INTRODUCTION

On the 13th of December, 1999, the International Court of Justice delivered its judgement in
the case of Kasikili/Sedudu Island between Botswana and Namibia in the ratio of 11:4 in
favour of Botswana. Botswana and Namibia are members of the Southern African
Development Community which is headquartered in Botswana. Sedudu island is a fluvial
island in Chobe river/Linyati river with an area of 5 square kilometres which is located
between the Namibian border town of Kasika and the Botswana town of Kasane. It is also
known by the name Kasikili in Namibia. The Chobe River is a major tributary of the Zambezi
River and it crosses the Caprivi Strip from Angola as the Cuando River. 1 The Zambezi River
runs through the eastern end of the Caprivi Strip, and the Chobe River runs through the
western end. The Caprivi Strip is unique in Namibia because it is one of the finest water
supply enriched areas in the world, making it extremely important to this largely arid country.
The island is not permanently occupied and spends the majority of the year underwater.

The conflict between Namibia and Botswana over the island almost started a war 2. It
escalated to such a level in 1991, that Botswana even deployed troupes in the island.
Botswana’s claim over the island is based on the 1890 treaty between the colonial powers of
Germany and Britain, however, the claim of Namibia is based on the occupation of
Namibia’s Masubia people in the island and the interpretation of the main channel as per the
1890 treaty. From the war-like situation, the governments tried to resolve the conflict through
various mechanisms like factfinding, mediation. In the aftermath of the failure of these
measures, they decided to approach the International Court of Justice, for a binding final
resolution. Though the ICJ judgement has not been very wide-ranging in various
geographical or legal aspects in comparison to some of the previous judgements, however, it
has brought to the fore some interesting questions. This article shall critically analyse the ICJ
judgement and study how the case concerning Sedudu/Kasikili island helped evolve the
International law jurisprudence.

1
Anthony Richard Turton, ‘The Hydropolitics Of Southern Africa: The Case Of The Zambezi River Basin As
An Area Of Potential Co-Operation Based On Allan's Concept Of 'Virtual Water’ (MA Thesis, University of
South Africa 1998) accessed 16 April 2021.
2
CJB Le Roux, ‘The Botswana-Namibian Boundary Dispute in the Caprivi: To what extent does Botswana's
Arms Procurement Program represent a drift towards Military Confrontation in the Region?’ (1999) 29 South
African Journal of Military Studies <https://scientiamilitaria.journals.ac.za/pub/article/view/188/234> accessed
16 April 2021.
 BACKGROUND

The current geographical boundaries of Namibia and Botswana is to understood from the
backdrop of the infamous ‘Scramble for Africa’ by colonial powers in the late nineteenth
century. The Berlin Conference of 1884-1885 was conducted discuss the evenly division of
Africa, ironically only with the representation of European and American members. In 1890,
the Anglo-German treaty was signed after negotiations on matters related to trade and power
in Africa. Britain wanted to secure the south-northern trading routes that ran across Victoria
Falls to Lake Ngami in the south-western part of the African continent. On the other hand,
Germany, which had already claimed a substantial portion of Namibia, wanted British
acknowledgment of its access to the Zambezi river. The Kasikili/Sedudu island dispute is the
byproduct of an ambiguity in the 1890 Anglo-German treaty. This disclarity provided for
varied interpretations of the same matter.

In the 1960s as the liberation struggles began to uproot the base of colonialism in Africa,
many countries started asserting their claims to self-determination and, finally gain freedom.
As a consequence, Botswana formerly known as British Bechuanaland Protectorate, gained
independence in 1966. While Namibia was under the de facto control of Apartheid South
Africa, it gained its independence only in 1990. Namibia claims that the first dispute on the
island erupted in 1991, when the Botswana flag was hoisted and a contingent of Botswana
Defence forces was deployed on the island without prior discussion with the Namibian
government. When South African Defence was occupying the region before 1989, Botswana
took no action to change the existing condition. Botswana's sudden intervention was seen by
Namibia as violence and a unilateral movement seeking to disrupt the status quo. Botswana,
on the other hand, said that in 1992, a large contingent of troops crossed the Chobe River to
reach Kasikili Island for a meeting with the District Commissioner. As per Botswana,
Namibia's Deputy Minister was sounding the war drums and asserting its territory without
even a proper channel of communication. 3 It accuses Namibia of a total disregard for
diplomatic communication process.

In the mind of a solution to the conflict, the presidents of both countries searched for a
resolution. Namibia claimed that it was their president who approached the President of
Zimbabwe to hold a dialogue with Botswana, while Botswana argues that it was the president

3
International Court of Justice, Counter-Memorial Of The Republic Of Botswana (1997) <https://www.icj-
cij.org/public/files/case-related/98/8580.pdf> accessed 17 April 2021.
of Botswana who took the first step which led to the establishment of the Joint Team of
Technical Experts (JTTE). It consisted of three members of each country and were entrusted
with the responsibility to determine the exact boundary as per the 1890 Anglo-German treaty
and 1892 Anglo-Portuguese treaty. From 1992 to 1995 there was general lull in activities
related to the dispute. Inspite of working for months, JTTE ended up in a deadlock and
recommended mechanisms of peaceful dispute resolution in accordance with international
law. These countries blaimed each other for the failure of JTTE procedure. In order to solve
the issue, a special agreement was signed between the nations on 15 February 1996. By
Article I of the Special Agreement, the countries asked the court to determine the following:

[O]n 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.4

Therefore, the countries approached the International Court of Justice to obtain ‘a final
binding determination’ on the matter. They employed expensive foreign lawyers and experts
as not many were well versed with matters of International law and both states were not
human resource rich either.5

FACTS OF THE CASE

Following more than three weeks of constant pleadings, the two sides were as far apart in
their final statements given to the ICJ as they had been all through the Court proceedings.
The biggest point of contention between the Parties was the location and determination of the
main canal, with Botswana claiming the channel to the north of Kasikili/Sedudu Island and
Namibia claiming the channel to the southern part of the island. As per the Article III of 1890
Anglo-German treaty, the division line between the ambits of influence of the parties
involved is specified to be the "main channel" of the River Chobe 6. However, the treaty does
not specify which channel is to be recognised as the main channel nor specifies a criterion to
be recognised as main channel. When the English version uses the term ‘centre’ of the
4
Kasikili/Sedudu Island ( Botswana/Namibia) Judgrnent, ICJ Reports, 1999 para 17.
5
Peya Mushelenga, ‘Small States And The Undercurrents Of Compliance With International Law: The Case Of
Namibia’ (LLM Thesis, University of Namibia 2017) <https://repository.unam.edu.na/handle/11070/2336>
accessed 17April 2021.
6
Anglo-German Treaty [Heligoland-Zanzibar Treaty] (1890) art III
<https://jusmundi.com/en/document/treaty/en-agreement-between-great-britain-and-germany-respecting-
zanzibar-heligoland-and-the-spheres-of-influence-of-the-two-countries-in-africa-1890-anglo-german-
agreement-of-1890-tuesday-1st-july-1890> accessed 18 April 2021.
channel, the german version uses the term, ‘thalweg’ of the channel. However, the treaty does
not mention which channel is to be considered the main channel.

On the aspects of criteria to determine the main channel, Botswana points out the criteria to
be the depth and width of channel, navigability, river bed profile configuration, channel water
capacity, greater flow of water.7 Namibia accepts these criteria but rebuts to suggest that
these cannot be applied to River Chobe’s circumstance as it shows sharp variations in water
levels. It thus gives more focus upon the annual flow of water and maximum river traffic.
Namibia also puts forth that in general visibility, the southern channel is to be preferred over
the northern channel as the main channel. 8In course of proceedings, they make references to
subsequent practices. Although all sides believe that interpretative arrangements and
subsequent practice are aspects of interpretation of treaties under the international law, they
dissent on the implications of the evidence in this situation under the 1890 Treaty's
interpretation. The article 31(3)(b) of the 1969 ‘Vienna Convention on the Law of Treaties’
states that “any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretations.”9 Botswana argues based on three
documents.

Firstly, a report on a survey by Captain Eason in 1912 over the River Chobe. Secondly, a
disposition reached in the year 1951 between District Commissioner, Major Trollope and
Magistrate and its correspondence which has happened earlier and later. Thirdly, a
negotiation which had ended in 1984 between the countries of South Africa and Botswana in
order to administer a Joint Survey of the Chobe River with the Final Survey Report.

At the same time, it was also difficult to determine whether heavy floods have changed the
course of water. Namibia introduces earlier maps which show the boundary as the southern
channel as an extended form of subsequent practice while Botswana argues that those maps
are less reliant and less detail. Namibia further stated that the use of the island by the Masubia
tribe of Caprivi of Namibia was known to the Bostwana for a period of over a hundred years.
But due to yearly flooding, the occupation is only intermittent over the period.

7
Kasikili/Sedudu Island (Botswana/Namibia) Judgrnent, ICJ Reports, 1999 para 29.
8
ibid.
9
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UNTS
1155.
 ANALYSIS

Namibia's decision to submit the case to the International Court of Justice (ICJ) satisfies the
constitutional principle of negotiated resolution of international disputes10. The court was
asked to determine the legal status and the boundary between the parties. An answer to one
shall naturally lead to the answer for the second as well. The formulation poses the intriguing
question of whether the situation should be classified as one about boundary delimitation or
one about territorial attribution. The distinction is well-established in international law, and
the two methods have substantial differences in principle 11. While both the parties accepted
the 1890 Treaty to be the determining factor, the Namibian government wished to introduce
the conduct of Masuba tribes in the island. By characterising it as a territorial issue or what
concerns legal status, Namibia hoped to introduce prescriptive evidence. This is in contrast to
the approach by Botswana.

The question put to the Court asked for the determination of the dispute “on the basis of the
Anglo-German Treaty of 1 July 1890 and the rules and principles of international law.” The
particular reference to rules and principles opened the doors for prescriptive claims by
Namibia and the restrictive interpretation by Botswana was avoided. The boundary issues let
the court to determine based on the treaty alone, but regarding the territorial issue, the court
has to take up international rules and principles to analyse it. Namibia further tried to rely on
cases like the Alaskan Boundary Tribunal award, where the acquiescence by one party was
deemed to have affirmed ownership of the disputed territory. 12 The court prioritses physical,
geographic, economic and scientific evidence over the evidence of occupation by Masubians.
A Eurocentric mode of thought can be visualised in this judgement by providing for focus on
the European colonisers control over the area. 13 Court also gave much prominence to the
aspect of navigability and impact of survey evidence were higher than the Masubian
occupation.

10
Constitution of the Republic of Namibia 1990, art 96.
11
Malcolm N Shaw and Malcolm D. Evans, ‘Decisions Of International Tribunals’(2000) 49 (4) The
International and Comparative Law Quarterly
<https://www.jstor.org/stable/761773#metadata_info_tab_contents> accessed 17 April 2021.
12
Convention Between Great Britain And The United States Of America For The Adjustment Of The Boundary
Between The Dominion Of Canada And The Territory Of Alaska, (24 January 1903) UKSP 41 (11).
13
James Thuo Gathii, ‘Geographical Hegelianism in Territorial Disputes Involving NonEuropean Land
Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)’ (2002) 15 Leiden
Journal of International Law <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=655922> accessed 18 April
2021.
Justice Oda declared that the judgment placed excessive reliance on Vienna Convention. He
also stated that it does not appear to him as a case in which Vienna Convention can be
applied. This stand brings a few questions. The interpretation of pre 1980s treaties to which
Vienna Convention cannot apply with respect to Customary law at the date of treaty to be
interpreted. This could be same in many instances, but an investigation into customary law of
1890 would not be a bad idea in this instance. However, this can further complicate things, so
its preferable to accept the Vienna Convention Customary law.

Judge Higgins points out that the term ‘main channel’ should not be looked upon with a
mechanical approach, rather it should be identified as per what the parties had in mind and
then make a reality out of it with the help of contemporary knowledge. She also noted that
there is not particular general understanding for the term main channel in international law. It
is also analogically consistent with the judgement in El Salvador/Honduras case.

The court extensively relied upon the experts provided by the parties which were even
contradictory at times, the court did not go on to appoint any expert from its side nor did it
visit the area under question. Justice Oda also supported this view especially as the experts'
view seems to be manipulative to support the arguments of each party. The court ignored the
aspect of visibility, but the ridge specified on the southern channel’s right bank could act as a
specific geographic feature and hence provide adequate visibility to the river channel on that
side. However, such arguments were previously accepted in judgements in which no other
unambiguous evidence is usually available. The court while holding that the surveys
conducted in 1912, 1948, and 1985 to be fact-finding essentials, if not treated as subsequent
practice, fail to realise that the scientific techniques employed were not clear and hence could
be incorrect.

The exact monetary resources were never made public, but it is speculated to be around $64
million14. It is a huge amount of money for an underdeveloped nation to incur. If it could have
been spent in the development of either countries or at least the island itself, it could have
pursued a different future. The highly expensive procedures while dealing with the
International Court of Justice are detrimental in the sphere of international conflict resolution.

14
T. Elijah Ngurare, ‘Dispute Resolution At The International Court Of Justice Is A Costly Enterprise: What Is
The Alternative? An Analysis Of The 1999 ICJ Case Between Namibia And Botswana On Kasikili/Sedudu
Island’ (2018) 5 (4) International Journal of Scientific Research and Innovative Technology
<https://www.ijsrit.com/uploaded_all_files/2958726243_l4.pdf> accessed 19 April 2021.
 BIBLIOGRAPHY

 Cases

Kasikili/Sedudu Island ( Botswana/Namibia) Judgement, ICJ Reports, 1999 para 17.

 Statutes

Constitution of the Republic of Namibia 1990, art 96

 Articles

Evans D & Shaw M, ‘Decisions Of International Tribunals’(2000) 49 (4) The International

and Comparative Law Quarterly
<https://www.jstor.org/stable/761773#metadata_info_tab_contents> accessed 17 April 2021.

Gathii JT, ‘Geographical Hegelianism in Territorial Disputes Involving NonEuropean Land

Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)’
(2002) 15 Leiden Journal of International Law <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=655922> accessed 18 April 2021.

Mushelenga P, ‘Small States And The Undercurrents Of Compliance With International Law:
The Case Of Namibia’ (LLM Thesis, University of Namibia 2017)
<https://repository.unam.edu.na/handle/11070/2336> accessed 17 April 2021.

Ngurare T, ‘Dispute Resolution At The International Court Of Justice Is A Costly Enterprise:

What Is The Alternative? An Analysis Of The 1999 ICJ Case Between Namibia And
Botswana On Kasikili/Sedudu Island’ (2018) 5 (4) International Journal of Scientific
Research and Innovative Technology
<https://www.ijsrit.com/uploaded_all_files/2958726243_l4.pdf> accessed 19 April 2021.

Roux CJB, ‘The Botswana-Namibian Boundary Dispute in the Caprivi: To what extent does
Botswana's Arms Procurement Program represent a drift towards Military Confrontation in
the Region?’ (1999) 29 South African Journal of Military Studies
<https://scientiamilitaria.journals.ac.za/pub/article/view/188/234> accessed 16 April 2021.
Turton AR, ‘The Hydropolitics Of Southern Africa: The Case of The Zambezi River Basin
As An Area Of Potential Co-Operation Based On Allan's Concept Of 'Virtual Water’ (MA
Thesis, University of South Africa 1998) accessed 16 April 2021.

 Others

International Court of Justice, Counter-Memorial Of The Republic Of Botswana (1997)

<https://www.icj-cij.org/public/files/case-related/98/8580.pdf> accessed 17 April 2021.

 Treaties

Anglo-German Treaty [Heligoland-Zanzibar Treaty] (1890) art III

<https://jusmundi.com/en/document/treaty/en-agreement-between-great-britain-and-
germany-respecting-zanzibar-heligoland-and-the-spheres-of-influence-of-the-two-countries-
in-africa-1890-anglo-german-agreement-of-1890-tuesday-1st-july-1890> accessed 18 April
2021.

Convention Between Great Britain And The United States Of America For The Adjustment
Of The Boundary Between The Dominion Of Canada And The Territory Of Alaska, (24
January 1903) UKSP 41 (11).

Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) UNTS 1155.