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Case Concerning Kasikili/Sedudu Island (Botswana v.

Namibia)
ICJ Reports, 1996

Facts

a. On May 17th 1996 Botswana and Namibia jointly filed a submission to the
International Court of Justice requesting the Courts settlement of a boundary
dispute around Kasikili/Sedudu Island.

b. Accompanying 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.

c. The 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.

d. 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.

Questions

a. Where 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 1890
2
Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia)
ICJ Reports, 1996
Botswana and Namibia?

b. What 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?

c. To what extend had Namibia officially occupied and exercised sovereignty


over Kasikili/Sedudu Island?

d. Is 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?

e. Is navigability a legitimate criteria to be used for identifying and delineating


the path of the Chobe Rivers main channel?

Decision

a. On 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.

b. The 1890 Treaty was used as important historical context for the definition of
thalweg, or main channel, which maintained a legally defined association
with navigability. 4 The Court upheld the definition of thalweg as the line of
deepest water along the length of a river channelcharacterized by two and a
smooth bed.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
channelthe 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, 1996
4
Anglo-German Agreement of 1890
5
Alexander, Science, History, and the Kasikili Island Dispute South African Journal of
Science
6
Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia)
ICJ Reports, 1996
Republic of Botswana and the Republic of Namibia shall enjoy equal national
treatment.8

Principles

a. In 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.9

b. As 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.10

c.The rule of equitable utilization of watercourses and cartography as well-


established principles of International Law.11

Conclusion

a. 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
7
Alexander, Science, History, and the Kasikili Island Dispute South African Journal of
Science
8
Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia)
ICJ Reports, 1996
9
Summary of the Decisions: Case Concerning Kasikili/Sedudu Island World Court
Digest
10
Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ Reports 1983
11
Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia)
ICJ Reports, 1996
control and economic benefit from the rich natural resources and potential
tourist lure of Kasikili/Sedudus naturally occurring productive abundance.
Bibliography

Cases and Treaties

Case 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 Court


Digest. The Max Planck Institute for Comparative Public Law and International
Law. (November 2007)

Alexander, W.J.R. Science, History and the Kasikili Island Dispute. South African
Journal of Science, Aug99, Vol. 95 Issue 8. (accessed: 11/4/09)
http://webworld.unesco.org

Submitted
Colleen Hill, November 5, 2009

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