INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE GUARDIANSHIP OF AN INFANT
(NETHERLANDS v. SWEDEN)

ORDER OF AUGUST 19th, 1957

1957

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE
A LA TUTELLE D’UNE MINEURE
(PAYS-BAS c. SUEDE)

ORDONNANCE DU 19 AOÛT 1957
This Order should be cited as follows :

“Case concerning the Guardianship of an infant,

Order of August roth, 1957: I.C.J. Reports 1957, p. 102.”

La présente ordonnance doit être citée comme suit :

« Affaire relative à la tutelle d’une mineure,
Ordonnance du 19 août 1957: C.I. J. Recueil 1957, p. I02.»

Sales number 1 6 6
No de vente:

102

COUR INTERNATIONALE DE JUSTICE

1957
Le 19 août

ANNÉE 1 957 | Rôle général

n° 33

19 août 1957

AFFAIRE RELATIVE

A LA TUTELLE D’UNE MINEURE
(PAYS-BAS c. SUEDE)

ORDONNANCE

Le Président de la Cour internationale de Justice,
vu les articles 40 et 48 du Statut de la Cour,
vu les articles 32 et 37 du Règlement de la Cour;

Considérant que, par lettre du 9 juillet 1957 parvenue au Greffe
le ro juillet, le ministre des Affaires étrangères des Pays-Bas a
transmis au Greffe une requête du Gouvernement du Royaume
des Pays-Bas portant la même date et introduisant devant la Cour
une instance contre le Royaume de Suède au sujet de la tutelle
d'une mineure;

Considérant que la requête vise l’article 36, paragraphe 2, du
Statut ainsi que l'acceptation de la juridiction obligatoire de la
Cour par le Royaume de Suède et par le Royaume des Pays-Bas;

Considérant que, par ladite lettre du 9 juillet 1957, le ministre
des Affaires étrangères des Pays-Bas a fait connaître que M. W. Rip-
hagen était désigné comme agent du Gouvernement des Pays-Bas;

Considérant que, le ro juillet 1957, le texte de la requête ainsi
que de la lettre du ministre des Affaires étrangères des Pays-Bas
a été communiqué à l'ambassadeur de Suède aux Pays-Bas aux
termes de l’article 40, paragraphe 2, du Statut, et de l’article 33,
paragraphe 1, du Règlement ;

4
TUTELLE D’UNE MINEURE (ORD, DU IQ VIII 57) 103

Considérant que, par lettre du 18 juillet 1957, l'ambassadeur de
Suéde aux Pays-Bas a fait savoir que la requéte avait été recue
par son Gouvernement;

Considérant que, par lettre du 20 juillet 1957, le ministre de la
Justice de Suéde, chargé par intérim du portefeuille des Affaires
étrangères, a fait connaître que. M. Sven Dahlman, ambassadeur
de Suède aux Pays-Bas, avait été désigné comme agent du Gouver-
nement du Royaume de Suède;

Après s'être renseigné auprès des Parties,

Fixe comme suit la date d’expiration des délais pour le dépôt
des pièces de la procédure écrite:

pour le mémoire du Gouvernement du Royaume des Pays-Bas,
le 30 novembre 1957;

pour le contre-mémoire du Gouvernement du Royaume de Suéde,
le 31 mars 1958;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au
Palais de la Paix, à La Haye, le dix-neuf août mil neuf cent cin-
quante-sept, en trois exemplaires, dont l’un restera déposé aux
archives de la Cour et dont les autres seront transmis respective-
ment au Gouvernement du Royaume des Pays-Bas et au Gouver-
nement du Royaume de Suède.

Le Président,
(Signé) GREEN H. HACKWORTEH.

Le Greffier adjoint,
(Signé) GARNIER-COIGNET.


JUDGMENT No. I3.—CHORZOW FACTORY (MERITS) 104

ANNEX TO JUDGMENT No. 13.

J.—DocuMENTS SUBMITTED BY THE AGENT TO THE GERMAN GOVERNMENT :

Contract between the Chancellor of the Reich and the Bayerische,
May 2nd, 1916 (in German). .

Second additional contract between the same Parties, October 21st,
1916 (in German).

Fourth additional contract between the same Parties, December 22nd,
1916 (in German).

Fifth additional contract between the same Parties, March 2oth, 1917
(in German).

Seventh additional contract between the same Parties, November 13th,
1918 (in German).

Application filed by the Bayerische against the German Treasury,
May x4th, 1919 (in German).

Letter from Messrs. Lybrand, Ross Bros. & Montgomery to the
management of the Bayerische (with expert opinion).

Notary’s certificate by Dr. Hermann Miinch, June roth, 1928.
Notary’s certificate by Dr. Robert Henoch, June roth, 1928.

Glossen zur Stichstoff-Industrie, lecture by Dr. N. Caro, January 24th,
1927 (in German).

General Plan of the Piesteritz factory.

Plan of the Reichsstichstoffwerke, Piesteritz.

Panoramic view of the Bayerische Stickstoffwerke, Piesteritz.
General Plan of the Oberschlesische Stickstoffwerke at Chorzéw.
Plan of the Reichsstickstoffwerke, Chorzéw.

Panoramic view of the factories. at Chorzéw.

Glossen zur Stickstof{-Industrie, extract from the Chemische Industrie,
No. 14, April oth, 1927 (in German).

Letter from the Oberschlesische to Dr. Ernst Wolff, Berlin, June roth,
1928 (in German).

Letter from the Bayerische to Dr. Ernst Wolff, Berlin, June 19th,
1928 (in German). °

Annual balance sheets of the Stickstoff Treuhand Gesellschaft, March 31st,
1921, to March 31st, 1928 (in. German).

IT.—DoCUMENTS SUBMITTED BY THE AGENT TO THE POLISH GOVERNMENT:
Application made to the Tribunal at Katowice, in the name of the
Polish Treasury against the Oberschlesische.

Letter from the Bayerische to the State Factories Section of the
Management of the Chorzéw factories, Berlin, July 24th, 1917.

Speech by Deputy Mayer in the Reichstag, November 2nd, 1916.

Letter from the General commanding Sixth Army Corps to the
Reichsstickstoffwerke, Chorzéw, October 2oth, 1916.

Letter to the Management of the Railways, Katowice, June 22nd, 1917.

Letter from the War Ministry to the Kriegsamistelle, Breslau, May 25th,
1918.
JUDGMENT No. I3.—CHORZOW FACTORY (MERITS) 105
Letter from the Oberschlesische to the Bayerische Stickstoffwerke
A.-G., Trostberg, October 14th, 1920.
Description of the factory plant at Chorzéw.
Extract from the Gewerbeordnung für das Deutsche Reich, Berlin, 1912.

Table showing the actual cost of production of 1 Kg. of nitrate in
the Chorzéw factory.

Statement of stores, etc., taken over at the Chorzéw factory, July 3rd,
1922. :

- Application made to the German-Polish Mixed Arbitral Tribunal by
the Bayerische against the Polish State, March 25th, 1925.

Note verbale from the German Government to the Polish Legation,
Berlin, May zïth, 1927.

Judgment of the Tribunal of Katowice in the affair Polish Treasury
4. Oberschlesische, November 12th, 1927.

Letter from Dr. Ernst Wolff, advocate, to the German-Polish Mixed
Arbitral Tribunal, January 6th, 1928.

Letter from the German Minister in Warsaw to M. Jackowski, Octo-
‘ber 24th, 1927.

Letter from the German Minister in Warsaw to M. Jackowski, Octo-
ber 20th, 1927.


1116

IT.

I.

IV.

VI.

75

SEPARATE OPINION OF JUDGE ODA

TABLE OF CONTENTS

Paragraphs
INTRODUCTORY REMARKS 1-8
THE CASE PRESENTED TO THE COURT BY MEANS OF A COMPROMIS 9-21
(1) Lack of clarity in the compromis 9-10
(2) The background to the filing of the case at the Court 11-17
(3) Further comments on the lack of clarity in the compromis 18-21
“ON THE BASIS OF THE 1890 ANGLO-GERMAN TREATY” 22-33
(1) Introduction 22
(2) The significance of the 1890 Anglo-German Treaty 23-27
(3) The meaning of “main channel” in the 1890 Treaty 28-32
(4) How has the “main channel” been recognized on various
occasions in the past? 33
“ON THE Basis OF THE RULES AND PRINCIPLES OF INTERNATIONAL
Law” 34-36
How THE “MAIN CHANNEL” OF THE CHOBE River WAS RECOGNIZED
IN Past PRACTICE AND How THAT WOULD ASSIST THE COURT TO
DETERMINE THE BOUNDARY ALONG THE CHOBE RIVER 37-59
(1) Introduction 37-38
(2) Treatment of maps 39-41
(3) The geographical conditions of the area surrounding Kasikili/
Sedudu [sland and the political and social situation of the
Island up to middle of this century 42-47
(4) The confrontation in the 1940s between the authorities of
the Union of South Africa and the British High Commis-
sioner’s Office for the Bechuanaland Protectorate 48-56
(5) The occurrence of incidents in 1984 after Botswana’s inde-
pendence in 1966, and the joint survey which followed 57-58
(6) What does the past practice indicate? 59
CONCLUSION 60-63
1117 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)
I. INTRODUCTORY REMARKS

1. I voted in favour of the Court’s Judgment, as I support its determi-
nation that the northern channel of the Chobe River constitutes the
boundary between Botswana and Namibia, and that Kasikili/Sedudu
Island forms part of the territory of Botswana.

2. Although I voted in favour of subparagraph (3) of the operative
part, I felt that this matter, which was not in fact presented to the Court
in the compromis and was not indicated in the submissions of either
Party, need not be dealt with in the operative part of the Judgment, since
it had already been sufficiently discussed in the prior sections of the Judg-
ment devoted to the reasoning (paras. 102 and 103).

Es

3. I must say, to my great regret, that I fail to understand properly the
sequence of logic followed by the Court in this Judgment. The reasoning
which led the Court to its decision does not necessarily reflect my own
understanding of the case as a whole. I could even say that I am totally
lost when reading the Judgment and I quote an illustration below:

“41. For the foregoing reasons [in the part above, the Court men-
tions the natural physical conditions of the channel], the Court con-
cludes that, in accordance with the ordinary meaning of the terms
that appear in the pertinent provision of the 1890 Treaty, the
northern channel of the River Chobe around Kasikili/Sedudu Island
must be regarded as its main channel.”

“79, The Court concludes from all of the foregoing that the sub-
sequent practice of the parties to the 1890 Treaty did not result in
any ‘agreement between the parties regarding the interpretation of
the treaty or the application of its provisions’, within the meaning of
Article 31, paragraph 3 (a), of the 1969 Vienna Convention on the
Law of Treaties, nor did it result in any ‘practice in the application
of the treaty which establishes the agreement of the parties regarding
its interpretation’, within the meaning of subparagraph (b) of that
same provision.”

“80. ... The Court finds that these facts, while not constituting
subsequent practice by the parties in the interpretation of the 1890
Treaty, nevertheless support the conclusions which it has reached by
interpreting Article III, paragraph 2, of the 1890 Treaty in accord-
ance with the ordinary meaning to be given to its terms (see para-
graph 41 above).”

“88. The foregoing interpretation of the relevant provisions of the
1890 Treaty leads the Court to conclude that the boundary between
Botswana and Namibia around Kasikili/Sedudu Island provided for
in this Treaty lies in the northern channel of the Chobe River.”

76
1118 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

4. It is most important to note that this case is not brought by uni-
lateral application by one of the Parties to this dispute in order to seek
clarification of international law governing the boundary between the
two States in question and the legal status of Kasikili/Sedudu Island by
applying the 1969 Vienna Convention on the Law of Treaties. This is a
case brought by means of a compromis, by which the Parties seek to have
the Court determine the boundary and the legal status of the Island on
the basis of the criteria which the Parties jointly wish to be applied.

It appears to me that the Judgment places excessive reliance upon the
Vienna Convention on the Law of Treaties for the purpose of the Court’s
interpretation of the 1890 Anglo-German Treaty. The Parties to this case
certainly agreed that the Court should be asked to determine the bound-
ary on the basis of the 1890 Treaty — and it should again be pointed out
quite categorically that Botswana and Namibia are not parties to that
Treaty — but the Court has not been asked to interpret the 1890 Treaty
itself. The Judgment quotes Article 31 (General rule of interpretation) of
the 1969 Vienna Convention on the Law of Treaties almost in its entirety.
Reference is made in the Judgment to this provision of the Vienna Con-
vention at least eleven times. Although I am fully aware that the Vienna
Convention reflects customary international law, it should, however, be
noted, as the Judgment correctly points out in its paragraph 18, that this
Convention “applies only to treaties which are concluded by States after
the entry into force of the present Convention with regard to such States”
(Art. 4). In fact, the Convention came into force in 1980. This case does
not appear to me to be one related to the application of the Vienna Con-
vention.

5. I gain the impression that the Parties to this case, Botswana and
Namibia, as well as the Court have devoted much time and energy to
interpreting the German term “Thalweg”, which, as the Judgment itself
admits, was simply a translation of the English word “centre” (Judgment,
para. 46). The Court was requested to determine where — whether in the
northern or the southern channel of the Chobe River — the “main chan-
nel”, as referred to in Article II] (2) of the 1890 Treaty, and hence the
boundary between Botswana and Namibia, should be considered to lie.
In this respect, I fail to understand why the operative part of the Judg-
ment states that the boundary follows “the line of deepest soundings” in
the northern channel of the Chobe River (Judgment, para. 104 (1)). As
proposed by the Parties during the oral hearings, the Court has employed
the phrase “the line of deepest soundings” as a substitute for the word
“Thalweg” (Judgment, para. 89). It would, in my view, have been suffi-
cient for the Court to state simply — and nothing more — which of the
two channels, the northern or the southern, constitutes the “main chan-
nel”, namely the boundary in the Chobe River separating Botswana and
Namibia.

6. It seems to be very important to make a distinction between, on the

77
1119 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

one hand, the criteria to be employed in order to determine the “main”
channel in general terms and, on the other, a decision applying those cri-
teria to a specific geographical situation. The criteria for determining the
“main” channel may well be settled by law, with the assistance of scien-
tific knowledge, but the determination of the “main channel” as a bound-
ary by employing the said criteria, in any specific geographical situation,
is far from being a legal function. I would recall that, at the time of the
meeting in Kasane of the Presidents of Botswana and Namibia in May
1992, the two States tried to settle the matter as a technical problem that
could be solved by the expertise of technical experts (see paragraphs 13
and 14 of this opinion). The Judgment deals with these two matters in its
paragraphs 20 to 40 and attempts to rule on them, relying only on the
information given in the written and oral pleadings by the respective
Parties, but without the benefit of objective scientific knowledge, which it
could have obtained itself but chose not to.

7. The Judgment refers to various acts or conduct relating to the
Chobe River and to certain survey reports concerning the River pro-
duced by various authorities. I accept that these facts and the survey
reports are extremely important for the Court’s consideration of the mat-
ter. However, I am unable to accept the Court’s position that such facts
and reports could be considered only as possible evidence of “any subse-
quent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions” or “any subsequent practice in
the application of the treaty which establishes the agreement of the
parties regarding its interpretation” within the meaning of Article 31, para-
graph 3, of the Vienna Convention on the Law of Treaties, to be taken
into account when interpreting the 1890 Anglo-German Treaty. The
Court, after a lengthy analysis (paras. 47 to 70), comes to the conclusion
that the facts and documents in question cannot be regarded as consti-
tuting “any subsequent agreement” or “any subsequent practice” to be
used for the interpretation of the 1890 Treaty, although the Court ulti-
mately found that these facts “nevertheless support the conclusions which
it has reached by interpreting Article III, paragraph 2, of the 1890 Treaty
in accordance with the ordinary meaning to be given to its terms”
(para. 80). I would rather suggest that these facts and documents should
be considered at their face value, as historical background to the present
case but without having any bearing on the provisions of the Vienna
Convention, in order to assist the Court in determining the boundary.

8. As my position in regard to this case differs somewhat from the
views that have led the Court to its Judgment, I feel that I should sketch
out the view that I take of it.

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1120 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

Il. THe CASE PRESENTED TO THE COURT
BY MEANS OF A COMPROMIS

(1) Lack of Clarity in the Compromis

9. I first ask myself what is the subject-matter of the “case” presented
by the compromis between Botswana and Namibia pursuant to
Article 36, paragraph 1, of the Statute.

In the second paragraph of the Preamble to the compromis, Botswana
and Namibia both state that “a dispute exists between [Botswana] and
[Namibia] relative to the boundary around Kasikili/Sedudu Island”
(emphasis added), but in Article I they request the Court to determine
not only “the boundary between Namibia and Botswana around Kasikili/
Sedudu Island” (emphasis added) but also “the legal status of the island”
(emphasis added). It might be contended that the determination of the
legal status of Kasikili/Sedudu Island would in fact have the same effect
as the determination of the boundary between Botswana and Namibia in
the area around Kasikili/Sedudu Island. It would seem that both States
had originally thought that the determination of the boundary in the
Chobe River would automatically determine the legal status of Kasikili/
Sedudu Island.

The determination of the boundary in the Chobe River would indeed
result in the determination of the /egal status of Kasikili/Sedudu Island.
Conversely, a determination of the legal status of Kasikili/Sedudu Island
would also result in the determination of the boundary. However, the
solutions to these two issues may not necessarily be the same. It appears
that the two States, whether intentionally or unintentionally, have radi-
cally changed their approach, in that an issue relating to the river bound-
ary in the Chobe River has now become an issue also over the legal
status of Kasikili/Sedudu Island.

At all events, the Court should not have overlooked the contradiction
between these two different theses: on the one hand, the definition of the
dispute, including only matters relating to a boundary as defined in the
Preamble to the compromis, and on the other hand, the request contained
in Article 1 of the compromis concerning the boundary in the Chobe
River and the /egal status of Kasikili/Sedudu Island.

10. The Court is requested “to determine . . . on the basis of the [1890]
Anglo-German Treaty . .. and the rules and principles of international
law” (compromis, Art. D. The words “rules and principles of interna-
tional law” are understood by the Parties to mean “those [as] set forth in
the provisions of Article 38, paragraph 1, of the Statute of the Interna-
tional Court of Justice” (compromis, Art. III), namely, “the general prin-
ciples of law recognized by civilized nations” (Statute, Art. 38, para. 1).

In my view these two bases on which to proceed may be mutually con-
tradictory, or even mutually exclusive. If the Court takes the 1890
Anglo-German Treaty as its basis, it cannot at the same time take into
account “the rules and principles of international law”, which the Parties

79
1121 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

interpret as being “the general principles of law recognized by civilized
nations”.

If we confine ourselves to the first question, relating to the boundary in
the Chobe River between Botswana and Namibia in the area of Kasikili/
Sedudu Island, the 1890 Anglo-German Treaty can be used as a basis for
the Court’s determination. If, however, we deal with the second question,
namely the determination of the legal status of Kasikili/Sedudu Island,
the “rules and principles of international law” in general may be thought
to apply. In sum, the two bases to be applied by the Court cannot be
considered as supplementary or harmonious, for they are mutually con-
tradictory.

I assume that both countries thought a boundary could be drawn on
the basis of the 1890 Anglo-German Treaty, and that for this purpose the
determination of the “main channel” of the Chobe River provided for in
the 1890 Treaty would be the cornerstone of the case. However, given
that the two States changed their positions on the matter, making the
legal status of Kasikili/Sedudu Island one of the two main issues of the
“case”, a conclusion cannot be reached simply from an interpretation of
what constitutes the “main channel” of the Chobe River but must also
involve application of “the rules and principles of international law”
(interpreted by the Parties as being the general principles of law recog-
nized by civilized nations).

This change in the Parties’ approach to the issues can be seen from the
account of the background to events that I give in the next section.

(2) The Background to the Filing of the Case at the Court

11. The Court is faced with a “case” between Botswana (which gained
independence from the former British Protectorate Bechuanaland in
1966) and Namibia (which had been under the administration of the
United Nations Council for Namibia until 1990) concerning the geo-
praphy of Kasikili/Sedudu Island in the Chobe River and the surrounding
area. Let me examine how this “case”, submitted under Article 36, para-
graph 1, of the Statute, has arisen between these two States.

On gaining its independence in 1966, Botswana took over the area,
which since 1886 had been under the authority of the British Protector-
ate of Bechuanaland (Judgment, para. 14). On independence in 1990,
the territory of Namibia remained identical to that of South West
Africa — the 1881 German sphere of influence (ibid. ). Upon the out-
break of the First World War, the area under German influence, known
today as the territory of Namibia, was occupied and governed by Brit-
ish forces from Southern Rhodesia. This area was then transferred to
the mandatory territory under the Union of South Africa in the League
of Nations system in 1919 and was, from 1967, placed under the admin-
istration of the United Nations Council for Namibia, though de facto
control by the Republic of South Africa continued until 1990. There has

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1122 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

been no difference of views between Botswana and Namibia on these
facts.

12. If there was any territorial issue between the two States, Botswana
and Namibia, concerning this area in the region of the Chobe River, it
originated from the fact that Namibia, after its independence in 1990,
sent armed forces to Kasikili/Sedudu Island in 1991 and that, also in
1991, Botswana raised its national flag over the Island.

It would appear from these two incidents that in 1991 each of the two
States, Botswana and Namibia, thought that Kasikili/Sedudu Island
formed part of its sovereign territory. However, neither State expressed
the view that there had been any violation of sovereignty by the other
State. If any immediate negotiation did take place between the two coun-
tries on this issue, it was not reported.

13. It was as a result of the above incidents that the two States’ dif-
ference of views regarding the territoriality of Kasikili/Sedudu Island
came to light.

The Presidents of Botswana and Namibia met on 24 May 1992 at Kas-
ane, thanks to the good offices of the President of Zimbabwe, in order to
“discuss the boundary between Botswana and Namibia around Sedudu/
Kasikili Island” (emphasis added). After touring the Chobe River and
viewing Kasikili/Sedudu Island, the three Presidents examined various
documents, in particular the 1890 Anglo-German Treaty, which defined
the German sphere of influence as being bounded by “the centre of the
main channel of [the Chobe] river” (1890 Treaty, Art. II (2)). The three
Presidents “decided that the issue should be resolved peacefully” (empha-
sis added) and

“[tlo this end they agreed that the boundary . . . should be a subject
of investigation by a joint team of six .. . technical experts . . . to
determine where the boundary lies in the terms of the [1890] Treaty
... The Presidents agreed that the findings of [the] team . . . shall be
final and binding on Botswana and Namibia” (emphasis added)
(Memorial of Namibia, IV, Ann. 10, p. 71; Memorial of Botswana,
IH, Ann. 55, p. 412).

There was no disagreement between Botswana and Namibia that they
should rely on the 1890 Treaty, which determined the line of separation
of the sphere of influence between Germany and Great Britain as the
centre of the “main channel” of the Chobe River. It would thus seem
that their intention was not to settle an existing dispute, if one existed
at all, but rather to determine the hitherto uncertain boundary with the
assistance of the technical experts who would be able to identify the
“main channel” of the Chobe River.

14. The Presidents of Botswana and Namibia were in agreement that

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1123 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

the boundary should be determined as the “main channel” of the Chobe
River as provided for in the 1890 Anglo-German Treaty. It would appear
that, in their view, the issue of the /egal status of Kasikili/Sedudu Island
would not be taken up as such. The territoriality of the Island did nor, of
itself, constitute an issue.

It should also be noted that the expression “dispute” was not used in
the joint Communiqué issued by the three Presidents. It can be said that,
up to and including the time of the meeting of the three Presidents,
neither Namibia nor Botswana considered that there had been a dispute.
The two States wanted to have the Court determine the actual course of
the boundary in terms of the “main channel” as stated in the 1890 Treaty,
with the assistance of the joint team of technical experts, who, by their
investigations, would determine which either the northern or the
southern channel — was the “main channel”. The territoriality of Kasikili/
Sedudu Island would have been automatically settled by drawing such a
delimitation line.

*

15. It would seem that, a few months after the meeting at Kasane, the
understanding reached by the Presidents of Botswana and Namibia was
completely rejected at governmental level. The issue was termed a dispute
at the meeting at Windhoek starting on 8 December 1992 (Memorial of
Botswana, III, Ann. 56, p. 416), which had been convened in order to
decide the terms of reference of the Joint Team of Technical Experts on
Boundary (hereinafter “JTTE”) that was to be established. The “Memo-
randum of Understanding” between Botswana and Namibia was drafted
on 23 December 1992 (Memorial of Namibia, IV, Ann. 11, p. 73; Memo-
rial of Botswana, III, Ann. 57, p. 428) following this preliminary meeting.

The “Memorandum of Understanding” states in its Preamble that a
dispute exists relative to the boundary between Botswana and Namibia,
and also refers to the desire of both countries to “settl[e] such dispute by
peaceful means in accordance with the principles of both the Charter of
the United Nations and the Charter of the Organisation of African
Unity” (emphasis added). The “Memorandum of Understanding” sets up
a JITE, consisting of three technical experts from each country “to
determine the boundary between Botswana and Namibia around Kasikili/
Sedudu Island in accordance with the [1890] Anglo-German Treaty”
(emphasis added); in other words to find whether the northern or the
southern channel should be regarded as the “main channel”.

The form of words “a dispute exists relative to the boundary between
... Botswana and ... Namibia” (emphasis added) first appeared in this
“Memorandum of Understanding” of 23 December 1992 and was later
employed in the compromis of 29 May 1996 by which the present case

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1124 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

was brought to the Court. The function of the JTTE should have been
limited to the technical recognition of what constitutes the “main chan-
nel” of the Chobe River under the terms of the 1890 Anglo-German
Treaty. However, this was not the case. The “rules governing the pro-
ceedings” in the “Memorandum of Understanding” of 23 December 1992
state that “the Team shall be guided by the general principles of interna-
tional law regarding the peaceful settlement of international disputes and
any relevant international law principles for the delimitation of river
boundaries” (Memorandum of Understanding, Art. 8, emphasis added).

I would emphasize that this concept does not accord with what the
Presidents of the two States would appear to have had in mind a few
months beforehand; indeed it differs greatly.

*

16. On 20 August 1994, after six rounds of meetings, the JTTE com-
pleted its work, producing its Final Report, which states that “it emerged
that the Joint Team was unable to agree on issues of substance” (Memo-
rial of Botswana, HI, Ann. 58, p. 440; Memorial of Namibia, V,
Ann. 113, p. 88). The Final Report goes on to state that “[the JTTE] was
unable to make a finding determining the boundary between Botswana
and Namibia in the area of Kasikili/Sedudu Island in accordance with the
provisions of the Memorandum of Understanding.” Thus, the JTTE was
unable to determine the boundary in accordance with the terms used in
the 1890 Anglo-German Treaty.

It would appear that the failure of the JTTE was due to the fact that
they did not conduct their work using the mandate, originally agreed at
Kasane in May 1992 by the Presidents of Botswana and Namibia, to
define where the “main channel” of the Chobe River lay in the eyes of the
technical experts.

17. Although the JTTE failed to determine the boundary, it did, how-
ever, make a recommendation:

“(T]he Joint Team would recommend recourse to the peaceful
settlement of the dispute on the basis of the applicable rules and
principles of international law.” (Emphasis added.)

This represents a crucial change, in that the JTTE recommends that the
“dispute” should be settled on the basis of the “applicable rules and prin-
ciples of international law” and not by a technical interpretation of the
“main channel of the river” as stated in the 1890 Treaty.

I very much doubt that the power to make this recommendation feil
strictly within the JTTE’s original mandate. It must be recognized that
the JTTE did not remain simply a group of technical experts, dealing

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with technical matters concerning the determination of the “main chan-
nel”, but turned into a body for diplomatic negotiation between the two
States. In fact, the six members of the JTTE were not necessarily even
technical experts, and the team from Botswana was led by an eminent
professor of international law. This clearly demonstrates that the JTTE’s
purpose changed from the technical or scientific matter of determining
the “main channel” of the Chobe River to discussing the more general
legal dispute on territorial issues.

Upon receipt of the JTTE’s final report and recommendation, the
Presidents of Botswana and Namibia, together with the President of Zim-
babwe, decided at the Summit Meeting held at Harare on 15 February
1995, after deliberating on the JTTE’s report, that “the matter should be
referred to the International Court of Justice” for determination (Memo-
rial of Botswana, III, Ann. 59, p. 463, emphasis added).

The compromis, as fully quoted in paragraph 2 of the Judgment, was
then, one year later, concluded by Botswana and Namibia on 15 Febru-
ary 1996.

(3) Further Comments on the Lack of Clarity
in the Compromis

18. Having examined the process which led up to the conclusion of the
compromis, it seems to me quite clear that the position of both countries
towards the whole issue was in essence changed somewhat. The original
issue, in which neither State gave much weight to the legal status of
Kasikili/Sedudu Island, but rather considered that the /egal status of the
Island would be dependent upon the determination of the boundary,
became an issue of the legal status of Kasikili/Sedudu Island.

19. While it was agreed that the boundary should be determined as the
centre of the “main channel” of the Chobe River, which separated the
spheres of influence under the terms of the 1890 Anglo-German Treaty,
no agreement could be reached as to which channel — north or south —
constituted the “main channel”, a factor which could prove decisive in
determining which territory Kasikili/Sedudu Island would fall into.

The issue between the two States could be solved by a scientific inves-
tigation or survey concerning the “main channel” of the Chobe River.
However, the issue, originally considered to be simply a question of
drawing a boundary between the two States, in either the northern chan-
nel or the southern channel of the Chobe River (whichever was deemed
to be the main channel), has now explicitly been turned into a territorial
issue involving sovereignty over Kasikili/Sedudu Island — a change

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which occurred in 1995 at the stage of preparation of the JTTE’s
Report.

As already mentioned in paragraph 9 above, the second paragraph of
the Preamble to the compromis refers only to a “dispute . . . relative to the
boundary“ (emphasis added), but Article I asks the Court to determine
not only the boundary in the Chobe River but also “the legal status of
[Kasikili/Sedudu] island” (emphasis added). The 1890 Anglo-German
Treaty and the “rules and principles of international law” (and once
more I point out that this, according to the compromis, is equivalent to
“the general principles of law [as] recognized by civilized nations”) being
used as the basis for the settlement of the dispute are from the outset
mutually contradictory. How can the Court deal with such a contradic-
tion in this case?

It is my belief that the compromis prepared by both States was not
drafted in a proper manner.

20. I return to the original question, namely, (i) whether the Court is
requested to determine a boundary, on the basis of the 1890 Anglo-Ger-
man Treaty, which provides for the “main channel” of the Chobe River
as a boundary or (ii) whether the Court is to give a final verdict on the
territorial issue of Kasikili/Sedudu Island in accordance with the “rules
and principles of international law”, interpreted as “general principles of
law recognized by civilized nations”. The real intention of the Parties and
the manner in which they have brought this “case” to the Court is un-
clear. These points have not been clarified by either State in their written
documents or during the oral pleadings and the Court’s present Judg-
ment also does not address these points.

If option (i) is chosen, the Court will be confined to determining the
“main channel” of the Chobe River in either the northern channel or the
southern channel as the boundary between the two States. If option (ii) is
chosen, the Court must interpret the “rules and principles of interna-
tional law” relating to territorial sovereignty as applied to Kasikili/
Sedudu Island. This confusion of the issues brought jointly by Botswana
and Namibia to the Court puts the latter in an extremely difficult situa-
tion in the handling of this “case”; in particular, because the “case” ts not
based on a unilateral application but submitted by the agreement of both
Parties.

21. In this jointly submitted case, the substance of the dispute and the
basis on which the Court is asked to rule seem to me to be extremely
unclear. In my view, the Court should have asked the Parties to clarify
their positions. I wonder if it would not have been possible for the Court
to have handed this jointly submitted case back to the Parties with the
request that they clarify their common intention and original understand-
ing in coming to the Court, and that they state whether they wish to have
the boundary determined or whether they would prefer to treat the deter-
mination of the legal status of Kasikili/Sedudu Island as a separate issue
and not simply as a result of the determination of the boundary.

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I. “On THE Basis OF THE 1890 ANGLO-GERMAN TREATY”

(1) Introduction

22. As I have already stated in paragraph 3 above, this is a case
brought by means of a compromis, by which the Parties seek to have the
Court determine the boundary and the legal status of the Island on the
basis of the criteria which the Parties jointly wish to rely on. The original
intention of the Parties was to rely on the 1890 Anglo-German Treaty to
assist in the drawing of a boundary along the Chobe River in the area of
Kasikili/Sedudu Island. I shall now proceed to an analysis of the 1890
Anglo-German Treaty.

(2) The Significance of the 1890 Anglo-German Treaty

23. There is no difference of views between Botswana and Namibia
with respect to the fact that the 1890 Treaty should be regarded as con-
stituting a basic document to determine the boundary between these two
States. Let me begin with an examination of that Treaty.

24. Germany, which had had little interest in Africa before the latter
part of the nineteenth century, emerged as a colonial State under the
leadership of Bismarck and joined other European nations in the parti-
tion of Africa. In order to settle the issues relating to Africa, including
the determination of the legal doctrine of occupation, the Berlin Confer-
ence was convened at the initiative of Bismarck. The General Act of the
Conference of Berlin was adopted in 1885 (Memorial of Botswana, Il,
Ann. 1, p. 1).

In 1884 Germany put South-West Africa under its protectorate and in
1885 Great Britain, by Proclamation of the High Commissioner for
South Africa, declared Bechuanaland a British Protectorate (Memorial
of Botswana, HI, Ann. 3, p. 24). In 1889 negotiations took place between
Great Britain and Germany, in which Germany wished to be secured free
access from Lake Ngami to the upper waters of the Zambezi River as a
part of its sphere of influence (Memorial of Botswana, IJ, Ann. 4, p. 27;
Ann. 5, p. 29).

25. The Anglo-German Treaty of 1 July 1890 determined the separa-
tion of the spheres of influence of the two States. The Treaty reads in
part:

“The undersigned

Have, after discussion of various questions affecting the Colonial
interests of Germany and Great Britain, come to the following
Agreement on behalf of their respective Governments:

In South-West Africa the sphere in which the exercise of influence
is reserved to Germany is bounded:

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1128 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

2. To the east by a line .. . [which] runs eastward along [the 22nd
parallel of south latitude] to the point of its intersection by the 21st
degree of east longitude; thence it follows that degree northward to
the point of its intersection by the 18th parallel of south latitude; it
runs eastward along that parallel till it reaches the River Chobe; and
descends the centre of the main channel of that river to its junction
with the Zambesi, where it terminates.

The course of the above boundary is traced in general accordance
with a Map officially prepared for the British Government in 1889.”
(Anglo-German Treaty, Art. [JI], para. 2.) (Memorial of Botswana,
Wf, Ann. 11, p. 185; Memorial of Namibia, IV, Ann. 4, p. 6.)

*

26. The 1890 Treaty is an instrument which determined the respec-
tive spheres of influence of the Parties in this region of Africa but
which certainly did not fix national boundaries there between the
territories of Germany and Great Britain. The limit of the German
sphere of influence was fixed as the “centre of the main channel of
the Chobe River”, but in that Treaty no concrete boundary line was
indicated in this geographically complex area. The determination of
the boundary, which would certainly have had the effect of determin-
ing the legal status of Kasikili/Sedudu Island, was at that time a
matter far removed from the actual purpose of the Treaty.

27. The 1889 map that purports to illustrate Article II] of the
1890 Anglo-German Treaty (Memorial of Botswana, Appendix IL,
Map 3) is, in my view, too reduced in scale to be of great assistance.
The course of the Chobe River on this map is taken directly from the
map prepared in 1881 by Dr. B. F. Bradshaw for the Royal Geo-
graphical Society. The Bradshaw map indicates certain geographical
features of the area and shows the northern and southern channels
of the Chobe River but, naturally, did not define any boundary
(Memorial of Namibia, V, Ann. 102, p. 35; Memorial of Namibia,
VI, Atlas [/2) (Memorial of Botswana, Appendix II, Map 1) and has
no significance for the determination of the boundary in this area.

(3) The Meaning of “Main Channel” in the 1890 Treaty

28. A great many explanations have been given by both Parties con-
cerning the phrase “the centre of the main channel of [the Chobe River]”
in Article III of the 1890 Anglo-German Treaty. In particular, both
Parties have devoted a great deal of attention, especially during the oral
hearings, to the purported difference between this concept and that used

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in the other authentic text, the German one, which reads: “Thalweg des
Hauptlaufes dieses Flusses”.

The concept expressed by the German language text and that expressed
by the English language text may not be identical. The English word
“centre” is simply an expression used in geometry while the German
word “Thalweg” has some legal connotation. The fixing of the “centre”
of the main channel of the river is a matter to be determined by a geo-
grapher or a surveyor. In my view, however, the German delegation at the
negotiation of the 1890 Treaty does not seem to have used the German
expression “Thalweg’’ in order to give a meaning different from the Eng-
lish expression “centre” or in order to give the word a legal sense.

As stated in the Judgment (para. 46), the original provision of this part
of the 1890 Treaty, initialled by Lord Salisbury and by Count Hatzfeldt,
and transmitted to the British Foreign Office as “Draft Articles of Agree-
ment” read:

“[The boundary] runs eastward . . . till it reaches the River Chobe,
and descends the centre of that river to its junction with the Zambesi,
where it terminates.” (Memorial of Namibia, IV, Ann. 26, p. 121,
emphasis added.)

Afterwards the British side proposed the insertion of the words “the main
channel of” so that the sentence read “the centre of the main channel of
that river”, That proposal was accepted by the German side and trans-
lated first as “in der Thal-Linie des Hauptlaufes dieses Flusses” and, in
the end, the word “Thal-Linie” was replaced with the word “Thalweg”.
I would like to point out that the Judgment clearly, and in my view quite
properly, states that “[t]he German text is therefore a word-for-word
translation of the British proposal and follows the English text” (Judg-
ment, para. 46).

29. At all events, the German words “Thalweg des Hauptlaufes” have
the same meaning as the English words “centre of the main channel”.
The different interpretation of the German words that was given at the
oral pleadings does not convince me and I fail to understand why the
Parties have given so much weight in their respective pleadings to a dis-
cussion of the word “Thalweg” and why the Court, in a similar way, shows
so much concern with the use of and definition of this particular word
so extensively in so many parts of its Judgment (Judgment, paras. 21-27,
46, and 89). The word “Thalweg” appears more than 20 times in the
Judgment. I reiterate, the German expression is simply a translation of
the English original text. The “centre of the main channel” is the original
expression and reflects the idea of the negotiators of the 1890 Anglo-
German Treaty. In the latter part of the Judgment, the expression “Thal-
weg” is replaced by “line of deepest soundings” — which follows the sug-
gestions of the Parties during the oral hearing — and this concept
appears in subparagraph (1) of the Judgment’s operative part. I think
that the Court should have said in its operative part simply that the

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boundary between Botswana and Namibia “follows the centre of the
northern channel” rather than “follows the line of deepest soundings in
the northern channel”.

*

30. It is clear to me that there was nothing in the minds of the officials
who negotiated the 1890 Treaty that could indicate that they had decided
that the separation line between their respective spheres of influence
should be anything other than the centre of the “main channel” of the
Chobe River. The concept of “channel” is a strictly scientific issue. How-
ever, what constitutes “the main” channel is subject to a degree to inter-
pretation. The concept of the “main channel” may well be defined by
various criteria such as the breadth of the river, the depth of the water,
the volume of waterflow, bed profile configuration, and so forth, as
suggested in certain scientific works of reference (Judgment, paras. 29
and 30). The Judgment properly states that there is “[not] one single cri-
terion in order to identify the main channel of the Chobe” (para. 30).

31. I submit that the fact that the original English text, namely the
term “centre of the river”, was replaced by the term “centre of the main
channel of the river” and, in the German text, the word “Thalweg” was
used to mean the “centre” of the main channel, might be interpreted as
reflecting an interest on the part of the parties to the 1890 Treaty, in their
choice of the Chobe River as the boundary, in the navigation potential of
that River, thus gaining access to the Zambezi River. It should, however,
be noted that it was not known at that time whether navigation through
the Chobe River was feasible. It was merely of potential interest to each
side. This is properly noted in the Judgment (paras. 40 and 44). Since
there existed no immediate interest in navigating the Chobe River, and
given that the hydrological condition of the river was unknown, the
parties to the 1890 Treaty — without thereby seeking to delimit the
boundary — employed the phrase “centre of the main channel” with a
view to the navigability of the river, but in purely theoretical terms.

Subject to some minor exceptions, the Chobe River has to date not
been navigated for transportation purposes. If the “main channel” should
be considered in terms of navigability, then the Court would have diffi-
culty in choosing between the northern and the southern channel as a
boundary, since neither of those two channels has in the past or at the
present time satisfied the conditions of navigability in a substantive or
commercial sense.

32. If, however, the Court is to decide the boundary in terms of the
“main channel” of the river, in whatever manner the words in the 1890
Treaty might have been interpreted at that time, then it can proceed to
find the whereabouts of the main channel in the general sense. For this
purpose the Court needs the assistance of a hydrological expert and

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should have sought the help of a specialist in this subject, either as a wit-
ness or as an expert to be called by the Court, who could, first, inform the
Court what criteria were most suitable for the definition of the main
channel in this particular geographical situation and, second, which of
the two channels would in reality meet those criteria.

Instead the Court has, in one way or another, dealt with the views
expressed by scientists or specialist members of the opposing teams of the
Parties. The views of these scientists or specialists are at times contradic-
tory. The Court has, in fact, determined the northern channel as the
“main channel” without the benefit of an expert opinion obtained from
an independent person. It has relied upon its own interpretation of the
geographical and scientific criteria, and has come to its own conclusion
that “ in accordance with the ordinary meaning of the terms that appear
in the pertinent provision of the 1890 Treaty, the northern channel of the
River Chobe around Kasikili/Sedudu Island must be regarded as its main
channel” (Judgment, para. 41). Although, in my view, the Court has not
dealt correctly with this matter, which involves scientific, hydrographic,
potamological or topographical issues, I am, however, not in a position
to state that the Court’s decision is incorrect.

(4) How Has the “Main Channel” been Recognized on Various
Occasions in the Past?

33. In order to determine at present the boundary between Botswana
and Namibia it is extremely important to ascertain how this main chan-
nel of the Chobe River, as referred to in Article III (2) of the 1890 Treaty,
has been recognized in the past. I will devote a separate part of this
opinion to a discussion of this matter. These past practices are extensively
referred to in the Judgment but from a totally different aspect.

IV. “ON THE BASIS OF THE RULES AND PRINCIPLES OF
INTERNATIONAL Law”

34. The Court is requested to make a determination “on the basis of”
not only the 1890 Treaty but also “the rules and principles of interna-
tional law” (compromis, Art. 1). As I stated above, these words are inter-
preted in the compromis as meaning the “general principles of law recog-
nized by civilized nations”, as provided in Article III of the compromis. It
may be noted that this interpretation, stated in Article III of the campro-
mis, Was quite new and was not mentioned in the work of the JTTE
which constituted the basis of the compromis. 1 have to ask myself
whether the Parties to the compromis really intended to limit the inter-
pretation of the wording in Article I to the meaning stated in Article III.

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1132 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

35. If, as the compromis suggests, one takes the words “the rules and
principles of international law” to mean the “general principles of law
recognized by civilized nations”, then the argument as to whether “pre-
scriptive title” was acquired, on whatever basis, in connection with the
legal status of Kasikili/Sedudu Island, would be relevant. The Court is
quite justified in taking up the issue of the doctrine of prescription in this
regard (Judgment, paras. 94-99). The Court concludes, however, that cul-
tivation by the Masubia people or the occasional exercise of authority in
one way or another over the Island wouid not have constituted a basis
for acquisitive prescription and reaches a negative conclusion on this
point (Judgment, para. 99). I fully agree with the Court’s conclusion on
this point.

36. What other “general principles of law recognized by civilized
nations” could then have been suggested as a basis for the Court’s deter-
mination of the matter? I see no reference in the arguments of the Parties
to this element. I find no reason to take “the rules and principles of inter-
national law” as a basis for the Court’s determination, as distinct from
the 1890 Anglo-German Treaty.

V. How THE “MAIN CHANNEL” OF THE CHOBE RIVER Was RECOGNIZED
IN PAST PRACTICE AND How THAT WOULD ASSIST THE COURT TO
DETERMINE THE BOUNDARY ALONG THE CHOBE RIVER

(1) Introduction

37. As I have stated in paragraph 33 above, it is necessary to examine
how the boundary of the Chobe River and the status of Kasikili/Sedudu
Island have been viewed at varying times in the past by the respective
authorities in the area in the maps, in certain relevant documents or even
in certain practices.

These documents and practices are referred to extensively in the Judg-
ment, but rather from the standpoint of whether they constitute “any
agreement relating to the treaty which was made between all the parties
in connexion with the conclusion of the treaty” and/or “any instrument
which was made by one or more parties in connexion with the conclusion
of the treaty and accepted by the other parties as an instrument related to
the treaty” as provided for in the Vienna Convention on the Law of
Treaties (Art. 31, para. 2 (a),(b)), for purposes of interpretation of the
1890 Anglo-German Treaty (Judgment, paras. 47-70, 75 and 78). The
Judgment makes many references to the Vienna Convention and con-
cludes generally that the practices to which it refers extensively, and
which I quote later in this section, constitute neither “subsequent agree-
ment” nor “subsequent practice” in terms of that Convention (Judgment,
para. 79).

38. On this point, I am afraid that I cannot share the view taken in the
Judgment that these practices, maps and documents are relevant purely
for the purpose of interpretation of the 1890 Treaty. In my view, the rele-

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vant facts and activities may usefully be considered by the Court as an
aid to determining the boundary of the Chobe River and the legal status
of the Island, but not for the purpose of the Court’s interpretation (with
regard to the Vienna Convention on the Law of Treaties) of the 1890
Treaty. In my view, these past practices themselves constitute a decisive
factor enabling the Court to determine the boundary between Botswana
and Namibia along the northern channel of the Chobe River.

In the part of my opinion that follows, I refer to several incidents and
quote from the early documents. Those references are, to a great extent,
the same as those cited in the Judgment but I include them nevertheless
as, from my standpoint, they are of great importance.

(2) Treatment of Maps

39. I should like to add a few words on the significance in this particu-
lar case of a number of maps of the region produced since 1890 and pre-
sented to the Court by the Parties. I count as many as 52. I have grave
doubts as to whether the existence of so many maps in this case will be of
help in finding a solution to this matter. Some of the maps indicate the
width of the northern channel and of the southern channel around
Kasikili/Sedudu Island, and are thus useful in providing some geographi-
cal details of the region. However, some of the cartographers have gone
so far as to indicate on their maps a “boundary”, which could be inter-
preted as being a political boundary between the northern and southern
banks of the Chobe River.

40. The Judgment develops the view of the Court regarding the vari-
ous maps of this area submitted to it and the Court properly considers
that it is “itself unable to draw conclusions from the map evidence pro-
duced in this case” (Judgment, para. 87). I share the Court’s view in this
regard. I should, however, like to make some general comments on these
maps, as follows.

First, some maps were simply reproduced from a previous edition
without any additional survey having taken place.

Secondly, the Chobe River region had, before 1890, been explored by
certain individuals, amongst them Selous and Livingstone, but obviously
the maps they produced did not show any political boundary. A map
produced by a relevant government body may sometimes indicate the
government’s position concerning the territoriality or sovereignty of a
particular area or island. However, that fact alone is not determinative of
the legal status of the area or island in question. The boundary line on
such maps may be interpreted as representing the maximum claim of the
country concerned, but does not necessarily justify that claim.

Thirdly, a claim to territory can only be made with the clear indication

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of a government’s intention, which may be reflected in maps. À map on
its own, with no other supporting evidence, cannot justify a political
claim. In this particular case, despite the existence of so many maps and
despite the considerable discussion by both Parties on the subject of their
interpretation, in the final analysis, all of this is in my view utterly
irrelevant.

41. To my mind, the drawing of a political boundary is not a task for
a cartographer unless he has been given a clear indication of its place-
ment. No great weight should be given to any boundary depicted by such
maps.

The Parties included in their oral presentation a list indicating which,
of the large number of maps, placed the boundary either to the north or
to the south. This, in my view, was at best an exercise in futility and at
worst absurd.

(3) The Geographical Conditions of the Area Surrounding
KasikililSedudu Island and the Political and Social Situation of
the Island up to the Middle of This Century

42. This area was essentially unknown before the conclusion in 1890
of the Anglo-German Treaty, except for the report of Livingstone’s expe-
dition, “Missionary Travels and Researches in South Africa” (Memorial
of Namibia, V, Ann. 129, p. 197; Memorial of Namibia, I, p. 23), the
report of the explorer Selous in 1874 (referred to, but not fully quoted, in
Memorial of Namibia, V, Ann. 138, p. 229), and the Schulz-Hammar
report of 1884, “The New Africa — A Journey up the Chobe and down
the Okovanga Rivers” (referred to, but not fully quoted, in Memorial of
Namibia, V, Ann. 137, p. 227). As far as I can tell, none of these reports
refers to the existence of an island now known as Kasikili/Sedudu Island.

43. Whether at that time Kasikili/Sedudu Island was submerged dur-
ing the rainy season or whether there was any continuous flow of water
throughout the year is not known. Some explanation has been given by
the scientists engaged by the Parties to this case but their explanations
differed, nor was it altogether clear whether they were talking about the
situation a hundred years ago or at the present time. At any rate, the
facts they presented were not explained to the Court by a witness or by
an expert who had made the required solemn declaration. The fact
appears to be that there existed no reliable topographical description of
this area at that time. It is extremely difficult to ascertain from any exist-
ing available information the geographical situation of this region,
namely, Kasikili/Sedudu Island and the surrounding area of the Chobe
River.

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44. It appears to me that, in the oral and written pleadings in this case,
the Parties have, in the main, concentrated on the interpretation of the
terms contained in the 1890 Treaty (such as the “centre of the main chan-
nel of the river”) but have not greatly discussed the political and social
status or situation of the north and south banks of the Chobe River.

45. Germany, which in 1884 placed South West Africa under its Pro-
tectorate, was greatly concerned about access from the direction of the
Ngami Lake to the east towards the Zambezi River and had not even the
slightest interest in exercising control over a small island in the Chobe
River. Great Britain, on the other hand, had in 1885 placed Bechuana-
land under its Protectorate and put the region under the control of the
Governor of British Bechuanaland.

Germany made no territorial claim, not even over the Eastern Caprivi
Strip to the north of the Chobe River, and the first presence of a German
administration in this region was in 1909 after the establishment of the
office of the German Governor in South West Africa in 1908 at Wind-
hoek. The de facto authority of Great Britain existed in Caprivi until
1914. It is assumed that, at that time, Great Britain’s control of the
region extended northwards beyond the Chobe River.

46. During the First World War, Eastern Caprivi, which had been
under German administration, was occupied by the British Army mobi-
lized from South Rhodesia and was placed under the authority of the
District Commissioner of the Bechuanaland Protectorate in Kasane
(Memorial of Namibia, I, p. 93). In 1919, after the First World War, the
Union of South Africa became the administering power for the whole of
present-day Namibia under the mandate of the League of Nations —
which means, if I may say so, that the Union of South Africa was under
British influence, albeit indirectly. In the period 1915-1929 Caprivi was
administered by the Bechuanaland administration on behalf of the Gov-
ernment of the Union of South Africa. No objection was raised to the
cultivation of Kasikili/Sedudu Island by Caprivi tribesmen.

The difference in status between the area to the north and the area to
the south of the Chobe River did not actually cause any practical diffi-
culties in this post-war period; these arose only after the Second World
War. It is reported that the British Police patrolled both the northern and
southern banks as peace officers.

47. A report (the Eason Report) produced by Captain Eason of the
police of the Bechuanaland Protectorate (Great Britain) on 5 August
1912, entitled “Report on the main channel of the Linyanti (or Chobe)
river” (frequently cited in the Judgment, in paras. 33, 42, and 52-55),
gives some geographical description of the area (Memorial of Namibia,
IV, Ann. 47, p. 173: Memorial of Botswana, HI, Ann. 15, p. 225). This
Report states that “[hlere [Captain Eason] consider[s] that undoubtedly
the North should be claimed as the main channel” (emphasis added)
and, in the sketch-map attached to this report, the northern channel

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was, from a geographical point of view, taken as being the main
channel.

Since that 1912 report, there seems to have been no reliable report of
this region until the Trollope-Redman report prepared in the mid-1940s,
to which I will refer later.

(4) The Confrontation in the 1940s between the Authorities of the
Union of South Africa and the British High Commissioner's Office for
the Bechuanaland Protectorate

48. After the Second World War, despite the termination of the man-
datory system of the League of Nations, the Union of South Africa did
not acquiesce in transforming this mandatory area to the new system of
Trusteeship under the United Nations. Thus, the separation or friction
between the régimes controlling the territories of the Union of South
Africa (which became a Republic and left the Commonwealth in 1961)
and the British Protectorate of Bechuanaland became apparent. It is
only since that time that the question of the boundary between the two
entities mentioned above, including the status of Kasikili/Sedudu Island,
emerged.

49. In 1940 Major L. Trollope, the Magistrate for the Eastern Caprivi
Zipfel (hereinafter “Strip”) (to the north of the Chobe River), surveyed
this area with the co-operation of the Bechuanaland Protectorate police
in Kasane (to the south of the Chobe River) and submitted his report on
the administration of the Eastern Caprivi Strip to the Secretary for
Native Affairs in Pretoria (Memorial of Namibia, IV, Ann. 58, p. 229).
No mention was made of Kasikili/Sedudu Island in that report.

50. Nearly ten years later, in 1948, an exchange of letters took place
between the Office of the Magistrate in Windhoek, Caprivi Strip (to the
north of the Chobe River), and the British Authorities in Kasane (to the
south of the Chobe River), concerning the international status of this
region, including Kasikili/Sedudu Island. Major Trollope (Magistrate for
the Eastern Caprivi Strip) addressed a letter on 3 January 1948 to Mr. V.
Dickinson (District Commissioner in Maun, Bechuanaland), entitled
“Channel between Kasikili Island and Kabuta and Kasika Villages”,
referring to the application by a Mr. Ker for permission to transport
timber through the northern channel (Memorial of Namibia, IV,
Ann. 59, p. 262) (see Judgment, paras. 40 and 56).

51. A few weeks later, a report dated 19 January 1948 was jointly pre-
pared by Major Trollope and Mr. N. V. Redman ([Assistant] District
Commissioner at Kasane, Bechuanaland Protectorate), entitled “Joint
Report on the boundary between the Bechuanaland Protectorate and the

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Eastern Caprivi Zipfel: Kasikili Island” (see Judgment, paras. 42 and
57-60) in which it was stated that:

“3. We find after Separate examination of the terrain and the
examination of an aerial photograph that the ‘main Channel’
does not allow the waterway which is usually shown on maps [the
southern channel] as the boundary between the two Territories.

4. We express the opinion that the ‘main Channel’ lies in the
waterway /the northern channel] which would include the island in
question in the Bechuanaland Protectorate.

5. On the other hand we are satisfied, after enquiry that since at
least 1907, use has been made of the Island by Eastern Caprivi Zipfel
tribesmen and that that position still continues.

6. We know of no evidence of the Island having been made use
of, or claimed, by Bechuanaland Tribesmen or Authorities or of any
objection to the use thereof by Caprivi Tribesmen being made.”
(Memorial of Namibia, IV, Ann. 60, p. 264.)

*

52. Major Trollope, in his letter of 21 January 1948 addressed to the
Secretary of Native Affairs in Pretoria entitled “Bechuanaland-Eastern
Caprivi Zipfel Boundary” (see Judgment, para. 58), seems to have con-
ceded, in paragraph 3, that the boundary should be in the northern chan-
nel but that the people of Eastern Caprivi should continue to be allowed
to cultivate the Island. The letter stated:

“There is no doubt if the wording of the 1890 Treaty is applied to
the geographical facts as they exist today that the true inter-territo-
rial boundary would be the northern waterway and would include
Kasikili Island in the Protectorate.” (Memorial of Namibia, IV,
Ann. 61, p. 271, emphasis added.)

53. It is known that, in spite of the suggestion by Major Trollope
regarding the northern channel, the Union of South Africa was reluctant
to admit that the northern channel was the main channel of the Chobe
River; see the letter of 12 June 1948 from the Secretary of Justice of the
Union of South Africa to the Secretary for External Affairs in Pretoria
entitled “Bechuanaland — Eastern Caprivi Zipfel Boundary”:

“The main channel is north of Kasikili Island whereas it is appar-
ently usually shown on maps as being south of the island. The map
referred to in the [1890] Treaty is not available to us, but assuming
that on that map also the main channel is shown as being south of
the island, the question arises whether there was not, before the con-

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clusion of the Treaty, a shifting of the main channel from the
southern waterway to the northern.” (Memorial of Namibia, IV,
Ann. 62, p. 277, emphasis added.)

54. In a letter dated 14 October 1948 from the Secretary to the Prime
Minister and for External Affairs of the Union of South Africa (respon-
sible for the area north of the Chobe River), to the Administrative Sec-
retary to the British High Commissioner for Basutoland, the Bechuana-
land Protectorate and Swaziland (responsible for the area south of the
Chobe River), it is stated that, as far as the former remembered, the
boundary had never been changed from the southern channel to the
northern channel. It seems that the issues between the two authorities
at that time were concerned with the transport of timber through the
northern channel of the Chobe River and the cultivation of Kasikili/
Sedudu Island by Caprivi tribesmen. While the Union of South Africa
was aware of the application for permission to transport timber by a firm
in Bechuanaland, its main concern was the continuation of the culti-
vation of the Island by the tribesmen of the Eastern Caprivi Strip. This is
shown by the following quotation from the letter:

“It is understood that the necessity for consideration of the matter
arises from the fact that a certain river transport venture, which pro-
poses to transport timber down the river from a sawmill in Bech-
uanaland has raised the question of the correct boundary both in
representations to the Magistrate, Eastern Caprivi Zipfel and to
the Bechuanaland authorities.

The Report discloses that while the main channel of the Chobe
River is shown on maps as passing to the South of Kasikili Island it
in fact passes to the North of that Island.

It has been confirmed, as a result of exhaustive enquiries, that
there has been no shifting of the main channel of the river from
South to North within living memory. The facts, therefore, point to
the maps being incorrect.

As against the foregoing there is evidence that the Island has been
cultivated by Caprivi Tribesmen since at least 1907 and that their
right to the occupation of the Island has at no time been disputed.

The Union Government is anxious to preserve the rights of the
Caprivi Zipfel tribesmen on the Island and it is understood that the
Bechuanaland authorities desire the use of the Northern channel for
navigation purposes. As there would appear to be no conflict of
interests it should be possible to come to an arrangement which is
mutually satisfactory.” (Memorial of Namibia, IV, Ann. 63, p. 280.)

The letter of 4 November 1948 of the Administrative Secretary to the

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British High Commissioner addressed to the Secretary of State for Exter-
nal Affairs in the Union of South Africa states that:

“I am directed by the High Commissioner for Basutoland, the
Bechuanaland Protectorate and Swaziland to inform you that the
Resident Commissioner of the Bechuanaland Protectorate has
directed the Assistant District Commissioner, Kasane, that tribes-
men of the Caprivi Zipfel should be allowed to cultivate land on
Kasikili Island, if they wish to do so, under an annual renewable
permit.” (Memorial of Namibia, IV, Ann. 64, p. 281.)

The letter of 14 February 1949 from the Secretary to the Prime Min-
ister and for External Affairs to the Chief Secretary to the British High
Commissioner on Basutoland, the Bechuanaland Protectorate and
Swaziland, sounded out the possibility of agreeing that the Island
should belong to the northern bank (South West Africa) but that the
navigation route should remain as the northern channel:

“From the available information it is clear that Caprivi Tribesmen
have made use of the Island for a considerable number of years and
that their right to do so has at no time been disputed either by
Bechuanaland Tribesmen or the Bechuanaland authorities.

It was further understood that the interests of the Bechuanaland
authorities centred in the use of the Northern Channel of the Chobe
for navigation purposes.

My object in writing to you was therefore to ascertain whether
agreement could not be reached on the basis of your Administration
recognising the Union’s claim to Kasikile Island subject to it issuing
a general permit for the use of the Northern waterway for navigation
purposes.” (Memorial of Namibia, IV, Ann. 65, p. 283.)

55. Ina letter of 6 June 1949 addressed to Lord Noel-Baker (Secretary
of State for Commonwealth Relations), the British High Commissioner
seems to have been ready to accept the proposal of the Union of South
Africa that the southern channel would constitute the boundary, as
shown by the following quotation:

“2. Part of that boundary is formed by the main channel of the
Chobe or Linyati River which runs eastwards into the Zambesi, and
divides the northern border of the Bechuanaland Protectorate from
a narrow strip of territory known as the Caprivi Zipfel. About
10 miles west of its junction with the Zambesi, the Chobe river
encloses Kasikile Island, a small strip of land about 1'/2 square
miles in area; this has hitherto been regarded as part of the Caprivi
Zipfel, since maps show that the main channel passes to the south
of the island.

3. The question of the correct boundary was raised by a firm
which intends to transport timber down the river, and the Union
Government, having examined the question, find that the main

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channel is to the north of the island, and that there has been no
change in the course of the channel within living memory. I enclose
a copy of a note provided by the Union Government which was
jointly recorded on the 19th January, 1948, by the Magistrate of the
Eastern Caprivi Zipfel and the District Commissioner of Kasane,
Bechuanaland Protectorate, together with a copy of the sketch map
mentioned therein.

4. The Resident Commissioner of the Bechuanaland Protectorate
considers that the Union proposal to set the boundary in the
southern channel need not be resisted, if the use of the northern
channel for navigation is guaranteed for the inhabitants and Govern-
ment of the Bechuanaland Protectorate. This guarantee the Union
Government are prepared to give.

5. I consider in the circumstances that the proposal of the Union
Government is acceptable, and would be glad to have your approval
of it.” (Memorial of Namibia, IV, Ann. 66, p. 284.)

*

56. This correspondence as referred to in paragraphs 54 and 55 above,
seems to indicate the readiness towards the end of the 1940s of the
Bechuanaland Protectorate to concede that the southern channel would
constitute the boundary if the transportation of timber could be con-
tinued by Mr. Ker through the northern channel. However, that sugges-
tion, addressed to Lord Noel-Baker, did not receive the approval of the
British Government.

After the exchange of letters between the Union of South Africa and
the Bechuanaland Protectorate, there was no progress at that time on the
issue concerning the boundary.

(5) The Occurrence of Incidents in 1984 after Botswana’s Indepen-
dence in 1966, and the Joint Survey Which Followed

57. On 25 October 1984 an incident took place in which a South Afri-
can patrol boat on the Chobe River was shot at by Botswana Armed
Forces (Memorial of Namibia, IV, Ann. 84, p. 329). This can be regarded
as the beginning of the territorial dispute between the two entities. At an
intergovernmental meeting held in Pretoria on 19 December 1984 (Memo-
rial of Botswana, HI, Ann. 50, p. 396) it was decided that a joint survey
should be undertaken to determine whether the main channel of the
Chobe River was located in the northern or the southern channel (Memo-
rial of Botswana, IIT, Ann. 48, p. 384).

In fact, the July 1985 report on the “Chobe River Boundary Survey:
Sidudu/Kasikili Island” suggested in conclusion: “The main channel of
the Chobe River now passes Sidudu/Kasikili Island to the west and to the

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1141 KASIKILI/SEDUDU ISLAND (SEP. OP. ODA)

north of it” (emphasis added). However no effort was made to find a
solution to the political issue, namely, the national boundary between the
powers to the north and south of the river.

*

58. The telex dated 22 October 1986 from “Pula Gaborne” Botswana
(responsible for the area south of the Chobe River) to “Secextern”
Pretoria (responsible for the area north of the Chobe River), referring to
the discussion held on 13 October 1986, states:

“It will be recalled that the Botswana side submitted that Sidudu/
Kasikili Island is part of the territory of Botswana, as confirmed by
the Botswana/South Africa joint team of experts which reported to
the two Governments in July, 1985. Pula wishes to inform Secextern
that the Government of Botswana has since occupied Sidudu/Kasikilt
Island and expects the Government of South Africa to respect the
sovereignty and territorial integrity of the Republic of Botswana in
respect of the island.” (Memorial of Botswana, III, Ann. 52, p. 406.)

The South African authorities suggested that a meeting be convened for
the solution of the problem. The exchange of communication ended with
a telex from the Botswana authorities dated 25 November 1986, which
read as follows:

“The joint Botswana/South Africa team of experts were never
asked to demarcate an international boundary but ‘to determine
whether the main channel of the Chobe River is located to the north
or south of Sidudu Island’. The joint team confirmed what had
always been the fact, namely that the main channel is located to the
north of the island, and that is where the boundary is.

It is therefore clear that adequate clarification of the matter has
been made to satisfy normal requirements and no further discussion
of the matter is necessary.” (Memorial of Botswana, Ann. 54,
p. 410; emphasis added.)

(6) What Does the Past Practice Indicate?

59. After an examination of certain incidents that occurred in the area,
as weil as the correspondence between the authorities of the northern
bank and southern bank and certain surveys conducted in the course of
the past hundred years, I conclude that the northern channel of the
Chobe River had been regarded, implicitly or explicitly, as the boundary
separating the authorities on the northern and southern banks, and that
Kasikili/Sedudu Island had been regarded as being under the authority of

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the south, despite the occasional use of the Island by tribespeople from
the northern side.

The Judgment, however, refers to these same past practices as if they
might serve to assist it in interpreting the 1890 Anglo-German Treaty as
provided for in the Vienna Convention on the Law of Treaties, and
the Court came to the conclusion that those practices were not in fact
capable of constituting “subsequent practice” or “subsequent agree-
ment” within the meaning of the Vienna Convention. I would emphasize
once more that in my view this case is not one directly related to the
application of the provisions of the Vienna Convention on the Law
of Treaties to the 1890 Anglo-German Treaty, to which latter Treaty
neither Botswana nor Namibia is a party.

I refer above to these past practices, as decisive factors in assisting the
Court to determine the course of the boundary in the Chobe River and,
hence, to determine the status of Kasikili/Sedudu Island as a part of the
territory of Botswana.

VI. CONCLUSION

60. I suggested at the outset that the compromis agreed by Botswana
and Namibia on 15 February 1996 and filed in the Registry of the Court
on 29 May 1996 was not clearly drafted, with the result that the Court
would not be able properly to ascertain the Parties’ real intention in sub-
mitting the “case” to it. The first thing the Court must do is to ascertain
whether the Parties wish it to determine the boundary between the two
States along the Chobe River or the legal status of Kasikili/Sedudu
Island. These two issues, rather than being complementary, may well be
contradictory. I suggested that the Parties might have been asked to
clarify their common position on the subject of the dispute.

61. The parties to the 1890 Treaty did not attempt to delineate the
boundary in the area of the Chobe River but wanted, by the use of the
words the “main channel” of the river, to separate their respective spheres
of influence taking into consideration the potential possibility of naviga-
tion along the Chobe River in order to have access to the Zambezi River.
In fact, the Chobe River has not been in the past and is not at the present
time used in any substantial way for the purpose of navigation. Thus the
words the “main channel of the Chobe River” may well today be under-
stood in the ordinary sense in hydrological terms. I regret that the Court
made no attempt to obtain the opinion of an expert regarding the main
channel of the Chobe River and relied instead on the opinions of experts
who were members of the Parties’ respective teams. I accept, however,
that the Court has determined the northern channel as the boundary in
accordance with the ordinary meaning to be given to the relevant terms
as it understands them and I have no objection to its findings on the
matter.

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62. 1 agree with the finding of the Judgment that “the rules and prin-
ciples of international law”, as a basis for determination of the boundary
and the legal status of the Island, have no significant role to play in this
case.

63. J would rather suggest that the past practices — the geographical
surveys and the correspondence between the authorities of the northern
and southern bank — which were indicated sufficiently in the Judgment
and of which I have also made an extensive analysis, are of themselves
the most important and decisive element in assisting the Court to deter-
mine that the boundary between Botswana and Namibia is located in the
northern channel and that Kasikili/Sedudu Island thus falls within the
territory of Botswana.

(Signed) Shigeru Opa.

102