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I Case Concerning Kasikili'Sedudu Island (Botswana'Namibia)

Published online by Cambridge University Press:  17 January 2008

Malcolm N Shaw  and
Malcolm D. Evans
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Extract

The decision of the International Court of Justice of 13 December 1999 in the dispute between Botswana and Namibia concerning the island known to the former as Sedudu and the latter as Kasikili is the latest in a line of cases dealing with the identification of colonial boundaries,1 including the two Eritrea/Yemen arbitration awards, the second of which (on Maritime Delimitation) was delivered four days after the Kasikili/Sedudu Island judgment itself.2 While not as wide-ranging in either the geographical or legal senses as some of the preceding decisions on territorial issues, the decision of the Court in this case nevertheless raises some interesting and important questions.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 4 , October 2000 , pp. 964 - 978
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. See, for example, Burkina Faso/Mali, ICJ Reports, 1986, p.554Google Scholar; El Salvador/Honduras, ICJ Reports, 1992, p.351Google Scholar; Libya/Chad, ICJ Reports, 1994, p.6Google Scholar; Dubai/Sharjah, 91 I.L.R., p. 543Google Scholar; Eritrea/Yemen (First Phase on Territorial Sovereignty), 114 I.L.R., p.1.Google Scholar

2. Two of the five judges on the arbitral tribunal in the Eritrea/Yemen awards were serving judges at the ICJ at the time (Judges Schwebel and Higgins), while the President of the Tribunal was a former Judge and President of the ICJ (Judge Jennings).

3. Botswana/Namibia, ICJ Reports, 1999 (hereafter Court's judgment), para.11.

4. Ibid., paras.13–16.

5. See, for example, Shaw, , “The Heritage of States: The Principle of Uti Possidetis Juris Today”, 67 B.Y.I.L., 1996, pp.75, 79Google Scholar, and Kohen, , Possession Contesté et Souveraineté Territoriale, 1997, pp. 119et seq.Google Scholar See also the North Sea Continental Shelf cases, ICJ Reports, 1969, pp.3, 32Google Scholar; the Libya/Chad case, ICJ Reports, 1994, pp.4,1 5Google Scholar, and the Burkino Faso/Mali case, ICJ Reports, 1986, pp.554, 563.Google Scholar

6. See further infra p.975.

7. Point 3 of Namibia's submissions presented in its Memorial, Counter-Memorial and Reply (the latter being repeated at the oral hearings) declared that “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”, Court's judgment at para.9.

8. Ibid. Note that this approach was addressed in some detail by Judge Oda, who took the view that the parties had changed their approach to the dispute apparently from the time of the conclusions of the Joint Team of Technical Experts. A dispute which had been one concerning the determination of a boundary became instead an issue as to the legal status of the island, see Separate Opinion, paras.9 et seq.

9. The latter expression was defined in article III of the Special Agreement as “those set forth in the provisions of article 38, paragraph 1, of the Statute of the International Court of Justice”, Court's judgment at para.19.

10. Ibid., para.90.

11. Ibid., para.91.

12. Ibid.

13. Ibid., para.93.

14. But cf. Judge Oda's view at para.10.

15. Judge Kooijmans in his Separate Opinion took what may be termed an intermediate position. He declared that the Special Agreement precluded the Court from applying the rules and principles of international law “independently of the Treaty”, at para. 11. He noted that the Court could only have answered the question as to the legal status of the island independently of the first question if it had concluded that the terms of the treaty could not possibly be interpreted in a meaningful way or that the parties to the treaty by their conduct had indicated that the terms of the treaty had “lost their relevance”, Ibid., para.13.

16. Court's judgment, para. 18.

17. See, for example, the Libya/Chad case, ICJ Reports, 1994, pp.4, 21Google Scholar, and the Oil Platforms case (preliminary objections), ICJ Reports, 1996, p.812.Google Scholar

18. ICJ Reports, 1994, pp.21–22Google Scholar, as cited in the Court's judgment, para.20.

19. Separate Opinion of Judge Oda, para.4.

20. Note that the Court pointed out that in 1984 and 1985, a period when certain issues relevant to the boundary and the application of the 1890 treaty were being considered by Botswana and its neighbour and an agreement was under discussion, “the two States had no competence to conclude such an agreement” since South Africa's mandate over what became Namibia had been terminated, para. 69. Since this issue was not essential to its reasoning, indeed the Court stated that it was “unnecessary to add” the point, the fact that it was made is interesting.

21. Note that Judge Weeramantry sought to distinguish spheres of influence treaties and boundary delimitation treaties especially in terms of the argued lack of precision in the former, Dissenting Opinion, paras.94–98.

22. Court's judgment, para.20.

23. 113 I.L.R., pp.1, 76 (para.157).Google Scholar

24. Ibid., p.49.

25. Ibid., p.56.

26. Court's judgment, para.25.

27. Declaration of Judge Higgins, para.3.

28. Ibid., para. 4. Note that Judge Weeramantry in his Dissenting Opinion declared that “modern scientific criteria are not the indicia appropriate for determining what was commonly understood to be the main channel a hundred years ago”, at para. 67.

29. ICJ Reports, 1992, pp.351, 559.

30. Court's judgment, para.27.

31. Declaration of Judge Higgins, para.1. The process adopted by the Court here was found by Judge Higgins to be “somewhat fanciful”, Ibid.

32. Court's judgment, paras. 28–41 (paragraph 1 of the dispositif adopted by 11 votes to four, Ibid., para.104). Note that the centre of the main channel was deemed to follow the line of deepest soundings, since in response to a question put by a Member of the Court, both Parties accepted that the thalweg (assimilated to the centre of the channel in this case) was formed by the line of deepest soundings, Ibid., para.89.

33. Ibid.,, para.28.

34. See, for example, the Corfu Channel case, ICJ Reports, 1949, p.4.Google Scholar

35. Cf., for example, the Gabčikovo-Nagymaros case, ICJ Reports, 1997, p.7.Google Scholar

36. Separate Opinion, paras.32, 43 and 61.

37. Ibid., para.40.

38. Ibid., para. 44. The Court in discussing the object and purpose of the treaty concluded that there were two essential factors in question. The first was the navigation issue and the second, deemed the more important in fact, was the need to delimit as precisely as possible their respective spheres of influence, Ibid., paras.44–45. The Court felt that such conclusions were supported by the travaux préparatoires of the treaty, Ibid., para.46.

39. Ibid. Judges Higgins and Weeramantry felt that little if any importance should be accorded to navigability, Declaration of the former, para. 6 and Dissenting Opinion of the latter, para.53. By way of contrast Judge Fleischhauer felt that it was an important factor, Dissenting Opinion, para.7.

40. Court's judgment, para.38.

41. Declaration, para.9. See also the Dissenting Opinion of Judge Fleischhauer, para.6.

42. See the El Salvador/Honduras case, IGJ Reports, 1992, pp.351, 390.Google Scholar

43. Declaration, paras.8–9.

44. Court's judgment, para.31.

45. The colonial territory which became Botswana upon independence.

46. Ibid., paras.52–53.

47. Ibid., paras.56–57.

48. Ibid., para.62.

49. Ibid., paras.64–68.

50. Ibid., para.55.

51. Ibid., para.63.

52. See supra, p.968.

53. But see the Separate Opinion of Judge Oda who regards the practices in question as a “decisive factor enabling the Court to determine the boundary between the Parties along the northern channel”, paras.38 and 59.

54. Ibid., paras.42 and 80.

55. See, for example, the Declaration of Judge Higgins, para.7.

56. Court's judgment, paras.74 and 98.

57. See infra, p.965. The Court dismissed the Namibian argument that members of the Masubia tribe from the eastern Caprivi Strip had a “continued presence” on the island at least between 1890 and the late 1940s such as to form part of a German system of “indirect rule” occasioning no protest from the Bechuanaland authorities. The Court held that such presence was intermittent and unconnected with any Caprivi territorial claims. It was noted that it was not uncommon for inhabitants of border regions in Africa to cross borders for agricultural and grazing purposes without there being any issue of territorial title. In addition, the required “agreement” element of subsequent practice in the context of treaty interpretation was not satisfied and the Court thus concluded that the peaceful and public use of the island by the tribesmen did not constitute subsequent practice within this framework, paras.71–74.

58. ICJ Reports, 1986, pp.554, 586Google Scholar. See Court's judgment, para.84.

59. Ibid., paras.74 and 85.

60. Ibid., para.85.

61. The Eritrea/Yemen (Phase One: Territorial Sovereignty and Scope of the Dispute), 114 I.L.R., pp.1, 100Google Scholar. The view of Lord Salisbury that “the constant study of maps is apt to disturb men's reasoning power” is perhaps exaggerated, see Dissenting Opinion of Judge Parra-Aranguren, para.6.

62. As to the value of maps produced by third States, see the Eritrea/Yemen (Phase One) case, 114 I.L.R., pp.1, 98.Google Scholar

63. Note that Judge Oda adopted a more stringent position as to maps, paras.39–41. See also the Dissenting Opinion of Judge Parra-Aranguren, para.77 cf. the Dissenting Opinions of Judge Weeramantry, paras.72–76, and Judge Rezek, para.10.

64. Court's judgment, paras.86–87.

65. Ibid., para.87. This is to be contrasted with the attitude adopted by the Court with regard to the three surveys which while not constituting subsequent practice nevertheless contained factual findings which supported the Court's conclusions, see supra p.974.

66. Ibid., paras.90 and 94.

67. Ibid., para.97.

68. Ibid., para.94. See also Jennings, and Watts, (eds.), Oppenheim's International Law, 9th ed., 1992, pp.706–708.Google Scholar

69. Judge Fleischhauer held that the Court should have added that South Africa could not have acquired title by prescription (prior to the termination of the mandate in 1966) since it was a mandatory rather than a sovereign power in the territory, para.11.

70. Court's judgment, paras. 98–99. Note that Judge Kooijmans was of the view that Namibia's alternative submission should have been declared inadmissible, para.20, while Judge Weeramantry felt that although the activities in question appeared not to have amounted to the level apparently required for a prescriptive title, the lack of protest by Botswana was relevant, para.35. See also the Eritrea/Yemen (Phase One) case, 114 I.L.R., pp.1, 69.Google Scholar

71. Judge Kooijmans did raise the question as to what the position of the Court would have been had a prescriptive title been found and one that was in contradiction to the treaty as interpreted. Separate Opinion at para.19.

72. Court's judgment, para. 104.

73. Ibid., para.102

74. Ibid., para.103.

75. See generally Oppenheim's International Law, op. cit., pp.1190–1192.

76. Separate Opinion, para.22.

77. Dissenting Opinion, para.10.

78. It also mirrors interestingly the conclusions of the Tribunal in the Eritrea/Yemen awards of 1998 and 1999. The Tribunal in the award on Territorial Sovereignty (1998) held that its finding of sovereignty over the islands in question entailed “the perpetuation of the traditional fishing regime in the region … [including] free access and enjoyment for the fishermen of both Eritrea and Yemen”, 114 I.L.R., pp.1, 137Google Scholar. This approach was reiterated and developed in the award on Maritime Delimitation of December 1999, see at para.87 et seq.