Case Concerning Kasikili/Sedudu Island (Botswana v ...

1 Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) ICJ Reports, May 17th 1996 Botswana and Namibia jointly filed a submission to the International Court of Justice requesting the Court s settlement of a boundary dispute around Kasikili/Sedudu Island . this request, Botswana and Namibia jointly submitted the text of a Special Agreement signed on February 15th, 1996 referencing the Anglo-German Treaty of July 1890. This treaty established an agreement between the colonial powers of Great Britain and Germany and their respective spheres of influence over the two African nations. On these grounds and the principles of international law, both parties requested the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the Island . 1 The Court ruled by eleven votes to four, that the boundary follows the Chobe River around the Island and that the Island itself forms part of the territory of Botswana.

2 Plaintiff, the nation of Botswana, argued that the Island should be considered its territory unless it could be proven that the main channel passes through the south region of the Island , and therefore falls within the sovereignty of Namibia. Botswana held that the north and west channels of the Chobe River constitute the main channel , and in accordance with the provisions of the Anglo-German Agreement of 1890, establish the boundary between the two nations. Accordingly, Kasikili/Sedudu Island falls exclusively within the sovereignty of Botswana. defendant, Namibia, claimed that the main channel of the Chobe River indeed passes through the south of the Island and that Namibia and its predecessors had occupied, used, and exercised sovereign jurisdiction over Kasikili Island [with the knowledge and acquiescence of Botswana] since at least 1890.

3 2 As such, Kasikili/Sedudu Island is a territory governed by the sovereignty of Namibia. exactly is the main channel of the Chobe located geographically in relation to Kasikili/Sedudu Island ?b. How is the main channel defined and observed in relation to both nations, 1 Anglo-German Agreement of 18902 Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) ICJ Reports, 1996 Botswana and Namibia? exactly is the dividing line between the colonial spheres of influences [established by the provisions of the Anglo-German Agreement of 1890], and why is this specific division important? what extend had Namibia officially occupied and exercised sovereignty over Kasikili/Sedudu Island ? the historical occupation of the Island important? If physical characteristics of the land or water have shifted over time, should old maps be considered, as legitimate geographic references?

4 Navigability a legitimate criteria to be used for identifying and delineating the path of the Chobe River s main channel? December 13th, 1999 the Court delivered its official judgment. The Court held, with eleven votes to four, that the boundary between Namibia and Botswana around Kasikili/Sedudu Island followed the line of deepest soundings in the northern channel of the Chobe and that the Island forms part of the territory of Botswana. 3 The Court also ruled that while Namibia had historically occupied the Island , the State functions in which it participated during seasonal occupation did not constitute ownership. 1890 Treaty was used as important historical context for the definition of thalweg , or main channel, which maintained a legally defined association with The Court upheld the definition of thalweg as the line of deepest water along the length of a river by two and a smooth bed.

5 5 The Court asserted that it could not draw conclusions from the cartographic material with the absence of any map officially reflecting the intentions of the parties to the 1890 Treaty, in light of the uncertainty and inconsistency of maps. 6 Based on this criteria, the Court also ruled to uphold the 1985 conclusion of the South African Department of Water Affairs, the average depth of the thalweg of the North channel is greater than the southern main channel of the Chobe passes Kasikili/Sedudu Island to the north of it. 7 The Court added unanimously that, "in the two channels around Kasikili/Sedudu Island , the nationals of and vessels flying the flags of, the 3 Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) ICJ Reports, 19964 Anglo-German Agreement of 18905 Alexander, Science, History, and the Kasikili Island Dispute South African Journal of Science6 Case Concerning Kasikili/Sedudu Island (Botswana v.)

6 Namibia) ICJ Reports, 1996 Republic of Botswana and the Republic of Namibia shall enjoy equal national treatment. order to appropriately determine the navigability of a water channel, inter alia, depth and width are the most important measures, which must be considered. These measures are necessary to compute volume capacity and the primary path of water flow. In this context, a water channel may be used in determining the boundary between two states. b. Occupation of a territory, titre de souverain does not constitute legal ownership. In this case, although Namibia used the Island [the fertile Caprivi strip] for seasonal agriculture purposes, its functions of State authority were ultimately on behalf of Caprivi authorities. determined by Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ Reports 1983, the evidentiary value of maps constitutes information which varies from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title endowed by international law with intrinsic legal force for the purpose of establishing territorial rights.

7 Rule of equitable utilization of watercourses and cartography as well-established principles of International Conclusiona. The ability of the ICJ to resolve this dispute is significant primarily because it resolved a long-standing border dispute between the two African nations of Botswana and Namibia. This case is also important because bridges the gap between law and science and demonstrates the extent to which great difficulty exists in reconciling the two in a modern context. Of particular interest here is the fact that in addition to the ten lawyers, six scientists also participated in court proceedings to resolve this dispute. This was a necessary means of creating balance between historical precedents and the legal strain of this procedure on a scientist s logical rationale. This case also revealed that in essence the dispute centered around both parties desire to procure political 7 Alexander, Science, History, and the Kasikili Island Dispute South African Journal of Science8 Case Concerning Kasikili/Sedudu Island (Botswana v.)

8 Namibia) ICJ Reports, 19969 Summary of the Decisions: Case Concerning Kasikili/Sedudu Island World Court Digest10 Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ Reports 198311 Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) ICJ Reports, 1996control and economic benefit from the rich natural resources and potential tourist lure of Kasikili/Sedudu s naturally occurring productive abundance. BibliographyCases and TreatiesCase Concerning Kasikili/Sedudu Island (Botswana v. Namibia) ICJ Reports, 1996 Anglo-German Agreement of 1890 Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ Reports 1983 Articles and Books Summary of the Decisions: Case Concerning Kasikili/Sedudu Island World CourtDigest. The Max Planck Institute for Comparative Public Law and International Law. (November 2007) Alexander, Science, History and the Kasikili Island Dispute.

9 South African Journal of Science, Aug99, Vol. 95 Issue 8. (accessed: 11/4/09) SubmittedColleen Hill, November 5, 2009