Botswana is located in southern Africa, directly north of South Africa. It is a landlocked nation surrounded by Namibia, Zimbabwe, and South Africa.
Botswana has no appreciable maritime force. It does have a small riverine contingent attached to the Ground Forces, which is equipped with several small craft for patrol, antipoaching, and transport missions.
In the 1990s Botswana had a border dispute with Namibia, with whom it shared both a long sandy western border and a riverine northern border. It is at the very tip of the northern border, almost at the point on the map where Namibia, Botswana, and Zambia meet, that Botswana and Namibia contested a tiny island, usually occupied by grazing hippopotamuses. Botswana's military had a hut there. Namibians set foot there regularly. Both sides patrolled by boat, but the Chobe River washed the island from all sides and, in the wet season, floods it.
The history of the dispute between the Parties was set against the background of the nineteenth century race among the European colonial powers for the partition of Africa. In the spring of 1890, Germany and Great Britain entered into negotiations with a view to reaching agreement concerning their trade and their spheres of influence in Africa. The resulting Treaty of 1 July 1980 delimited inter alia the spheres of influence of Germany and Great Britain in south-west Africa; that delimitation lies at the heart of the present case.
In the ensuing century, the territories involved experienced various mutations in status. The independent Republic of Botswana came into being on 30 September 1966, on the territory of the former British Bechuanaland Protectorate, while Namibia (of which the Caprivi Strip forms part) became independent on 21 March 1990.
Shortly after Namibian independence, differences arose between the two States concerning the location of the boundary around Kasikili/Sedudu Island. In May 1992, it was agreed to submit the determination of the boundary around the Island to a Joint Team of Technical Experts. In February 1995, the Joint Team Report, in which the Team announced that it had failed to reach an agreed conclusion on the question put to it, was considered and it was decided to submit the dispute to the International Court of Justice for a final and binding determination.
The law applicable to the case has its source first in the 1890 Treaty, which Botswana and Namibia acknowledge to be binding on them. As regards the interpretation of that Treaty, the Court notes that neither Botswana nor Namibia are parties to the Vienna Convention on the Law of Treaties of 23 May 1969, but that both of them consider that Article 31 of the Vienna Convention is applicable inasmuch as it reflects customary international law.
This located the dividing line between the spheres of influence of the contracting parties in the "main channel" of the River Chobe; however, neither this, nor any other provision of the Treaty, furnishes criteria enabling that "main channel" to be identified. It must also be noted that in the English version refers to the "centre" of the main channel, while the German version uses the term "thalweg" of that channel (Thalweg des Hauptlaufes). Observing that Botswana and Namibia did not themselves express any real difference of opinion on the meaning of these terms, the Court indicates that it will accordingly treat the words "centre of the main channel" in Article III, paragraph 2, of the 1890 Treaty as having the same meaning as the words "Thalweg des Hauptlaufes".
The real dispute between the Parties concerned the location of the main channel where the boundary lies. In Botswana's view, it is to be found "on the basis of the thalwegs in the northern and western channel of the Chobe", whereas in Namibia's view, it "lies in the centre (that is to say thalwegs) of the southern channel of the Chobe River". By introducing the term "main channel" into the draft treaty, the contracting parties must be assumed to have intended that a precise meaning be given to it. For these reasons, the Court indicates that it will therefore proceed first to determine the main channel. In so doing, it will seek to determine the ordinary meaning of the words "main channel" by reference to the most commonly used criteria in international law and practice, to which the Parties have referred.
The International Court of Justice, which by the terms of the Joint Agreement between the Parties was empowered to determine the legal status of Kasikili/Sedudu Island, concluded 13 December 1999 that the boundary between Botswana and Namibia around Kasikili/Sedudu Island follows the line of deepest soundings in the northern channel of the Chobe. Since the Court did not accept Namibia's argument on prescription, it follows that Kasikili/Sedudu Island forms part of the territory of Botswana. The Court found that in the light of the provisions of the Kasane Communique, that the Parties had undertaken to one another that there shall be unimpeded navigation for craft of their nationals and flags in the channels of Kasikili/Sedudu Island. As a result, in the southern channel of Kasikili/Sedudu Island, the nationals of Namibia, and vessels flying its flag, were entitled to, and shall enjoy, a treatment equal to that accorded by Botswana to its own nationals and to vessels flying its own flag. Nationals of the two States, and vessels, whether flying the flag of Botswana or of Namibia, shall be subject to the same conditions as regards navigation and environmental protection. In the northern channel, each Party shall likewise accord the nationals of, and vessels flying the flag of, the other, equal national treatment.
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