'written observations' by Cameroon and by Nigeria on boundary between Cameroon and Nigeria".

Equatorial
that statement; and whereas those time limits must 'so Guinea made it clear that it did not seek to intervene in
far as possible, coincide with those already fixed for the those aspects of the proceedings that relate to the land
pleadings in the case', in the present instance by the boundary between Cameroon and Nigeria, nor to become a
above-mentioned Order of 30 June 1999; party to the case. It further stated that, although it would be
18. For these reasons, open to the three countries to request the Court not only to
The Court, determine the Cameroon-Nigeria maritime boundary but
also to determine Equatorial Guinea's maritime boundary
Unanimously,
with these two States, Equatorial Guinea had made no such
1. Decides that the Republic of Equatorial Guinea is request and wished to continue to seek to determine its
permitted to intervene in the case, pursuan: to Article 62 maritime boundary with its neighbours by negotiation.
of the Statute, to the extent, in the manner and for the
In support of its Application, Equatorial Guinea stressed
purposes set out in its Application for permission to
that one of the claims presented by Cameroon in its
intervene;
Memorial of 16 March 1995 "ignored the legal rights of
2. Fixes the following time limits for the filing of Equatorial Guinea in the most flagrant way" because it
the written statement and the written observations disregarded the median line (the line dividing maritime
referred to in Article 85, paragraph 1, of the Rules of zones between two States of which every point is
Court: equidistant from the coasts of each of those States) and that,
4 April 2001 for the written statement of the moreover, "in the bilateral diplomacy between Cameroon
Republic of Equatorial Guinea; and Equatorial Guinea, Cameroon ... never once hinted that
4 July 2001 for the written observations of the it did not accept the median line as the maritime boundary
Republic of Cameroon and of the Federal Republic between itself and Equatorial Guinea". Observing that "the
of Nigeria; general maritime area where the interests of Equatorial
Guinea, Nigeria and Cameroon come together is an area of
3. Reserves the subsequent procedure for further
active oil and gas exploration and exploitation", Equatorial
decision."
Guinea maintained that "any judgment extending the
boundary between Cameroon and Nigeria across the median
line with Equatorial Guinea [would] be relied upon by
concessionaires who would likely ignore Equatorial
Guinea's protests and proceed to explore and exploit
Background information resources to the legal and economic detriment" of that
On 30 June 1999 Equatorial Guinea filed an Application country.
for permission to intervene in the above-mentioned case. It Under Article 83 of the Rules of Court, Equatorial
stated that the purpose of its intervention was "to protect Guinea's Application was immediately communicated to
[its] legal rights in the Gulf of Guinea by all legal means" Cameroon and Nigeria, and the Court fixed 16 August 1999
and "to inform the Court of Equatorial Guinea's legal rights as the time limit for the filing of written observations by
and interests so that these may remain unaffected as the those States.
Court proceeds to address the question of the maritime

127. CASE CONCERNING KASIKILI/SEDUDU ISLAND (BOTSWANA v. NAMIBIA)

Judgment of 13 December 1999

In its judgment in the case concerning Kasikili/Sedudu The Court was composed as follows: President
Island (Botswana/Namibia), the Court found, by eleven Schwebel; Vice-President Weeramantry; Judges Oda,
votes to four, that "the boundary between thï Republic of Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Botswana and the Republic of Namibia follows the line of Koroma, Vereshchetin, Higgins, Parra-Aranguren,
the deepest soundings in the northern channel of the Chobe Kooijmans, Rezek; Registrar Valencia-Ospina.
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 added unanimously that, "in the two channels The full text of the operative paragraph of the Judgment
around Kasikili/Sedudu Island, the nationals of, and vessels reads as follows:
flying the flags of, the Republic of Botswana and the
"104. For these reasons.
Republic of Namibia shall enjoy equal national treatment".

129
 THE COURT, Botswana's final submission as presented at the hearing
(1 ) By eleven votes to four, of 5 March 1999 were as follows:
Finds that the boundary between the Republic of "May it please the Court:
Botswana and the Republic of Namibia follows the line (1) to adjudge and declare:
of deepest soundings in the northern channel of the (a) that the northern and western channel of the
Chobe River around Kasikili/Sedudu Island; Chobe River in the vicinity of Kasikili/Sedudu Island
IN FAVOUR: President Schwebel; Judges Oda, constitutes the 'main channel' of the Chobe River in
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma, accordance with the provisions of Article IN (2) of the
Vereshchetin, Higgins, Kooijmans; Anglo-German Agreement of 1890; and
AGAINST: Vice-President Weeramantry; Judges (b) consequently, sovereignty in respect of Kasikili/
Fleischhauer, Parra-Aranguren, Rezek. Sedudu Island vests exclusively in the Republic of
(2) By eleven votes to four, Botswana; and further
Finds that Kasikili/Sedudu Island forms part of the (2) to determine the boundary around Kasikili/
territory of the Republic of Botswana; Sedudu Island on the basis of the thalweg in the northern
IN FAVOUR: President Schwebel; Judges Oda, and western channel of the Chobe River."
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma, Namibia's final submissions read at the hearing of 2
Vereshchetin, Higgins, Kooijmans; March 1999 were as follows:
AGAINST: Vice-President Weeramantry; Judges "May it please the Court, rejecting all claims and
Fleischhauer, Parra-Aranguren, Rezek. submissions to the contrary, to adjudge and declare
(3) Unanimously, 1. The channel that lies to the south of
Finds that, in the two channels around Kasikili/Sedudu Island is the main channel of the Chobe
Kasikili/Sedudu Island, the nationals of, and vessels River.
flying the flags of, the Republic of Botswana and the 2. The channel that lies to the north of
Republic of Namibia shall enjoy equal national Kasikili/Sedudu Island is not the main channel of the
treatment." Chobe River.
3. Namibia and its predecessors have occupied and
used Kasikili Island and exercised sovereign jurisdiction
over it, with the knowledge and acquiescence of
Botswana and its predecessors since at least 1890.
Judges Ranjeva, Koroma, and Higgins appended
declarations to the judgment of the Court; Judges Oda and 4. The boundary between Namibia and Botswana
Kooijmans appended separate opinions; and Vice-President around Kasikili/Sedudu Island lies in the centre (that is
Weeramantry and judges Fleichhauer, Parra-Aranguren and to say, the thalweg) of the southern channel of the Chobe
Rezek appended dissenting opinions. River.
5. The legal status of Kasikili/Sedudu Island is that
it is a part of the territory under the sovereignty of
Namibia."

Review of the proceedings and submissions of the Background to the case

Parties (paras. 11-16)
(paras. 1-10)
The Court then gives a description of the geography of
By joint letter dated 17 May 1996, Botswana and the area concerned, illustrated by three sketch maps.
Namibia transmitted to the Registrar the original text of a Thereafter the Court recounts the history of the dispute
Special Agreement between the two States, signed at between the Parties which is set against the background of
Gaborone on 15 February 1996 and entered into force on 15 the nineteenth century race among the European colonial
May 1996, Article I of which reads as follows: powers for the partition of Africa. In the spring of 1890,
"The Court is asked to determine, on the basis of the Germany and Great Britain entered into negotiations with a
Anglo-German Treaty of 1 July 1890 [an agreement view to reaching agreement concerning their trade and their
between Great Britain and Germany respecting the spheres of influence in Africa. The resulting Treaty of 1 July
spheres of influence of the two countries in Africa] and 1980 delimited inter alia the spheres of influence of
the rules and principles of international law, the Germany and Great Britain in south-west Africa; that
boundary between Namibia and Botswana around delimitation lies at the heart of the present case.
Kasikili/Sedudu Island and the legal status of the In the ensuing century, the territories involved
island." experienced various mutations in status. The independent
The Court then recites the successive stages of the Republic of Botswana came into being on 30 September
proceedings and sets out the submissions of the Parties: 1966, on the territory of the former British Bechuanaland

130
Protectorate, while Namibia (of which the Caprivi Strip The text of the 1890 Treaty
fornis part) became independent on 21 March 1990. (paras. 21-46)
Shortly after Namibian independence, differences arose The Court first examines the text of the 1890 Treaty,
between the two States concerning the location of the Article III of which reads as follows:
boundary around Kasikili/Sedudu Island. In May 1992, ii;
"In Southwest Africa the sphere in which the
was agreed to submit the determination of the boundary
exercise of influence is reserved to Germany is bounded:
around the Island to a Joint Team of Technical Experts. In
February 1995, the Joint Team Report, in which the Team 1. To the south by a line commencing at the mouth
announced that it had failed to reach an agreed conclusion of the Orange river, and ascending the north bank of that
on the question put to it, was considered and it was decided river to the point of its intersection by the 20th degree of
to submit the dispute to the International Court of Justice for east longitude.
a final and binding determination. 2. To the east by a line commencing at the above-
named point, and following the 20th degree of east
The rides of interpretation applicable to the 1890 Treaty longitude to the point of its intersection by the 22nd
(paras. 18-20) parallel of south latitude; it runs eastward along that
parallel to the point of its intersection by the 21st degree
The Court begins by observing that the law applicable to of east longitude; thence it follows that degree
the present case has its source first in the 1890 Treaty., northward to the point of its intersection by the 18th
which Botswana and Namibia acknowledge to be binding parallel of south latitude; it runs eastward along that
on them. As regards the interpretation of that Treaty, the parallel till it reaches the river Chobe, and descends the
Court notes that neither Botswana nor Namibia are parties to centre of the main channel of that river to its junction
the Vienna Convention on the Law of Treaties of 23 May with the Zambesi, where it terminates.
1969, but that both of them consider that Article 31 of the It is understood that under this arrangement Germany
Vienna Convention is eipplicable inasmuch as it reflects, shall have free access from her Protectorate to the
customary international law. Zambesi by a strip of territory which shall at no point be
According to Article 31 of the Vienna Convention on the less than 20 English miles in width.
Law of Treaties: The sphere in which the exercise of influence is
"1. A treaty shall be interpreted in good faith in reserved to Great Britain is bounded to the west and
accordance with the ordinary meaning to be given to the northwest by the above-mentioned line. It includes Lake
terms of the treaty in their context and in the light of its Ngami.
object and purpose. The course of the above boundary is traced in
2. The context for the purpose of the interpretation general accordance with a map officially prepared for
of a treaty shall comprise, in addition to the text. the British Government in 1889."
including its preamble and annexes: As far as the region covered by the present case is
(a) any agreement relating to the treaty which was concerned, this provision locates the dividing line between
made between all the parties in connection with the the spheres of influence of the contracting parties in the
conclusion of the treaty; "main channel" of the River Chobe; however, neither this,
(b) any instrument which was made by one or more nor any other provision of the Treaty, furnishes criteria
parties in connection with the conclusion of the treaty enabling that "main channel" to be identified. It must also
and accepted by the other parties as an instrument be noted that in the English version refers to the "centre" of
related to the treaty." the main channel, while the German version uses the term
The Court indicates that it shall proceed to interpret the "thalweg" of that channel (Thalweg des Hauptlaufes).
provisions of the 1890 Treaty by applying the rules of Observing that Botswana and Namibia did not themselves
interpretation set forth in the 1969 Vienna Convention, express any real difference of opinion on the meaning of
recalling that these terms, the Court indicates that it will accordingly treat
the words "centre of the main channel" in Article III,
"a treaty must be inteipreted in good faith, in accordance
paragraph 2, of the 1890 Treaty as having the same meaning
with the ordinary meaning to be given to its terms in
as the words "Thalweg des Hauptlaufes". In the Court's
their context and in the light of its object and purpose.
opinion, the real dispute between the Parties concerns the
Interpretation must be based above all upon the text of
location of the main channel where the boundary lies. In
the treaty. As a supplementary measure recourse may be
Botswana's view, it is to be found "on the basis of the
had to means of interpretation such as the preparatory
thalwegs in the northern and western channel of the Chobe",
work of the treaty." (Territorial Dispute (Libyan Arab
whereas in Namibia's view, it "lies in the centre (that is to
Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
say thalwegs) of the southern channel of the Chobe River".
pp. 21-22, para. 41).
The Court observes that by introducing the term "main
channel" into the draft treaty, the contracting parties must be
assumed to have intended that a precise meaning be given to
it. For these reasons, the Court indicates that it will therefore

131
proceed first to determine the main channel. In so doing, it Width
will seek to determine the ordinary meaning of the words (para. 33)
"main channel" by reference to the most commonly used
criteria in international law and practice, to which the With regard to the width, the Court finds, on the basis of
Parties have referred. a report dating from as early as 1912, aerial photographs
taken between 1925 and 1985, and satellite pictures taken in
June 1975, that the northern channel is wider than the
Criteria for identifying the "main channel" southern channel.
(paras. 29-42)
The Court notes that the Parties to the dispute agree on Flow of water
many of the criteria for identifying the "main channel", but (paras. 34-37)
disagree on the relevance and applicability of several of
With regard to the flow, i.e., the volume of water
those criteria.
carried, the Court is not in a position to reconcile the figures
For Botswana, the relevant criteria are as follows: submitted by the Parties, who take a totally different
greatest depth and width; bed profile configuration; approach to the definition of the channels concerned. The
navigability; greater flow of water. Botswana also lays Court is of the opinion that the determination of the main
stress on the importance, from the standpoint of channel must be made according to the low water baseline
identification of the main channel, of "channel capacity", and not the floodline. The evidence shows that when the
"flow velocity" and "volume of flow". Namibia river is in flood, the Island is submerged by flood water and
acknowledges that: the entire region takes on the appearance of an enormous
"[pjossible criteria for identifying the main channel in a lake. Since the two channels are then no longer
river with more than one channel are the channel with distinguishable, it is not possible to determine the main
the greatest width, or the greatest depth, or the channel channel in relation to the other channel. The Court therefore
that carries the largest proportion of the annual flow of is not persuaded by Namibia's argument concerning the
the river. In many cases the main channel will have all existence of a major "main" channel whose visible southern
three of these characteristics." channel would merely constitute the thalweg.
It adds, however, referring to the sharp variations in the
level of (he Chobe's waters, that: Visibility
"neither width nor depth are suitable criteria for (para. 38)
determining which channel is the main channel."
The Court is further unable to conclude that, in terms of
Among the possible criteria, Namibia therefore attaches
visibility — or of general physical appearance — the
the greatest weight to the amount of flow: according to it,
southern channel is to be preferred to the northern channel,
the main channel is the one "that carries the largest
as maintained by Namibia.
proportion of the annual flow of the river". Namibia also
emphasized that another key task was to identify the channel
that is most used for river traffic. Bed profile configuration
(para. 39)
The Court notes that the Parties have expressed their
views on one or another aspect of the criteria, distinguishing Having examined the arguments, maps and photographs
between them or placing emphasis on their complementarity put forward by the Parties, the Court is also unable to
and their relationship with other criteria. Before coming to a conclude that, from its bed configuration, the southern
conclusion on the respective role and significance of the channel constitutes the principal and natural prolongation of
various criteria thus chosen, the Court further notes that the the course of the Chobe before the bifurcation.
present hydrological situation of the Chobe around
Kasikili/Sedudu Island may be presumed to be essentially Navigability
the same as that which existed when the 1890 Treaty was (paras. 40-42)
concluded.
The Court notes that the navigability of watercourses
varies greatly, depending on prevailing natural conditions.
Depth
Those conditions can prevent the use of the watercourse in
(para. 32)
question by large vessels carrying substantial cargoes, but
Notwithstanding all the difficulties involved in sounding permit light flat-bottomed vessels to navigate. In the present
the depth of the channels and interpreting the results, the case, the data furnished by the Parties tend to prove that the
Court concludes that the northern channel is deeper than the navigability of the two channels around Kasikili/Sedudu
southern one, as regards mean depth, and even as regards Island is limited by their shallowness. This situation inclines
minimum depth. the Court to the view that, in this respect, the "main
channel" in this part of the Chobe is that of the two which
offers more favourable conditions for navigation. In the
Court's view, it is the northern channel which meets this
criterion.

132
 For the foregoing reasons, the Court concludes that, in In support of its interpretation of Article III, paragraph 2,
accordance with the ordinary meaning of the terms that of the 1890 Treaty, Botswana relies principally on three sets
appear in the pertinent provision of the 1890 Treaty, the of documents: a report on a reconnaissance of the Chobe
northern channel of the River Chobe around produced in August 1912 by an officer of the Bechuanaland
Kasikili/Sedudu Island must be regarded as its main Protectorate Police, Captain Eason; an arrangement arrived
channel. It observes that this conclusion is supported by the at in August 1951 between Major Trollope, Magistrate for
results of three on-site surveys carried out in 1912.. 1948 and the Eastern Caprivi, and Mr. Dickinson, a District
1985, which concluded that the main channel of the River Commissioner in the Bechuanaland Protectorate, together
Chobe was the northern channel. with the correspondence that preceded and followed that
arrangement; and an agreement concluded in December
The object and purpose of the 1890 Treaty 1984 between the authorities of Botswana and South Africa
(paras. 43-46) for the conduct of a Joint Survey of the Chobe, together
with the resultant Survey Report.
The Court then considers how and to what extent the
object and purpose of the treaty can clarify the meaning to
The Eason Report (1912)
be given to its terms. While the treaty in question is not a
(paras. 53-55)
boundary treaty proper but a treaty delimiting spheres of
influence, the Parties nonetheless accept it as the treaty The Court shares the view, put forward by Namibia and
determining the boundary between their territories. The accepted by Botswana in the final version of its argument,
contracting powers, the Court observes, by opting for the that the Eason Report and its surrounding circumstances
words "centre of the main channel", intended to establish a cannot be regarded as representing "subsequent practice in
boundary separating their spheres of influence even in the the application of the treaty" of 1890, within the meaning of
case of a river having more than one channel. Article 31, paragraph 3 {b), of the Vienna Convention.
The Court notes that navigation appears to have been a
factor in the choice of the contracting powers in delimiting The Trollope-Redman correspondence (1947-1951)
their spheres of influence, but it does not consider that (paras. 56-63)
navigation was the sole objective of the provisions of
Article III, paragraph 2, of the Treaty. In referring to the In 1947, Mr. Ker, who was operating a transport
main channel of the Chobe, the parties sought both to secure business in Bechuanaland, planned to bring timber down the
for themselves freedom of navigation on the river and to Chobe using the northern channel. He obtained the
delimit as precisely as possible their respective spheres of necessary permission from the competent official in the
influence. Caprivi Strip, Major Trollope, but also raised the matter
with the Bechuanaland authorities. Following a Joint Report
entitled "Boundary between the Bechuanaland Protectorate
The subsequent practice and the Eastern Caprivi Zipfel: Kasikili Island" produced by
(paras. 47-80) Major Trollope and Mr. Redman (District Commissioner at
In the course of the proceedings, Botswana and Namibia FCasane, Bechuanaland) in 1948, and forwarded to their
made abundant reference to the subsequent practice of the respective authorities, there ensued an extended
parties to the 1890 Treaty — and of their successors — as correspondence between those authorities.
an element in the interpretation of that Treaty. While both In 1951 an exchange of correspondence between Mr.
Parties accept that interpretative agreements and subsequent Dickinson, who had in the meantime succeeded Mr.
practice do constitute elements of treaty interpretation under Redman as District Commissioner at Kasane
international law, they disagree on the consequences to be (Bechuanaland) and Major Trollope led to the following
drawn from the facts in this case for purposes of the "gentlemen's agreement":
interpretation of the 1890 Treaty. "(a) That we agree to differ on the legal aspect
Article 31, paragraph 3, of the 1969 Vienna Convention regarding Kasikili Island, and the concomitant question
on the Law of Treaties, which, as stated earlier, reflects of the Northern Waterway;
customary law, provides, for the interpretation of treaties, as (b) That the administrative arrangements which we
follows: hereafter make are entirely without prejudice to the
"'3. There shall be taken into account, together with rights of the Protectorate and the Strip to pursue the
the context: legal question mentioned in (a) should it at any time
(a) any subsequent agreement between the parties seem desirable to do so and will not be used as an
regarding the interpretation of the treaty or the argument that either territory has made any admissions
application of its provisions; or abandoned any claims; and
(b) any subsequent practice in the application of the (c) That, having regard to the foregoing, the position
treaty which establishes the agreement of the parties revert to what it was de facto before the whole question
regarding its interpretations." was made an issue in 1947 — i.e. that Kasikili Island
continue to be used by Caprivi tribesmen and that the

133
 Northern Waterway continue to be used as a 'free for Air photographs showing the channels of the river in
all' thoroughfare." the vicinity of the island are available in the archives of
Each side however made a caveat with regard to its the two national survey organizations. They were taken
position in any future controversy over the Island. in 1925, 1943, 1972, 1977, 1981 and 1982. No
The Court observes that each of the Parties to the present substantial change in the position of the channels is
proceedings relies on the Trollope-Redman Joint Report and evident from the photographs."
the correspondence relating thereto in support of its Having examined the subsequent correspondence
position. From its examination of the extended between the South African and Botswana authorities, the
correspondence, the Court concludes that the above- Court finds that it cannot conclude therefrom that in 1984-
mentioned events, which occurred between 1947 and 1951, 1985 South Africa and Botswana had agreed on anything
demonstrate the absence of agreement between South Africa more than the despatch of the joint team of experts. In
and Bechuanaland with regard to the location of the particular, the Court cannot conclude that the two States
boundary around Kasikili/Sedudu Island and the status of agreed in some fashion or other to recognize themselves as
the Island. Those events cannot therefore constitute legally bound by the results of the joint survey carried out in
"subsequent practice in the application of the treaty [of July 1985. Neither the record of the meeting held in Pretoria
1890] which establishes the agreement of the parties on 19 December 1984 nor the experts' terms of reference
regarding its interpretation" (1969 Vienna Convention on serve to establish that any such agreement was reached.
the Law of Treaties, Art. 31, para. 3 (b)). A fortiori, they Moreover, the subsequent correspondence between the
cannot have given rise to an "agreement between the parties South African and Botswana authorities appears to deny the
regarding the interpretation of the treaty or the application existence of any such agreement: in a Note of 4 November
of its provisions" (ibid., Art. 31, para. 3 (a)). 1985, Botswana called upon South Africa to accept the
survey conclusions; not only did South Africa fail to accept
them but on several occasions it emphasized the need for
The Joint Survey of 1985 Botswana to negotiate and agree on the question of the
(paras. 64-68) boundary with the relevant authorities of South West
In October 1984 an incident during which shots were Africa/Namibia, or indeed of the future independent
fired took place between members of the Botswana Defence Namibia.
Force and South African soldiers who were travelling by
boat in the Chobe's southern channel. At a meeting held in Presence of Masubia on the Island
Pretoria on 19 December 1984 between representatives of (paras. 71-75)
various South African and Botswanan ministries, it emerged
that the incident had arisen out of differences of In the proceedings Namibia, too, invoked in support of
interpretation as to the precise location of the boundary its arguments the subsequent practice of the parties to the
around Kasikili/Sedudu Island. At this meeting, reference 1890 Treaty. In its Memorial it contended that this conduct
was made to the terms of the 1890 Treaty and it was agreed "is relevant to the present controversy in three distinct
"that a joint survey should take place as a matter of urgency ways. In the first place, it corroborates the interpretation
to determine whether the main Channel of the Chobe River of the Treaty ... Second, it gives rise to a second and
is located to the north or the south of the Sidudu/Kasikili entirely independent basis for Namibia's claim under the
Island". The joint survey was carried out at the beginning of doctrines concerning acquisition of territory by
July 1985. The conclusions of the survey report were as prescription, acquiescence and recognition. Finally, the
follows: conduct of the parties shows that Namibia was in
"The main channel of the Chobe River now passes possession of the Island at the time of termination of
Sidudu/Kasikili Island to the west and to the north of it. colonial rule, a fact that is pertinent to the application of
(See annexed maps) the principle of utipossidetis."
The evidence available seems to point to the fact that The subsequent practice relied on by Namibia consists
this has been the case, at least, since 1912. of
It was not possible to ascertain whether a particularly "[t]he control and use of Kasikili Island by the Masubia
heavy flood changed the course of the river between of Caprivi, the exercise of jurisdiction over the Island by
1890 and 1912. Captain Eason of the Bechuanaland the Namibian governing authorities, and the silence by
Protectorate Police states, on page 4 of Part I of the Botswana and its predecessors persisting for almost a
report which has been referred to earlier, that floods century with full knowledge of the facts ..."
occurred in 1899 and in June and July of 1909. The Court indicates that it will not at this point examine
If the main channel of the river was ever situated to Namibia's argument concerning prescription. It will merely
the south of the island, it is probable that erosion in the seek to ascertain whether the long-standing, unopposed,
Sidudu Valley, the location of which can be seen in the presence of Masubia tribes people on Kasikili/Sedudu Island
annexed Map C, has caused the partial silting up of the constitutes "subsequent practice in the application of the
southern channel. [1890] treaty which establishes the agreement of the parties
regarding its interpretation" (1969 Vienna Convention on

134
the Law of Treaties, Art. 31, para. 3 (b)). To establish such channel. Rather, its overall position is that the map evidence
practice, at least two criteria would have to be satisfied: is far less consistent in placing the boundary in the southern
first, that the occupation of the Island by the Masubia was channel than Namibia claims.
linked to a belief on the part of the Caprivi authorities that The Court begins by recalling what the Chamber dealing
the boundary laid down by the 1890 Treaty followed the with the Frontier Dispute {Burkina Faso/Republic of Mali)
southern channel of the Chobe; and, second, that the case had to say on the evidentiary value of maps:
Bechuanaland authorities were fully aware of and accepted
"maps merely constitute information which varies in
this as a confirmation of the Treaty boundary.
accuracy from case to case; of themselves, and by virtue
There is nothing that shows, in the opinion of the Court, solely of their existence, they cannot constitute a
that the intermittent presence on the Island of people from territorial title, that is, a document endowed by
the Caprivi Strip was linked to territorial claims by the international law with intrinsic legal force for the
Caprivi authorities. It further seems to the Court that, as far purpose of establishing territorial rights. Of course, in
as Bechuanaland, and subsequently Botswana, were some cases maps may acquire such legal force, but
concerned, the intermittent presence of the Masubia on the where this is so the legal force does not arise solely from
Island did not trouble anyone and was tolerated, not least their intrinsic merits: it is because such maps fall into the
because it did not appear to be connected with interpretation category of physical expressions of the will of the State
of the terms of the 1890 Treaty. The Court thus finds that or States concerned. This is the case, for example, when
the peaceful and public use of Kasikili/Sedudu Island, over maps are annexed to an official text of which they form
a period of many years, by Masubia tribesmen from the an integral part. Except in this clearly defined case, maps
Eastern Caprivi does not constitute "subsequent practice in are only extrinsic evidence of varying reliability or
the application of the [1890] treaty" within the meaning of unreliability which may be used, along with other
Article 31, paragraph 3 {b), of the Vienna Convention on the evidence of a circumstantial kind, to establish or
Law of Treaties. reconstitute the real facts." {I.C.J. Reports 1986, p. 582,
para. 54)
After examining the map evidence produced in this case,
The Court concludes from all of the foregoing that the the Court considers itself unable to draw conclusions from
subsequent practice of the parties to the 1890 Treaty did not it, in view of the absence of any map officially reflecting the
result in any "agreement between the parties regarding the intentions of the parties to the 1890 Treaty and of any
interpretation of the treaty or the application of its express or tacit agreement between them or their successors
provisions", within the meaning of Article 31, paragraph concerning the validity of the boundary depicted in a map,
3 (a), of the 1969 Vienna Convention on the Law of as well as in the light of the uncertainty and inconsistency of
Treaties, nor did it result in any "practice in the application the cartographic material submitted to it. That evidence
of the treaty which establishes the agreement of the parties cannot therefore "endors[e] a conclusion at which a court
regarding its interpretation", within the meaning of has arrived by other means unconnected with the maps"
subparagraph (b) of that same provision. {Frontier Dispute (Burkina Faso/Republic of Mali), I.C.J.
Reports 1986, p. 583, para. 56), nor can it alter the results of
the Court's textual interpretation of the 1890 Treaty.
Maps as evidence
(paras. 81-87)
"Centre of the main channel" or Thalweg
Both Parties have submitted in evidence in support of
(paras. 88-89)
their respective positions a large number of maps, dating
back as far as 1880. Namibia points out that the majority of The foregoing interpretation of the relevant provisions of
the maps submitted in these proceedings, even those the 1890 Treaty leads the Court to conclude that the
emanating from British colonial sources and intended to boundary between Botswana and Namibia around
show the boundaries of Bechuanaland, tend to place the Kasikili/Sedudu Island provided for in this Treaty lies in the
boundary around Kasikili/Sedudu Island in the southern northern channel of the Chobe River.
channel. Namibia relies on this as "a specialized form of According to the English text of the Treaty, this
'subsequent practice' and ... also an aspect both of the boundary follows the "centre" of the main channel; the
exercise of jurisdiction and the acquiescence in it that German text uses the word "thalweg". The Court has
matures into prescriptive title". Botswana for its part places already indicated that the parties to the 1890 Treaty intended
less reliance on maps, pointing out, inter alia, that most of these terms to be synonymous and that Botswana and
the early maps show too little detail, or are too small in Namibia had not themselves expressed any real difference
scale, to be of value in this case. Botswana asserts, however, of opinion on this subject.
that the available maps and sketches indicate that, from the It is moreover clear from the travaux préparatoires of
time the Chobe was surveyed with any particularity by the Treaty that there was an expectation of navigation on the
European explorers from the 1860s onwards, a north Chobe by both contracting parties, and a common intention
channel around the Island was known and regularly to exploit this possibility. Although the parties in 1890 used
depicted. Botswana does not, however, attempt to the terms "thalweg" and "centre of the channel"
demonstrate that this places the boundary in the northern

135
interchangeably, the former reflects more accurately the The Court continues by pointing out that for present
common intention to exploit navigation than does the latter. purposes, it need not concern itself with the status of
Accordingly this is the term that the Court will consider acquisitive prescription in international law or with the
determinative in Article III, paragraph 2. conditions for acquiring title to territory by prescription. The
Inasmuch as Botswana and Namibia agreed, in their Court considers, for the reasons set out below, that the
replies to a question put by a Member of the Court, that the conditions cited by Namibia itself are not satisfied in this
thalweg of the Chobe was formed by the line of deepest case and that Namibia's argument on acquisitive
soundings in that river, the Court concludes that the prescription therefore cannot be accepted.
boundary follows that line in the northern channel around The Court observes that it follows from its examination
Kasikili/Sedudu Island. of the presence of the Masubia on the Island (see above) that
even if links of allegiance may have existed between the
Acquisitive prescription Masubia and the Caprivi authorities, it has not been
(paras. 90-99) established that the members of this tribe occupied the
Island à titre de souverain, i.e., that they were exercising
The Court continues by observing that Namibia, functions of State authority there on behalf of those
however, claims title to Kasikili/Sedudu Island, not only on authorities. Indeed, the evidence shows that the Masubia
the basis of the 1890 Treaty but also, in the alternative, on used the Island intermittently, according to the seasons and
the basis of the doctrine of prescription. Namibia argues that their needs, for exclusively agricultural purposes; this use,
"by virtue of continuous and exclusive occupation and which began prior to the establishment of any colonial
use of Kasikili Island and exercise of sovereign administration in the Caprivi Strip, seems to have
jurisdiction over it from the beginning of the century, subsequently continued without being linked to territorial
with full knowledge, acceptance and acquiescence by claims on the part of the Authority administering the
the governing authorities in Bechuanaland and Caprivi. Admittedly, when, in 1947-1948, the question of
Botswana, Namibia has prescriptive title to the Island". the boundary in the region arose for the first time between
Botswana maintains that the Court cannot take into the local authorities of Bechuanaland Protectorate and of
consideration Namibia's arguments relating to prescription South Africa, the Chobe's "main channel" around the Island
and acquiescence as these are not included in the scope of was said to be the northern channel, but the South African
the question submitted to it under the terms of the Special authorities relied on the presence of the Masubia on the
Agreement. Island in order to maintain that they had title based on
prescription. However, from then on the Bechuanaland
The Court notes that under the terms of Article I of the authorities took the position that the boundary was located
Special Agreement it is asked to determine the boundary in the northern channel and that the Island was part of the
between Namibia and Botswana around Kasikili/Sedudu Protectorate; after some hesitation, they declined to satisfy
Island and the legal status of the Island "on the basis of the South Africa's claims to the Island, while at the same time
Anglo-German Treaty of 1 July 1890 and the rules and recognizing the need to protect the interests of the Caprivi
principles of international law". In the Court's view the tribes. The Court infers from this, first, that for
Special Agreement, in referring to the "rules and principles Bechuanaland, the activities of the Masubia on the Island
of international law", not only authorizes the Court to were an independent issue from that of title to the Island
interpret the 1890 Treaty in the light of those rules and and, second, that, as soon as South Africa officially claimed
principles but also to apply those rules and principles title, Bechuanaland did not accept that claim, which
independently. The Court therefore considers that the precluded acquiescence on its part.
Special Agreement does not preclude the Court from
examining arguments relating to prescription put forward by In the Court's view, Namibia has not established with
Namibia. the necessary degree of precision and certainty that acts of
After summarizing the arguments advanced by each of State authority capable of providing alternative justification
the Parties the Court observes that they agree between for prescriptive title, in accordance with the conditions set
themselves that acquisitive prescription is recognized in out by Namibia, were carried out by its predecessors or by
international law and that they further agree on the itself with regard to Kasikili/Sedudu Island.
conditions under which title to territory may be acquired by
prescription, but that their views differ on whether those The legal status of the Island and the two channels
conditions are satisfied in this case. Their disagreement around it
relates primarily to the legal inferences which may be drawn (paras. 100-103)
from the presence on Kasikili/Sedudu Island of the Masubia
The Court's interpretation of Article III (2) of the 1890
of Eastern Caprivi: while Namibia bases its argument
Treaty has led it to conclude that the boundary between
primarily on that presence, considered in the light of the
Botswana and Namibia around Kasikili/Sedudu Island
concept of "indirect rule", to claim that its predecessors
follows the line of deepest soundings in the northern
exercised title-generating State authority over the Island,
channel of the Chobe. Since the Court has not accepted
Botswana sees this as simply a "private" activity, without
Namibia's argument on prescription, it follows that
any relevance in the eyes of international law.

136
Kasikili/Sedudu Island forms part of the territory of functions of State authority there on behalf of those
Botswana. authorities"
The Court observes, however, that the Kasane is not of general import and relates only to the particular
Communiqué of 24 May 1992 records that the Presidents of circumstances of the present case.
Namibia and Botswana agreed and resolved that:
"(c) existing social interaction between the people of Declaration of Judge Koroma
Namibia and Botswana should continue;
In his declaration Judge Koroma stated that the
(d) the economic activities such as fishing shall Governments of Namibia and Botswana should be
continue on the understanding that fishing nets should commended for their decision to bring their dispute to the
not be laid across the river; Court for peaceful settlement. He recalled that similar
(e) navigation should remain unimpeded including disputes have in the past given rise to serious armed
free movement of tourists". conflicts, endangering the peace and security of the States
The Court, which by the terms of the Joint Agreement involved.
between the Parties is empowered to determine the legal He further stated that, given its task, it was inevitable
status of Kasikili/Sedudu Island concludes, in the light of that the Court would choose one of a possible number of
the above-mentioned provisions of the Kasane Communiqué interpretations of the 1890 Anglo-German Agreement as
and in particular its subparagraph («?) and the interpretation representing the shared intention of the Parties regarding the
of that subparagraph Botswana gave before the Court in this location of the boundary and the status of the Island. But
case, that the Parties have undertaken to one another that that in so doing, the Court also took into consideration the
there shall be unimpeded navigation for craft of their principle of uti possidetis, a recognized principle of the
nationals and flags in the channels of Kasikili/Sedudu African legal order regarding boundaries of African States.
Island. As a result, in the southern channel of
The Judge added that, this notwithstanding, the Court
Kasikili/Sedudu Island, the nationals of Namibia, and
had ruled that the nationals and boats flying the flags of the
vessels flying its flag, are entitled to, and shall enjoy, a
Republic of Botswana and the Republic of Namibia should
treatment equal to that accorded by Botswana to its own
enjoy equal treatment in the waters of each other's State in
nationals and to vessels flying its own flag. Nationals of the
accordance with the contemporary principles of the law of
two States, and vessels, whether flying the flag of Botswana
international watercourses and the Kasane Communiqué.
or of Namibia, shall be subject to the same conditions as
regards navigation and environmental protection. In the In the Judge's view, the Judgment should invest the
northern channel, each Party shall likewise accord the boundary between the two countries with the necessary
nationals of, and vessels flying the flag of, the: other, equal legal validity and ensured equitable treatment of a shared
national treatment. natural resource.

Declaration of Judge Ranjeva Declaration of Judge Higgins

Judge Higgins states in her declaration that, contrary to
Judge Ranjeva explains how he interprets the reply to
what is stated in the Judgment, the Court is not engaged in
Article I of the Special Agreement concerning Articles II
an exercise of treaty interpretation of words in their ordinary
and HI of the operative part of the Judgment relating to the
meaning. Rather, the Court is applying, in 1997, to a river
status of Kasikili/Sedudu Island:
section well understood today, a general term selected by
1. Given its effect, in terms of allocation of territory, the Parties in 1890. In so doing, the Court must
the Judgment's choice of the northern channel as the main simultaneously have regard to the broad intentions of the
channel is the least improbable solution, in the absence of a Parties in 1890 and the state of contemporary knowledge
systematic comparison of the two navigation channels; this about the area in question.
is the reason for the finding that Kasikili/Sedudu Island
In her view no great weight should be placed upon
forms part of Botswana territory.
criteria related to navigation, as we now know the hopes of
2. The Kasane Communiqué created legal obligations the Parties regarding navigation to the Zambezi to be
for the two States parties to the dispute with regard to the misplaced. Realism requires us rather to emphasize criteria
enjoyment and exercise of rights by their nationals in the relevant to the other intention of the Parties — to arrive at a
relevant area; in addition to navigation and fishing rights in clear frontier — that being an objective which is still
the channel, there is a right of free access to the: surrounding obtainable through the decision of the Court.
waters and to the territory of Kasikili/Sedudu Island.
The question of general physical appearance is thus
Further, as regards the presence of the Masubia on important. Although the Chobe Ridge is the most dominant
Kasikili/Sedudu Island, the statement in paragraph 98 of the bank in both channels, year round the northern channel
Judgment that: appears to be broader and more visible. For Judge Higgins,
"even if links of allegiance may have existed between many of the factors, while educational and interesting in
the Masubia and the Caprivi authorities, it has not been themselves, have little relevance to the task at hand.
established that the members of this tribe occupied the
Island à titre de souverain, i.e., that they were exercising

137
 Separate opinion of Judge Oda to apply these rules and principles independently of the
Treaty and to examine Namibia's alternative claim that it
Judge Oda voted in favour of the operative part of the has title to Kasikili/Sedudu on the basis of the doctrine of
Judgment because he supports the Court's determination acquisitive prescription. According to Judge Kooijmans this
that the northern channel of the Chobe River constitutes the part of Namibia's claim should have been declared
boundary between Botswana and Namibia. inadmissible, since the Special Agreement precludes the
However, Judge Oda finds it difficult to understand Court from determining the status of the Island
properly the sequence of logic followed by the Court in the independently of the Treaty and that is exactly what the
Judgment. In his view, the Judgment places excessive Court would have done if it had concluded that Namibia's
reliance on the Vienna Convention on the Law of Treaties, claim is valid.
whereas, so Judge Oda believes, the case is not one In the second part of his opinion Judge Kooijmans
involving the application of that Convention for the purpose expresses the view that the mutual commitments the Parties
of the Court's interpretation of the 1890 Anglo-German have made in the Kasane Communiqué of 1992 with regard
Treaty. In addition, he does not agree with the Court's to the uses of the waters around Kasikili/Sedudu Island,
approach of viewing the past practice primarily from the clearly reflect recent developments in international law such
standpoint of whether this might constitute evidence of any as the principle of the equitable and reasonable utilization of
"subsequent agreement" or "subsequent practice" within the shared water resources. The Chobe River around the Island
meaning of the Vienna Convention. undoubtedly is part of a "watercourse" in the sense of the
Judge Oda accordingly sketches out the view that he 1997 Convention on the Non-Navigational Uses of
takes of the case. International Watercourses, which defines a watercourse as
After looking at the background to the presentation of a "system of surface waters and ground waters constituting
the case to the Court, Judge Oda takes the view that, as the by virtue of their physical relationship a unitary whole
compromis was not drafted with clarity, the Parties should flowing into a common terminus". Although this
have been asked to clarify their common position as to Convention has not yet entered into force, it embodies
whether they regard the determination of the boundary, certain rules and principles, such as the rule of equitable
which would then result in the determination of the legal utilization, which have become well-established in
status of Kasikili/Sedudu Island, as a single issue or whether international law. The present use of the waters around the
they regard these as two separate issues. Island for tourist purposes can hardly be identified as
Judge Oda is of the view that the definition of the main transport by river and is more similar to the uses for non-
channel and, in particular, the identification of its location, navigational purposes which are the subject of the 1997
depends largely on scientific knowledge, which the Court Convention. In their future dealings concerning the uses of
should have obtained by seeking the assistance of experts the waters around Kasikili/Sedudu Island the Parties,
appointed by it. That, however, the Court chose not to do. therefore, should let themselves be guided by the rules and
Judge Oda, however, does not object to the conclusion principles contained in the 1997 Convention.
the Court has reached in its choice on its own initiative,
without the assistance of independent experts, of the Dissenting opinion of Vice-Président Weeramantry
northern channel as the main channel of the Chobe River; Vice-President Weeramantry, in his dissenting opinion,
and hence, as the boundary along the River between the two took the view that since the expressions "main channel" and
States. "Thalweg des Hauptlaufes" in the 1890 Treaty admitted of
Judge Oda agrees with the Court in denying that the more than one interpretation, the sense in which they were
concept of "acquisitive prescription" has any role to play in undersiood contemporaneously by the Parties was an
this case. important aid to their interpretation.
Judge Oda concludes that the northern channel has, for The regular use of Kasikili/Sedudu Island by the
the past several decades, as indicated by certain practices Masubian people for over half a century after the Treaty, the
and in certain survey reports of the region, been regarded as absence of any acknowledgement by them of title in any
the main channel separating the area of the northern and other State, the absence of any objection to such use or of
southern banks in the vicinity of Kasikili/Sedudu Island in any assertion of claim by the predecessors in title of
the Chobe River. These factors would, in Judge Oda's view Botswana — all these pointed to a contemporaneous
(which is contrary to the position taken by the Court), be the understanding, by the parties to the Treaty and their
most pertinent in assisting the Court now to determine the officials, that the Masubia were not crossing national
boundary between the two States. Judge Oda believes that boundaries. Consequently, this pointed to the southern
determination of the boundary was the original intention of channel of the Chobe as being the boundary indicated by the
the Parties in bringing this case by means of a compromis to 1890 Treaty. The conduct of governments more than half a
the International Court of Justice. century later, when background circumstances and power
configurations had drastically changed, was not evidence of
Separate opinion of Judge Kooijmans contemporaneous understanding.
Judge Kooijmans has voted in favour of all parts of the The word "agreement" in Article 31, paragraph 3 (b), of
dispositif of the Judgment. He disagrees, however, with the the Vienna Convention on the Law of Treaties is not
Court's view that the Special Agreement by referring to the confined to a verbal agreement, but covers common
"rules and principles of international law" allows the Court

138
understanding which may be indicated by action or inaction, application of the treaty which establishes the agreement of
affirmation or silence. the parties regarding its interpretation"; always keeping in
The opinion discusses the thalweg principle and the mind that such agreement may be established not only
ambivalence of the scientific criteria and of navigability for through their joint or parallel conduct, but also through the
determining the main channel. activity of only one of the parties, where this is assented to
The opinion points out the richness of K.asikili/Sedudu or not objected to by the other party.
Island as a wildlife habitat and the legal principles that are 2. Judge Parra-Aranguren considers that the Report of
attracted by this circumstance. Captain Eason (1912); the Joint Report prepared by
The opinion goes on to consider the equitable Mr. Trollope and Mr. Redman (1948); the exchange of
navigational use of boundary rivers, and judicial responses letters which followed between 1948 and 1951; and Mr.
to a boundary demarcation which involves the dismantling Renew's Report (1965) lead to the conclusion that the
or division of an ecologically integral unit. Masubia of the Eastern Caprivi were the only tribesmen
who used Kasikili/Sedudu Island at least until 1914; that
It also discusses the scope for equity in boundary their occupation of Kasikili/Sedudu Island was peaceful and
delimitation. public; and that their chiefs "became in a certain sense
The differences between treaties dealing with spheres of agents of the colonial administration", as Botswana
influence and strictly boundary treaties are examined, as acknowledges (see paragraph 85 of his dissenting opinion).
well as the significance of this distinction in the field of Therefore, in his opinion, the subsequent practice of
boundary delimitation. Germany and Great Britain reflected their understanding
The question of joint international regimes to safeguard that Kasikili/Sedudu Island formed part of German South
the environment is discussed in some detail. West Africa and that the southern channel of the Chobe
In the result, Vice-President Weeramantry's view, as River was the "main channel" referred to in Article III,
expressed in the opinion, is that, while the Island belongs to paragraph 2, of the 1890 Anglo-German Agreement.
Namibia, a joint international regime between the two 3. Judge Parra-Aranguren states further that subsequent
countries should be set up to safeguard the environmental practice of the parties to the 1890 Anglo-German
interests of the Island. Agreement is only relevant up to the beginning of the First
World War, when the Eastern Caprivi was occupied by
Dissenting opinion of Judge Fleischhcnier Rhodesian forces in September 1914; that no subsequent
Judge Fleischhauer has voted against paragraphs 1 and 2 practice of the parties to the Treaty was possible when
of the dispositif of the Court's Judgment; he dissents from British troops exercised de facto control over South West
the Court's interpretation of the term "main channel of that Africa; that in 1920 the League of Nations confirmed the
river"/ "Hauptlauf dieses Flusses" as meaning the northern establishment of the Mandate over South West Africa; and
rather than the southern channel of the Chobe River around that during the existence of the Mandate over South West
Kasikili/Sedudu Island. As the Court does not accept Africa (Namibia) neither of the parties to the 1890 Anglo-
Namibia's argument on prescriptive title to the Island, his German Treaty had competence to recognize, either by
dissent on the interpretation of the term "main channel of express agreement or by subsequent practice, that the
that river"/ "Hauptlauf dieses Flusses" affects not only his aforementioned "main channel" of the Chobe River was the
view on the location of the boundary but alsio his view on northern channel and not the southern channel, since this
the territorial status of the Island. This explains why he new interpretation would have represented a modification of
voted not only against the first but also against the second the territory submitted to the Mandate. Consequently, the
paragraph of the dispositif. Judge Fleisctihauer voted, original understanding was maintained and for this reason
however, in favour of the third paragraph. Judge Parra-Aranguren concludes that Kasikili/Sedudu
While concurring with what the Court had to say about Island forms part of Namibia and that the southern channel
the role of prescription in the case. Judge Fleischhauer of the Chobe River is the "main channel" referred to in
makes an additional remark on this subject. Article III, paragraph 2, of the 1890 Anglo-German
Agreement.
Dissenting opinion of Judge Parra-Aranguren
Dissenting opinion of Judge Rezek
1. Judge Parra-Aranguren observes, as does the In his dissenting opinion Judge Rezek emphasizes the
Judgment, that Botswana and Namibia are not in agreement ambiguities in the geography of the Kasikili/Sedudu area.
as to the meaning of the phrase "the centre of the main
He criticizes the arguments based on navigability, visibility
channel (der Thalweg des Hauptlaufes) of the Chobe River"
and the natural prolongation of the river at the bifurcation.
found in Article III, paragraph 2, of the 1890 Anglo-German
He interprets the Anglo-German Treaty of 1890 in the light
Agreement; that the Treaty itself does not define it; that no
of history, taking into account the practice of the parties, the
other of its provisions provide by implication guidelines
principle of the equitable apportionment of the resources of
useful for this purpose; and that for this; reason such
expression has to be interpreted according to customary a watercourse, the cartography and the de facto occupation
international law as expressed in Article 31 of the Vienna of the Island by the Caprivi Masubia. He finds that priority
Convention on the Lav/ of Treaties of 23 May 1969. must go to those elements which place the boundary in the
Therefore, in accordance with letter (b) of said Article 31, it southern channel and accord Namibia sovereignty over
is necessary to examine "any subsequent practice in the Kasikili/Sedudu.

139
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140
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141