Kasikili/Sedudu Island (Botswana/Namibia) - The Court finds that Kasikili/Sedudu Island forms part of the territory of Botswana

INTERNATIONAL COURTOFJUSTICE

Peace Palace, 2517 KJ The Hague. Tel.(31-70-302 23 23). Cables: Intercourt, The Hague.
Telefax (31-70-364 99 28). Telex 32323. Internet address: http: Il www.icj-cij.org

Communiqué

unofficial
forimmediaΠrelease

No. 99153
13 Decem ber 1999

Kasikili/Sedudu Island (Botswana!Namibia)

The Court finds that Kasikili/Sedudu Island forms part ofthe terrijor:y of Botswana

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

e Œotswana/Namibia).

In its Judgment, the Court finds, by eleven voteso four, that "the boundary between the
Republic of Botswana and the Republic of Namibia follows the line of the deepest soundings in the
northem c;hannel of the Chobe River around Kasikili/Sedudu Island" and, by eleven votes to four
again, that "Kasikili/Sedudu Islandms part of the territory of the Republic ofBotswana".

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

Background infonnation

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
15May 1996 for the submission to the Court of a dispute between them conceming the boundary
around Kasikili/Sedudu Island. The Special Agreement referred inter aliatoa Treaty signed on
1 July 1890 between Great Britain and Germany delimiting their respective spheres of influence in

Africa.

Under the tenns of the Special Agreement, the Parties asked the Court to "determine, on the
basis of the AngJo-Gennan 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 apprâximately 3.5 square kilometres in area, that it is
located in the Chobe River,hich divides around it to the north and south, and titis subjectto
flooding of several months' duration, beginning around March.

lt briefly outlines the historical context of the dispute, theo examines the text of the 1890 Treaty
which, in respectfthe region concemed, locates the dividing tine between the spheres of influence of
Great Britain and Gennany in the "main channel" of the River Chobe. In the Court's opinion, the real
dispute between thearties concerns the location of that main channel, Botswana contending that it is

the channel running northof 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 protoeds
determine which is the main channel of the Chobe River around the Island. -2-

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

After evoking the abject 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 interpretatione Treaty or the
applicationof its provisions.

The Court further states that it cannat draw conclusions from the cartographie 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" ofthe maps submitted by the Parties ta the dispute.

The Court finally considers Namibia's alternative argument that it anitspredecessors have

prescriptive title to Kasikili!Sedudu Island by virtuehe exercise of sovereign jurisdiction over it
since the beginningof the century, with full knowledge and acceptance by the authorities of Botswana
and its predecessors. TheCourt fmds that while the Masubia of the Caprivi Strip (territory belonging
to Namibia) did indeed use the Island for many years, they did so intennittently, according to the
seasons, and for exclusively agricultural purposes, without it being established that they occupied the

Islandà 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 linef deepest soundings in the northem 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 ofthe Court

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

~ Ranjeva, Koroma and Higgins have appended declarations to the Judgment.~ Oda
•
and Kooijmans have appended separate opinions. Vice-President Weeramantry, ~ 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 andof the opinions are available on the Court'swebsite (bttp://www.icj-cij.org).

The printed text othe Judgment, of the declarations and of the opinions will become availabie
in due course (information requests and orders should be addressed ta the publications sectionse
United Nations inNew York and Geneva).

Information Department:
Mr. Arthur Th. Witteveen, First Secretary of the Court(+ 31 70 302 23 36)
Mrs. Laurence Blairon, Infonnation Officer+ 31 70 302 23 37)

Email address: [email protected]