Territorial disputes are one of the most pervasive stains of the colonial era, often straining relations between neighboring states around the world, and particularly so in places like Africa. In the fourth installment of this column, in an article dated Friday, November 21, 2008, and captioned: The court in action – Some territorial and border disputes decided by the ICJ, we cited some cases, including the Nigeria/Cameroon case, and the Benin/Niger disputes.
Just next door to these countries were disputing neighbors – Libya and Chad, who had both been claiming ownership of a piece of valuable desert land called the Aozou Strip, comprising 115,000 square kilometers or 45,000 square miles – a tract of land about five times the territory of Belize, but less than 10% of the land mass of Chad – the country that today has legal control of the once disputed territory, following a ruling by the International Court of Justice (ICJ) in Chad’s favor.
This case has been cited several times in the 2002 legal opinion for Belize by Sir Elihu Lauterpacht, as one that sets important precedents for the dispute between Guatemala and Belize. In this edition of ICJ Stats, we look at how the court settled the Libya/Chad dispute, and its possible relevance to the Guatemala/Belize dispute.
The Libya/Chad compromis
On August 31, 1990, Libya submitted a compromis to the ICJ, which included an official letter and a two-page “framework agreement” signed by the two countries a year before signaling that if they were unable to settle the dispute politically in a year after the signing of that framework agreement (notified to the Organization of African Unity), they would submit their dispute to the ICJ.
There were other important dimensions to the framework agreement – including commitments from the parties that they would withdraw their troops from the dispute area, release all prisoners of war, and desist from any hostile media campaign against the other. They would also not pursue any new presence in the disputed area.
In its letter to the ICJ, Libya asked the court “to decide upon the limits of their respective territories in accordance with the rules of international law applicable in this matter.”
Of note is that while Chad insisted that the northern border between itself and Libya are those now confirmed by the ICJ, Libya had argued that there really exists no border between the two countries.
It submitted to the court that the agreements between the colonial powers that had ruled the region before its independence in 1951, had not fixed the border between the parties. It said that “The United Nations, in granting independence to Libya, saw the question of Libya’s boundaries in this region as yet to be resolved, in so far as the portion of Libya’s boundary with what was then French territory, but not already delimited, was to be settled by negotiation…”
Chad faxed its application letter to the ICJ on September 1, 1990, and a formal copy was received by the court two days later. While Libya described the dispute as a territorial one, Chad described it as a frontier dispute, as it insisted that a border did and had existed between the two territories even while they were European colonies.
Chad complained that since 1971 – a year after the dispute began – Libya’s forces had illegally occupied the Aozou Strip, which it described as an important part of its territory. The disputed area, according to Microsoft Encarta, is believed to contain deposits of uranium, oil, and manganese.
The parties did not agree on the exact question to put before the court. For its part, Chad asked the court, “…to determine the course of the frontier between [the parties]…, in accordance with the principles and rules of international law applicable…”
Chad contended that the countries had inherited the frontiers that were theirs at the time of their independence. It further stated that the course or line of the frontiers derived from a series of treaties spanning 1898 to 1955. Chad hinged its case on a 1955 treaty between Libya and France, which controlled the territory of Chad before its independence. Libya inherited its borders fixed by pre-colonial treaties, and the 1955 treaty, Chad argued, simply confirmed the applicability of uti possidetis (meaning in Latin “as you possess”).
“It can already be seen that Libya’s claims run counter to the fundamental principle of respect for the frontiers inherited from the colonial period and, more particularly, to the Franco-British and Franco-Libyan agreements…”
Of note is that the Libya/Chad compromis does not bear any similarity to the one signed between Belize and Guatemala on Monday, December 8, 2008. The document giving the ICJ jurisdiction in the Libya/Chad case was, in fact, the 1989 framework agreement, included along with the letters under a cover page captioned compromis.
The case before the panel of 17 judges
There were 17 judges that presided over the Libya/Chad case. There are 15 sitting judges, one of them designated president, another vice president, while each of the disputing states got to appoint a judge ad hoc. So in this case, Chad had a judge and Libya had a judge on the panel.
Libya’s team of 17 included their agent, counsels, advocates and expert cartographers, while Chad’s team of 25 included its agent and co-agent, counsels, advocates, cartographers, advisers and research assistants.
Written proceedings took about two and a half years, after which the panel held public hearings for a month, from June 14 to July 14, 1993, during which the parties delivered oral arguments and replies. Judgment was pronounced in February 1994.
Libya’s major arguments to the ICJ were that, east of Toummo, there exists no boundary between itself and Chad by virtue of any treaty; that the title to the territory was, at all relevant times, vested in the peoples inhabiting the territory, who were tribes, confederations of tribes and people owing their allegiance to the Senoussi Order, who had accepted the leadership of the Senoussi in their fight against the encroachments of France and Italy on their lands; there exists a community title between the title of the indigenous peoples, and the rights and titles of the Ottoman Empire, passed on to Italy in 1912 and inherited by Libya in 1951; and that Libya has clear title to all the territory claimed by demonstration on the submitted sketch map.
While Libya proceeded on the basis that there is no boundary, Chad argued that one exists, and that the dispute is, in fact, over the location of the boundary. Chad claimed that a boundary exists on the basis of a Treaty of Friendship and Good Neighborliness concluded by the French Republic and the United Kingdom of Libya on 10 August 1955, called “the 1955 Treaty.”
Libya was a colony of Italy, later administered by the Four Allied Powers (France, UK, US, and Soviet Socialist Republics), and became sovereign on December 24, 1951. Chad became independent of French rule on August 11, 1960, nine years later.
The court notes that, “At the end of the 19th and beginning of the 20th century, various agreements were entered into between France, Great Britain, and, later, Italy, by which the parties purported to divide large tracts of Africa…”
These agreements, along with additional agreements between France and Britain, set up the borders of the respective territories, so that by the time Libya became independent there were already treaties clearly defining the applicable boundaries.
The critical juncture in history was 1955, when Libya and France concluded the 1955 treaty. The ICJ ruling notes that, “French authority in parts of those territories had been challenged and a settled border was essential… It is recognized by both parties [Libya and Chad] that the 1955 treaty is the logical starting point for consideration of the issues before the court.”
The treaty had the pre-independence treaties listed in its annex, signaling that the 1955 treaty was merely confirming boundaries that had already been in place prior to Libya’s independence.
The ICJ decision turned on Article 3 of the 1955 treaty, which said that the parties “recognize” the frontiers that arise out of the pre-independence treaties. Using the word “recognize” indicates that both parties accepted the frontier referred to, giving it a legal force, the court noted.
“By entering into a treaty, the parties recognized the frontiers to which the text of the Treaty referred…,” so the task of the court was merely to determine the frontiers specified in the agreements – where did the agreements say the frontiers should lie?
The court also pointed to assertions that the Libyan Prime Minister accepted a 1919 agreement, and the implementation – or demarcation – of the frontier, which indicated that a delimitation of the boundaries had already been established, because a border cannot be demarcated if it is not defined.
The court observed that there was no subsequent agreement that called the recognized frontiers into question, and that in fact, a determined frontier was accepted and acted upon by the parties – there was at the time no indication that there was any uncertainty over where the borders lie. Furthermore, it said that Libya did not challenge the territorial dimensions of Chad as set out by France.
In the 1970’s, Chad complained of Libyan encroachments to the OAU and the UN, and specifically, Chad complained to the UN Security Council. However, Libya challenged the jurisdiction of the UN Security Council to judge the merits of the dispute.
In presenting its judgment on the case, the ICJ notes that even though the treaty of 1955 contained a provision saying it was concluded for a period of 20 years, and provided for early termination, the frontier determined had to be permanent.
“The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, independent of the fate of the 1955 treaty. Once agreed, the boundary stands….”
The judgment further reiterates that, “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.”
The ICJ ruling put an end to a 24-year-old dispute between Libya and Chad. Reports say that after the 1994 ruling of the ICJ, Libya accepted that the territory was Chad’s without protest.
Relevance to the Belize-Guatemala territorial dispute
As stated earlier, Belize’s legal opinion repeatedly cites the Libya/Chad ICJ judgment, effectively drawing a parallel between the 1955 treaty between Libya and France and the 1859 treaty between Britain and Guatemala.
The 1859 Convention was a boundary treaty, setting out in article 1 the definition of the territory now known as Belize. But the very text of the treaty indicates that the boundaries were acknowledged by the parties even before the 1859 Convention.
Article 1 of the said convention between Britain and Guatemala states that the borders that were described in the 1859 treaty had actually existed prior to 1850 – the date of the Clayton-Bulwer Treaty, to which the US was a party.
The boundaries set out in the 1859 treaty correspond with the borders fixed by the Belize Constitution of 1981. Even though Guatemala declared that treaty unconstitutional in 1946, the fact that Guatemala and Britain twice ventured to demarcate the boundary is significant. Guatemala itself refers to the demarcation of the border in 1861/2, at Gracias a Dios up the Sarstoon, and Garbutt’s Falls on the Belize River, but the process was not completed. Despite disagreements between Guatemala and Britain over article VII of the 1859 Convention, regarding the communication route (or road) for Guatemala to access the Atlantic, further attempts were made to demarcate the border. In 1929, for example, there was a second major attempt at demarcation. That exercise, too, was aborted, but not before the Exchange of Notes of 1931, in which Guatemala not only confirmed its acceptance of the border, but accepted the concrete monuments marking the two critical border points.
(Markers were set down at the south-west extreme of Belize’s border with Guatemala and the western-most point on the line spanning south to north. Concrete monuments were set down, replacing the original markers dating back to the previous century.)
Even though Guatemala claims to have unilaterally voided the 1859 treaty, the judgment of the Libya/Chad case applied to the Belize/Guatemala scenario confirms the permanence of the border established in that treaty, giving that clause defining Belize’s border with Guatemala “a life of its own,” even if one were to agree with Guatemala’s stance that the 1859 border treaty is null and void.
Guatemala has taken the position that the 1859 treaty was not a boundary treaty, but a treaty of cession, and because Britain did not fulfill its obligations under the treaty, it has been terminated.
Amandala was been supplied with a summary of the legal opinion of Professor Manley Hudson of Harvard (USA), who did a legal opinion for Guatemala in June 1950. Hudson advised Guatemala that the 1859 treaty was precisely worded to avoid the appearance of it being a treaty of cession, and it was clear that the territories existed prior to 1850 – furthermore, Guatemala did not oppose British encroachments after the treaties of 1783 and 1786 between Britain and Spain.
As we have previously indicated, Guatemala has argued that via the 1859 treaty, it was ceding (or giving up) territory (now Belize) to Britain for the compensation under article 7 – the communication route to the Atlantic. However, Britain and Belize disagree with that stance, and Hudson advised Guatemala that even if it were a treaty of cession, because it waited 70 years to renounce it, cession was not nullified.
Of interest is Hudson’s assertion that were Guatemala to have accepted compensation from Britain – and Britain has offered to compensate Guatemala in settlement of the 1859 treaty – it would, in effect, have to abandon its claim over Belizean territory.
A central pillar of Belize’s legal defense to Guatemala is the principle of the independent status of a border once established, as cited in the Libya/Chad case. However, the ICJ judgment notes that as sovereign states, two countries can also agree to modify their borders even if they are fixed by a previous treaty. So, disputing countries can enter into new treaties to redefine the borders.
The court noted that in the case of Libya/Chad, it had upheld the 1955 provisions because there was no other agreement in which the sovereign states had made any subsequent agreement even calling into question the borders that had been established by the colonial powers.
Some differences between the Libya/Chad case and the Belize/Guatemala case
· The compromis was based on a framework agreement signed before negotiations began. (Belize-Guat compromis is additional to the 2005 framework agreement.)
· The duration of the dispute was shorter than the Belize-Guatemala dispute – 24 years versus 150 years. Libya and Chad entered the territorial dispute after their independence; Guatemala began disputing over Belize while it was still a colony of Great Britain.
· The area under dispute was clearly defined before the ICJ submissions. (Guatemala still has to define what area of Belize it would claim.)
· No attempt reported by Libya to rescind or nullify the 1955 treaty. (Guats purport to nullify treaty.)
· No clear markers reported on the ground for Libya/Chad frontier. (Demarcation in the case of BZ-Guat.)
· Libya sent military personnel to occupy the disputed area. (Illegal Guat farmers and settlers are frequently found encroaching on the territory Guatemala claims.)
· Guatemala claims boundary treaty was a treaty of cession, later ruled unconstitutional. This sort of claim did not arise in the Libya/Chad case.
· Colonial powers in the Libya/Chad case already had treaties establishing boundaries. Bz-Guat boundaries confirmed in treaty with independent Guatemala and colonial power in Belize. Colonial treaties for Belize, between Spain and Britain, cover only a minority of Belize’s territory. Britain took possession of the rest by what it described as undisputed occupation, while Guatemala insists the area taken by Britain was included in its Constitution as a part of Verapaz, inherited from Spain.
· No talk of cession in Libya’s case, while Guatemala says treaty of cession (which is in fact the 1859 boundary treaty) is null and void.
· Referenda were not a prerequisite for the Libya/Chad case. They are for the BZ-Guat case