                    ties have therefore not been able to reach agreement.
                       40. Consequently, in its final submissions, Niger only requests the Court
                    to draw the frontier between the two States in the section running from the
                    Tong‑Tong astronomic marker to the point which both Parties have identi-
                    fied as the “beginning of the Botou bend”. Niger’s final submissions thus
                    correspond, in fact, to Article 2, point 1, of the Special Agreement.

                                          C. Consideration by the Court
                       41. The Court first recalls that even when it is seised on the basis of a
                    special agreement concluded between the two States that appear before it,
                    it is always required to rule on the final submissions of the parties as for-
                    mulated at the close of the oral proceedings. There is no difference in this
                    respect between cases where the Court is seised by means of a unilateral
                    application and those where it is seised by a special agreement.
                       42. However, in cases where the special agreement forms the only basis
                    of jurisdiction, it goes without saying that any request made by a party in

                                                                                28

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                     its final submissions can fall within the jurisdiction of the Court only if it
                     remains within the limits defined by the provisions of the special agree-
                    ment, a matter which is for the Court to ascertain.
                        43. In this respect, the Court observes that the request contained in
                    points 1 and 3 of the final submissions of Burkina Faso does not exactly
                    correspond to the terms of the Special Agreement. Indeed, Burkina Faso
                    does not request the Court to “place on record the Parties’ agreement”
                    (“leur entente”) regarding the delimitation of the frontier in the two sec-
                    tors concerned, but rather to delimit itself the frontier according to a line
                    that corresponds to the conclusions of the Joint Technical Commission
                    upon which the two Parties have agreed. Although the final outcome is
                    equivalent in substance as regards the line itself, Burkina Faso’s request is
                    not the same in nature as that contained in Article 2, point 2, of the Spe-
                    cial Agreement : it is one thing to note the existence of an agreement
                    between the Parties and to place it on record for them ; it is quite a differ-
                    ent matter to appropriate the content of that agreement in order to make
                    it the substance of a decision of the Court itself. Taken literally, Burkina
                    Faso’s request could therefore be rejected as exceeding the limits of the
                    Court’s jurisdiction as defined by the Special Agreement.
                        44. It is true, however, that the Court has the power to interpret the
                    final submissions of the parties in such a way as to maintain them, so far
                    as possible, within the limits of its jurisdiction under the Special Agree-
                    ment. In the present case, without dwelling on their precise language, it
                    would be possible to interpret points 1 and 3 of the final submissions of
                    Burkina Faso as seeking that the Court place on record the agreement of
                    the Parties. Taken in that way, this request would remain within the
                    limits of the jurisdiction which the Special Agreement conferred upon the
                     Court in the present case.
                        45. Nevertheless, that would not necessarily be sufficient for the Court
                     to be able to entertain such a request. It would still have to be verified
                     that the object of this request falls within the Court’s judicial function, as
                     defined by its Statute.
                        As the Court has already had occasion to state in a different context,
                     but in terms that have a general scope :
                         “even if the Court, when seised, finds that it has jurisdiction, the Court
                         is not compelled in every case to exercise that jurisdiction. There are
                         inherent limitations on the exercise of the judicial function which the
                         Court, as a court of justice, can never ignore. There may thus be an
                         incompatibility between the desires of an applicant, or, indeed, of
                         both parties to a case, on the one hand, and on the other hand the
                         duty of the Court to maintain its judicial character. The Court itself,
                         and not the parties, must be the guardian of the Court’s judicial integ-
                         rity.” (Northern Cameroons (Cameroon v. United Kingdom), Prelim
                         inary Objections, Judgment, I.C.J. Reports 1963, p. 29.)
                      46. These considerations are perfectly applicable to the present case,
                    despite the fact that, unlike in the Northern Cameroons case, the Court

                                                                                29

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                                           frontier dispute (judgment)                           70

                    has been seised by means of a special agreement. A special agreement
                    allows the parties to define freely the limits of the jurisdiction, stricto
                    sensu, which they intend to confer upon the Court. It cannot allow them
                    to alter the limits of the Court’s judicial function : those limits, because
                    they are defined by the Statute, are not at the disposal of the parties, even
                    by agreement between them, and are mandatory for the parties just as for
                    the Court itself.
                       47. In the light of the foregoing, the Court must determine whether the
                    object of the request contained in Article 2, point 2, of the Special Agree-
                    ment falls within the judicial function attributed to the Court by its Statute.
                       48. In contentious cases, the function of the Court, as defined in Arti-
                    cle 38, paragraph 1, of the Statute, is to “decide in accordance with inter-
                    national law such disputes as are submitted to it”. Consequently, the
                    requests that parties submit to the Court, must not only be linked to a
                    valid basis of jurisdiction, but must also always relate to the function of
                    deciding disputes. As the Court has already indicated, also in a context
                    different from that of the present case :

                            “The Court, as a court of law, is called upon to resolve existing dis-
                         putes between States. Thus the existence of a dispute is the primary
                         condition for the Court to exercise its judicial function.” (Nuclear Tests
                         (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 270‑271,
                         para. 55 ; Nuclear Tests (New Zealand v. France), Judgment,
                         I.C.J. Reports 1974, p. 476, para. 58.)
                       49. It is for the Court to determine objectively whether there is a dis-
                    pute, without being bound in that respect by the assertions of the parties
                    (ibid., paras. 55 and 58).
                       50. In the present case, the Court’s task is all the more straightforward
                    since neither of the two Parties claims, or has ever claimed, that a dispute
                    continued to exist between them concerning the delimitation of the frontier
                    in the two sectors in question on the date when the proceedings were insti-
                    tuted — nor that such a dispute has subsequently arisen. The absence of a
                    dispute is amply confirmed by the documents in the case file. The Special
                    Agreement, duly ratified by both Parties (see paragraph 33 above), states in
                    the clearest manner that “thanks to the work of the Joint Technical Com-
                    mission on Demarcation . . ., the Parties have been able to reach agreement
                    [‘s’accorder’] in respect of [these] sectors of the frontier”. It further states
                    that “the two Parties accept the results of the work carried out in those sec-
                    tors as definitive”. Article 2, point 2, which was previously cited, provides
                    that the Court be requested to “place on record the Parties’ agreement
                    [‘leur entente’]” on the results of the work of the Commission with regard
                    to these two sectors. To affirm that the Parties have “reach[ed] agreement”
                    (“[se sont] accord[ées]”), or that there is an “agreement” (“entente”)
                    between them, necessarily signifies that there is no longer any dispute
                    between them on the subject‑matter of that “agreement” (“entente”).

                                                                                30

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                        51. If the Parties have appeared to argue differently, it is on the ques-
                    tion of whether the “entente” referred to in Article 2, point 2, of the Spe-
                    cial Agreement has already resulted in an agreement which is legally
                    binding for the two Parties under international law.
                        Niger has maintained, in particular in reply to a question put by a
                    Member of the Court during the hearings, that “[t]he agreement between
                    the two States on the demarcated sectors was definitively reached”. It has
                    however stated that the exchange of letters of 29 October and 2 Novem-
                    ber 2009 was not yet legally binding between the Parties, but that it was
                    up to Burkina Faso for its part to follow the necessary ratification proce-
                    dure, should it wish the said agreement to become a binding legal instru-
                    ment between itself and Niger.
                        Burkina Faso has appeared to cast doubt on the existence, at the pres-
                    ent time, of a legally binding agreement. It has contended that the term
                    used in Article 2, point 2, of the Special Agreement is “entente” in French,
                    which is not precisely synonymous with the word “accord” (agreement),
                    that it has not yet ratified, in accordance with Article 7 of the 1987 Agree-
                    ment, the “entente” between the Parties constituted by the exchange of
                    letters of 29 October and 2 November 2009, and that only once this
                    entente has been “placed on the record” by the Court will the frontier
                    dispute “be completely resolved”.
                        52. In the opinion of the Court, the decisive question is whether a
                    dispute existed between the Parties concerning these two sectors on the
                     date when the proceedings were instituted, and the answer to that ques-
                     tion is indisputably negative, for the reasons which have just been set
                     forth.
                        53. It matters little, from the point of view of the judicial function of
                     the Court, whether or not the “entente” reached by the Parties has already
                     been incorporated into a legally binding instrument. If such an instru-
                     ment had already entered into force between the Parties, it would not be
                     for the Court to record that fact in the operative part of a Judgment,
                     since such a pronouncement would lie outside its judicial function, which
                     is to decide disputes. And if the legal instrument embodying the “entente”
                     had not yet entered into force, it would not be for the Court to substitute
                     itself for the Parties : since they both recognize that they have found some
                     common ground, it is for them, if need be, to take any step which remains
                     necessary for that agreement to enter into force. A judicial decision may
                     not be requested in this way as a substitute for the completion of the
                     treaty‑making process between States. Furthermore, since there is an
                     obligation to comply both with international agreements and with Judg-
                     ments of the Court, the “force of res judicata” with which, according to
                     Burkina Faso, the delimitation effected in the two sectors in question
                     would be endowed if the Court acceded to its request would not reinforce
                     the binding character of that delimitation.

                                                                                31

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                    54. Burkina Faso cites two precedents, in which it claims that the Per-
                 manent Court of International Justice consented to record, in the actual
                 operative part of a Judgment, an agreement concluded between the parties.
                    55. However, the Court considers that those precedents are not relevant,
                 since they both contemplate situations in which an agreement is reached
                 between the parties during the proceedings, and not a situation in which the
                 dispute had been resolved between the parties before seising the Court.
                    56. In the Order that it made on 6 December 1930 in the case concern-
                 ing Free Zones of Upper Savoy and the District of Gex (Second Phase), the
                 Permanent Court of International Justice took the view that
                     “there seems nothing to prevent the Court from embodying in its
                     judgment an agreement previously concluded between the Parties ; as
                     a ‘judgment by consent’, though not expressly provided for by the
                     Statute, is in accordance with the spirit of that instrument” (P.C.I.J.,
                     Series A, No. 24, p. 14).
                 However, as the context of this assertion shows beyond all doubt, the Per-
                 manent Court had in mind the possibility of an agreement which the par-
                 ties might conclude during the proceedings, pursuant to the particular
                 terms of the Special Agreement in that case, thereby putting an end to all
                 or part of the original dispute between them, i.e., the dispute which the
                 institution of the proceedings was intended to bring before that Court.

                    57. The same applies to the Judgment rendered in the case concerning
                 Société Commerciale de Belgique (Judgment, 1939, P.C.I.J., Series A/B,
                 No. 78, p. 178). In that case, the Permanent Court stated in the operative
                 clause that it “not[ed] the agreement between the Parties” with regard to
                 the definitive and obligatory character of the arbitral awards made previ-
                 ously between the Greek Government and the Société commerciale de
                 Belgique, awards whose execution lay at the heart of the dispute submit-
                 ted to that Court. The agreement in question was arrived at during the
                 proceedings, as a consequence of declarations of the Greek Government
                 acknowledging the obligatory character of the financial awards made
                 against it, declarations which Belgium treated as “changing the character
                 of the dispute”, leading it to withdraw part of its original submissions. In
                 these circumstances, it is understandable that the Permanent Court for-
                 mally noted, in the operative part of its Judgment, the agreement arrived
                 at between the Parties during the proceedings, an agreement whose exis-
                 tence was bound to influence the settlement on the merits of the dispute
                 originally brought before the Court.
                    58. In the circumstances of the present case, it is not necessary for the
                 Court to rule on such a possibility. What the Special Agreement provides
                 for is that the Court should place on record the “entente” reached by the
                 Parties at the end of their negotiations, before the proceedings were insti-
                 tuted. According to Burkina Faso, this should be included in the opera-
                 tive part of the Judgment. But for the reasons explained above, the Court
                 considers that such a request is not compatible with its judicial function.

                                                                                32

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                                       frontier dispute (judgment)                          73

                   59. Thus, the only dispute which remained between the Parties on the
                 date when the proceedings were instituted, and which continues to exist,
                 has as its subject‑matter the course of the common frontier between the
                 Tong‑Tong marker and the beginning of the Botou bend, that is, the sec-
                 tor on which the Joint Technical Commission was unable to conclude its
                 work successfully and in respect of which the Parties have presented the
                 Court with different solutions. It is this sector which will be examined in
                 the remainder of this Judgment ; only this sector will be delimited in the
                 operative clause of the Judgment.

                             III. The Course of the Section of the Frontier
                                         Remaining in Dispute

                                              A. Applicable Law
                    60. Since the Court is required to rule on the delimitation of the fron-
                 tier remaining in dispute, it must first determine the relevant applicable
                 law.
                    61. Article 6 of the Special Agreement, entitled “Applicable law”, stip-
                 ulates :
                        “The rules and principles of international law applicable to the
                     dispute are those referred to in Article 38, paragraph 1, of the Statute
                     of the International Court of Justice, including : the principle of the
                     intangibility of boundaries inherited from colonization and the Agree-
                     ment of 28 March 1987.”
                    62. The reference to Article 38, paragraph 1, of the Statute of the
                 Court clearly indicates that the rules and principles mentioned in that
                 provision of the Statute must be applied to any question that it might be
                 necessary for the Court to resolve in order to rule on the dispute.
                    63. Amongst the rules of international law applicable to the dispute,
                 the above‑mentioned provision of the Special Agreement highlights “the
                 principle of the intangibility of boundaries inherited from colonization
                 and the Agreement of 28 March 1987”.
                    A reference to the principle of intangibility of boundaries inherited
                 from colonization also appeared in the preamble to the Special Agree-
                 ment on the basis of which the case concerning the Frontier Dispute
                 (Burkina Faso/Republic of Mali) was brought before the Court. The
                 Chamber of the Court which dealt with the case concluded that it could
                 not “disregard the principle of uti possidetis juris, the application of which
                 gives rise to this respect for intangibility of frontiers” (Judgment,
                 I.C.J. Reports 1986, p. 565, para. 20).
                    The wording used in the Special Agreement in the present case is similar
                 to the text of resolution AGH/Res. 16 (I) adopted in Cairo in 1964 at the
                 first session of the Conference of African Heads of State and Government,
                 whereby the Conference declared that all member States of the Organiza-

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                 tion of African Unity “solemnly . . . pledge themselves to respect the bor-
                 ders existing on their achievement of national independence”. Subsequently,
                 Article 4 (b) of the Constitutive Act of the African Union laid down the
                 principle of “respect of borders existing on achievement of independence”.
                    The two Parties have consistently invoked in their pleadings either the
                 principle of the intangibility of boundaries inherited from colonization or
                 the uti possidetis juris principle. Thus, the Parties referred to the boundar-
                 ies as they existed between the two French overseas territories in ques-
                 tion, Niger and Upper Volta, on the dates — which are very close to each
                 other — on which the two Parties gained independence (3 and
                 5 August 1960, respectively).
                    64. In the present case, the Special Agreement provides specific indica-
                 tions as to the way in which the principle of the intangibility of boundar-
                 ies inherited from colonization must be applied. Article 6 of the Special
                 Agreement requires the application of “the Agreement of 28 March 1987”
                 (hereinafter the “1987 Agreement”), which binds the two Parties and the
                 objective of which is, according to its title, “the demarcation of the fron-
                 tier between the two countries”. The first two articles of this Agreement
                 are also reproduced word for word in a recital of the Special Agreement
                 (see paragraph 2 above), which demonstrates the importance the Parties
                 attach to those provisions for the settlement of the dispute between them.
                 They read as follows :
                                                    “Article 1
                        The frontier between the two States shall run from the heights of
                     N’Gouma, situated to the north of the Kabia ford, to the intersection
                     of the former boundary of the cercles of Fada and Say with the course
                     of the Mekrou, as described in the Arrêté [order] of 31 August 1927,
                     as clarified by the Erratum of 5 October 1927.
                                                      Article 2
                       The frontier shall be demarcated by boundary markers following
                     the course described by Arrêté 2336 of 31 August 1927, as clarified by
                     Erratum 2602/APA of 5 October 1927. Should the Arrêté and Erra-
                     tum not suffice, the course shall be that shown on the 1:200,000‑scale
                     map of the Institut géographique national de France, 1960 edition,
                     and/or any other relevant document accepted by joint agreement of
                     the Parties.”
                   In one of the two original texts of the 1987 Agreement, a copy of which
                 was submitted to the Court by the Parties, the reference to the Arrêté in
                 Article 1 is not accompanied by a reference to the Erratum. However, that
                 omission is probably due to an oversight, as demonstrated by the recital of
                 the Special Agreement which, like the other original text of the same
                 Agreement, reproduces the words “as clarified by the Erratum of 5 Octo-
                 ber 1927”. Only with the addition of those words is the text of Article 1
                 coherent with that of Article 2. Moreover, neither Party contested the fact
                 that the 1987 Agreement refers to the Arrêté as clarified by its Erratum.

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                   65. Although the aim of the 1987 Agreement is the “demarcation of
                 the frontier” between the two countries through the installation of mark-
                 ers, it lays down first of all the criteria that must be applied to determine
                 the “course” of the frontier. Those criteria are thus also relevant to the
                 sectors that the Joint Technical Commission was unable to demarcate.
                 The 1987 Agreement specifies the acts and documents of the French colo-
                 nial administration which must be used to determine the delimitation line
                 that existed when the two countries gained independence.
                   66. In this regard, the 1987 Agreement accords particular importance
                 to the Arrêté of 31 August 1927, as clarified by its Erratum of 5 Octo-
                 ber 1927. This is the Arrêté “fixing the boundaries of the Colonies of
                 Upper Volta and Niger”, issued by the Governor‑General of French West
                 Africa on the basis of a Decree of the President of the French Republic of
                 28 December 1926, in which it was indicated : “[a]n Arrêté of the Gover-
                 nor‑General in Standing Committee of the Government Council shall
                 determine the course of the boundary of the two Colonies in this area”.
                 As the Chamber of the Court emphasized in the case concerning the
                 Frontier Dispute (Benin/Niger),
                     “the uti possidetis juris principle requires not only that reliance be
                     placed on existing legal titles, but also that account be taken of the
                     manner in which those titles were interpreted and applied by the com-
                     petent public authorities of the colonial Power” (Judgment,
                     I.C.J. Reports 2005, p. 148, para. 140).
                 It follows from the 1987 Agreement that the Arrêté as clarified by its
                 Erratum is the instrument to be applied for the delimitation of the bound-
                 ary. It has to be interpreted in its context, taking into account the circum-
                 stances of its enactment and implementation by the colonial authorities.
                 As to the relationship between the Arrêté and its Erratum, the Court
                 observes that, since the purpose of the Erratum is to correct the text of
                 the Arrêté retroactively, it forms an integral part of the latter. For that
                 reason, whenever reference is made to the “Arrêté” in the remainder of
                 the present Judgment, that will signify, unless otherwise indicated, the
                 wording of the Arrêté as amended by the Erratum.
                    67. Article 2 of the 1987 Agreement provides for the possibility of “the
                 Arrêté and Erratum not suffic[ing]” and establishes that, in that event,
                 “the course shall be that shown on the 1:200,000‑scale map of the Institut
                 géographique national de France, 1960 edition” or resulting from “any
                 other relevant document accepted by joint agreement of the Parties”. The
                 Parties do not consider, however, that they have accepted any relevant
                 document other than the IGN map. According to the 1987 Agreement,
                 that map may only be used on an alternative basis, should the Arrêté “not
                 suffice”. The 1987 Agreement implies that the requirement of having
                 recourse to the IGN map should the Arrêté prove insufficient is applica-
                 ble not only to a delimitation, but also to a demarcation, as both Parties
                 acknowledged in their pleadings. It is primarily in relation to the interpre-
                 tation of the wording of Article 2 of the 1987 Agreement and its applica-

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                 tion to the present dispute that the Parties express differing views.
                 Burkina Faso contends that the Arrêté can be considered not to suffice
                 only in relation to a single section of the frontier, while Niger stresses the
                 imprecise and vague nature that it claims characterizes the Arrêté, which
                 even contains, in its view, certain errors. The questions of interpretation
                 and application that divide the Parties will, in so far as necessary, be con-
                 sidered by the Court when it rules on delimitation in the various unmarked
                 sections of the frontier.
                    68. Although it was drawn up under the auspices of the administration
                 of French West Africa, the IGN map is not an official document. In the
                 case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), the
                 Chamber of the Court observed that, in general, “[w]hether in frontier
                 delimitations or in international territorial conflicts, maps merely consti-
                 tute information which varies in accuracy from case to case” (Judgment,
                 I.C.J. Reports 1986, p. 582, para. 54). However, concerning the IGN map
                 in question, the Chamber considered that, “having regard to the date on
                 which the surveys were made and the neutrality of the source” and in a
                 situation “where all other evidence is lacking, or is not sufficient to show
                 an exact line, the probative value of [this] map becomes decisive” (ibid.,
                 p. 586, para. 62). In the present case, by virtue of Article 2 of the
                 1987 Agreement, the line shown on the IGN map is always of decisive
                 value, where the Arrêté does not suffice. The role thus accorded to the
                 map may be explained by the fact that, as evidenced by a Note compiled
                 by the IGN on 27 January 1975, the frontier has been outlined on the
                 map “in the light of information supplied by the heads of the frontier
                 districts and according to information gathered on the spot from the vil-
                 lage chiefs and local people” (ibid., p. 586, para. 61). As Niger points out,
                 though it draws only partial conclusions in this respect, the IGN map is
                 supposed to reflect the colonial effectivités at the critical date. However,
                 under the 1987 Agreement, the frontier line drawn on the IGN map must
                 be referred to on a subsidiary basis even if it does not correspond to those
                 effectivités.
                    69. When recourse is had to the IGN map 2, it should be borne in mind
                 that the frontier line is marked on it, according to convention, by discon-
                 tinuous lines of crosses. It is nonetheless easy to complete the line by join-
                 ing the points where it stops and then starts again. Generally, there is no
                 reason not to use straight‑line segments for this purpose. However, when
                 the crosses follow a river or the ridge of a hill, the line must continue
                 along that river or that ridge.

                     2 The IGN map was drawn up on the basis of the Clarke 1880 ellipsoid, which was then

                 in common usage. The Court, for its part, is using the 1984 World Geodetic System datum
                 (WGS 84) for the purposes of the present Judgment. Hence, the co‑ordinates provided by
                 the Court for various points of the frontier line have been established on the basis of the
                 WGS 84 datum, even where those points are determined by reference to the IGN map.
                    Given the scale of the IGN map, the said co-ordinates may be subject to a certain margin
                 of error. In any event, the indications given in wording in the Judgment shall prevail.

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                                        B. The Course of the Frontier
                    70. As noted above, in order to determine the course of the frontier,
                 recourse must first be had to the Arrêté, pursuant to the 1987 Agreement,
                 referred to in the Special Agreement.
                    As regards the section of the frontier that remains to be delimited, the
                 Arrêté describes in the following terms the new inter‑colonial administra-
                 tive boundary between Niger and Upper Volta that it determines :
                        “[From the Tong‑Tong astronomic marker] this line then turns
                     [‘s’infléchit’] towards the south‑east, cutting the Téra‑Dori motor
                     road at the Tao astronomic marker located to the west of the Ossolo
                     Pool, and reaching the River Sirba at Bossébangou. It almost imme-
                     diately turns back up towards the north‑west, leaving to Niger, on the
                     left bank of that river, a salient which includes the villages of Alfassi,
                     Kouro, Tokalan, and Tankouro ; then, turning back to the south, it
                     again cuts the Sirba at the level of the Say parallel.
                        From that point the frontier, following an east‑south‑east direction,
                     continues in a straight line up to a point located 1,200 m to the west
                     of the village of Tchenguiliba.”
                   71. Following the line thus described, the Court will examine in turn the
                 various sections of the frontier which remain in dispute between the Parties :
                 (1) that which runs from the Tong‑Tong astronomic marker to the Tao
                     astronomic marker ;
                 (2) that which runs from this latter point to the River Sirba at Bossé-
                     bangou ;
                 (3) that which runs from this point to the intersection of the Sirba with
                     the Say parallel ;
                 (4) and, lastly, that which runs from this latter point to the point located
                     1,200 m to the west of the village of Tchenguiliba, which the Special
                     Agreement refers to as “the beginning of the Botou bend” (see
                     sketch‑map No. 1).

                 1. The course of the frontier between the Tong‑Tong and Tao astronomic
                     markers
                    72. The Parties agree that, in accordance with the Arrêté, which in this
                 regard is deemed to describe the inter‑colonial administrative boundary
                 in force at the critical date of independence, their common frontier con-
                 nects the two points at which the Tong‑Tong and Tao astronomic mark-
                 ers are respectively situated. They are also in agreement on the location of
                 the Tong‑Tong astronomic marker, whose co‑ordinates are fixed in the
                 Special Agreement at 14° 25´ 04˝ latitude North and 00° 12´ 47˝ longitude
                 East. As regards the Tao astronomic marker, the Parties give it slightly
                 different co‑ordinates in their final submissions : 14° 03´ 04.7˝ N,
                 00° 22΄ 51.8˝ E, according to Burkina Faso ; 14° 03´ 02.2˝ N, 00° 22´ 52.1˝ E,
                 according to Niger. It is not necessary for the Court to fix the precise

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                 co‑ordinates of the Tao astronomic marker ; since the Parties do not dis-
                 agree on the identification or the location of this marker, it will be for
                 them to determine its precise co‑ordinates together during the demarca-
                 tion operations.

                    73. The Parties disagree as to how to connect the two points at which
                 the astronomic markers in question are situated. According to
                 Burkina Faso, these points should be connected by a straight line. Accord-
                 ing to Niger, the two astronomic markers in question should be connected
                 by two straight‑line segments, one running from the Tong‑Tong marker
                 to the Vibourié marker, situated a few kilometres to the east of the
                 straight line claimed by Burkina Faso, the other running from the
                 Vibourié marker to the Tao marker (see sketch‑map No. 1).
                    74. The Court notes that, in the sector in question, neither Party pro-
                 poses to adopt the line on the IGN map, which corresponds neither to a
                 straight line nor to a broken line passing through the Vibourié marker.
                 This implies that both Parties consider that the 1927 Arrêté is not insuf-
                 ficient in this sector. They differ, however, as to its interpretation. The
                 Court also observes that this sector is the only one in which each Party
                 claims a line which would give more territory to the other, so that the ter-
                 ritory situated in the triangle delimited by the lines proposed by the Par-
                 ties is not claimed by either of them. However, the principle whereby the
                 Court does not rule ultra petita does not prevent it, in this case, from
                 attributing that territory to one or the other Party, since the Special
                 Agreement entrusts it with the task of fully determining the course of the
                 frontier between the Tong‑Tong astronomic marker and the beginning of
                 the Botou bend.
                    75. Burkina Faso’s argument relies on the idea that, when the author of
                 the Arrêté indicated that the inter‑colonial boundary passed through
                 two points, without specifying how those two points were connected, he
                 should be considered to have intended them to be joined by a straight line.
                    76. Niger’s argument is primarily based on a Record of Agreement
                 (“procès‑verbal”) of 13 April 1935 established by the Administrator of
                 Dori cercle and the official responsible for the Téra subdivision, with a
                 view to settling a land dispute between the inhabitants of Dori and those
                 of Téra. Referring to the 1927 Arrêté, the two co‑signatories assert that, in
                 1927, the inter‑colonial boundary followed “a notional straight line start-
                 ing from the Tong‑Tong astronomic marker and running to the Tao astro-
                 nomic marker” and state that they have established a marker at Vibourié
                 located on that straight line and designed to demarcate the boundary
                 between the two districts, “in order to prevent any similar further territo-
                 rial dispute in this area”. According to Niger, even if Vibourié is not
                 located on the course of the straight line connecting Tong‑Tong with Tao,
                 the marker established at Vibourié was, de facto, a marker of the boundary
                 between the two colonies, thereby constituting an effectivité to be taken
                 into account by the Court as a means of interpreting the Arrêté in the light
                 of the subsequent practice of the colonial administrative authorities.

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                    77. The Court is not convinced by Niger’s arguments. It first notes that
                 the 1935 Record of Agreement was drawn up at a time when Upper Volta
                 no longer existed, having been dissolved as a separate colony in 1932, so
                 that the boundary that the two administrators sought to define in 1935
                 was purely internal to one colony (Niger). Only when Upper Volta was
                 re‑established in 1947 within its previous boundaries could the Vibourié
                 marker have acquired a certain relevance on the basis of the effective
                 practice of the colonial administration as regards the fixing of the
                 inter‑colonial boundary. However, Niger has failed to adduce any evi-
                 dence to establish that, after 1947, and more specifically at the critical
                 date of 1960, the Vibourié marker was regarded in practice as marking
                 the boundary between Upper Volta and Niger.
                    78. Above all, it is clear that the establishment of the Vibourié marker
                 was the result of a topographical error, because the authors of the Record
                 of Agreement, who agreed that the Arrêté should be interpreted as draw-
                 ing a straight line between Tong‑Tong and Tao, mistakenly believed that
                 Vibourié was situated on that straight line (see paragraph 76 above).
                    While an effectivité may enable an obscure or ambiguous legal title to
                 be interpreted, it cannot contradict the applicable title.
                    79. The Court concludes from the foregoing that the colonial adminis-
                 tration officials interpreted the Arrêté as drawing, in the sector in ques-
                 tion, a straight line between the Tong‑Tong and Tao astronomic markers.
                 In so far as Niger proposes to take account of the location of the Vibourié
                 marker on the basis of the effectivités of the colonial period, it fails to
                 demonstrate the existence of such an effectivité at the critical date of inde-
                 pendence, and, furthermore, such an effectivité could not, in any event,
                 have overridden the legal title constituted by the 1927 Arrêté.
                    Therefore, a straight line connecting the Tong‑Tong and Tao astro-
                 nomic markers should be regarded as constituting the international fron-
                 tier between Burkina Faso and Niger in the sector in question.

                 2. The course of the frontier between the Tao astronomic marker and the
                     River Sirba at Bossébangou
                    80. As regards the section of the frontier running from the Tao astro-
                 nomic marker to the River Sirba at Bossébangou, the Arrêté confines
                 itself to stating, without any further details, that the “line . . . turns
                 [‘s’infléchit’] towards the south‑east, cutting the Téra‑Dori motor road at
                 the Tao astronomic marker . . ., and reaching the River Sirba at Bossé
                 bangou”. The indications on how to connect the Tao marker to “the River
                 Sirba at Bossébangou” are therefore no more precise than those concern-
                 ing the course of the line connecting the Tong‑Tong marker to the Tao
                 marker, the issue dealt with in the previous paragraphs. The Parties draw
                 quite different conclusions from this laconic character of the Arrêté.
                    81. Burkina Faso, maintaining the line of argument which it has
                 adopted throughout the proceedings, contends that, since the author of

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                 the Arrêté did not specify how to connect the two points mentioned by
                 him in turn, it must be understood that he intended those two points to
                 be connected by a straight line. It would only be otherwise, according to
                 Burkina Faso, if there were a very particular reason to suppose that that
                 had not been the intention of the author of the Arrêté, which is not the
                 case in this instance. According to Burkina Faso, it is therefore a straight
                 line that must run from the Tao astronomic marker to the River Sirba at
                 Bossébangou, just as — and for the same reason — it is a straight line
                 that constitutes the frontier between the Tong‑Tong and Tao astronomic
                 markers (see sketch‑map No. 1).
                    82. According to Niger, “the Arrêté and Erratum [do] not suffice”
                 within the meaning of the 1987 Agreement, to which the Special Agree-
                 ment refers, in the section of the frontier in question, since the Arrêté is
                 silent on how to connect the two points situated at the ends of that sec-
                 tion. Consequently, according to Niger, it is necessary in principle to fol-
                 low the line as drawn on the 1960 IGN map, which is not a straight line
                 but a sinuous one. However, Niger considers that it is necessary to devi-
                 ate in part from the IGN map in two respects. Firstly, it contends that
                 there should be a slight deviation to the west of the line shown on the
                 1960 IGN map in two segments corresponding to the Petelkolé frontier
                 post and to the Oussaltane 3 encampment, so as to leave those two locali-
                 ties in Niger’s territory, whereas the IGN map locates them on the Upper
                 Volta side of the inter‑colonial boundary. According to Niger, this is to
                 give precedence to the effectivités as observed at the end of the colonial
                 period, namely at the critical dates of independence.

                   Secondly, according to Niger, the frontier line in this sector should not
                 run to Bossébangou, but should descend only as far as a point situated
                 some 30 km to the north‑west of Bossébangou, and from that point turn
                 towards the south‑west, thereby leaving an extensive area around Bossé
                 bangou entirely in Niger’s territory. In this regard, the argument put for-
                 ward by Niger amounts to a departure from both the 1927 Arrêté and the
                 1960 IGN map (see sketch‑map No. 1).
                   83. The Court will begin by considering the question of the endpoint
                 of the section of the frontier presently under consideration. In this regard,
                 the Court is unable to accept Niger’s position.
                   84. That position is based essentially on the assertion that the author of
                 the Arrêté inadvertently departed from the Decree of 28 December 1926,
                 that he was supposed to implement, by continuing the line as far as “the
                 River Sirba at Bossébangou” instead of stopping it some 30 km to the
                 north‑west of Bossébangou, at the point where it meets the intersection of
                 the three cercles of Dori, Tillabéry and Say, in order for it then to turn
                 towards the south‑west. Indeed, according to Niger, by continuing the line
                 as far as Bossébangou, the author of the Arrêté followed the boundary sep-

                   3 Also referred to by the Parties as Ihouchaltane, Ouchaltan, Ousalta, Ousaltan and

                 Oulsalta.

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                 arating the cercles of Tillabéry and Say, each of which was situated in Niger,
                 that being a boundary within one colony, and not the inter‑colonial bound-
                 ary separating Niger and Upper Volta. According to Niger, that was surely
                 not his intention, and nor could it have been, given that the Arrêté had to
                 comply with the terms of the Decree of 28 December 1926. In short, accord-
                 ing to Niger, the Arrêté is vitiated on this point by a material error which
                 renders it incompatible with the Decree that it is meant to implement.
                    85. Whatever the merits of the above analysis, it must be observed
                 that, on this point, what Niger is asking of the Court is not to interpret
                 the Arrêté in order to apply it according to the meaning which must be
                 attributed to it, but indeed to disregard its clear terms on the grounds
                 that it is vitiated by a material error, and that it is perhaps legally flawed.
                    As noted above (see paragraphs 64 to 67), the Court is obliged under
                 the terms of the Special Agreement to apply the 1927 Arrêté, as amended
                 by its Erratum, unless it is insufficient. The Court can and must interpret
                 the Arrêté, in so far as it requires an interpretation, but it cannot disre-
                 gard it, even on the grounds that it is allegedly contrary to the Decree
                 which constituted the legal basis for its adoption. Consequently, the
                 Court can only find that the Arrêté, both in its initial version and in that
                 resulting from the Erratum — the latter being the only relevant one —,
                 provides expressis verbis that the inter‑colonial boundary continues as far
                 as the River Sirba. If this reference had been the result of a material error,
                 the Governor‑General could have corrected the error thus made by pub-
                 lishing a new erratum ; but the fact is that he did not do so. Whether or
                 not the Arrêté contradicts the Decree because of that alleged mistake is a
                 question which it is not for the Court to enter into, because, as noted
                 above, it is bound by the terms of the Arrêté pursuant to the Special
                 Agreement. In conclusion, the Court can only find that the frontier line
                 necessarily reaches the River Sirba at Bossébangou ; the question of where
                 exactly the frontier reaches the river or the village will be considered in
                 the following subsection (3).

                    86. The Court now turns to the question of how the “Tao astronomic
                 marker” is to be connected to “the River Sirba at Bossébangou” in order
                 to draw the frontier.
                    87. Without ruling, from a general point of view, on the value of
                 Burkina Faso’s argument that “a delimitation text indicating, without
                 any indication to the contrary, that a line passes through two points is
                 interpreted as specifying a boundary in the form of a straight line con-
                 necting those two points”, the Court considers that in this case there are
                 several reasons not to adopt such an approach.
                    88. First, it should be observed that, after the section that is currently
                 being considered, the Arrêté specifies on two occasions that the boundary
                 defined by it is a straight line. It does so first in the southernmost part of
                 the frontier that remains to be delimited, when it states that, from the
                 intersection of the Sirba with the Say parallel, the boundary, “following an
                 east‑south‑east direction, continues in a straight line up to a point” which

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                                       frontier dispute (judgment)                         82

                 the Parties describe as the beginning of the Botou bend. It does so subse-
                 quently in the already demarcated section of the frontier situated to the
                 south of the Botou bend, when it states that, from this latter point, the
                 boundary “turns back up in a straight line that runs in a marked SSW‑NNE
                 direction”. It is clear that if it were always true, as Burkina Faso contends,
                 that the indication of two points, without any further details, must be
                 interpreted as meaning that those two points are connected by a straight
                 line, the author of the Arrêté would not have needed to specify in respect
                 of certain sections of the boundary that they followed a straight line. This
                 is not necessarily enough to exclude the possibility that, in the section here
                 under consideration, the inter‑colonial boundary followed a straight line
                 (as is indeed the case in the section running from the Tong‑Tong astro-
                 nomic marker to the Tao astronomic marker, examined above). Neverthe-
                 less, the fact that the provisions specifying that certain sections consist of
                 straight lines appear in the same document as those providing no precise
                 details in respect of other sections, weakens Burkina Faso’s argument that
                 the latter provisions, solely by virtue of that lack of detail, should neces-
                 sarily be interpreted as drawing a straight line.
                    89. Secondly, the Court considers that account should be taken of the
                 fact that the Arrêté was issued on the basis of the Decree of the President
                 of the French Republic of 28 December 1926 “transferring the adminis-
                 trative centre of the Colony of Niger and providing for territorial changes
                 in French West Africa”. This Decree thus constitutes an important ele-
                 ment of the context within which the Arrêté was issued.
                    90. In this connection, it should be noted that the object of the Decree
                 of 28 December 1926 was twofold.
                    In the first place, its raison d’être was to transfer certain cercles and
                 cantons from the Colony of Upper Volta to the Colony of Niger (see
                 paragraph 18 above).
                    It then empowered the Governor‑General of French West Africa to
                 draw the new inter‑colonial boundaries between Niger and Upper Volta.

                    91. The task entrusted to the Governor‑General was therefore to plot
                 the new inter‑colonial boundary by drawing the implications of the trans-
                 fers effected, that is to say, by respecting the pre‑existing boundaries of
                 the districts, to the extent that they could be determined.
                    92. The Governor‑General, seeking to identify the boundaries of the
                 districts moved by the Decree, delegated to the Lieutenant‑Governors of
                 Upper Volta and Niger the task of demarcating on the ground the bound-
                 aries of the cantons and cercles in question. Thus on 2 February 1927,
                 Mr. Lefilliatre, Inspector of Administrative Affairs, representing the Lieu-
                 tenant‑Governor of Upper Volta, and Mr. Brévié, Lieutenant‑Governor
                 of Niger, signed a Record of Agreement. As regards the section of the
                 frontier running from Tao to Bossébangou, this Record uses a wording
                 that was reproduced in identical terms in the Arrêté of the Governor‑Gen-
                 eral of 31 August 1927, and which is not substantially different from that
                 which appears in the Erratum of 5 October 1927. However, the colonial

                                                                                42

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                                       frontier dispute (judgment)                         83

                 administrators responsible for the matter were aware of the inadequacy
                 of that wording, which failed to indicate the line by which Tao and
                 Bossébangou were to be joined. This is evidenced by the fact that, during
                 the months which followed, the Lieutenant‑Governor of Upper Volta
                 continued to ask the officials under his authority for additional informa-
                 tion that would make it possible to define precisely the inter‑colonial
                 boundary. In particular, by a telegram/letter of 27 April 1927, that is to
                 say two and a half months after the Lefilliatre‑Brévié Record of Agree-
                 ment was drawn up, the Lieutenant‑Governor of Upper Volta asked the
                 commandants of Dori and Fada cercles to provide him with “precise
                 information to enable [the] preparation [of the] Arrêté général fixing new
                 boundaries” between the two colonies, emphasizing that it was “essential
                 that [the] course be determined on [the] ground” so as to avoid any “need
                 [for] subsequent correction”, and that the “[r]esults [of the] work [be] rec-
                 ognized and accepted by [the] Heads [of] both adjacent colonies” with a
                 view to their “be[ing] forwarded [to] Dakar”.
                    As noted above, the Arrêté of 31 August 1927 reproduced the imprecise
                 wording of the Record of Agreement of 2 February 1927, and the Erra-
                 tum of 5 October of the same year provided no further details. The uncer-
                 tainty as to the course of the inter-colonial boundary persisted, as
                 demonstrated by the subsequent colonial practice (see paragraphs 94‑95
                 below).
                    93. The Court concludes from the foregoing that the Governor‑General
                 sought, with the assistance of the Lieutenant‑Governors of the two colonies,
                 to determine the inter‑colonial boundary by identifying those pre‑existing
                 boundaries of the cercles and cantons for which there is no indication that
                 they followed a straight line in the sector in question. The Court observes
                 that, in such a case, it would have been easy to plot this line on a map.
                    This contradicts Burkina Faso’s argument that the Arrêté’s silence in
                 the sector in question as to how to connect the two points mentioned in
                 the text must be understood as signifying that the Governor‑General
                 intended the inter‑colonial boundary to be represented by a straight line.

                    94. Thirdly, account should be taken of the practice followed by the
                 colonial authorities concerning the implementation of the Arrêté with
                 respect to the village of Bangaré. According to Niger, this village, situated
                 approximately in the middle of the sector in question and of some impor-
                 tance, was consistently regarded as belonging to Niger during the colonial
                 period, and in any event at the critical dates of independence. Niger nev-
                 ertheless observes that the straight line advocated by Burkina Faso would
                 leave Bangaré on the Burkina side of the frontier.
                    95. The Court notes that, although the documents in the case file which
                 are contemporaneous with the 1927 Arrêté do not clearly establish that
                 the village of Bangaré was regarded at that time as belonging to Niger,
                 there are sufficient subsequent documents to establish that, during the
                 relevant colonial period and until the critical date of independence,
                 Bangaré was administered by the authorities of the Colony of Niger.

                                                                                43

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                                        frontier dispute (judgment)                            84

                    This consideration supports the conclusion that the 1927 Arrêté should
                 not be interpreted, and in fact was not interpreted in the colonial period,
                 as drawing a straight line between Tao and Bossébangou.
                    96. The Court concludes from all of the foregoing that the Arrêté must be
                 regarded as “not suffic[ient]”, within the meaning of the 1987 Agreement, in
                 respect of the sector running from the Tao astronomic marker to the River
                 Sirba at Bossébangou. Indeed, the Court concludes that, in the sector in
                 question, a correct interpretation of the Arrêté does not provide for a
                 straight‑line solution. However, the Court does not have information
                 enabling it to define another line on the basis of the Arrêté. In such circum-
                 stances, the Special Agreement, by referring to Article 2 of the 1987 Agree-
                 ment, requires the Court to adopt “the course . . . shown on the 1:200,000‑scale
                 map of the Institut géographique national de France, 1960 edition”.
                    97. Niger has also emphasized the case of two other localities with
                 regard to which the effectivités of the colonial period should in its view be
                 taken into account : namely Petelkolé and Oussaltane (see paragraph 82
                 above). These two cases are different from that of Bangaré. The two
                 localities in question are situated not only on the Burkinabe side of the
                 straight line proposed by Burkina Faso, as is Bangaré, but crucially they
                 are also situated on the Burkinabe side of the inter‑colonial boundary as
                 drawn on the 1960 IGN map. According to Niger, however, they were in
                 fact administered by Niger during the colonial period, and in order to
                 take account of the effectivités, the line on the IGN map should be shifted
                 slightly eastwards in the two segments where these localities are situated,
                 so as to leave them on the Niger side.
                    98. While it is true, as a general rule, that for the purposes of the uti
                 possidetis principle, the effectivités as established at the critical date may
                 serve to compensate for the absence of a legal title or to complete a defec-
                 tive title, that does not hold in the present case, because of the terms of
                 the Special Agreement, which provides that the 1987 Agreement forms
                 part of the applicable law. Should the Arrêté not suffice, which is the case
                 in the sector in question, the 1987 Agreement requires the Court to apply
                 the line shown on the 1960 IGN map, instead of referring to the effectivi
                 tés, even if there were to be some discrepancy between those effectivités
                 and the line on the map. It has already been noted above (see para-
                 graph 66) that the effectivités of the colonial period could, up to a certain
                 point, be of use in interpreting the Arrêté, to the extent that they may
                 reflect the colonial administration’s interpretation and implementation of
                 that Arrêté. However, once it has been concluded that the Arrêté is insuf-
                 ficient, and in so far as it is insufficient, the effectivités can no longer play
                 a role in the present case ; in particular, they cannot justify a shifting of
                 the line shown on the 1960 IGN map.

                   Accordingly, the Court cannot uphold Niger’s claims regarding Petel-
                 kolé and Oussaltane.
                   99. In conclusion, the Court finds that, in the sector of the frontier that
                 runs from the Tao astronomic marker to “the River Sirba at Bosséban-

                                                                                44

6 CIJ1042.indb 125                                                                                8/04/14 08:34

                                       frontier dispute (judgment)                          85

                 gou”, the line shown on the 1:200,000‑scale IGN map, 1960 edition,
                 should be adopted (see sketch‑map No. 2, p. 86).

                 3. The course of the frontier in the area of Bossébangou

                    100. In order to complete the determination of the frontier line coming
                 from the Tao astronomic marker, it is necessary to specify its endpoint
                 where it reaches “the River Sirba at Bossébangou”. It is established that
                 this village is situated a few hundred metres from the river, on its right
                 bank. Burkina Faso maintains that the endpoint of the frontier in this
                 section is located where the straight‑line segment which runs from Tao to
                 Bossébangou intersects with the right bank of the Sirba close to that vil-
                 lage. Niger does not take a view on the matter, on account of its argu-
                 ment that the frontier line from Tao does not continue as far as the Sirba,
                 but turns towards the south‑west at the tripoint between the cercles of
                 Dori, Say and Tillabéry, some 30 km before it reaches that river (see
                 sketch‑map No. 1).
                    101. According to the description in the Arrêté, it is clear that the fron-
                 tier line ends at the River Sirba and not at the village of Bossébangou.
                 The endpoint of the frontier in this section must therefore be situated in
                 the Sirba or on one of its banks. The use of the verb “reach” (“atteindre”)
                 in the Arrêté does not suggest that the frontier line crosses the Sirba com-
                 pletely, meeting its right bank. It is true that, in describing a subsequent
                 section of the frontier, the Arrêté states that the line “again cuts” (“coupe
                 de nouveau”) the Sirba so as to reach its right bank. That could suggest
                 that the frontier has “cut” the river once already close to Bossébangou,
                 and would argue in favour of the endpoint of the frontier in this section
                 being situated on the right bank of the Sirba. However, it is significant
                 that, in describing the relevant section of the frontier, the Arrêté uses the
                 verb “reach” rather than “cut”. Furthermore, if the endpoint of the fron-
                 tier were situated on the right bank of the Sirba close to Bossébangou, the
                 line would have to “cut” the Sirba a second time at an intermediate loca-
                 tion in order, this time, to cross from the right bank to the left bank
                 before “cutting it again” in the other direction. But nothing of that nature
                 is mentioned in the Arrêté.
                    Moreover, there is no evidence before the Court that the River Sirba in
                 the area of Bossébangou was attributed entirely to one of the two colo-
                 nies. In this regard, the Court notes that the requirement concerning
                 access to water resources of all the people living in the riparian villages is
                 better met by a frontier situated in the river than on one bank or the
                 other.
                    Accordingly, the Court concludes that, on the basis of the Arrêté, the
                 endpoint of the frontier line in the region of Bossébangou is located in the
                 River Sirba. This endpoint is more specifically situated on the median line
                 because, in a non‑navigable river with the characteristics of the Sirba,
                 that line best meets the requirements of legal security inherent in the
                 determination of a boundary.

                                                                                45

6 CIJ1042.indb 127                                                                                8/04/14 08:34

                                                                                Sketch Map 2:
                          COURSE OF THE FRONTIER FROM THE TAO ASTRONOMIC MARKER TO THE POINT WHERE IT “REACH[ES] THE RIVER SIRBA AT BOSSÉBANGOU”
                                                             This sketch map has been prepared for illustrative purposes only

6 CIJ1042.indb 129
                                      0º 20’
                                                              0º 30’
                                                                                0º 40’
                                                                                0º 50’
                                                                                1º 00’
                                                                                1º 10’
                                                                                1º 20’
                                               Tao astronomic marker
                                                                                Course of the frontier as decided by the Court
                                                                Téra-Dori motor                                     SB : point where the frontier “reach[es] the River Sirba at Bossébangou”
                                         Petelkolé                road in 1927
                          14º 00’                                                                Téra                                                                                14º 00’
                                                                                0            5        10       15        20            25km
                                                                                scale true at 13º30’ N
                                                                                WGS84 Ellipsoid and Datum

                                                Oussaltane

                          13º 50’                                                                                13º 50’

                                                                                Bangaré

                                                                                N I G E R

                          13º 40’                                                                                13º 40’

                                                                                B U R K I N A
                                                                                F A S O
                                                                                frontier dispute (judgment)

                          13º 30’                                                                                13º 30’

                                                                                a
                                                                                rb
                                                                                Si

                                                                                er
                                                                                iv                SB
                                                                                R

                                                                                Bossébangou
                                                                                86

                     46
                          13º 20’                                                                                13º 20’

                                      0º 20’
                                                              0º 30’
                                                                                0º 40’
                                                                                0º 50’
                                                                                1º 00’
                                                                                1º 10’
                                                                                1º 20’

8/04/14 08:34

                                       frontier dispute (judgment)                          87

                    102. In its original wording, the Arrêté situated the meeting‑point of
                 the frontier line from Tao with the River Sirba further downstream and
                 stated that this line “then joins the River Sirba”. It was clear, according
                 to that wording, that the frontier was supposed to follow that river
                 upstream for a certain distance. The language of the Erratum is less clear.
                 However, since it specifies that, after reaching the Sirba, the frontier line
                 “almost immediately turns back up towards the north‑west”, it can be
                 concluded that the Erratum did not seek to amend the Arrêté entirely on
                 this point and that it therefore implies that the line must follow the Sirba
                 for a short distance. Burkina Faso contends that, in this section, the fron-
                 tier should be situated on the right bank of the river, in accordance with
                 its argument concerning the endpoint of the frontier close to Bosséban-
                 gou. For its part, Niger refers to the median line or the thalweg. For the
                 reasons given in the previous paragraph, the Court considers that the
                 frontier follows the median line of the Sirba.
                    103. The corrected wording of the Arrêté, according to which the fron-
                 tier line “almost immediately turns back up towards the north‑west”,
                 does not establish the precise point at which that line leaves the River
                 Sirba in order to “[turn] back up”. There is no indication in the text in
                 that regard except for the fact that the point is located close to Bosséban-
                 gou. Similarly, once the frontier leaves the Sirba, its course is indicated in
                 the Arrêté in a manner that makes it impossible to establish the line accu-
                 rately. It can only be concluded, therefore, that the Arrêté does not suffice
                 to determine the frontier line in this section. The Parties are agreed on
                 this point. Niger departs from the text of the Arrêté and the line on the
                 IGN map, arguing that, after the tripoint, the frontier consists of a
                 straight‑line segment running in a south‑westerly direction. Burkina Faso
                 refers to the subsidiary criterion laid down in Article 2 of the 1987 Agree-
                 ment. According to that provision, it is indeed necessary, as Burkina Faso
                 contends, to refer to the IGN map in order to define precisely the point
                 where the frontier line leaves the River Sirba and “turns back up towards
                 the north‑west” and the course that it must follow after that point.
                    104. According to the Arrêté, the frontier line, after turning up towards
                 the north‑west, “turn[s] back to the south, . . . [and] again cuts the Sirba at
                 the level of the Say parallel”. The line thus described follows a precise
                 north‑south direction. Once the place where it again cuts the Sirba has been
                 determined, the meridian passing through that place can be followed north-
                 wards until the parallel running through the point where the line drawn on
                 the IGN map turns back to the south. Niger contends, however, that the
                 place where the Say parallel joins the Sirba is not a precise point. The Court
                 observes that whereas, in its original wording, the Arrêté referred to “a line
                 starting approximately from the Sirba at the level of the Say parallel”, the
                 text of the Erratum is much more categorical in this respect and thus can-
                 not be regarded as insufficient. It refers to the intersection between the par-
                 allel passing through Say and the River Sirba. It can even be deduced that
                 this point, called point I on sketch‑maps Nos. 3 (p. 89) and 4 (p. 91), is
                 located on the right bank of the Sirba (at the point with geographic co‑

                                                                                47

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                                       frontier dispute (judgment)                        88

                 ordinates 13º 06´ 12.08˝ N ; 00º 59´ 30.9˝ E), since, according to the Erra-
                 tum, the frontier line coming from the north cuts the river here before
                 continuing towards the south‑east.
                    105. According to the Arrêté, which was not amended in this respect
                 by the Erratum, the frontier line in this area leaves to Niger “a salient,
                 including on the left bank of the Sirba the villages of Alfassi, Kouro,
                 Takalan and Tankouro”. Alfassi and Kouro have apparently been moved,
                 but they lie in Niger’s territory, both where they are situated now and
                 where they were in 1927, regardless of the frontier line proposed for this
                 area. The locations of Takalan (Tokalan, according to the Erratum) and
                 Tankouro are in dispute. No clear evidence as to their position has been
                 submitted to the Court. Moreover, Niger has observed that “it is . . . very
                 likely that these two latter villages simply disappeared during the period
                 contemporary with the adoption of the 1927 Erratum”. Therefore, no
                 conclusion can be drawn from the hypothetical location of those two vil-
                 lages with regard to the determination of the frontier line.

                    106. The frontier thus drawn from the area of Bossébangou to the
                 point where the Say parallel cuts the River Sirba forms what might be
                 termed a “salient”, in accordance with the description contained in the
                 Arrêté. However, Niger acknowledges that the frontier line which it pro-
                 poses does not, for its part, “create a salient in this area”.
                    107. The Court concludes that the frontier line, after reaching the
                 median line of the River Sirba while heading towards Bossébangou, at the
                 point with geographic co‑ordinates 13° 21´ 15.9˝ N ; 01° 17´ 07.2˝ E, called
                 point SB on sketch‑maps 1, 2, 3 and 4, follows that line upstream until its
                 intersection with the IGN line, at the point with geographic co‑ordi-
                 nates 13° 20´ 01.8˝ N ; 01° 07´ 29.3˝ E, called point A on sketch‑maps 3
                 and 4. From that point, the frontier line follows the IGN line, turning up
                 towards the north‑west until the point, with geographic co‑ordinates
                 13° 22´ 28.9˝ N ; 00° 59´ 34.8˝ E, called point B on sketch‑map 3, where
                 the IGN line markedly changes direction, turning due south in a straight
                 line. As this turning point B is situated some 200 m to the east of the
                 meridian which passes through the intersection of the Say parallel with
                 the River Sirba, the IGN line does not cut the River Sirba at the Say
                 parallel. However, the Arrêté expressly requires that the boundary line
                 cut the River Sirba at the Say parallel. The frontier line must therefore
                 depart from the IGN line as from point B and, instead of turning there,
                 continue due west in a straight line until the point, with geographic
                 co‑ordinates 13° 22´ 28.9˝ N ; 00° 59´ 30.9˝ E, called point C on
                 sketch‑maps 3 and 4, where it reaches the meridian which passes through
                 the intersection of the Say parallel with the right bank of the River Sirba.
                 The frontier line then runs southwards along that meridian until the said
                 intersection, at the point with geographic co‑ordinates 13° 06´ 12.08˝ N ;
                 00° 59´ 30.9˝ E, called point I on sketch‑maps Nos. 3 and 4.

                                                                                48

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                                                                 frontier dispute (judgment)                                                                                89

                                                                                Sketch Map 3:
                     COURSE OF THE FRONTIER FROM THE POINT WHERE IT “REACH[ES] THE RIVER SIRBA AT
                      BOSSÉBANGOU” TO THE INTERSECTION OF THE RIVER SIRBA WITH THE SAY PARALLEL
                                 This sketch map has been prepared for illustrative purposes only
                               1º 00’

                                                                                1º 10’
                                                                      B U R K I N A
                          C    B                                         F A S O
                                                                                SB
                                                                                a
                                                                                r         Sirb
                                                                                A
                                                                                R      ive                        Bossébangou

            13º 20’                                                                                13º 20’

                                                Alfassi
                                        (according to the

                                                                                1º 00’
                                          1960 IGN map)

                                                                                13º 23’
                                                                                0      0,5   1km
                                                                                C   B
                                                                                IGN line

                                                                                Enlargement of the area
                                                                                around points B and C

                                                                      a
                                                                 rb
                                                            Si
            13º 10                                                                                N I G E R                                                    13º 10
                                              r
                                         ve
                                        Ri

                                                                          0               5            10                  15                   20                 25km
                                                                                scale true at 13º30’ N
                                                                                WGS84 Ellipsoid and Datum
                                                                                Say parallel (13º 06’ 12.08” N)
                           I
                                                                                course of the frontier as decided by the Court
                                                                              SB : point where the frontier “reach[es] the River Sirba at Bossébangou”
                                                                              A : Intersection of the median line of the River Sirba with the IGN line
                                                                              B : Point where the IGN line turns south
                                                                              C : Point where the frontier line reaches the meridian which passes
                                                                                through the intersection of the Say parallel with the right bank of
                                                                                the River Sirba
                                                                              I : intersection of the River Sirba with the Say parallel

            13º 00’                                                                                13º 00’
                               1º 00’

                                                                                1º 10’

                                                                                49

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                                         frontier dispute (judgment)                            90

                 4. The course of the southern part of the frontier
                    108. The intersection of the River Sirba with the Say parallel is the
                 starting‑point of another section of the frontier. According to the Arrêté,
                 “[f]rom that point the frontier, following an east‑south‑east direction,
                 continues in a straight line up to a point located 1,200 m to the west of
                 the village of Tchenguiliba”. This latter point has been identified in a con-
                 sistent manner by the Parties, since it marks the start of the southern
                 section of the already demarcated portion of the frontier.
                    109. Niger relies on colonial and postcolonial effectivités to infer the
                 existence of an implicit agreement between the Parties or of an acquies-
                 cence that the line in this section of the frontier is divided into two seg-
                 ments following slightly different directions. The intermediate point is
                 said to be indicated by a frontier marker sited on the road between Oua-
                 gadougou and Niamey. Burkina Faso maintains that it “has never
                 agreed” on this with Niger and disputes the use of two straight‑line seg-
                 ments in this area (see sketch‑map No. 1). The evidence placed before the
                 Court regarding the conduct of the Parties in respect of this section of the
                 frontier does not allow it to conclude that there is an agreement or acqui-
                 escence relating not only to the location of the frontier marker in ques-
                 tion on the road between Ouagadougou and Niamey, but also to the
                 determination of a frontier line running for some 130 km. Therefore, the
                 Court does not need to consider the extent to which the general criteria
                 for delimitation laid down in the 1987 Agreement would be affected by an
                 agreement reached between the Parties regarding a particular section of
                 the frontier.
                    110. The Arrêté specifies that, in this section, the frontier “continues in
                 a straight line”. It is precise in that it establishes that the frontier line is a
                 straight‑line segment between the intersection of the Say parallel with the
                 Sirba and the point located 1,200 m to the west of the village of Tchen-
                 guiliba. It cannot therefore be said that the Arrêté does not suffice with
                 respect to this section of the frontier.
                    111. The Court concludes that, in this section of the frontier, the line
                 consists of a straight‑line segment between the intersection of the Say par-
                 allel with the right bank of the River Sirba and the beginning of the Botou
                 bend.

                                                         *
                    112. Having determined the course of the frontier between the two
                 countries (see sketch‑map No. 4), as the Parties requested of it, the Court
                 expresses its wish that each Party, in exercising its authority over the por-
                 tion of the territory under its sovereignty, should have due regard to the
                 needs of the populations concerned, in particular those of the nomadic or
                 semi‑nomadic populations, and to the necessity to overcome difficulties
                 that may arise for them because of the frontier. The Court notes the
                 co‑operation that has already been established on a regional and bilateral

                                                                                50

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                                                                 frontier dispute (judgment)                                                                                91

                                                                                Sketch Map 4:
                                             COURSE OF THE FRONTIER AS DECIDED BY THE COURT
                                          This sketch map has been prepared for illustrative purposes only
                            0º 10’

                                           0º 20’

                                                        0º 30’

                                                                   0º 40’

                                                                               0º 50’

                                                                                1º 00’

                                                                                1º 10’

                                                                                1º 20’

                                                                                1º 30’

                                                                                1º 40’

                                                                                1º 50’
                                     Tong-Tong astronomic marker

            14º 20’                                                                                14º 20’

                                                                                Tillabéri

            14º 10’                                                                                14º 10’

                                                    Tao astronomic marker
            14º 00’                                                                                14º 00’
                        Téra-Dori motor                                     Téra
                          road in 1927
                                                                                R
                                                                                iv
            13º 50’                                                                                e                               13º 50’
                                                                                r
                                                                                N
                                                                                ig
                                                                                N I G E R                                                            er
            13º 40’                                                                                13º 40’
                       B U R K I N A
                          F A S O
            13º 30’                                                                                13º 30’
                                                                                a
                                                                                rb
                                                                                Si

                                                                                C                          SB
                                                                                A
            13º 20’                                                                                Bossébangou                                                         13º 20’
                                                                                r
                                                                                e

                        0      10     20        30     40 50km
                                                                                iv
                                                                                R

                                 scale true at 13º30’ N
            13º 10’            WGS84 Ellipsoid and Datum
                                                                                13º 10’
                                                                                I                                                     Say parallel (13º 06’ 12.08” N)

            13º 00’                                                                                13º 00’
                                 course of the frontier as decided by the Court
                      SB : point where the frontier “reach[es] the River Sirba
            12º 50’         at Bossébangou”                                                                                12º 50’
                      A : Intersection of the median line of the River Sirba with the IGN line
                      C : Point where the frontier line reaches the meridian which passes through
            12º 40’        the intersection of the Say parallel with the right bank of the River Sirba                                                                                12º 40’
                      I : intersection of the River Sirba with the Say parallel
                      P : point 1,200m west of Tchenguiliba, marking the beginning of the Botou bend                                                                               P
            12º 30’                                                                                12º 30’
                            0º 10’

                                           0º 20’

                                                        0º 30’

                                                                   0º 40’

                                                                               0º 50’

                                                                                1º 00’

                                                                                1º 10’

                                                                                1º 20’

                                                                                1º 30’

                                                                                1º 40’

                                                                                1º 50’

                                                                                51

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                                        frontier dispute (judgment)                        92

                 basis between the Parties in this regard, in particular under Chapter III
                 of the 1987 Protocol of Agreement, and encourages them to develop it
                 further.

                                        IV. Nomination of Experts

                    113. In Article 7, paragraph 4, of the Special Agreement, the Parties
                 requested the Court to nominate, in its Judgment, three experts to assist
                 them as necessary in the demarcation of their frontier in the area in dis-
                 pute. Both Parties reiterated this request in the final submissions pre-
                 sented at the hearings. The Court is ready to accept the task which the
                 Parties have thus entrusted to it. However, having regard to the circum-
                 stances of the present case, the Court is of the opinion that it is inappro-
                 priate at this juncture to make the nominations requested by the Parties.
                 It will do so later by means of an Order, after ascertaining the views of
                 the Parties, particularly as regards the practical aspects of the exercise by
                 the experts of their functions (see Frontier Dispute (Burkina Faso/Repub
                 lic of Mali), Judgment, I.C.J. Reports 1986, p. 648, para. 176).

                                                        *
                                                    *       *

                     114. For these reasons,
                     The Court,
                     (1) Unanimously,
                    Finds that it cannot uphold the requests made in points 1 and 3 of the
                 final submissions of Burkina Faso;
                     (2) Unanimously,
                   Decides that, from the Tong‑Tong astronomic marker, situated at the
                 point with geographic co‑ordinates 14° 24´ 53.2˝ N ; 00° 12´ 51.7˝ E, to
                 the Tao astronomic marker, the precise co‑ordinates of which remain to
                 be determined by the Parties as specified in paragraph 72 of the present
                 Judgment, the course of the frontier between Burkina Faso and the
                 Republic of Niger takes the form of a straight line ;
                     (3) Unanimously,
                     Decides that, from the Tao astronomic marker, the course of the
                 frontier follows the line that appears on the 1:200,000‑scale map of the
                  Institut géographique national (IGN) de France, 1960 edition, (hereinaf-
                 ter the “IGN line”) until its intersection with the median line of the River
                 Sirba at the point with geographic co‑ordinates 13° 21´ 15.9˝ N ;
                 01° 17´ 07.2˝ E ;

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                                        frontier dispute (judgment)                          93

                     (4) Unanimously,
                    Decides that, from this latter point, the course of the frontier follows
                 the median line of the River Sirba upstream until its intersection with the
                 IGN line, at the point with geographic co‑ordinates 13° 20´ 01.8˝ N ;
                 01° 07´ 29.3˝ E ; from that point, the course of the frontier follows the
                 IGN line, turning up towards the north-west, until the point, with geo-
                 graphic co‑ordinates 13° 22´ 28.9˝ N ; 00° 59´ 34.8˝ E, where the IGN line
                 turns south. At that point, the course of the frontier leaves the IGN line
                 and continues due west in a straight line until the point, with geographic
                 co‑ordinates 13° 22´ 28.9˝ N ; 00° 59´ 30.9˝ E, where it reaches the merid-
                 ian which passes through the intersection of the Say parallel with the
                 right bank of the River Sirba ; it then runs southwards along that merid-
                 ian until the said intersection, at the point with geographic co‑ordi-
                 nates 13° 06´ 12.08˝ N ; 00° 59´ 30.9˝ E ;

                     (5) Unanimously,
                   Decides that, from this last point to the point situated at the beginning
                 of the Botou bend, with geographic co‑ordinates 12° 36´ 19.2˝ N ;
                 01° 52´ 06.9˝ E, the course of the frontier takes the form of a straight line ;

                     (6) Unanimously,
                   Decides that it will nominate at a later date, by means of an Order,
                 three experts in accordance with Article 7, paragraph 4, of the Special
                 Agreement of 24 February 2009.

                   Done in French and in English, the French text being authoritative, at
                 the Peace Palace, The Hague, this sixteenth day of April, two thousand
                 and thirteen, in three copies, one of which will be placed in the archives
                 of the Court and the others transmitted to the Government of
                 Burkina Faso and the Government of the Republic of Niger, respectively.

                                                                 (Signed) Peter Tomka,
                                                                           President.
                                                              (Signed) Philippe Couvreur,
                                                                            Registrar.

                   Judge Bennouna appends a declaration to the Judgment of the Court ;
                 Judges Cançado Trindade and Yusuf append separate opinions to the
                 Judgment of the Court ; Judges ad hoc Mahiou and Daudet append
                 separate opinions to the Judgment of the Court.
                                                                           (Initialled) P.T.
                                                                          (Initialled) Ph.C.

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