Botswana, Applicant v. Namibia, Respondant

Memorial of the Government of Botswana COMES NOW the Government of Botswana and for their Memorial to the Court states the following:

STATEMENT OF LAW 1) International Law applicable in this case appears in Article 31 of the Vienna Convention on the Law of Treaties of 1969, the 1890 Heligoland-Zanzibar Treaty signed by Great Britain and Germany as relates to the demarcation of borders as commonly understood in international law, and article 1 of the Special Agreement between Botswana and Namibia of 1996. 2) Specifically: a) Article 31 of the Vienna Convention on the Law of Treaties of 1969, which though neither state is a party to, is understood to be accepted by both parties as reflecting customary international law; b) Article 2, section 2 of the 1890 Heligoland-Zanzibar Treaty between Great Britain and Germany which states that the German sphere of influence in Southwestern Africa is demarcated by “the thalweg of the main channel until it meets the Zambezi”; c) Article 33, paragraph 3 of the Vienna Convention on the Law of Treaties of 1969, which though neither state is a party to is understood to be accepted by both parties as reflecting customary international law; d) Article 1 of the Special Agreement between Botswana and Namibia of 1996 which asks the Court to “determine, on the basis of the Anglo-German Treaty of 1 July 1890 and the rules and principles of international law, the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the island.”

STATEMENT OF FACT 1) On 1 July 1890 the governments of Germany and Great Britain concluded the Heligoland-Zanzibar Treaty (hereafter “The Anglo-German Treaty”) demarcating their spheres of influence in Southwest Africa. The Treaty is understood by both parties to demarcate the boundary between Botswana and Namibia around Sedudu Island. 2) In May 1992, the presidents of Botswana and Namibia issued a joint communiqué declaring that the dispute surrounding the demarcation of the border around Sedudu Island should be resolved peacefully. 3) In accordance with the 1992 communiqué, the governments of Botswana and Namibia agreed to sponsor the efforts of a Joint Team of Technical Experts in 1992 to determine the main channel of the Chobe River. The Joint Team conducted its measurements between September 1993 and August 1994 and released its findings on 20 August 1994. The Joint Team failed to reach a conclusive agreement on which channel constituted the main channel as determined by The Anglo-German Treaty. 4) As a result of the failure of the Joint Team to come to a conclusion, the governments of Botswana and Namibia agreed to request the Court to intervene and determine the border, resulting in the Special Agreement of 1996 between Botswana and Namibia.

THE JURISDICTION OF THE COURT 1) Article 1 of the Special Agreement between Botswana and Namibia of 1996 states that: “The Court is asked to determine, on the basis of the Anglo-German Treaty of 1 of July 1890 and the rules and principles of international law, the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the Island”

2) Article 3 of the Special Agreement between Botswana and Namibia of 1996 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 Statute of the International Court of Justice”

3) Article 36, paragraph 1 of the Statute of the International Court of Justice, which states “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”

4) Article 38, paragraph 1 of the Statute of the International Court of Justice, which states “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. “

5) Therefore, Botswana feels that the Court has jurisdiction over the present dispute between Botswana and Namibia in accordance with articles 1 and 3 of the Special Agreement between Botswana and Namibia of 1996 and Article 36, paragraph 1 and Article 38, paragraph 1 of the Statute of the International Court of Justice.

ARGUMENTS 1) Article 31, paragraph 1 of the Vienna Convention on the Law of Treaties stipulates that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Additionally, Article 33, paragraphs 1 and 3 of the same Convention state that “when a treaty has been authenticated in two or more languages, the text is equally authoritative in each language” and “the terms of the treaty are presumed to have the same meaning in each authentic text.” Therefore, because the terms “thalweg” and “centre of the channel” are used interchangeably in the German and English versions of the text, it can be assumed that the terms of the treaty were conceived in good faith and in accordance with Article 31, paragraph 1 and according to Article 33, paragraphs 1 and 3, the terms have the same meaning in each authentic text and, thereby, as applicable to this case. 2) The criteria that should be used to determine the main channel of the Chobe River include mean depth, shallowest point, mean width, channel capacity, flow velocity, volume of flow, and historical use. 3) The northern channel of the Chobe River clearly represents the main channel of that river based on basic bathymetric measurements of depth, shallowest point, mean width, channel capacity, flow velocity, and volume of flow. 4) Historical use clearly points to the northern channel as being considered the main channel due its greater navigability. 5) The curving of the southern channel near Sedudu Island is representative of a meander that is typical throughout sections of the Chobe River further west beyond Sedudu Island where the main channel splits off and runs to the north. These meanders are considered to not occur in the main channels of rivers, and as such the northern channel must be considered the main channel of the Chobe River around Sedudu Island. 6) Botswana requests that the Court decide that the northern channel of the Chobe River be considered the main channel and therefore the channel referred to in the 1890 Anglo-German Treaty in accordance with international law and therefore requests the Court to decide that the northern channel of the Chobe River constitutes the demarcated border between Botswana and Namibia.

SUMMARY AND PRAYER FOR RELIEF 1) The government of Botswana asks the Court, pursuant with its jurisdiction in the case as outlined in Articles 1 and 3 of the Special Agreement of 1996, Article 36, paragraph 1, and Article 38, paragraph 1 of the Statue of the International Court of Justice, to find that the northern channel of the Chobe River that runs north and west of Sedudu Island constitutes the main channel of the Chobe River and therefore should be considered the demarcated boundary between Botswana and Namibia based on the 1890 Anglo-German Treaty and the 1996 Special Agreement.