botswana/namibia - Cour international de Justice

(C) The Legal Status of the Island
800. The provisions of Article 1 of the Special Agreement also ask the Court 'to determine ...
the legal status of the island'. In this context, the Submissions of both parties ask the Court to
declare that sovereignty in respect of Kasikili/Sedudu Island inheres, respectively, in
Botswana or in Namibia.
801. It is significant that neither party has proposed any alternative application of the phrase
'legal status'. This is not very surprising. It is difficult to conceive of an alternative application
of the phrase which would be compatible with the provisions of the Anglo-German
Agreement of 1890.
802. In Article 1 of the Special Agreement, the Court is asked to determine the boundary 'on
the basis of the Anglo-German Agreement of 1 July 1890 and the rules and principles of
international law.' The presumption which this formulation creates is the primacy of the
Anglo-German Agreement, which prescribes a boundary with the obvious function of
separating two areas subject to British and German sovereignty respectively. Accordingly,
both parties in their Submissions have asked the Court to declare the sovereignty of the party
concerned in respect of Kasikili/Sedudu Island. In the words of the Namibian Submissions:
"The legal status of Kasikili/Sedudu Island is that it is a part of the territory under the
sovereignty of Namibia'. (Namibian Memorial, p.141).
(D) Conclusion
803. In the opinion of the Government of Botswana the task of the Court is clearly defined in
the Special Agreement as the determination of the 'the boundary between Namibia and
Botswana around Kasikili/Sedudu Island', and includes a determination of the precise location
of the boundary and not only the identification of the 'main channel'.
__________
SUBMISSIONS
Having regard to the considerations set forth in the Memorial and Counter-Memorial
presented on behalf of the Republic of Botswana and maintaining without change the
submissions presented in the Memorial,
May it please the Court to adjudge and declare that:
(1) The northern and western channel of the Chobe River in the vicinity of Kasikili/Sedudu
Island constitutes the 'main channel' of the Chobe River in accordance with the provisions of
Article III(2) of the Anglo-German Agreement of 1890; and that:
(2) Consequently, sovereignty in respect of Kasikili/Sedudu Island vests exclusively in the
Republic of Botswana.