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characteristics of a stable, sinuous channel, where water in the river is conveyed along a broader, overlying channel. Examples of this type of channel can be seen in Photograph 3a of the Mfolosi River and Photograph 11b of the Chobe River at Ngoma Bridge. 12.7 Striation pattern on Kasikili Island. A study of the 1925 to 1985 aerial photographs on Sheets 14, 15 and 16 shows a distinctive striation pattern on the surface of Kasikili Island that has not changed over this period. This pattern is notably absent along a broad band that has a lighter and smoother surface on the aerial photographs. The southern channel is located within this band that identifies the southern channel as being the path along which the bulk of the water in the Chobe River is conveyed. The right bank of the overlying channel is the foot of the Chobe Ridge, and the opposite edge of the channel is indicated on Diagram 4 on Sheet 17." (emphasis supplied). (Namibian Memorial, Vol. VI, Part 1, Expert Report, pp.34-5). 149. The Court is respectfully requested to study Diagram 4 on Sheet 17 in relation to these passages from Professor Alexander's Report. As a preliminary matter, it may be noted that the Namibian Memorial states that the Report 'is an integral part of the Memorial and should be read in full to appreciate the scientific and technical foundations of this case' (Namibian Memorial, p.6, para. 20). 150. At the outset it must be emphasized that Diagram 4 is a construct of the Namibian Government. What it reveals is a River Chobe not seen on any of the forty-one maps referred to in the Rushworth Report (Namibian Memorial, Vol. V, Annex 102). The reason for this is the need of the Namibian Government and its advisers to marginalise the western and northern channel of the River Chobe. The actual main channel of the Chobe in this sector has been replaced by Zone (d) which the Report identifies 'as being the bed of the currently active channel of the Chobe River' (p.22, para. 8.11). Zone (d) is equated (in paragraphs 12.6 and 12.7, quoted above) with the southern channel of the Chobe. From Diagram 4 on Sheet 17 it should be appreciated that this 'Southern Channel' is superimposed on the western third of the area which all the maps and aerial photographs show as an island. 151. The result is that, according to this construct, Kasikili/Sedudu Island has been reduced in size and a 'main channel' is indicated on Diagram 4 which overlaps with a significant portion of the Island. The result is not one which would commend itself to the negotiators of the 1890 Agreement. Apart from the many objections which can be made to this approach on scientific grounds, the Namibian thesis would in practice produce a frontier zone (based on wholly factitious elements) rather than a boundary. Such an outcome would seriously reduce the efficacy of the provisions of the 1890 Agreement, which was not intended to produce boundary zones but boundaries. 152. In Chapter 10 of this Counter-Memorial the implications of the Namibian Submissions will be examined and the Government of Botswana finds it necessary to express its concern that the Namibian requests to the Court do not allow effective compliance with the Special Agreement. Article 1 thereof asks the Court 'to determine ... the boundary between Namibia and Botswana...'. The provisions of the Special Agreement do not, of course, accommodate the concept of Professor Alexander, which produces a new version of the southern channel. It is, after all, pointless to seek to identify an alignment in a southern channel which has become, normatively speaking, peripatetic, and corresponds to no cartographic representation of the Chobe River. (C) The Namibian Memorial ignores the Pretoria Agreement of 1984
(i) The Intergovernmental Agreement of 19 December 1984 153. In December 1984 the Governments of Botswana and South Africa agreed that a joint survey should be carried out in order to determine the location of the 'main channel' of the River Chobe. The evidence of this agreement is as follows: 1. Minutes of the Meeting prepared by the Government of Botswana (Botswana Memorial, Annex 44). 2. A 'transcript in summary form' prepared by the Government of South Africa and communicated to Botswana (Botswana Memorial, Annexes 45 and 46). 3. The text of the Joint Survey Report of July 1985. The Report includes the following passage under the heading 'Authority for Survey': "At an intergovernmental meeting held in Pretoria on 19 December 1984 it was decided that a joint survey should be undertaken to determine whether the main channel of the Chobe River is located to the north or the south of Sidudu/Kasikili Island. Representatives of the two national survey organisations accompanied by co-workers from the Departments of Water Affairs have now been to the area to survey the 'Thalweg' in the vicinity of the island. Specific mention is made to the Thalweg in the 1890 Agreement between England and Germany." (Botswana Memorial, Annex 48). 154. The binding character of these transactions emerges from the analysis provided in the Botswana Memorial: pages 75-85. The resulting Joint Survey Report was legally binding upon South Africa. It concluded that: "The main channel of the Chobe River now passed Sidudu/Kasikili Island to the west and to the north of it." (ii) The Reticence of the Namibian Memorial in relation to the Pretoria Agreement and the Joint Survey Report 155. The Namibian Government displays a remarkable degree of reticence in face of these transactions. It is true that the Namibian Memorial refers to the meeting in Pretoria in terms of 'high level discussions' (page 116, para. 284), but no transcript is adduced. Moreover, the Joint Survey Report is omitted from the Annexes to the Namibian Memorial. This omission provides an impressive example of reticent pleading. 156. The omission of the text of the Joint Survey Report is the more surprising in light of the fact that, in his Expert Report (Namibian Memorial, Vol. VI, Part 1), Professor Alexander devotes three pages (pp.30-32) to an analysis of the Report. The substance of Professor Alexander's commentary will be examined in Chapter 5 below. (iii) The Adoption of South African Transactions by the Government of Namibia 157. It is the case that Namibia has at all times adopted the transactions of 1984 and 1985 involving South Africa. This is clear from the following passages in the Namibian Memorial: p.115 (para. 282); pp.116-17 (paras. 284-6). The fact that in further exchanges of 1986 South
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Page 9 and 10: "5. Since the attached report was p
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Page 15 and 16: the herds have taken to crossing on
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[8. List of Air-Photographs reviewe
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402. The marked stand of big hardwo
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G28 - 1947 aerial photograph with l
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421. This photograph is part of a s
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Nambian Memorial (p.56,paragraph 15
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449. Three bands were chosen for th
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(c) That there is flow at all seaso
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466. It is clear that, even if the
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"Yes, because when you build a hous
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493. On the possibility of burial o
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515. Julius Mundia gave evidence to
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Mubukwani and then only the boys us
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scientific evidence, in which case
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546. Even if these maps and plans w
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552. Upon appropriate analysis, it
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561. At paragraphs 294 to 296 the B
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[9 Captain Eason was not Assistant
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579. From the first moment when the
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589. This sketch map includes the i
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Military Survey, Ministry of Defenc
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a line running parallel to the nort
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616. The map is annotated in red in
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depicted along the boundary. Inexac
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Botswana and the Caprivi Zipfel to
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643. VIII. As regards the 1949 Sout
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24. Joint Operations Graphic Ground
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(b) as regards notification when th
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the exercise of sovereign rights ei
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670. The primary legal condition fo
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(iii) The Alleged Authority of the
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Schuckmannsburg to pay it. (footnot
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invoked on the basis that it pre-da
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712. The second solution is as foll
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particular, there is no evidence to
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737. The episode as a whole provide
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"3. There is no doubt that if the w
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"Although this action seemed to imp
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761. This correspondence at the int
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771. Map evidence prior to 1965 is
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- From the time of Botswana's indep
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"The Court is asked to determine ..
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(signed) Abednego Batshani Tafa, De
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botswana/namibia - Cour international de Justice

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