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World Court Digest

I. Substantive International Law - First Part
7.9. Specific Treaties
7.9.7.Treaty of Friendship and Good Neighbourliness between
the French Republic and the United Kingdom of Libya of 1955

¤ Territorial Dispute
(Libyan Arab Jamahiriya/Chad),
Judgment, I.C.J. Reports 1994, p. 6

Cf. also: supra Interner LinkI, 7.8. Interpretation

[pp. 20-21] 36. It is recognized by both Parties that the 1955 Treaty is the logical starting-point for consideration of the issues before the Court. Neither Party questions the validity of the 1955 Treaty, nor does Libya question Chad's right to invoke against Libya any such provisions thereof as relate to the frontiers of Chad. However, although the Treaty states that it has been entered into "on the basis of complete equality, independence and liberty", Libya has contended that, at the time of the Treaty's conclusion, it lacked the experience to engage in difficult negotiations with a Power enjoying the benefit of long international experience. On this ground, Libya has suggested that there was an attempt by the French negotiators to take advantage of Libya's lack of knowledge of the relevant facts, that Libya was consequently placed at a disadvantage in relation to the provisions concerning the boundaries, and that the Court should take this into account when interpreting the Treaty; it has not however taken this argument so far as to suggest it as a ground for invalidity of the Treaty itself.
37. The 1955 Treaty, a complex treaty, comprised, in addition to the Treaty itself, four appended Conventions and eight Annexes; it dealt with a broad range of issues concerning the future relationship between the two parties. It was provides by Article 9 of the Treaty that the Conventions and Annexes appended to it formed an integral part of the Treaty. One of the matters specifically addressed was the question of frontiers, dealt with in Article 3 and Annex I. The appended Conventions were a Convention of Good Neighbourliness, a Convention on Economic Co-operation, a Cultural Convention, and a "Particular Convention" dealing with the withdrawal of French forces from the Fezzan.
38. The Court will first consider Article 3 of the 1955 Treaty, together with the Annex to which that Article refers, in order to decide whether or not that Treaty resulted in a conventional boundary between the territories of the Parties. If the 1955 Treaty did result in a boundary, this furnishes the answer to the issues raised by the Parties: it would be a response at one and the same time to the Libyan request to determine the limits of the respective territories of the Parties and to the request of Chad to determine the course of the frontier. The Court's initial task must therefore be to interpret the relevant provisions of the 1955 Treaty, on which the Parties have taken divergent positions.
39. Article 3 of the Treaty reads as follows:

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

[pp. 21-22] 41. The Court would recall that, in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.
42. According to Article 3 of the 1955 Treaty, the parties "recognize [reconnaissent] that the frontiers ... are those that result" from certain international instruments. The word "recognize" used in the Treaty indicates that a legal obligation is undertaken. To recognize a frontier is essentially to "accept" that frontier, that is, to draw legal consequences from its existence, to respect it and to renounce the right to contest it in future.
43. In the contention of Libya, the parties to the 1955 Treaty intended to recognize only the frontiers that had previously been fixed by the international instruments: where frontiers already existed (as between Tunisia and Libya), they were confirmed by the 1955 Treaty, but where there was no frontier (as in the south), the treaty did not create one. The Court is unable to accept this view; it has no difficulty either in ascertaining the natural and ordinary meaning of the relevant terms of the 1955 Treaty, or in giving effect to them. In the view of the Court, the terms of the Treaty signified that the parties thereby recognized complete frontiers between their respective territories as resulting from the combined effect of all the instruments listed in Annex I; no relevant frontier was to be left undefined and no instrument listed in Annex I was superfluous. It would be incompatible with a recognition couched in such terms to contend that only some of the specified instruments contributed to the definition of the frontier, or that a particular frontier remained unsettled. So to contend would be to deprive Article 3 of the Treaty and Annex I of their ordinary meaning. By entering into the Treaty, the parties recognized the frontiers to which the text of the Treaty referred; the task of the Court is thus to determine the exact content of the undertaking entered into.

[pp. 23-24] 47. The fact that Article 3 of the Treaty specifies that the frontiers recognized are "those that result from the international instruments" defined in Annex I means that all of the frontiers result from those instruments. Any other construction would be contrary to the actual terms of Article 3 and would render completely ineffective the reference to one or other of those instruments in Annex I. As the Permanent Court of International Justice observed, in its Advisory Opinion of 21 November 1925, dealing with a provision of the Treaty of Lausanne "intended to lay down the frontier of Turkey" (emphasis in original),

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

It went on to say that

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

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

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

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

[pp. 24-26] 49. Article 3 of the 1955 Treaty refers to the international instruments "en vigueur" (in force) on the date of the constitution of the United Kingdom of Libya, "tels qu'ils sont définis" (as listed) in the attached exchange of letters. These terms have been interpreted differently by the Parties. Libya stresses that only the international instruments in force on the date of the independence of Libya can be taken into account for the determination of the frontiers; and that, as the agreements mentioned in Annex 1 and relied on by Chad were, according to Libya, no longer in force on 24 December l95l, they could not be taken into consideration. It argues also that account could be taken of other instruments, relevant and in force, which were not listed in Annex I.
50. The Court is unable to accept these contentions. Article 3 does not refer merely to the international instruments "en vigueur" (in force) on the date of the constitution of the United Kingdom of Libya, but to the international instruments "en vigueur" on that date "tels qu'ils sont définis" (as listed) in Annex I. To draw up a list of governing instruments while leaving to subsequent scrutiny the question whether they were in force would have been pointless. It is clear to the Court that the parties agreed to consider the instruments listed as being in force for the purposes of Article 3, since otherwise they would not have referred to them in the Annex. The contracting parties took the precaution to determine by mutual agreement which were the instruments in force for their purposes. According to the restrictive formulation employed in Annex I, "il s'agit des textes" enumerated in that Annex. This drafting of Article 3 and Annex I excludes any other international instrument en vigueur, not included in the Annex, which might have concerned the territory of Libya. A fortiori is this the case of the non-ratified Treaty of 1935, which was never en vigueur and is not mentioned in the Annex. The Court may confine itself to taking account of the instruments listed in the Annex, without having to enquire whether those instruments, listed by agreement between France and Libya, were in force at the date of Libya's independence, or opposable to it.
51. The parties could have indicated the frontiers by specifying in words the course of the boundary, or by indicating it on a map, by way of illustration or otherwise; or they could have done both. They chose to proceed in a different manner and to establish, by agreement, the list of international instruments from which the frontiers resulted, but the course for which they elected presents no difficulties of interpretation. That being so, the Court's task is clear:

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

The text of Article 3 clearly conveys the intention of the parties to reach a definitive settlement of the question of their common frontiers. Article 3 and Annex I are intended to define frontiers by reference to legal instruments which would yield the course of such frontiers. Any other construction would be contrary to one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness (see, for example, the Lighthouses Case between France and Greece, Judgment, 1934, P.C.I.J., Series A/B, No. 62, p. 27; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971 p. 35, para. 66; and Aegean Sea Continental Shelf I.C.J. Reports 178, p. 22, para. 52).
52. Reading the 1955 Treaty in the light of its object and purpose one observes that it is a treaty of friendship and good neighbourliness concluded, according to its Preamble, "in a spirit of mutual understanding and on the basis of complete equality, independence and liberty". The parties stated in that Preamble their conviction that the signature of the treaty would "serve to facilitate the settlement of all such questions as arise for the two countries from their geographical location and interests in Africa and the Mediterranean", and that they were "Prompted by a will to strengthen economic, cultural and good-neighbourly relations between the two countries". The object and purpose of the Treaty thus recalled confirm the interpretation of the Treaty given above, inasmuch as that object and purpose led naturally to the definition of the territory of Libya, and thus the definition of its boundaries. Furthermore the presupposition that the Treaty did define the frontier underlies Article 4 of the Treaty, in which the parties undertake to take "all such measures as may be necessary for the maintenance of peace and security in the areas bordering on the frontiers". It also underlies Article 5 relating to consultations between the parties concerning "the defence of their respective territories". More particularly Article 5 adds that "With regard to Libya, this shall apply to the Libyan territory as defined in Article 3 of the present Treaty". To "define" a territory is to define its frontiers. Thus, in Article 5 of the Treaty, the parties stated their own understanding of Article 3 as being a provision which itself defines the territory of Libya.