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World Court Digest



III. The International Court of Justice
2. THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
2.4. Jurisdiction on the Basis of a Special Agreement

¤ Kasikili/Sedudu Island
(Botswana/Namibia)
Judgment of 13 December 1999

[p. ] 93. The Court notes that under the terms of Article I of the Special Agreement, it is asked to determine the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the Island "on the basis of the Anglo-German Treaty of 1 July 1890 and the rules and principles of international law". Even if there had been no reference to the "rules and principles of international law", the Court would in any event have been entitled to apply the general rules of international treaty interpretation for the purposes of interpreting the 1890 Treaty. It can therefore be assumed that the reference expressly made, in this provision, to the "rules and principles of international law", if it is to be meaningful, signifies something else. In fact, the Court observes that the expression in question is very general and, if interpreted in its normal sense, could not refer solely to the rules and principles of treaty interpretation. The restrictive interpretation of this wording espoused by Botswana appears to be even less well-founded, in that Article III of the Special Agreement specifies that "[t]he rules and principles of international law applicable to the dispute shall be those set forth in the provisions of Article 38, paragraph 1, of the Statute of the International Court of Justice". This wording shows that the Parties had no intention of confining the rules and principles of law applicable in this case solely to the rules and principles of international law relating to treaty interpretation.

In the Courts view the Special Agreement, in referring to the "rules and principles of international law", not only authorizes the Court to interpret the 1890 Treaty in the light of those rules and principles but also to apply those rules and principles independently. The Court therefore considers that the Special Agreement does not preclude the Court from examining arguments relating to prescription put forward by Namibia.

[pp. S.O. Kooijmans] 4. In my opinion the Court's conclusion with regard to the legal Status of the Island should, however, not have been based simultaneously upon the consideration that the correctness of Namibia's claim that it has title to Kasikili/Sedudu Island not only on the basis of the 1890 Treaty, but also, in the alternative, on the basis of the doctrine of prescription, has been insufficiently established by Namibia and that this claim, therefore, cannot be accepted (paras. 99 and 101 of the Judgment).

5. I do not disagree with the Court's analysis of this claim nor with its evaluation of the evidence adduced by Namibia to support it; in my opinion, however, this claim should have been declared inadmissible right away.

6. In the written and oral proceedings Namibia has claimed that there is an alternative ground - entirely independent of the terms of the 1890 Treaty - by which it is entitled to sovereignty over Kasikili/Sedudu Island, viz. prescription, acquiescence and/or recognition. It contended that the Special Agreement, by referring in its Article 1 to the rules and principles of international law, explicitly or implicitly allowed the Court to apply the doctrine of acquisitive prescription as a separate ground for Namibia's sovereignty over the Island.

7. For its part, counsel for Botswana maintained that it would be "contrary to common sense to presume that the general reference to 'the rules and principles of international law' should prevail over the reference to a specific international agreement which defines the boundary in question" (emphasis in original).

8. The Court is of the view that the reference in the Special Agreement to the "rules and principles of international law" not only authorizes the Court to interpret the 1890 Treaty in the light of those rules and principles but also to apply them independently and that, consequently, the Special Agreement does not preclude the Court from examining arguments relating to prescription (para. 93).

9. With all due respect, I do not find the Court's reasoning persuasive. The fact that Article III of the Special Agreement states that the rules and principles of international law applicable to the dispute shall be those set forth in the provisions of Article 38, paragraph 1, of the Court's Statute can hardly be called enlightening; it only refutes – as the Court correctly states – Botswana's argument that the Special Agreement allows the Court to apply only the rules and principles of international law concerning treaty interpretation.

10. But this reference in Article I, as specified in Article III of the Special Agreement does not add anything to what the Court is not already entitled to do by the Statute. In the case of Continental Shelf (Tunisia/Libyan Arab Jamahiriya) the Court stated:

"While the Court is, of course, bound to have regard to all the legal sources specified in Article 38, paragraph 1, of the Statute of the Court in determining the relevant principles and rules applicable to the delimitation, it is also bound, in accordance with paragraph 1 (a), of that Article, to apply the provisions of the Special Agreement." (I.C.J. Reports 1982, p. 38, para. 23).

11. In the Special Agreement the Parties ask the Court to determine, on the basis of the 1890 Treaty and the rules and principles of international law – without dissociating the latter from the former – the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the Island – again, without dissociating the latter from the former.

In my opinion, therefore, the Special Agreement precludes the Court from applying the rules and principles of international law independently of the Treaty. It is the Treaty which determines the boundary. Without interpreting and applying the Treaty the Court is not able to determine the boundary and the legal status of the Island as it is requested to do by the Special Agreement.