Case Concerning Kasikili/Sedudu Island

Botswana v. Namibia
International Court of Justice Judgement
December 13, 1996

FACTS:
On May 17th 1996 Botswana and Namibia jointly filed a submission to the
International Court of Justice requesting the Court’s settlement of a boundary dispute
around Kasikili/Sedudu Island. 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.”
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. 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. 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.” As
such, Kasikili/Sedudu Island is a territory governed by the sovereignty of Namibia.

ISSUE:
1. 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?
2. Is navigability a legitimate criteria to be used for identifying and delineating the path
of the Chobe River’s “main” channel.

RULING:
1. 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.” 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.
2. 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. The Court upheld the definition of thalweg as “the line of deepest water
along the length of a river channel…characterized by two and a smooth bed”. 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.” 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 channel…the main channel of the Chobe passes Kasikili/Sedudu
Island to the north of it.” The Court added 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.