[ACTUALITE] Judgment - Le Jeu Sera Disponible Sur PlayStation 4 Dès Le 25 Juin 2019
Vaniria Setser
Special Agreement.
Tasks of the Court - Determination of boundary around KasikililSedudu
Island - Determination of Island's legal status.
Applicable law - Anglo-German Treaty of 1890 - Rules and principles of
[ACTUALITE] Judgment - Le jeu sera disponible sur PlayStation 4 dès le 25 juin 2019
navigability - Questions of visibility (or generalphysical appearance) and of
the hed profile conjgurationof the channel.
Object and purpose of the 1890 Treaty.
Travaux prparatoires.
Suhsequent practice of the parties to the Treaty and their successors -
Maps - Evidentiury value- Map officially expressing intentionof contract-
ingparties - Express or implied agreement on validity of a boundary depicted
on a map.
Location of boundary in the "main channel" - Term "thalweg" determina-
rive in Article III, paragraph 2, of the Tre-tyLine of deepest soundings.
Mr. Molosiwa L. Selepeng, Permanent Secretaryfor Political Affairs, Office
of the President,
Professor Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public
International Law, University of Oxford, Member of the International
1. By joint letter dated 17 May 1996, filed in the Registry of the Court on
29 May 1996, the Ministers for Foreign Affairs of the Republic of Botswana
(hereinafter colled "Botswana") and the Republic of Namibia (hereinafter
called "Namibia") transmitted to the Registrar the original text of a SpecialAgreement between the two States, signed at Gaborone on 15 February 1996
and entered into force on 15May 1996,the date of exchange of instruments of
ratification.
2. The text of the Special Agreement reads as follows:
" Whereus a Treaty between Great Britain and Germany respecting the
spheres of influence of the two countries in Africa was signed on 1 July
1890 (the Anglo-German Agreement of 1890) ;
Whereas a dispute exists between the Republic of Botswana and the
Republic of Namibia relative to the boundary around KasikililSedudu
Island ;
Whereas the two countries are desirous of settling such dispute by
peaceful means in accordance with the principles of both the Charter of
the United Nations and the Charter of the Organization of African Unity;
Whereas the two countries appointed on 24 May 1992a Joint Team of
Technical Experts on the Boundary between Botswana and Namibia
around KasikililSedudu Island 'to determine the boundary between
Namibia and Botswana around KasikililSedudu Island' on the basis of the
Treaty of 1July 1890between Great Britain and Germany respecting the
spheres of influence of the two countries in Africa and the applicable prin-
ciples of international law;
Whereas the Joint Team of Technical Experts was unable to reach a
conclusion on the question referred to it and recommended 'recourse to
the peaceful settlement of the dispute on the basis of the applicable rules
and principles of international law';
Whereas at the Summit Meeting held in Harare, Zimbabwe, on 15Feb-
ruary 1995, and attended by Their Excellencies President Sir Ketumile
Masire of Botswana, President Sam Nujoma of Namibia and President
Robert Mugabe of Zimbabwe, the Heads of State of the Republic of Bot-
swana and the Republic of Namibia, acting on behalf of their respective
Governments, agreed to submit the dispute to the International Court of
Justice for a final and binding determination;
Article1
The Court is asked to determine, on the basis of the Anglo-German
Treaty of 1July 1890and the rules and principles of international law, the
boundary between Namibia and Botswana around KasikililSedudu Island
and the legal status of the island.
2. The written pleadings shall include:
(a) Memorials submitted to the Court by each Party not later than nine
months after the notification of the Special Agreement is transmitted to the Registrar of the Court in accordance with Article VI1(2) of this
Special Agreement ;
(h) Counter-Memorials submitted by each Party to the Court not later
than nine months after the date of submission of the Memorials;
(c) such other written pleadings as may be approved by the Court at the
request of either of the Parties, or as may be directed by the Court.
Article III
The rules and principles of international law applicable to the dispute
shall be those set forth in the provisions of Article 38, paragraph 1, of the
Statute of the International Court of Justice.
1. This agreement shall enter into force on the date of the exchange of
instruments of ratification by the two Governments.
2. It shall be notified to the Court as required by Article 40, para-
graph 3, of the Statute of the Court by joint letter of the Parties to the
Registrar.
3. If such notification is not effected within two months from the entry
into force of this Special Agreement, it may be notified to the Registrar by
either of the Parties.
Artirk IX
1. The judgment of the Court on the dispute described in Article 1 shall
be final and binding on the Parties.
2. As soon as possible after the delivery of the Court's judgment, the
Parties shall take steps necessary to carry out thejudgment. In witness whereof, the undersigned, being duly authorized thereto, have
signed this Special Agreement and have affixed thereto their seals."
their Agents dated 16 February 1998. The Replies were duly filed within the
time-limit so prescribed. As the Parties did not request the submission of other
pleadings, and as the Court itself did not consider this necessary, the case was
then ready for hearing.
6. In accordance with Article 53, paragraph 2, of the Rules of Court, the
Court decided, after having ascertained the views of the Parties, that copies of
the pleadings and documents annexed would be made available to the public as
from the opening of the oral proceedings.
7. New documents were produced by each of the Parties, with the consent of
the other, in accordance with Article 56, paragraph 1,of the Rules of Court. In
addition, Namibia, availing itself of the right provided for in Article56, para-
graph 3, of the Rules of Court, submitted comments on certain of the new
documents produced by Botswana.
8. The Parties having been duly consulted, in accordance with Article 58,
paragraph 2, of the Rules of Court, and having informed the Court of their
agreement, in accordance with Article IV of the SpecialAgreement, on the order
of speaking, public sittings were held between 15 February and 5 March
"May it please the Court to adjudge and declrrretlzat:
1. The northern and western channel of the Chobe River in the vicinity of
KasikiliISedudu Island constitutes the 'main channel' of the Chobe
3. Namibia and its predecessors have occupied and used Kasikili Island
and exercised sovereignjurisdiction over it, with the knowledge and
acquiescence of Botswana and its predecessors since at least 1890.
4. The boundary between Namibia and Botswana around KasikiliISedudu
Island lies in the centre of the southern channel of the Chobe River.
5. The legal status of KasikiliISedudu Island is that it is a part of the ter-
ritory under the sovereignty of Namibia."
1. The channel that lies to the south of KasikiliISedudu Island is the main
channel of the Chobe River.
2. The channel that lies to the north of KasikiliISedudu Island is not the
main channel of the 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.
4. The boundary between Namibia and Botswana around KasikiliISedudu
Island lies in the centre (that is to say, the tliczliveg)of the southern
5. The legalstatus of KasikiliISedudu Islandis that it is a part of the ter-
ritory under the sovereigntyof Namibia."
10. In the oral proceedings, the following submissionswerepresentedby the
Parties:
Court, "to determine, on the basis of the Anglo-German Treaty of 1July
1890 and the rules and principles of international law, the boundary
between Namibia and Botswana around KasikiliISedudu Island and the
legal status of the island." The Island referred to, which in Namibia
is known as "Kasikili", and in Botswana as "Sedudu", is approximately
3.5 square kilometres (1.5 square miles) in area. It is located in the
stages along its course. When it crosses the border into Namibia, it
becomes the Kwando and then the Mashi, which flows generally in a
southerly direction into the Linyanti (or Linyandi) Swamp. From this
point it is called the Linyanti (or Linyandi) River until it reaches Lake
Liambezi. At the exit from the lake, the river becomes the Chobe. The
Botswana town of Kasane lies on the south bank some 1.5 kilometres
downstream from KasikiliISedudu Island, and the Namibian village of
Kasika is located on the northwestern bank of the Chobe.
12. Nearly due south of the Island, on the Botswana side, are theheadquarters of the Chobe National Park, a protected reserve with a
wide variety of wildlife. This southern bank is characterized by a steep
sandy ridge ranging between 900 and 1,000metres above mean sea level.
The area on the Namibian side, to the north of the Island, has no such
geographical feature. It forms part of a strip of territory called the
"Caprivi Strip", after the German chancellor at the time of the conclu-
sion of the Anglo-German Agreement of 1 July 1890 (hereinafter the
" 1890Treaty"). This part of the Caprivi Strip is within the seasonal flood
plain of the Zambezi River. The Island, which is 927 metres above mean