[source: ICJ; "descriptors" my addition.//amanuel]

descriptors:  interpretation of 1890 Anglo-German treaty, locating the 
dividing line, prescriptive title by virtue of the exercise of sovereign 
jurisdiction, uncertainty and inconsistency of official interpreting 
maps, exercising functions of State authority

~~~~ 
13 December 1999 - Press Communiqué 99/53

Kasikili/Sedudu Island (Botswana/Namibia)

The Court finds that Kasikili/Sedudu Island forms part of the territory of
Botswana

THE HAGUE, 13 December 1999. Today, the International Court of Justice
(ICJ), the principal judicial organ of the United Nations, gave its decision
in the case concerning Kasikili/Sedudu Island (Botswana/Namibia).

In its Judgment, the Court finds, by eleven votes to four, that "the
boundary between the Republic of Botswana and the Republic of Namibia
follows the line of the deepest soundings in the northern channel of the
Chobe River around Kasikili/Sedudu Island" and, by eleven votes to four
again, that "Kasikili/Sedudu Island forms part of the territory of the
Republic of Botswana".

The Court adds unanimously that, "in the two channels around Kasikili/Sedudu
Island, the nationals of, and vessels flying the flags of, the Republic of
Botswana and the Republic of Namibia shall enjoy equal national treatment".

Background information

On 29 May 1996, Botswana and Namibia jointly notified to 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 signed on 1 July 1890 between Great Britain and Germany delimiting
their respective spheres of influence in Africa.

Under the terms of the Special Agreement, the Parties asked the Court to
"determine, on the basis of the Anglo-German Treaty of 1 July 1890 and the
rules and principles of international law, the boundary between Namibia and
Botswana around Kasikili/Sedudu Island and the legal status of the island".

Reasoning of the Court

The Court begins by stating that the island in question, which in Namibia is
known as "Kasikili", and in Botswana as "Sedudu", is approximately 3.5
square kilometres in area, that it is located in the Chobe River, which
divides around it to the north and south, and that it is subject to flooding
of several months' duration, beginning around March.

It briefly outlines the historical context of the dispute, then examines the
text of the 1890 Treaty which, in respect of the region concerned, locates
the dividing line between the spheres of influence of Great Britain and
Germany in the "main channel" of the River Chobe. In the Court's opinion,
the real dispute between the Parties concerns the location of that main
channel, Botswana contending that it is the channel running north of
Kasikili/Sedudu Island and Namibia the channel running south of the island.
Since the Treaty does not define the notion of "main channel", the Court
itself proceeds to determine which is the main channel of the Chobe River
around the Island.

In order to do so, it takes into consideration, inter alia, the depth and
the width of the channel, the flow (i.e., the volume of water carried), the
bed profile configuration and the navigability of the channel. After having
considered the figures submitted by the Parties, as well as surveys carried
out on the ground at different periods, the Court concludes that "the
northern channel of the River Chobe around Kasikili/Sedudu Island must be
regarded as its main channel".

After evoking the object and purpose of the 1890 Treaty, and its travaux
préparatoires, the Court examines at length the subsequent practice of the
parties to the Treaty. The Court finds that this practice did not result in
any agreement between them regarding the interpretation of the Treaty or the
application of its provisions.

The Court further states that it cannot draw conclusions from the
cartographic material "in view of the absence of any map officially
reflecting the intentions of the parties to the 1890 Treaty" and "in the
light of the uncertainty and inconsistency" of the maps submitted by the
Parties to the dispute.
 
The Court finally considers Namibia's alternative argument that it and its
predecessors have prescriptive title to Kasikili/Sedudu Island by virtue of
the exercise of sovereign jurisdiction over it since the beginning of the
century, with full knowledge and acceptance by the authorities of Botswana
and its predecessors. The Court finds 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 à titre de souverain, i.e., that they were exercising
functions of State authority there on behalf of the Caprivi authorities. The
Court therefore rejects this argument.

After concluding that the boundary between Botswana and Namibia around
Kasikili/Sedudu Island follows the line of deepest soundings in the northern
channel of the Chobe and that the Island forms part of the territory of
Botswana, the Court recalls that, under the terms of an agreement concluded
in May 1992 (the "Kasane Communiqué"), 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.

Composition of the Court

The Court was composed as follows: President Schwebel; Vice-President
Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,
Rezek; Registrar Valencia-Ospina.

Judges Ranjeva, Koroma and Higgins have appended declarations to the
Judgment. Judges Oda and Kooijmans have appended separate opinions.
Vice-President Weeramantry, Judges Fleischhauer, Parra-Aranguren and Rezek
have appended dissenting opinions.

_______________

A summary of the Judgment is given in Press Communiqué No. 99/53bis, to
which a brief summary of the declarations and of the opinions is annexed.
The full text of the Judgment, of the declarations and of the opinions are
available on the Court's website (http://www.icj-cij.org).

Information Department:

Mr. Arthur Th. Witteveen, First Secretary of the Court (+ 31 70 302 23 36)

Mrs. Laurence Blairon, Information Officer (+ 31 70 302 23 37)

Email address: [log in to unmask]








%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%