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World Court Digest

II. Substantive International Law - Second Part

¤ Kasikili/Sedudu Island
Judgment of 13 December 1999

[pp. D.O. Weeramantry] 91. A court reaching such a conclusion as that Kasikili/Sedudu Island belongs to Namibia cannot end its responsibilities with the mechanical exercise of a geometric delineation of boundaries on the ground.

I have already advanced the illustration of a sacred site which is one and entire, but which may need to be divided in two if merely geometrical considerations are to be followed. Likewise, a village may be separated from a grazing ground which for centuries had been integral to it, or the village itself may be divided into two parts whose residents thus became citizens of two different States, however closely they may be connected. It would be a diminution of a court's inherent jurisdiction if it were expected in such hypothetical circumstances to turn its glance away from these very real and vital problems and proceed with the task of delineation as if it were a purely geometrical exercise. Charged as it is with the application of equity to the problem before it, a court would not proceed in this fashion.

If there is a natural reserve which, in the interests of the ecosystem and of biological diversity cannot be divided without lasting damage, this is a factor which the Court can no less ignore than a sacred site or archaeological preserve which must be maintained in its integrity if it is to be preserved.

92. There is more than one way in which equitable considerations can be given effect in such situations.

One is that the Court should consider itself empowered to make a slight deviation from the strict geometric path indicated by the boundary treaty, but always preserving a balance between the entitlements of the two parties to the enjoyment of this precious asset.

Another is to constitute, in the larger interests of both parties and indeed of the world community, a joint régime over the area so that neither party is deprived of its use. In this category, a multitude of possibilities and precedents are available which I shall briefly consider later.

93. I may observe here that the division of a sacred site or ecological preserve into two discrete portions is a procedure likely to produce tension between the Parties in the future, as that which was considered to be a common resource on both sides of the border is then available to neither Party, and the entire asset is under risk of destruction through the process of division. Indeed, in an extreme case, as where a geometrical line of partition passes through the most holy place of a sacred site, the imperative need for such discretion on the part of the Court is obvious.

That the Court has such a power, and indeed a duty in an extreme case, is thus beyond dispute. Whether a given situation is an appropriate one for the use of its equitable power is a matter for the Court's discretion.

In the present state of recognition of the importance of ecological considerations, and having regard to the importance of this natural reserve as stressed to us by both Parties at the oral hearings, a decision in favour of Namibia would trigger the exercise of such discretion.