Case concerning Kasikili/Sedudu Island Botswana/ Namibia

1890 a treaty between UK and Germany was signed respecting the spheres of influence in the two countries in Africa. The dividing line was in the centre of ‘main channel’ of the River Chobe, however a disagreement exist regarding the boundaries of the Kasikili/Sedudu island, and the legal status of the Island. 1996, by special agreement the two states refer the question to the ICJ (18) neither Botswana nor Namibia are parties to the VCLT, but both of them consider art 31 (interpretation) is applicable inasmuch as it reflects CIL (34) Parties agree that the flow, volume of water carried, plays an important role in determining the main channel (40) Court: main channel is the part of the Chobe that offers more favourable conditions for navigation

(41) Court: in accordance with the ordinary meaning of the terms the provisions of the 1890 treaty, the northern channel of the river chobe around Kasikili/Sedudu Island must be regarded as its main channel. (43) the court will now consider how and to what extent the object and purpose of the treaty can clarify the meaning to be given to its terms. [treaty was to determine spheres of influence and navigation was important, and that was the reason to put ‘centre of the main channel’] (46) The travaux preparatoires are of particular support to this reasoning. (47,51) the parties made abundant referenced to the subsequent practice of the parties and interpretative agreements to the 1890 Treaty as an element of interpretation. (74) [people from the north established in the island for long time] to establish practice two criteria: occupation of the island was linked to a belief of the authorities (of the south) that the boundary laid down in the treaty followed the southern channel of the Chobe, and that the authorities (of the north) were fully aware of and accepted this as confirmation of the treaty boundary. (75) peaceful and public use of the island over a period of many years by the (people from the north Masubia) does not constitute ‘subsequent practice’