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| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.6. | Invalidity |
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Kasikili/Sedudu Island
(Botswana/Namibia)
Judgment of 13 December 1999
[p. D.O. Fleischhauer] 9. In placing hopes in the expected navigational use of the Chobe River, the parties were in error; the context in which they perceived the "main channel of that river"/"Hauptlauf dieses Flusses" was unreal. We know now, more than hundred years after the conclusion of the Treaty, that the river has not been used, and is not usable, for larger-scale navigation. This is mainly due to the fact that if there was a fully navigable part of the Chobe, it would run from nowhere to nowhere, i.e., from some point upstream from Kasikili/Sedudu Island to the point where - downstream from the Island - the Mambova Rapids block navigation. But also the particular hydrological conditions prevailing in the Chobe in the area around Kasikili/Sedudu Island would not permit full navigational use of the river there. This is supported by the fact that while an attempt at lumber floating was undertaken by Mr. Ker in 1947-1948, the Court has not been informed that this attempt was repeated after Mr. Ker's first experience. The Zambezi Queen is not operated an a regular schedule but is moored in the northern channel as a floating hotel. The only navigational activity which has ever, in a sustained way, been carried out on the River Chobe, is the operation of the tourist flatboats that has taken place, for some time now, mainly in the southern channel, as the Island is becoming known as a major wildlife feeding ground readily accessible to safe viewing by tourists who mainly come from Botswana. The parties to the Treaty were thus in error when they drafted the Treaty in the expectation of larger-scale navigational usability of the Chobe, in particular in giving access to the Zambezi.
The error with which the Court is confronted here is not an error "in a treaty" as dealt with by Article 48 of the Vienna Convention on the Law of Treaties, which one State party to the treaty wishes to invoke "as invalidating its consent to be bound by the treaty". It is rather an error in motivation which led to the use of the term "main channel of that river"/"Hauptlauf dieses Flusses" in Article III (2) of the 1890 Treaty, an error made by both parties to the Treaty. The question that arises does not concern the validity of the consent to be bound by the Treaty; the error rather raises the question whether a mistaken expectation of the parties when they drew up the Treaty can still serve, more than 100 years after the conclusion of the Treaty and a long time after the error has become clear, in the interpretation of the Treaty.
In the circumstances of the present case, the interpretation of the term "main channel"/"Hauptlauf dieses Flusses" based on the mistaken expectation of large-scale navigational usability of the Chobe cannot be held against Namibia because that would mean that Namibia alone would be burdened with the consequences of the error. The flatboat navigation connected to the tourist activities that have evolved on and around Kasikili/Sedudu Island is concentrated in the southern channel. Interpretation of the term "the main channel of that river"/"Hauptlauf dieses Flusses" in favour of the northern channel would deprive Namibia from having an equitable share in the only navigational use of the Chobe there is to share. That would run directly counter to the intention of the parties to split the river evenly. Therefore the interpretation of the term "main channel of that river"/"Hauptlauf dieses Flusses" in favour of the northern channel would not be compatible with the principle of good faith which, according to Article 31, paragraph 1, of the Vienna Convention, governs all treaty interpretation. Interpretation of the term "main channel of that river"/"Hauptlauf dieses Flusses" in favour of the southern channel, however, would correspond to what the parties wanted to achieve regarding the River Chobe. It would be a good faith interpretation of the term because it would split evenly between the Parties the only channel that is of some navigational interest.
