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International Court of Justice

The International Court of Justice (ICJ), sometimes referred to as the World Court, is the primary judicial organ of the United Nations. It sits in The Hague, Netherlands and is composed of fifteen independent Justices from around the world. The ICJ is the only court in the world with general and near-universal jurisdiction; countries may bring cases before the Court even without becoming United Nations Member States, as long as both countries have consented to be subject to the Court’s jurisdiction. It may entertain any question of international law, subject to the provisions of its founding statutes.

The Court’s role is to examine international law and to settle legal disputes submitted to it by states. It also dispenses advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. Since 1946, the Court has heard more than 160 cases, including more than 25 advisory proceedings. ICJ opinions, unlike most national legal systems, do not create binding legal requirements on other United Nations Member States, and cases are generally treated independently of one another.

The Justices are nominated by regional groups and elected by the General Assembly and Security Council for nine-year terms. Justices must receive a majority vote in each body to be named to the Court, and one third of the Court is elected every three years. When a state is party to a case before the ICJ, it enjoys the right to appoint an ad hoc justice. The ad hoc Justice does not need to be from that State. The ad hoc Justice enjoys the same privileges and responsibilities as the other Justices, but his or her obligation is limited to proceedings in that case.

Unlike most other international organizations, the members of the Court are not representatives of governments; they are independent judges whose first duty is to exercise their powers impartially and conscientiously in the Court.

Proceedings before the Court can last for years, involving complex issues of international law as well as difficult political questions. The States party to the case submit pleadings, or memorials, in writing along with extensive records supporting their cases. The States also participate in oral arguments, which allow States to explore the case and respond to questions from the Justices. The Justices deliberate in private, then read the judgment in an open forum.

Common Types of Cases Common Types of Cases

The Court hears two types of cases. First, there are contentious cases between two States where there is a legal dispute and the States parties are bound to the Court’s decision. States may institute proceedings by mutual agreement or by unilateral application against a respondent State. This is different from the International Criminal Court, which hears cases against individuals for crimes such as genocide.

Many of the Court’s cases—historical and contemporary—are border or territorial disputes, where two States agree to let the ICJ decide where the border should be. Other cases are highly charged and quite political in nature. While the Court hears only legal questions, it is rare that the interpretation and application of the law operates entirely outside of the realm of political discourse, and in the international arena, this is especially true.

Second, the Court can issue advisory opinions on legal questions referred to it by other agencies, such as the Security Council or the General Assembly. This opportunity is open to the five major organs of the United Nations and 16 other specialized agencies. Unlike the rulings in contentious cases, advisory opinions are not binding on the parties that request the opinion; the organization is under no legal obligation to follow the Court’s recommendation. The Court requests written and oral proceedings for the case, although these processes may be truncated when compared to the process used for contentious cases.

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Structure of the AMUN ICJ Structure of the AMUN ICJ

In keeping with AMUN’s philosophy of simulating United Nations bodies as closely as possible, the AMUN ICJ closely resembles the ICJ in the Hague. The ICJ at AMUN is composed of student Justices who hear oral arguments, deliberate on the cases before them and collaboratively develop opinions of the Court. Students also participate as Advocates, presenting their case first in a written memorial and then in oral arguments, where they present their case in person and respond to questions from the Justices.

AMUN Registrars assist the Justices with any additional legal research the body may require and help facilitate the work of the Court through each of the three cases. Secretariat responsibilities also include researching cases for inclusion on the Court’s docket, preparing case briefs used as preparatory materials, memorials submitted to the Court, assisting in the preparation of the Court’s docket and providing any other assistance needed by ICJ Justices and Advocates.

The cases preselected by the AMUN Secretariat form the Court’s docket. This year the Court is deliberating three cases:

  • Passage through the Great Belt (Finland v. Denmark)
  • Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons (Italy, Marshall Islands, Netherlands, Qatar)
  • Kasikili/Sedudu Island (Botswana/Namibia)

Additionally, the General Assembly or the Security Council may submit a request to the Court for an Advisory Opinion on a topic of international law. The Secretary-General, with the advice of the Director of the ICJ, will decide whether to include additional cases on the Court’s docket. The Court is in session to hear arguments and develop opinions throughout the Conference.

The Justices should expect to spend the first session setting the docket, electing officers, determining the final procedures of the Court and reviewing the substantive issues in each case before the Court. The rest of Conference will be spent hearing cases, deliberating and rendering opinions on those cases.

Although the Secretariat strives to give the Justices as much freedom as possible in setting the docket, some restraints do exist in the interest of promoting a fair and equal experience for the advocates as well as the Justices. All advocates will receive an equal amount of time in the docket to present their arguments, respond to questioning and for deliberation among the Justices. Although advocates will not know the order of the cases and arguments prior to the first evening of the simulation, the Secretariat, in conjunction with the Justices, will strive to communicate the order as soon as it is set to the advocates. The docket is also published in the AMUN Chronicle. After the docket is set, the Court elects a President and Vice President by secret ballot. Their duties are to moderate and time the oral arguments and facilitate the closed deliberations.

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Joining the International Court of Justice Joining the International Court of Justice

Permanent Justices Permanent Justices

Justice positions are assigned by application on a first-come, first-served basis until the fifteen seats on the Court are filled. It is not a requirement for Justices to be a member of a delegation. Permanent Justices are full time Conference assignments, and representatives serving as Justices shall not be assigned to another simulation.

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Ad Hoc Justice Application and Role at Conference Ad Hoc Justice Application and Role at Conference

States involved in a case before the Court are strongly encouraged to place an Ad Hoc Justice on the Court if they do not already have a Permanent Justice. States wishing to do this may do so in two ways: (1) they may apply to be a permanent Justice (see above); or (2) they may appoint an ad hoc Justice. Ad hoc Justices sit on the Court only for the case in which their country is involved and must be assigned to another simulation. If States wish to appoint an ad hoc justice they must contact the Secretary-General and the Director of the International Court of Justice by 1 October by e-mailing Ad hoc Justices should, whenever possible, be paired with another representative in committee, so the State is fully represented in the committee while the ad hoc Justice participates in the Court’s proceedings.

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Advocates Advocates

Advocate positions are not full-time Conference assignments. ICJ Advocates are assigned as members of the delegations who have cases before the court. Generally, Advocates should expect to spend two to three hours presenting their case and hearing the Court’s opinion during the Conference. Advocates must also serve as representatives in another AMUN simulation or as a delegation’s permanent representative. ICJ Advocate teams are limited to two people. ICJ Advocates should, whenever possible, be paired with another representative in committee, so the State is fully represented in the committee while the Advocate participates in the Court’s proceedings.

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Preparation Preparation

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Preparing as a Justice Preparing as a Justice

Familiarizing yourself with the information provided in this handbook and on AMUN’s website is a key starting point to your preparations. Justices should familiarize themselves with the factual and legal disputes at hand, as well as the international treaties involved. Another helpful resource is previous ICJ opinions that are similar. While reading opinions, note the tone and style used by the Justices. Pay special attention to the way the Court addresses questions of jurisdiction; often this is the crux of the winning argument for the Court. Memorials written by the Advocates will be made available on the AMUN website in November as soon as memorials from all sides of a case are received by AMUN staff. Reviewing these resources is key to a successful experience.

Each Justice, while independent, will still have a roleplaying function. ICJ Justices retain their citizenship with the state their school represents at the Conference. Justices not affiliated with a delegation will be assigned citizenship with a state; while ICJ Justices are supposed to be independent advocates for the law, they often come to the Court with inherent biases based on their home country’s history, culture, religion and laws. Similar to the ICJ in The Hague, a Justice’s citizenship is important as it can sometimes cause a Justice to favor or side with the position advocated by their country of origin when that State comes before the Court.

All Justices will be expected to hear arguments and question the Advocates in all cases on the docket. Any Justice not present during the Court’s Oral Arguments may not participate in the subsequent deliberations and opinion writing for that case. After each case is argued, the Justices retire behind closed doors to deliberate and to draft the opinion of the Court. As per Article 25, paragraph 3, of the Statute of the Court, 60% of all Justices who were present for oral arguments shall suffice as quorum for deliberations. This number may be adjusted by the Director of the International Court of Justice as appropriate to facilitate the simulation. Justices discuss the case in depth, pulling from their research prior to the Conference, the Advocates’ memorials and the points raised during oral argument. If the Justices require any additional information, they are welcome to request that from the Registrars. Justices collaborate to write a majority opinion and as many concurring and dissenting opinions as the body requires. Justices use their persuasive writing and speaking skills to sway additional Justices to their position throughout the drafting process.

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Preparing as an Advocate Preparing as an Advocate

Advocates’ opportunity to present their case is twofold: written memorials and oral arguments. Advocates must thoroughly understand the legal principles that support, and those that oppose, their position, and be able to articulate them in the face of strict scrutiny from the Justices. The research and creation of an Advocate’s Memorial is one of the most important parts of preparation for an Advocate’s at-Conference role. Time spent thoroughly researching the Advocate’s State’s positions and arguments provides Advocates with the vital information necessary to respond to questions at Conference and helps them effectively craft a memorial to present their arguments to the court before the Conference.

Prior to oral arguments, Advocates have the opportunity to consult with an ICJ Registrar about their oral argument. To take advantage of the opportunity, Advocates should attend the Advocate meeting on the first evening of the Conference, where the Registrars will share information about the simulation timeline and give Advocates the opportunity to set up a practice session.

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Written Memorials Written Memorials

ICJ memorials should contain:

  • Jurisdictional statement and arguments (outlining whether your country recognizes the Court’s jurisdiction in this case)
  • Statement of facts (what are the relevant facts in the case?)
  • Statement of law (what treaties, customs or laws apply?)
  • Argument section (detailing how the law and facts apply to the merits of the case – how do the laws and facts support your case?)
  • Summary and prayer for relief (what do you want the Court to do?)

The Court does not require these sections to be in any particular order, although they are typically laid out in the order shown. As you draft your memorial, think carefully about how best to use these sections to your advantage to advocate your position.

The party bringing the case is called the Applicant. The defendant is called the Respondent. In an Advisory Opinion, each country is known as a Party. Due to time constraints, all Parties in any AMUN ICJ case must prepare their memorials without seeing the memorial of their opponent. However, each side should anticipate and seek to counter the arguments opposing Advocates might make. All memorials must be submitted by 25 October to the AMUN Secretariat at

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Oral Arguments Oral Arguments

Oral arguments provide Advocates with an opportunity to explain to the Justices the factual and legal merits of their case. In adversarial cases, the Applicant will argue first. The Respondent will then have the same amount of time to reply. Finally, the Applicant will have the opportunity to present a brief rebuttal. In Advisory Opinion cases, each Party will have a set amount of time to present their argument to the Court and for rebuttal, the order for which will be determined by the Justices on the first evening. Advocates presenting amicus curiae arguments will then be accorded no more than five minutes each to speak. The Justices will create the docket and define the amount of time for oral arguments. Advocates, with the exception of amicus curiae, should prepare between 10 to 20 minutes for arguments. The oral argument is not simply an opportunity to give a prepared speech; Justices often interject with multiple questions throughout the presentation. At least the first five minutes of each Advocate’s presentation will be uninterrupted, to allow each side the opportunity to freely present the key issues of their arguments. After the initial five minutes, the Advocates may continue with their presentations, but the Justices may also interject and question the Advocates on the merits of their case. Therefore, Advocates must be prepared to both answer questions and defend their positions. The following steps should be taken to prepare for oral arguments:

  1. Identify the critical issues in the case. You should try to have at least three main points to your argument.
  2. Develop a theme which incorporates your best arguments on the critical issues. Keep it simple. Remember, the best arguments are structured around a story that has a unified theme, which explains why your country has been wronged, and what the Court can do to provide a fair and just solution.
  3. Prepare an outline. The outline should include your theme, your best arguments on the critical issues, your responses to your opponent’s best arguments and ideas about answers to any other questions you think the Justices might ask. Try to make your memorial and oral argument outline consistent, so the first issue addressed in the memorial is the first issue addressed in the oral argument.
  4. Practice, practice, practice! There is no substitute for practicing oral arguments: your presentation is likely to be smoother and more persuasive. Have your Faculty Advisor or other students fire questions at you. Learn to field those questions and then transition back to the point you were making prior to the question.
  5. Learn proper courtroom demeanor. Remember to be polite and deferential to the Justices at all times. While argument is the method, persuasion is the goal.

Though each Advocate will have more than five minutes to present oral arguments, keep in mind that only the first five minutes of the presentations will be uninterrupted. Focus on the main points and key issues during the first five minutes. AMUN suggests that you follow a pyramid format; present the crux of the argument first and then use the remainder of the allotted time to expand on those issues in a more thorough and complete manner. This format can also allow for a quick means of referencing issues during the remaining period of presentation and questions. It is also wise to conclude the presentation by again summing up the key points.

Try to anticipate questions the Justices might ask and develop answers. Do not write out answers verbatim. Do, however, write out catch phrases or legal terms you will want to remember precisely. Simple, concise answers that repeatedly stress the same points are persuasive and will be remembered by the Justices. Oral arguments will involve extemporaneous speaking and responses, not the presentation of a memorized speech.

Outline the specific names of conventions, treaties and cases in your memorial and your outline. Your oral argument requires these citations to maintain your credibility with the Justices, and articulate the reasons your side of the case is stronger.

Note: Remember that the AMUN ICJ is a simulation. No one expects participants, who are not lawyers or Justices, to make presentations, decisions or render opinions with the same level of sophistication as actual ICJ Justices or Advocates. The participants’ job is to gain a basic understanding of what considerations are taken into account when presenting or presiding over a case and to prepare to argue their cases before the Court.

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Passage through the Great Belt (Finland v. Denmark) Passage through the Great Belt (Finland v. Denmark)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 1 June 1992. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

The Great Belt (Storebælt) is a strait of water that passes through Danish territory and is one of the few passages between the Baltic Sea and the North Sea. The strait allows for direct passage from the Baltic Sea to the North Sea and the international waters beyond. As the largest of these passages, it is an important shipping route for the region and allows Finland to engage in international transport and shipping. The strait also is one of the deepest of the Danish straits, and it is ideal for larger cargo vessels and oil rigs. The Kingdom of Denmark has proposed the construction of a bridge over the strait that would connect the Eastern Danish island of Zealand with the Western Danish island of Funen to facilitate simpler trade and commerce within the country. This bridge would be built to a height of 65 meters and would effectively prohibit the movement of larger ships through the strait, particularly the larger drill ships and oil rigs that pass through the strait on behalf of the Republic of Finland.

In accordance with Article 40(1) of the Statute of the International Court of Justice (Statute) and Articles 38 and 40 of the Rules of Court, the Republic of Finland filed an Application Instituting Proceedings against the Kingdom of Denmark in the International Court of Justice (Court) on 17 May 1991 objecting to Denmark’s planned construction of a bridge over the Great Belt. Additionally, Finland submitted a Request for the Indication of Provisional Measures (Request) to the Court on 22 May 1991 asking for provisional measures that would preserve Finland’s right to the “continued passage of ships, including drill ships and oil rigs coming to or from Finnish ports and shipyards, through the strait of the Great Belt between the Baltic and the North Sea.” These provisional measures would require Denmark to halt construction of the bridge over the Great Belt as well as any action that might “prejudice the outcome” of the Court proceedings until the decision of the Court has been issued. The Kingdom of Denmark responded in June 1991 with Written Observations relating to Finland’s Request. These observations outlined the details of the Great Belt Project, the law surrounding the requested provisional measures, and maps of the construction projects, water depths, and territorial boundaries around the Great Belt. 

The Republic of Finland and the Kingdom of Denmark mutually accept the Court’s jurisdiction in the initial Application by Finland and in the Written Observations by Denmark to the Court; therefore jurisdiction is not at issue for the Court for the purposes of this matter.

Historically, the Kingdom of Denmark had charged for ships passing through their waterways. Those dues were abolished by the 1857 Treaty of Copenhagen on the Abolition of the Sound Dues, and the straits of Denmark were labeled as international waterways. A century after the Treaty of Copenhagen, the Geneva Convention on the Territorial Sea and the Contiguous Zone entered into force on 10 September 1964, establishing the rights of a State in relation to its territorial sea. More specifically, Article 16, Paragraph 4 of this Convention does not allow for a State to suspend innocent use of straits used for international passage between high seas. 

The Republic of Finland relies heavily on the Great Belt for its maritime shipping industry, including movement of oil rigs and drill ships, for which other passages between the Baltic Sea and the North Sea are inadequate. Finland asserts there is no explicit international law that permits Denmark to erect a barrier to prevent ships with a height of 65 meters or more from passing through the strait. Finland acknowledges that Denmark has a territorial right to improve its sovereign waterways, but argues that this right is limited by other States’ right to free passage through the Strait. Finland requests that the Court declare they have a right to free passage through the Great Belt and that the construction of the bridge proposed by Denmark violates this right. 

The Kingdom of Denmark asserts that the proposed bridge will be of a sufficient height to allow for the average use of most nautical vessels, which would not prevent free innocent passage entirely. Additionally, Denmark argues that the purpose of this bridge is to connect two portions of the country of Denmark, facilitating the ease of transportation between the two land masses. Denmark claims that this bridge will not substantially impede other States’ right to free passage because there are alternate options, such as the Little Belt. Denmark posits that State sovereignty must be respected in any case when the rights of States are considered in relation to others’ rights in international law as demonstrated in the case of the S.S. Lotus in 1927. The Court must consider the extent of a State’s sovereignty in comparison to another State’s right of innocent passage under Article 16 of the Convention on the Territorial Sea and Contiguous Zone. In determining this, the Court must decide whether there is a right of free passage for all ships or whether passage is limited to a particular designation of ships. Furthermore, the Court must determine whether construction of the bridge as proposed by Denmark would be compatible with that passage.

Questions to consider:

  1. How does the Court balance the right to navigate international waters with the right of State sovereignty over its territorial waters?
  2. What obligations does a State have to observe in preserving the rights of another State traveling through their territorial waters?
  3. Does a State’s intent in use of international waters affect what rights are afforded to it?

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Bibliography Bibliography

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Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons (Italy, Marshall Islands, Netherlands, Qatar) Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons (Italy, Marshall Islands, Netherlands, Qatar)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 8 July 1996. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case. 

At its 15 December 1994 meeting, the United Nations General Assembly (GA) adopted resolution A/RES/49/75. Section K of the resolution “urgently” requested the International Court of Justice (Court or ICJ) issue an advisory opinion on the legality of the threat or use of nuclear weapons. This request was communicated to the Registry of the Court in a 19 December 1994 letter, and formally filed on 6 January 1995. The GA requested the Court answer: “Is the threat or use of nuclear weapons in any circumstance permitted under international law?”

Before the Court can respond to the question posed, it must first determine whether it has the jurisdiction to issue an advisory opinion on this matter. Initially, the Court had delayed any action when a similar question was asked of it by the World Health Organization (WHO) on 3 September 1993 due to serious concerns about whether the WHO had standing to request an advisory opinion of the Court. Opponents to a finding of jurisdiction argue that, as the General Assembly does not otherwise have the authority to create or enforce a ban on nuclear weapons, the body may have acted outside of its competency in referring a question “unrelated to its work” to the Court.

Proponents of jurisdiction argue that the question is one of a legal nature and therefore able to be heard, as the authority to ask “any legal question” of the Court is provided to the General Assembly by virtue of the Charter of The United Nations (Charter) and the authority of the Court to issue an advisory opinion on a legal question is provided by Article 65(1) of the Statute of the International Court of Justice (Statute).

Further, even if the Court finds a jurisdictional basis on which to consider the case, the Court must weigh whether it should issue an opinion on this complex and controversial topic of international peace and security, or whether it should exercise the latitude provided to it in the Statute of the Court (Statute) to render no opinion. Those arguing against jurisdiction, or at least against consideration, contend that the question is not only abstract and nonspecific, but also one of a moral and/or political nature, rendering the matter squarely outside of the Court’s competency.

Should the Court decide to render an opinion on this case, the Court must consider conventional and customary international law, as well as widely-ratified legal cornerstones like the Charter, the Fourth Geneva Convention’s provisions regarding the treatment and prevention of indiscriminate attacks on civilians, and the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its foundational discussions. Such tenets of international law may provide conflicting starting points for this question’s consideration, and the Court should investigate whether legal obligations vary depending on the actor’s intention. For instance, while Article 2(4) of the Charter explicitly forbids “the threat or use of force against the territorial integrity or political independence of any state,” Article 51 of the Charter protects against impediments to the “inherent right of individual or collective self defense… until the Security Council has taken the measures necessary to maintain international peace and security.” The Court may consider whether the proliferation of nuclear weapons may be allowable under these provisions for self defense, or whether these actions pose an inherent threat to the territorial integrity or political independence of a state or the humanitarian wellbeing of civilians worldwide.

Examining the impacts and applications of earlier non-proliferation and disarmament agreements such as the Partial Test Ban Treaty (PTBT), Outer Space Treaty of 1967 and the NPT may shed light on the international community’s legal foundations for attempts to eliminate the threat or use of nuclear weapons. The PTBT was a paramount example of cooperative attempts to gain assurance of international peace and humanitarian safety during the height of the Cold War, and entered into force in late 1963 as an agreement ratified by the United Kingdom, United States, the USSR and 126 States Parties. The PTBT followed decades of atmospheric, underground and oceanic testing of radioactive materials and sought to address growing international concern about the wide-reaching environmental and physical health effects of radioactive testing by reaching an ultimately comprehensive test ban. The treaty explains that its “principal aim [was] the speediest possible achievement of an agreement on general and complete disarmament under strict international control.” However, as not all newly-nuclearizing states at the time were party to this treaty, proliferation continued, and testing resumed even by ratifying states in an effort to protect their own national security interests.

The Outer Space Treaty was established by the General Assembly in 1967 in an effort to prohibit the militarization of and nuclear testing within outer space, as well as the installation of military equipment or weapons of mass destruction on any celestial body. The Nuclear Non-Proliferation Treaty entered into force in 1970 and was extended indefinitely in 1995 to address imbalances of power between nuclear and non-nuclear States Parties. The NPT resolved that non-nuclear-capable States Parties must not nuclearize, and that nuclear-capable States Parties must peacefully share their civilian nuclear capabilities with other states for the betterment of scientific advancement. The NPT represents the most major and effective effort to date to protect against the proliferation of nuclear weapons, encompassing almost all United Nations Member States as States Parties to the treaty. The PTBT, Outer Space Treaty and the NPT, in conjunction with the UN Charter, form the legal foundation of international regulation for nuclear weapons and must be carefully considered in any assessment of the legality of the use of nuclear weapons.

Through all of its considerations, the Court must bear in mind the obligations outlined in the Charter and apply these accordingly. First, the Court should examine whether any tenets of international law outline any circumstances in which the threat or use of nuclear weapons is either allowed or prohibited. The Court may also consider the situations in which the threat or use of nuclear weapons may occur (from deterrence to preemptive, first-strike capability) and weigh how the provisions for self defense delineated in the Charter, as well as other protections of customary international law, interact with efforts aimed at protecting humanitarian interests like the Geneva Conventions or non-proliferation agreements. Additionally, the Court may choose to consider whether any international obligations to disarmament exist

Questions to consider:

  1. How does the Court establish jurisdiction to render an opinion on this case? If the Court finds it has jurisdiction to issue an advisory opinion on this matter, should the Court exercise its latitude to decline to do so? 
  2. Are there any circumstances in which the use, or threat of use (deterrence), of nuclear weapons is allowable under international law? If so, which are these circumstances?
  3. Does the interpretation of “use” or “threat of use” versus “possession,” or any potential demarcations between these terms, have any bearing on legal applications found to be relevant by the Court?

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Kasikili/Sedudu Island (Botswana/Namibia) Kasikili/Sedudu Island (Botswana/Namibia)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 15 February 1999. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

The Chobe River delineates a portion of the border between the Caprivi Strip of Namibia to the north and Botswana to the south. The Chobe is home to a small island, about 1.5 square miles in size, referred to as Kasikili by Namibia and Sedudu Island by Botswana. The Chobe River, and specifically the island, is a popular tourist destination. Both Botswana and Namibia claim ownership of the island, giving rise to this dispute. 

The original claims to the island stem from a Special Agreement between the United Kingdom and Germany. The United Kingdom wanted to protect the south-north trade in the southwest of Africa, and Germany wanted the United Kingdom to recognize its access to the Zambezi river via the Caprivi Strip. Germany already had a large claim to Southwest Africa. The two countries worked out the Anglo-German Agreement of 1890 (Treaty) as a solution. This Treaty established their spheres of influence in Africa, determining inter alia the boundaries for Germany and the United Kingdom in Southwest Africa.

The British mandate ended in 1966 and the United Nations Council for Southwest Africa, later renamed the United Nations Council for Namibia, gave Namibia the authority to administer the Caprivi Strip. Botswana originally was the Bechuanaland Protectorate. In 1966, it gained independence and became known as Botswana. After their independence, Namibia and Botswana began disputing the island’s boundary and legal status. It is not disputed that the river is the border between these two countries; the dispute surrounds which leg of the river constitutes the border, as the river divides into two channels around the island, which is a popular tourist destination. The Namibian side, north of the island, contains the Caprivi Strip, named after the German chancellor when the Anglo-German Agreement of 1890 was signed. That strip is also within the floodplain of the Zambezi River.

Initially, the parties looked to the Treaty, which described the spheres of influence for the two countries. Debate over the contents and intention of the Treaty in its authentic text resulted in further deadlock as to who had authority over the island. The heads of each State agreed to refer the dispute to a Joint Team of Technical Experts composed of three experts delegated by each State. The team was tasked with determining the boundary between the countries at the site of the island and the island’s legal status. After conducting surveys and holding many discussions, they were unable to reach a conclusion. Instead, they recommended the parties submit the dispute to the Court for a peaceful settlement. Botswana and Namibia submitted a Special Agreement concerning a dispute over the boundary of the Chobe River and the legal status of the Kasikili/Sedudu Island to the International Court of Justice (Court) on 15 February 1996. Each party was allowed to file Memorial, Counter-Memorial, and Replies in anticipation of the litigation.

Botswana argues that the border between the countries follows the main channel of the river and that the northern channel meets internationally-accepted standards as the main channel; as a result, the island, which lies south of the main channel, is on the Botswanan side of the border. Botswana relies on the fact that the soundings of the northern channel are deeper than the southern channel. Additionally, Botswana argues that a number of factors should be considered when identifying the thalweg: which has the greatest depth and width, bed profile configuration, navigability, the greater flow of water, the greater flow velocity, and the greater volume? Finally, Botswana argues that the Northern Channel has twice as much flow as the Southern Channel. To support this argument, Botswana cites the Southern Channel’s low flow regime and its water levels during drought years.

Namibia, on the other hand, argues that the main channel must be identified before the parties can determine the Tthalweg. Namibia bases this argument on their interpretation of the German statement “im thalweg des hauptlaufes,” (the center runs through the main channel) arguing that the Hauptlauf, or main channel, must be identified before the Thalweg. In determining which channel is the main channel, Namibia argues that the largest proportion of the annual flow of the river should be the deciding factor. Additionally, it states that the greatest width, depth, and river use should be considered in making the main channel determination. Namibia argues that the shallowest point is what should be considered, not the mean. It then concludes that any differences between the points of the two rivers are minute. Finally, for flow, Namibia argues that the Southern Channel carries practically all of the flow and that the Northern Channel contains almost no longitudinal flow. Instead, Namibia argues the Northern Channel is just a relict channel of the Zambezi floodplain. 

Alternatively, Namibia posits that the Masubia people of Caprivi controlled and used the island, and that Botswana knew that and did nothing about it for almost a century. These points all relate to Namibia’s alternative argument of acquisition by prescription.

The International Court of Justice must determine: how to ascertain the boundary for the Chobe River, if the Northern or Southern Channel is the correct boundary for the Chobe River, and whether Botswana or Namibia retains the legal claim to Kasikili/Sedudu Island. To resolve those issues, the Court should consult the aforementioned 1890 Treaty, applicable rules and principles of international law, and the 1969 Vienna Convention. Though not controlling, the Court may also consider various maps dating to the time of the original division, figures and surveys.

Questions to consider:

  1. Considering the 1890 Agreement and the Vienna Convention, is the Thalweg, or the main channel, the first determination the Court must make to determine the island’s boundary and legal status, and what is the difference in putting the main channel or the Tthalweg first?
  2. Should the Court determine that metrics such as depth and flow are relevant to its determinations, how will the Court reconcile the inconsistent and contradictory surveys and maps developed throughout years of shifting power? How does the determination of a shallow or mean baseline affect that analysis?
  3. Can an argument for acquisition by prescription be considered in the International Court of Justice, and if it can, how does putting forward that argument impact the strength or relevance of Namibia’s other argument?

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Bibliography Bibliography

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