botswana/namibia - Cour international de Justice

637. II. It can fairly be accepted, as did the 1985 Joint Survey Team, that "disparity in the
depiction of the boundary between the South African maps and those of Botswana" was
probably a contributory factor to the 1984 border dispute. Maps, as that Joint Team found,
were of little assistance in the determination of the location of the boundary in the Chobe
River in accordance with the terms of Article III of the Anglo-German Agreement.
638. III. There is a direct conflict between the map evidence and the scientific evidence
presented by Namibia. According to Professor Alexander the main channel of the Chobe only
functions during the five months of the wet season and the period of flood is the relevant time
to determine the main channel. Since all the available maps were made in the dry season they
are irrelevant. In any event they directly contradict Professor Alexander's thesis by showing
two channels and not one located in a 'broad band' across Kasikili/Sedudu.
639. IV. No version of the 1889 map was annexed to the Agreement. The Court has,
therefore, in determining the main channel, to construe the text of the 1890 Anglo-German
Agreement on its own.
640. V. With one exception, no map subsequent to the 1890 Agreement evidences either an
'agreement of the parties as to its interpretation nor any 'subsequent practice' of the parties as
to such an agreement. The one exception is the Plan attached to the Joint Survey of 1985
which constitutes evidence of an agreement between South Africa and Botswana that the
boundary lies in the northern channel.
641. VI. No recognition of or acquiescence in any map placing the boundary in the southern
channel was given by either the British,22 Bechuanaland or Botswana authorities. On 20
April 1909 after receipt of a copy of the Seiner map from the German authorities, the British
Foreign Office,at the request of the Colonial Office, requested its Ambassador in Berlin to
convey to the German Government 'copies of the enclosed map of the Bechuanaland
protectorate which has been prepared by the Directorate of Military Operations,' (the 1909
version of the 1906 MOD sketch map); and on 7 May 1909 the Foreign Office confirmed to
the Colonial Office that copies of the map had been so communicated to the German
Government (Namibian Memorial Annexes 36 and 37). Accordingly, it is clear that the
British Government repudiated at once the position as set out in the Seiner map. It is also
plain from the correspondence that the negotiations of 1909 to 1914 were conducted by the
British throughout on the basis that the boundary followed the northern bank of the Chobe, as
shown in the 1909 version of the military map of 1906.
[22 An exchange of correspondence between Mr. Lyttelton, Colonial Secretary and Lord Selborne, High
Commissioner for South Africa concerning the grant of permission to send 'a German officer of the General
Staff now at Johannesburg to the point on the Zambesi where German territory touches that river', indicates the
British authorities' alertness to boundary problems. In giving permission Mr. Lyttelton stated of course, 'we shall
not be bound by the geographical results of this officer's mission when the time comes for delimiting the strip
which gives Germany access to the Zambesi under the Agreement of the 1st July, 1890.' Telegram Lord
Selborne to Mr. Lyttelton, received Colonial Office June 24,1905; Mr. Lyttelton to Lord Selborne,26 June 1905,
FCO Print 21879 Nos. 173 and 174A. (Botswana Counter-Memorial, Annex 3)]
642. VII. So far as the 1933 Bechuanaland map is concerned, the crude line running along the
southern bank of the Chobe made no 'admission against interest' as to the whereabouts of the
boundary in the river and provided no elucidation of the words in the 1890 Agreement 'along
the centre of the main channel of the Chobe river'.