International Report: Carry on up the Chobe
What happens when two nations cannot agree over their borders? Chris Hackford explains the delicate legal process involved when two nations clashed over ancient territorial rights
International public law is not an area that commercial law firms devote very much attention to, but it can be fascinating and rewarding. DJ Freeman has been involved in two recent cases that demonstrate the complexity and challenges it can throw up. The first case concerned the title to an island in the Chobe River, a tributary of the Zambesi. Professor Ian Brownlie QC headed the international team of counsel representing the Government of Botswana before the International Court of Justice at last Spring’s hearings of the ‘Case concerning Kasikili/Sedudu Island, Botswana/Namibia’. Namibia claimed that Sedudu Island was part of the Caprivi Strip, belonging to Namibia by virtue of a treaty of 1890 between the UK and Germany. The treaty gave the Caprivi Strip to the German Empire, which was pursuing a new colonial policy and trying to establish its ‘place in the sun’. The German aim was to build a network of river communications across the difficult interior of Africa from the Atlantic Ocean to the Indian Ocean. Given that in the dry season water levels in the Chobe fall quite low, the Germans were mistaken in their belief that the Chobe might be used for these purposes.The treaty stated that the boundary between what was German South West Africa and the British Bechuanaland Protectorate lay in the ‘main channel’, leaving the island (which Namibia calls ‘Kasikili’) in the Namibian Caprivi Strip. The Strip is inhabited mainly by the Masubia people, and the Namibians laboured in court to establish historic links between Masubia and ‘Kasikili Island’. Botswana contended that the main channel has always run around the northern side of the island, and regards the island as an integral part of the Chobe Game Reserve.A huge body of documentary evidence was presented to the court in both its working languages: English and French. Most of it was filed in the form of memorials, counter-memorials and replies, complete with atlases, filed by parties in the months before the oral hearings. The evidence included a considerable body of cartographic, hydrological, ethnographical, historical and legal submissions, together with a series of fascinating early maps and some entertaining photographs, notably of elephant and hippo who seemed shamefully oblivious to the need to carry passports.Oral hearings took place at The Hague in early 1999 and this stage lasted for three weeks. Speeches were made on behalf of Botswana by Mr Louis Selepeng for the Government; the Agent for Botswana at the Court, Mr AB Tafa; Brownlie QC; Lady Fox QC; German Counsel Dr Stefan Talmon; and by technical experts. Namibia fielded an even larger team of speakers, some of whom addressed the court in French.The proceedings of the court are measured, formal and leisurely (at least compared with the English commercial court). This is inevitable, considering the major international importance of some of the issues the court has had to decide and the need to be seen to be impartial and representative of the various legal traditions that exist around the world.For these reasons the full Bench consists of 15 judges from a range of jurisdictions around the world. (The court contained two ad hoc judges in the Nigerian/Cameroon case). The 15 permanent judges are elected by the General Assembly of the United Nations – many are prestigious practitioners in their own right.The court tends to proceed mainly by consensus. Judges who do not agree with the majority use the opportunity that exists under the rules to issue minority and dissenting judgments.It is very rare for the court to interrupt the oral presentations of the parties, and no attempt was made to do so in the Botswana case. However, at the end of the oral hearings, the court collectively, and several judges individually, did put a number of questions (no less than 31 in all) to both sides. This procedure, although normal, is not altogether a happy one, and is perhaps worthy of particular attention for the light it sheds on the constraints under which the court operates.The parties are not expected to reply to such questions on the spot. As is usual, they were given several weeks to file written answers. In this case, both sides filed voluminous documents by way of answer. These further documents were submitted to the court after the oral hearings had in fact been completed, and without either side having the opportunity to comment on the answers filed by its opponent. This is not satisfactory, particularly if it happens in a case where the court considers the answers to its specific questions to be determinative of one or more of the issues it has to decide. In Botswana/Namibia, Botswana’s volume of answers comprised 50 pages of text and about 150 pages of supporting documentation in 20 annexes. Namibia’s answers were equally voluminous.In December 1999, solid legal merit and the measured wisdom of the Botswana Government won the day. Judgment was given unequivocally in favour of Botswana.
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