botswana/namibia - Cour international de Justice

213. Thus the South African letter dated 26 April 1992 involved a change in position after
nearly 44 years. The text is as follows:
"I refer to your letter of 19 March 1992 and must inform you that the Republic of South
Africa has at no time "given encouragement to and acquiesced in Botswana's claim to Sidudu
island.
The joint survey you refer to in your letter, a copy of which I attach, did come to certain
conclusions, but according to legal opinion in South Africa at that time, did not prove
conclusively that Sidudu island belongs to Botswana. The South African authorities have
therefore suggested to Botswana in a telex dated 17 November 1986 that the matter be taken
up with the Government of an independent Namibia. This was not acceptable to Botswana as
they considered the joint survey's report to be conclusive and in fact expressed the opinion
that 'no further discussion of the matter is necessary'.
The matter has therefore not been resolved as South Africa has never officially recognized
Botswana's claim to Sidudu island.
I trust that the aforementioned will put matters into perspective and would assist you in your
negotiations with the Botswana Government." (Mr. R.F. Botha to Mr. Theo-Ben Gurirab,
Namibian Memorial, Annex 88).
214. This document is less than frank about a number of matters. It fails to do justice to the
historical record and it ignores the existence of the Pretoria Agreement of 19 December 1984.
(E) The Namibian View of the Object and Purpose of the Anglo-German Agreement
215. The Namibian Memorial (pp.31-2) examines the object and purpose of the Anglo-
German Agreement and concludes:
"The negotiators were not concerned with the allocation of small areas, but with a
comprehensive 'African transaction'. At the large scale on which they were thinking, the
important objective was the identification of a recognizable boundary. This was achieved by
the selection where possible of a geographical line that appeared clearly on the available
relatively small-scale maps, in the present case, the line of the Chobe. Their common interest
was in the stability and certainty of the boundary. In principle, the parties must have wished to
agree upon a fixed and readily identifiable boundary, rather than one that for about five
months of the year would be invisible or obscure. For this reason, the selection of the line of
the northern channel rather than the line of the southern channel would have been inconsistent
with the basic object and purpose of the Treaty."
216. The Government of Botswana agrees that 'the important objective was the identification
of a recognizable boundary', and also that the parties to such an agreement have a 'common
interest in the stability and certainty of the boundary.' It is not at all persuaded that in
diplomatic practice, or in terms of public international law, it is accepted that the prospect of
seasonal flooding would be recognised as the justification for departing from the definition of
the boundary as provided in the text of the agreement.
217. It is surely eccentric to seek a 'recognizable' or 'readily identifiable' boundary in the
vagaries of flood zones and 'overlying channels'. The strange result of this approach can be