By: Hannah Holmberg, AMUN Staff

Botswana and Namibia presented arguments before the Court on Sunday, 20 November 2023 regarding the boundary between the two countries and the legal ownership of the disputed Kasikili/Sedudu Island. Botswana argued that the Northern Channel was the main channel and contained the thalweg due to its greater navigability, depth, and width. As such, Botswana argued they retained ownership of  Kasikili/Sedudu Island. Namibia countered that the Southern Channel was the main channel and contained the thalweg due to the Northern Channel’s floodplain topography and the downstream flow of the Southern Channel. Additionally, Namibia argued their exercise of continuous sovereignty and Botswana’s inaction in relation to challenging that sovereignty strengthened their ownership claim to Kasikili/Sedudu Island.

The Majority Opinion, signed by Justices Avva of Venezuela, Barness of Malta, Damron of Cypress, Dorsch of Costa Rica, Gomez of Mozambique, Hakim of The Russian Federation, Koziolek of Australia and Policastro of Ghana, opined authority over Kasikili/Sedudu Island to Botswana. Additionally, they determined that the Northern Channel of the Chobe River is the main channel, citing several surveys, joint reports, and delegation meetings where the respective authors and speakers supported the Northern Channel as the main Channel. Additionally, the Majority referenced the thalweg as being located in the main channel, the Northern Channel. In determining the Northern Channel as the main channel they outlined its greater depth, width, flow and navigability compared to the Southern Channel. Further, the Majority dismissed Namibia’s prescriptive title argument, remarking that the absence of a formal and official declaration of occupation was more controlling than Namibia’s historical use of the island. Concluding their opinion, the Majority ordered that the native Masubians maintain their right to residence on the Kasikili/Sedudu Island and recommended continued cooperation between the two Republics.

In the first Dissenting Opinion, signed by President Patel of Mexico, Vice President Kalla of the Netherlands, and Justices Farooqi of Qatar and Jimenez of India, the Dissenters recognized the Southern Channel as the main channel. In coming to this determination, they remarked that relying on the flow, navigability, depth, width, and bed profile to determine the main channel would be a misrepresentation of the Anglo-German Agreement of 1890. They asserted the Agreement did not clearly delineate which channel was the main channel or the thalweg. Instead, they cited an objective and subjective element of customary international law to determine the main channel. For the objective element, the Dissenters referenced Botswana’s pattern of behavior in not claiming sovereignty over the Kasikili/Sedudu Islands for a substantial duration. As for the subjective element, the Dissenters outlined the maxim uti possidetis juris and its passing of title from colonial powers to newly sovereign states, specifically tying this maxim to the United Nations demarcating the Southern Channel as the pre-colonial border. Concluding and in spite of their determination of the Southern Channel as the Republic’s boundary, the Dissenters asserted inter alia the indigenous community’s unequivocal right to self-determination.

For the second Dissent, signed by Justice Cox of Cyprus, the Dissenter affirmed the Southern Channel as the main channel and as follows affirmed Namibia’s claim to Kasikili/Sedudu Island. In their opinion, the Dissenter asserted that Botswana’s argument that the Northern Channel is the main channel due to its greater depth, width, and thalweg is a misrepresentation of the river and the main channel, mentioning that Botswana did not account for the fluctuations in the depths and flows of the channels. In remarking that the main channel must be determined first and is an independent component that the thalweg is dependent on, the Dissenter asserted the Southern Channel was the main channel citing its greater proportion of longitudinal flow. In determining that longitudinal flow was the determinative factor, the Dissent also mentioned the Northern Channel flooding for a large portion of the year. Concluding, the Dissenter opined that the application of uti possidetis concerning the ethnic Namibian’s claims to Kasikili/Sedudu Island is unfounded because both countries agreed to adopt the Anglo-German Agreement and, as such, should rely on that treaty and not other, irrelevant legal maxims.

The final Dissent, written and signed by Justice Lercher of Namibia, opined that the Southern Channel is the main channel. Coming to this determination, the Dissenter first cited the Southern Channel’s more consistent and substantial flow. Then, the Dissenter remarked that the Anglo-German Treaty’s original intent directs us to define the Southern Channel as the main channel due to its stability and consistency in helping to establish a more permanent border between the Republics. Next, the Dissenter determined that uti possidetis governs this case, citing the Masubian tribes of the Republic of Namibia’s sustained occupation of the Kasikili/Sedudu Island and the lack of evidence that Botswanian Peoples inhabited the island. In concluding, the Dissenter also attributed Namibia’s ownership of the island to their exercise of exclusive sovereignty over the island without challenge from Botswana in line with the Doctrine of Prescriptive Title.

While the Court aims for consensus building, complex territorial disputes require particularly close attention to the diverse and complicated arguments, often tinged by the vestiges of colonial disputes, posited by parties to the case. The Court engaged in careful consideration of each argument before them to determine their findings in this case.

_{*The views and opinions expressed in this article were part of a simulation of the United Nations held from 18 to 21 November 2023 and do not reflect the views and opinions of the American Model United Nations Conference, American Model United Nations International, LLC. or the governing bodies of the states mentioned in the article.}