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Advisory Opinion

Botswana v Namibia (Kasikili/Sedudu Island)


ICJ Reports 13 December 1999

Ponente: Schwebel, J.
Facts:
In 1996, Botswana and Namibia jointly notified the Registrar the text of a Special
Agreement signed at Gaborone (Botswana) on 15 February 1996 and having entered into
force on 15 May 1996 for the submission to the Court of a dispute between them
concerning the boundary around Kasikili/Sedudu Island.
The special agreement referred inter alia to a Treaty between Great Britain and Germany
delimiting their respective spheres of influence in Africa.
Under the terms of agreements, the parties asked the Court to determine, on the basis of
the Anglo-German Treaty of 1890 and the rules and principles of international law, the
boundary between Namibia and Botswana around the island and the legal status of the
islandknown as Kasikili in Namibia and Sedudu in Botswana.
The island is approximately 3.5 square km in area, located in the Chobe River which
divides around it to the North and South, and is subject to flooding of several months
duration, beginning March of every year.
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.
The 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 1890.2 As such, Kasikili/Sedudu Island is a
territory governed by the sovereignty of Namibia.
Issue:
W/N Sedudu is within in Botswanas territory
Held:
No.
Ruling:
Based on the 1890 Treaty, the court considered the main channel of River Chobe. In the
Courts opinion, the real dispute between the parties concerned the location of the main
channel, Botswana contending that it is the channel running north of the island and
Namibia the channel running south of the island. Since the Treaty does not define the
notion of "main channel", the Court itself proceeded to determine which is the main
channel of the Chobe River around the Island.
The Court found that while the Masubia of the Caprivi Strip (territory belonging to
Namibia) did indeed use the Island for many years, they did so intermittently, according to
the seasons, and for exclusively agricultural purposes, without it being established that
they occupied the Island titre de souverain, i.e., that they were exercising functions of
State authority there on behalf of the Caprivi authorities. Hence, Court rejected Namibias
argument.
After concluding that the boundary between Botswana and Namibia around Kasikili/Sedudu
Island followed the line of deepest soundings in the northern channel of the Chobe.
The Island formed part of the territory of Botswana, the Court recalled that, under the
terms of an agreement concluded in May 1992 (the "Kasane Communiqu"), the Parties
have undertaken to one another that there shall be unimpeded navigation for craft of their
nationals and flags in the channels around the Island.
Uti Possidetis Juris principle. There is no agreement in the treaty as to the exact boundary
line; and neither is there proof of effective occupation by Namibia and Botswana. In the
absence of these circumstances, Namibia and Botswana, as successors, must respect the
boundary set by the colonial powers.

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 scientists logical rationale. This case also revealed that in essence the
dispute centered around both parties desire to procure political control and economic
benefit from the rich natural resources and potential tourist lure of Kasikili/Sedudus
naturally occurring productive abundance.