Case Concerning Kasikili/Sedudu Island (Botswana v ... - Courses

Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) 

ICJ Reports, 1996 

Facts 

Questions 

a. On May 17 th 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. 

b. Accompanying this request, Botswana and Namibia jointly submitted the text 

of a Special Agreement signed on February 15 th , 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.” 1 

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. 

c. 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. 

d. 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.” 2 As such, Kasikili/Sedudu Island is a territory governed by the 

sovereignty of Namibia. 

a. Where exactly is the main channel of the Chobe located geographically in 

relation to Kasikili/Sedudu Island 

b. How is the “main channel” defined and observed in relation to both nations, 

1 

Anglo-German Agreement of 1890 

2 


ICJ Reports, 1996

Decision 

Botswana and Namibia 

b. What exactly is the dividing line between the colonial spheres of influences 

[established by the provisions of the Anglo-German Agreement of 1890], and 

why is this specific division important 

c. To what extend had Namibia “officially” occupied and exercised sovereignty 

over Kasikili/Sedudu Island 

d. 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 

e. Is navigability a legitimate criteria to be used for identifying and delineating 

the path of the Chobe River’s “main” channel 

a. On December 13 th , 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.” 3 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. 

b. 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. 4 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”. 5 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.” 6 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.” 7 The Court added unanimously that, "in the two channels around 

Kasikili/Sedudu Island, the nationals of and vessels flying the flags of, the 

3 



4 


5 

Alexander, “Science, History, and the Kasikili Island Dispute” South African Journal of 

Science 

6 


ICJ Reports, 1996

Republic of Botswana and the Republic of Namibia shall enjoy equal national 

treatment.” 8 

Principles 

a. In order to appropriately determine the navigability of a water channel, inter 

alia, depth and width are the most important measures, which must be 

considered. These measures are necessary to compute volume capacity and the 

primary path of water flow. In this context, a water channel may be used in 

determining the boundary between two states. 

b. Occupation of a territory, á titre de souverain does not constitute legal 

ownership. In this case, although Namibia used the island [the fertile Caprivi 

strip] for seasonal agriculture purposes, “its functions of State authority were 

ultimately on behalf of Caprivi authorities.” 9 

b. As determined by Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ 

Reports 1983, the evidentiary value of maps “constitutes information which 

varies from case to case; of themselves, and by virtue solely of their existence, 

they cannot constitute a territorial title endowed by international law with 

intrinsic legal force for the purpose of establishing territorial rights.” 10 

c.The rule of equitable utilization of watercourses and cartography as wellestablished 

principles of International Law. 11 

Conclusion 

a. The ability of the ICJ to resolve this dispute is significant primarily because 

it resolved a long-standing border dispute between the two African nations of 

Botswana and Namibia. This case is also important because bridges the gap 

between law and science and demonstrates the extent to which great difficulty 

exists in reconciling the two in a modern context. Of particular interest here is 

the fact that in addition to the ten lawyers, six scientists also participated in 

court proceedings to resolve this dispute. This was a necessary means of 

creating balance between historical precedents and the legal strain of this 

procedure on a scientist’s logical rationale. This case also revealed that in 

essence the dispute centered around both parties’ desire to procure political 

7 

Alexander, “Science, History, and the Kasikili Island Dispute” South African Journal of 

Science 

8 



9 

“Summary of the Decisions: Case Concerning Kasikili/Sedudu Island” World Court 

Digest 

10 

Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ Reports 1983 

11 


ICJ Reports, 1996

control and economic benefit from the rich natural resources and potential 

tourist lure of Kasikili/Sedudu’s naturally occurring productive abundance.

Bibliography 

Cases and Treaties 

Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) ICJ Reports, 1996 


Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ Reports 1983 

Articles and Books 

“Summary of the Decisions: Case Concerning Kasikili/Sedudu Island” World Court 

Digest. The Max Planck Institute for Comparative Public Law and International 

Law. (November 2007) 

Alexander, W.J.R. “Science, History and the Kasikili Island Dispute”. South African 

Journal of Science, Aug99, Vol. 95 Issue 8. (accessed: 11/4/09) 

http://webworld.unesco.org 

Submitted 

Colleen Hill, November 5, 2009

Case Concerning Kasikili/Sedudu Island (Botswana v ... - Courses

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