botswana/namibia - Cour international de Justice

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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'.
643. VIII. As regards the 1949 South African map, the makers of the 1949 map had a reply from the Bechuanaland authorities that there was no agreed international boundary in the vicinity of the Kasikili/Sedudu. 644. IX. The publication of the 1960 and 1965 Bechuanaland maps, the 1968 Joint Operations Ground and Air maps and the Botswana 1974 series of maps, all demonstrate a consistent representation by the responsible authorities that the boundary was located in the northern channel. 645. X. South Africa made no protest against any of these maps, and itself issued the 1978 JARIC map and the 1984 Military Intelligence map, showing the boundary in the northern channel, maps which at this time of civil conflict must amount to 'admissions against interest'. 646. XI. Since the 1985 UN Map shows no boundary in the Chobe River it provides no evidence whatsoever as to recognition of lack of protest on the part of Botswana. __________ LIST OF RELEVANT MAPS PRESENTED BY BOTSWANA IN CHRONOLOGICAL ORDER 1. Central Africa: Sketch Map of the Chobe River by Dr. Benjamin Bradshaw,1880, 1;125,000. Botswana Memorial,Appendix II, Dossier of Maps, (hereinafter Botswana Atlas), Map 1) 2. Map of Matabililand and Adjoining Territories, compiled by the Intelligence Division, War Office, 1889, ID 776, 1:1,584,000. Botswana Atlas, Map 2. 3. Map to illustrate Article III of the Anglo-German Agreement of 1 July 1890, approx. 1:3,500,000. Botswana Atlas, Map 3. 4. Kriegskarte von Deutsch-Sudwestafrika, 1904, (Andara Sheet), 1:800,000. Botswana Atlas, Map 4. 5. Kriegskarte von Deutsch-Sudwestafrika, 1904, (Linjanti Sheet), 1:800,000, Botswana Atlas, Map 5. 6. Sketch Map of Bechuanaland Protectorate to illustrate Military Report 1906, 1:2,000,000. Botswana Atlas, Map 6. 7. Unpublished map of Capt. Streitwolf, May 1909, 1:200,000. Botswana Supplementary Atlas, Map 4. 8. Karte des Caprivi Zipfels, Blatt 1, issued under the authority of Von Frankenberg, German Imperial District Chief and Resident in the Eastern Caprivi, May 1912, 1:100,000. Botswana Atlas, Map 7; Botswana Supplementary Atlas, Map 4.
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INTERNATIONAL COURT OF JUSTICE CASE
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10. Secondly: none of the officials
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and cloudy mode of argumentation ad
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commissioned a study of the questio
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"5. Since the attached report was p
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The Report discloses that while the
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more general point of continuity th
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the herds have taken to crossing on
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Secextern would appreciate the seri
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1984) to a decisive resolution of t
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entrepreneur to construct a tourist
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105. The South African regime there
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(F) Boundary Pressures 116. Through
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Africa not to violate her territory
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Secondly: the Namibian Government r
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"The dispute concerns the reach of
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(i) The Intergovernmental Agreement
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161. Earlier in the present chapter
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demonstrated in Chapter 9, the lega
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182. The cardboard character of the
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194. The preparatory work of the An
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204. In the Joint Report itself the
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213. Thus the South African letter
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223. The first of these is an absen
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para. 169) went on to refer to the
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(c) any relevant rules of internati
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256. The key passages in his Report
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partisan approach is characterised
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the River Rovuma in Article I(2) an
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282. This statement is somewhat con
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plain and its greater depth must re
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303. The Namibian Memorial exhibits
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to sidestep these inconvenient fact
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unsubstantiated thesis that Botswan
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(Goudie. ed.; The Encyclopaedic Dic
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"Representatives of the two nationa
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(v) The mud-peat deposits in the ar
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[6. Selous' more contemporary accou
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German Agreement of 1890. The Cuand
Page 79 and 80: 372. The shape of the southern chan
Page 81 and 82: 382. When a river channel bifurcate
Page 83 and 84: [8. List of Air-Photographs reviewe
Page 85 and 86: 402. The marked stand of big hardwo
Page 87 and 88: G28 - 1947 aerial photograph with l
Page 89 and 90: 421. This photograph is part of a s
Page 91 and 92: Nambian Memorial (p.56,paragraph 15
Page 93 and 94: 449. Three bands were chosen for th
Page 95 and 96: (c) That there is flow at all seaso
Page 97 and 98: 466. It is clear that, even if the
Page 99 and 100: "Yes, because when you build a hous
Page 101 and 102: 493. On the possibility of burial o
Page 103 and 104: 515. Julius Mundia gave evidence to
Page 105 and 106: Mubukwani and then only the boys us
Page 107 and 108: scientific evidence, in which case
Page 109 and 110: 546. Even if these maps and plans w
Page 111 and 112: 552. Upon appropriate analysis, it
Page 113 and 114: 561. At paragraphs 294 to 296 the B
Page 115 and 116: [9 Captain Eason was not Assistant
Page 117 and 118: 579. From the first moment when the
Page 119 and 120: 589. This sketch map includes the i
Page 121 and 122: Military Survey, Ministry of Defenc
Page 123 and 124: a line running parallel to the nort
Page 125 and 126: 616. The map is annotated in red in
Page 127 and 128: depicted along the boundary. Inexac
Page 129: Botswana and the Caprivi Zipfel to
Page 133 and 134: 24. Joint Operations Graphic Ground
Page 135 and 136: (b) as regards notification when th
Page 137 and 138: the exercise of sovereign rights ei
Page 139 and 140: 670. The primary legal condition fo
Page 141 and 142: (iii) The Alleged Authority of the
Page 143 and 144: Schuckmannsburg to pay it. (footnot
Page 145 and 146: invoked on the basis that it pre-da
Page 147 and 148: 712. The second solution is as foll
Page 149 and 150: particular, there is no evidence to
Page 151 and 152: 737. The episode as a whole provide
Page 153 and 154: "3. There is no doubt that if the w
Page 155 and 156: "Although this action seemed to imp
Page 157 and 158: 761. This correspondence at the int
Page 159 and 160: 771. Map evidence prior to 1965 is
Page 161 and 162: - From the time of Botswana's indep
Page 163 and 164: "The Court is asked to determine ..
Page 165: (signed) Abednego Batshani Tafa, De
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botswana/namibia - Cour international de Justice

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