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World Court Digest

II. Substantive International Law - Second Partv
1.2. Boundaries
1.2.1.Land Boundaries

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

[p. 23] 45. ... The fixing of a frontier depends on the will of the sovereign States directly concerned. There is nothing to prevent the parties from deciding by mutual agreement to consider a certain line as a frontier, whatever the previous status of that line. If it was already a territorial boundary, it is confirmed purely and simply. If it was not previously a territorial boundary, the agreement of the parties to "recognize" it as such invests it with a legal force which it had previously lacked. International conventions and case-law evidence a variety of ways in which such recognition can be expressed. In the case concerning the Temple of Preah Vihear, a map had been invoked on which a line had been drawn purporting to represent the frontier determined by a delimitation commission under a treaty which provided that the frontier should follow a watershed; in fact the line drawn did not follow the watershed. The Court based its decision upholding the "map line" on the fact that "both Parties, by their conduct, recognized the line and thereby in effect agreed to regard it as being the frontier line" (Temple of Preah Vihear, Merits, I.C.J. Reports 1962, p. 33).

[p. 25-26] 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.

[p. 37] 72. Article ll of the l955 Treaty provides that:

"The present Treaty is concluded for a period of 20 years.
The High Contracting Parties shall be able at all times to enter into consultations with a view to its revision.
Such consultations shall be compulsory at the end of the ten-year period following its entry into force.
The present Treaty can be terminated by either Party 20 years after its entry into force, or at any later time, provided that one year's notice is given to the other Party."

These provisions notwithstanding, the Treaty must, in the view of the Court, be taken to have determined a permanent frontier. There is nothing in the 1955 Treaty to indicate that the boundary agreed was to be provisional or temporary; on the contrary it bears all the hallmarks of finality. The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court (Temple of Preah Vihear, I.C.J. Reports 1962, p. 34; Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 36).
73. A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary. In this instance the Parties have not exercised their option to terminate the Treaty, but whether or not the option be exercised, the boundary remains. This is not to say that two States may not by mutual agreement vary the border between them; such a result can of course be achieved by mutual consent, but when a boundary has been the subject of agreement, the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed.

[pp. 38-40] 75. It will be evident from the preceding discussion that the dispute before the Court, whether described as a territorial dispute or a boundary dispute, is conclusively determined by a Treaty to which Libya is an original party and Chad a party in succession to France. The Court's conclusion that the Treaty contains an agreed boundary renders it unnecessary to consider the history of the "Borderlands" claimed by Libya on the basis of title inherited from the indigenous people, the Senoussi Order, the Ottoman Empire and Italy. Moreover, in this case, it is Libya, and the original party to the Treaty, rather than a successor State, that contests its resolution of the territorial or boundary question. Hence there is no need for the Court to explore matters which have been discussed at length before it such as the principle of uti possidetis and the applicability of the Declaration adopted by the Organization of African Unity at Cairo in 1964.
76. Likewise, the effectiveness of occupation of the relevant areas in the past, and the question whether it was constant, peaceful and acknowledged, are not matters for determination in this case. So, also, the question whether the 1955 Treaty was declaratory or constitutive does not call for consideration. The concept of terra nullius and the nature of Senoussi, Ottoman or French administration are likewise not germane to the issue. For the same reason, the concepts of spheres of influence and of the hinterland doctrine do not come within the ambit of the Court's enquiry in this case. Similarly, the Court does not need to consider the rules of intertemporal law. This Judgment also does not need to deal with the history of the dispute as argued before the United Nations and the Organization of African Unity. The 1955 Treaty completely determined the boundary between Libya and Chad.

[pp. 49-50 S.O. Shahabuddeen] The principle of stability of frontiers applies "when two countries establish a frontier between them". Libya says that France and Libya made no agreement establishing any frontier between Libya and Chad. It is only after it has been proved that Libya and France did make an agreement establishing such a frontier that the principle of stability of frontiers will apply. It will then apply so as to give due effect to the agreement establishing the frontier, and not in proof of the existence of the agreement.
Also, in the Temple of Preah Vihear the question was, not what was the overall length of the boundary, but where was the boundary in a specific sector of its agreed overall length. The observation of the Court quoted above is not the same thing as saying:

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

If there are elements which show that a treaty was intended to achieve a comprehensive delimitation, they can be taken into account to the extent admissible in the course of applying the normal canons of treaty interpretation, without the need to encumber the process of interpretation with any presupposition that the principle of stability of boundaries requires the treaty to be interpreted as intended to achieve a comprehensive delimitation. It is easy to think of cases in which the adjoining areas are so extensive as to make it both practical and sensible for parties to agree a boundary for some particular sector only. It would introduce an unnecessary complication if such an agreement had to be construed on the basis of a presumption that the boundary was intended to be comprehensive. The other legal authorities cited by counsel for Chad do not overthrow this conclusion and I do not propose to deal with them.
The principle of stability of boundaries is a valuable one. But where, as here, it is invoked in relation to a boundary said to be fixed by treaty, its proper use is in the interpretation and application of the treaty if it exists, and not in proof of the existence of the treaty. Apart from questions concerning the course of an agreed boundary in particular sectors, the principle may no doubt assist in resolving a question as to the precise location of the end-points of an agreed boundary; but, where the distances are on the scale of those involved in this case, it is not credible to assert that the argument is about the precise location of an end-point of an agreed boundary. The question raised by Libya is one as to whether there is any agreement establishing any boundary at all between its territory and that of Chad. The principle of stability of boundaries cannot be used to prove the existence of the contested agreement; that proof must be made in other ways.