Summaries of the Decisions
Case concerning Territorial Dispute
(Libyan Arab Jamahiriya v. Chad)
Judgment of the Court of February 3, 1994
In 1989, Libya and Chad entered into a "Framework Agreement on the
Peaceful Settlement of the Territorial Dispute between the Great Socialist
People's Libyan Jamahiriya and the Republic of Chad" in order to settle a
long-outstanding dispute as to the boundary between the two countries. During
the proceedings Libya claimed that there was no existing boundary and that it
was accordingly the Court's duty to determine it. To the contrary, Chad
proceeded on the basis that there was indeed an pre-existing boundary which
simply had to be located by the Court.
Both parties agreed, however, that a 1955 Treaty of Friendship and Good
Neighbourliness concluded between France (as the previous colonial power
exercising sovereignty over the territory which later became Chad) and Libya was
binding upon them. One of the matters specifically addressed in this treaty was
the question of frontiers, dealt with in its Article 3 and Annex I.
In its judgment, the Court first examined 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 and decide that question in the positive. Said Article 3 of the
Treaty referred to the international instruments which were in force on the date
of the constitution of the United Kingdom of Libya including a Franco-British
Convention of 14 June 1898; a declaration completing the same of 21 March 1899;
a Franco-Italian Agreement of 1 November 1902; a Convention between the French
Republic and the Sublime Porte of 12 May 1910; a Franco-British Convention of 8
September 1919 and, finally, a Franco-Italian Arrangement of 12 September 1919.
The Court then recalled that, in accordance with the rules of general
international law, 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. It stated that interpretation must be based above all
upon the text of the treaty. As a supplementary measure recourse may be made to
supplementary means of interpretation such as the preparatory work of the treaty
and the circumstances of its conclusion.
According to the Court, the use of the word "recognize" in Article
3 of the 1955 Treaty indicated that a legal obligation was undertaken by the
parties, i.e. that they had accepted that frontier, that is, they had agreed to
draw legal consequences from its existence, to respect it and to renounce the
right to contest it in the future.
In the view of the Court, the terms of the Treaty signified that the parties
thereby recognized the complete frontier between their respective territories.
According to the Court it would have been incompatible with a recognition
couched in such terms to contend, as Libya had done, that only some of the
specified instruments contributed to the definition of the frontier, or that a
particular frontier remained unsettled, since otherwise Article 3 of the Treaty
and Annex I would have been deprived of their ordinary meaning. The only task of
the Court was thus to determine the exact content of the undertaking previously
entered into by the parties.
Since Article 3 of the 1955 Treaty referred to the international instruments
"en vigueur", i.e. in force on the date of the constitution of the
United Kingdom of Libya in 1951, Libya contended that the instruments mentioned
in Annex I and relied on by Chad had no longer been in force at the relevant
date. The Court did not accept these contentions. It argued that to draw up a
list of governing instruments while leaving to subsequent scrutiny the question
whether or not they were in force would have been pointless. The judgment takes
the view that the parties agreed to consider the instruments listed as being in
force for the purposes of Article 3, since otherwise they would have not
referred to them in the annex. The judgment further points out that 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 were
intended to define the frontiers between the parties by reference to legal
instruments which would yield the course of such frontiers. Any other
construction would have been contrary to one of the fundamental principles of
interpretation of treaties, consistently upheld by international jurisprudence,
namely that of effectiveness.
This conclusion reached by the Court was further reinforced by an
examination of the context of the Treaty, and in particular, of the Convention
of Good Neighbourliness between France and Libya, concluded between the Parties
at the same time as the Treaty, as well as by its travaux préparatoires.
Having concluded that the contracting parties wished, by the 1955 Treaty,
and particularly by its Article 3, to define their common frontier, the Court
then thoroughly examined the frontier between Libya and Chad which resulted from
the international instruments listed in Annex I.
The Court next considered the subsequent attitudes of the Parties regarding
the boundary. It found that no subsequent agreement, either between France and
Libya, or between Chad and Libya, had called into question the frontier in this
region deriving from the 1955 Treaty. On the contrary, if one took into account
treaties entered into subsequent to the entry into force of the 1955 Treaty,
there was support for the proposition that after 1955, the existence of a
determined frontier had been accepted and had been acted upon by the two parties
concerned.
The Court then examined the attitudes of the parties, subsequent to the 1955
Treaty, on occasions when matters pertinent to the frontiers came up before
international fora, and noted the consistency of Chad's conduct in relation to
the location of its boundary.
The Court finally stated that, in its view, the 1955 Treaty, notwithstanding
the provisions in Article 11 to the effect that "[t]he present Treaty is
concluded for a period of 20 years", and which provided for an eventual
unilateral termination of the Treaty, had to be be taken to have determined a
permanent frontier, since there was nothing in the 1955 Treaty to indicate that
the boundary agreed was to be provisional or temporary; on the contrary, it bore
all the hallmarks of finality. According to the Court, the establishment of this
boundary had to be considered as a fact which, from the outset, had had a legal
life of its own, independent of the fate of the 1955 Treaty. Accordingly, the
Court found that the disputed area belonged to Chad.
Post-judgment developments
On April 4, 1994 the two parties signed an agreement on the practical
modalities of execution of the judgement rendered on February 3, 1994, which
provided for the complete
withdrawal of Libyan troops from the disputed territory to be observed by a
United Nations observer group. On May 30, 1994, representatives of the two
parties jointly declared that the withdrawal had been completed.
