The Colonial Heritage: Libya v. Chad (1994)

Introduction

The 1994 Territorial Dispute (Libya Arab Jamahiriya/Chad) centered on the Aouzou Strip in the Sahara Desert, a region that was (and is) occupied by nomadic Toubou tribes.

Libya’s claim to the Aouzou Strip was based on the recognition of precolonial title. Libya argued that the original title to the Aouzou Strip belonged to the Toubou Peoples, but that the title had been transferred to the Ottoman Empire via the Senoussi (religious) Order. With the fall of the Ottoman Empire, territorial title passed to Italy, and after the decolonization of the African continent, title passed on to Libya.  

Chad’s claim was based on uti possidetis de jure. Uti possidetis de jure had been recognized in the Organization of African Unity (OAU) Charter in 1964 and aimed at maintaining the sanctity of colonial borders. Chad pointed to the uti possidetis de jure boundary line that had been set in the 1955 Treaty of Friendship and Good Neighbourliness between Libya and France[1].

The ICJ ruled in favour of Chad, a decision that many commentators find problematic. The ICJ refused to consider that precolonial title could reside in Toubou Peoples and instead ruled in favour of maintaining the “colonial heritage” of the African continent.

Artificial boundaries: the “scramble for Africa,” and “the colonial heritage”

The “colonial heritage” in the African context refers to the spatial configuration of African states. African boundaries were superimposed on the continent by the European colonial powers at the Berlin West Africa conference of 1884 and 1885 (Frynas and Paulo, 2007). During the ‘Scramble for Africa’ of the 1880s and 1890s, the European powers (including Britain, France, Germany, and Belgium) partitioned Arica into spheres of influence, protectorates, colonies, and free-trade areas.

The borders were designed in European capitals at a time when Europeans had little to no knowledge of the peoples of African or their landscape. Popescu (2012, p. 38-39) explains: “These were superimposed borders, dividing territories where no European had ever set foot. It was common that these borders were first established on paper in some European capital, and parties were later sent to find the actual location of the border on the ground.” 

The borders of the colonial heritage are often described as artificial. First, because they are mathematically precise lines that are geographically aligned with lines of latitude and longitude. Second, because the boundaries were often drawn through tribal homelands and separated ethic communities that in pre-colonial times were single polities (Anyangwe, 2003, p. 29; Michalopoulos and Papaioannou, 2011, p.1).    

The Libya Memorial: Precolonial title and the Toubou tribes

Libya’s arguments before the ICJ attempted to challenge the primacy of the colonial heritage and the international legal doctrine that supported it. According to Libya, international legal concepts such as uti possidetis de jure, effective occupation, and international legal personality were the product of European experiences of statehood and were not relevant when dealing with issues outside of the European continent (Burges, p. 141).  

Libya was asking that the ICJ recognize the precolonial territorial rights of the Toubou Peoples. Libya stressed that the Eurocentric concept of terra nullius (empty land) did not apply to Libya-Chad borderland. The Toubou tribes had been inhabiting the Aouzou Strip since time immemorial and were organized into “sophisticated societies that enjoyed government, laws, social systems and recognition of their territorial limits”[2]. In Libya’s view, the Toubou are Libyan nationals by virtue of their religious, cultural, and economic ties with the Senoussi Order and Ottoman Empire. The Toubou are not nationals of Chad, as was evident by Toubou resistance movement against the French military occupation.

Chad and the ICJ: Effective occupation, uti possidetis de jure

Chad’s claim to the Aouzou Strip was based on uti possidetis de jure and effective control. Chad argued that the uti possidetis de jure line had already been delimited in the Treaty of Friendship and Good Neighbourliness, concluded between France and Libya in 1955. Chad further argued that the border had acquired the character of an international boundary as a result of French colonial occupation. A French military post was offered as proof of the occupation. The post had been established in the Aouzou Strip and was occupied from December 12, 1937 to June 1, 1951, and the French troops had been sent to fight against the “native” (Toubou) rebels who had thus far refused to submit to French authority [3].

The ICJ ruled in favour of Chad. The ICJ supported Chad’s position and the uti possidetis de jureline set out in the 1955 Treaty. The ICJ found it unnecessary to consider the history of the borderlands and its nomadic inhabitants[4]. The ICJ rejected Libya’s historical entitlement arguments and instead focused on uti possidetis and the contours of colonial administration. The ICJ ignored Libya’s calls for retroactive recognition of the rights of Indigenous peoples and also ignored Libya’s request for international law to retrospectively deem non-European peoples as subjects of international law. This was despite Libya’s argument that the dispute involved Indigenous lands, and that the Indigenous occupants were “at all relevant times, religiously, culturally, economically and politically part of the Libyan peoples” and that “on the international plane, there existed a community of 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”[5].

Summary/Criticism:

Burges (2012) argues that the ICJ judgement extends far beyond the confines of legal precedent in its endorsement of “the practices of the colonial past” and the “sanctity of European-created borders” (p. 122). The ICJ decision was “a policy choice often hidden behind the rhetoric of law” (p. 142). The ICJ’s blind acceptance of uti possidetis de jure perpetuates “a restricted, international legal lexicon” that privileges the colonial heritage over other types of legal or spatial imaginaries (p. 142). 

Castellino and Allen (2004, p. 143) concur, finding fault with the ICJ and its reluctance to provide redress against colonial boundaries and take precolonial territorial and ethnographic parameters into account. .  that disregarded precolonial territorial and ethnographic parameters. Accordingly, the ICJ’s ruling is an example of the Court’s position as “a champion of colonialism’s continuing hold over international law” (p. 143).   

Reisman’s position (1995, p. 356) is that the ICJ’s judgment shows a “pattern of devaluation” of Indigenous land claims. The ICJ did not ask for any “evidence on the identity, interests and wishes of the inhabitants” of the Aouzou and decided the issue “entirely on the basis of the submission by the two claimant states.” Reisman (1995) further criticizes both Libya and Chad. Neither had any interest “in examining the interests or claims of the local inhabitants,” instead using indigenous peoples instrumentally and for the purpose of establishing state territorial rights (p. 357).

Ricciardi (1994) suggests that the ICJ should have asked the Toubou what they wanted to do. This would, however, render the legal and historical arguments irrelevant and would “make the fate of the Aouzou Strip a matter for political, not judicial settlement” (p. 309). Recognizing Toubou rights to self-determination would call the right of the ICJ to determine title to the Aouzou Strip into question in the first place. Had they been asked, the Toubou might have said that they didn’t want to belong to either the Libyan or the Chadian state. In which case, the ICJ would not be able to assign the Aouzou Strip in the Sahara Desert to either Libya or Chad without violating the Toubou’s right to self-determination.

Conclusion

International law does not permit the Court to entertain questions of indigenous self-determination. Libya and Chad agreed to have the Court adjudicate their claim only: “The Toubous have not been consulted, and because they have no standing to appear before the Court, they cannot present their arguments. The case thus excluded the real party in interest from any effective role in its resolution” (Riccardi, 1994, p. 309). As such, the Toubou were not entirely erased from history, but they were marginalized in the boundary dispute proceedings and the end result was that their lands were incorporated into the international state system.

 [1] Territorial Dispute (Libya v. Chad), 1994 I.C.J. 7 (Feb. 3)

[2] Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 48.

[3] Territorial Dispute (Libyan Arab Jamahiriya/Chad), Chad Memorial, ICJ Reports, 1992, p. 98.

[4] Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports, 1992, p. 40.

[5] Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports, 1992, 36.