botswana/namibia - Cour international de Justice

194. The preparatory work of the Anglo-German Agreement does not provide much
assistance to the Court. In any event the English text, 'the centre of the main channel' has the
counterpart in German: 'im Thalweg des Hauptlaufes dieses Flusses'.
G3 - Map C: Rivers of South Central Africa
195. As has been demonstrated in the Memorial of Botswana, in the period to which the
Anglo-German Agreement belongs it was the normal practice to establish boundaries in
navigable rivers by reference to the middle of the navigable channel: see the Memorial,
Chapter 5, pages 52-64. The provisions of the Anglo-German Agreement form part of a
pattern. In this context the fact that, in the vicinity of Kasikili/Sedudu Island, the Chobe
bifurcates, appears to present a two-stage problem. First of all, there is a preliminary selection
of the main channel qua the bifurcation, and then, subsequently, there is the determination of
the 'centre of the main channel' of the channel first selected. This method of structuring the
issues creates a false problem and is incompatible with the thalweg principle.
196. Writers on the thalweg principle do not distinguish between the main channel and
branches of the river with respect to islands existing within a navigable boundary river if the
boundary is to be formed by the thalweg. See, e.g., Kercea, Nicole, Die Staatsgrenze in den
Grenzflüssen (1916), 161-3 (Annex 9); Hyde, 'Notes on Rivers as Boundaries', AJIL, 6
(1912), 901-9 at 906-7) (Annex 8). In English, in the context of the 1890 Agreement, the
expression 'the main channel of' has no meaning of its own but is simply used to express the
thalweg principle. If one omitted the words 'the main channel of' from the expression 'the
centre of the main channel of the river' it would remain 'the centre of the river', an expression
which in English does not express the thalweg principle.
197. It is therefore suggested that the literal translation of 'the main channel of' with 'des
Hauptlaufes' in the German text of the agreement was unnecessary, as the expression 'the
centre of the main channel' would have been correctly translated as 'der Thalweg dieses
Flusses'. This is also evidenced by the fact that if one omitted, both in the English and the
German version, the words 'the main channel of' and 'des Hauptlaufes', respectively, in the
German version, the boundary would still be determined by the thalweg whereas in the
English version the boundary would be determined by 'the centre of the river' a concept
different from the thalweg concept. In this connection it should be recalled that the thalweg
need not necessarily be in the centre or middle of the river. It is also of interest to note that the
German Government on 30 April 1910 addressed a note to the British Government with
respect to the eastern boundary of the Caprivi Strip which reads in part as follows:
'The agreement of July 1st, 1890, contains no definite provision as to the eastern boundary of
the German Zambezi territory. The Imperial Government presumes that the Government of
Great Britain will agree to the eastern boundary of the German territory being formed by a
line... following the thalweg of the Zambezi upstream to the point where the river meets the
Katima-Mulilo Rapids.'
198. The draft of this letter, dated 25 April 1910, said in the relevant part: 'The German
Government shares the opinion that the boundary of the territory is formed by a line which
from the Thalweg of the Chobe turns into the Zambezi and follows the Thalweg of the
Zambezi up to its junction with the Katima-Mulilo Rapids.' (Botswana Counter-Memorial,
Annex 5)