botswana/namibia - Cour international de Justice

"The Court is asked to determine .... the boundary between Namibia and Botswana around
Kasikili/Sedudu Island, and the legal status of the island".
796. In the pleadings thus far neither party has found it necessary to propose a precise mode
of demarcation. This, it may be presumed, reflects an assumption that the determination of the
'main channel' of the Chobe River is, logically and practically, anterior to the determination of
the boundary in detail. At the appropriate juncture the Court may make the necessary
dispositions, after appropriate consultation with the parties. In the absence of agreement as to
the mode of fixing a precise demarcation consequent upon the Judgment of the Court, the
Court may see fit to appoint an expert to carry out the task, in accordance with Article 50 of
the Statute and Article 67 of the Rules of Court.
(B) The Submissions of the Parties
797. The Submissions of the Parties are not as such incompatible with the Special Agreement.
Namibia asks the Court to declare that the boundary 'lies in the centre of the southern channel
of the Chobe River.' Botswana requests the Court to declare that the 'northern and western
channel of the River Chobe ... constitutes the main channel...'.
798. These formulations are compatible with the Special Agreement in that there is no
derogation from the Court's mandate 'to determine ... the boundary ...' However, there are
certain indications in the text of the Namibian Memorial which give rise to concern. In
particular, there are suggestions that the process of precise definition of the boundary lies
outside the Special Agreement. The relevant passages are as follows:
"158. Once the southern channel has been identified as the main channel of the Chobe River,
the question of title to Kasikili Island is automatically resolved in favour of Namibia. Where
the boundary lies within the southern channel is a distinctly subsidiary matter for both parties.
The subject was not discussed by either Botswana or Namibia in the proceedings before the
JTTE, nor did the parties make any specific reference to the subject in their submissions. It
has simply not been an issue between them.
159. In these circumstances, Namibia considers that it is unnecessary to pursue the question of
defining the centre of the main channel at this stage of the pleadings. The real issue between
the parties has always been the identification of the main channel itself and the consequences
of such identification for the determination of the sovereignty over Kasikili Island. The
location of the centre of the main channel would follow largely as a matter of course by
reason of its dependence upon the manner in which the principal issue is resolved. As a
practical matter, the actual boundary would in any case have to be demarcated by agreement
within the parties.
160. Namibia of course reserves the right to return to this issue at a later stage, if
developments in the case make it appropriate to do so." (Namibian Memorial, p.57).
799. With reference to the assertion (in paragraph 158 quoted above) that the precise location
of the boundary (within the requisite channel) 'has simply not been an issue' between the
parties, the Government of Botswana does not share this view. In its opinion the process of
determining 'the boundary', called for in Article 1 of the Special Agreement, encompasses the
location of 'the centre of the main channel.'