botswana/namibia - Cour international de Justice

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evidences the operation of erosive processes. The use of the southern channel by hippopotamus further supports its tranquil backwater character. 321. Taking into account all the matters set out in this Chapter, the Court is respectfully requested to reject the case put forward by Namibia on the basis of Professor Alexander's Report as irrelevant, lacking scientific foundation and contrary to the observable facts and official surveys. Botswana requests the Court to rule in its favour that the main channel is the northern channel and submits that the two Opinions of Professor Sefe and the Sedimentological Report provide incontrovertible scientific evidence in support of that ruling. CHAPTER 6 The Scientific Evidence Presented on Behalf of Botswana (A) Botswana's case is based on the observable facts and the conclusions of official surveys 322. Botswana's case is that the northern and western channel of the River Chobe in the vicinity of Kasikili/Sedudu Island is the main channel and hence the northern channel is the channel in the centre of which the boundary is to be drawn. 323. That case is supported by the facts on the ground. Every official, surveyor or hydrologist prior to Professor Alexander has on a consideration of the question and, on inspection, pronounced that the northern channel is the main channel. Captain H. V. Eason did so in his survey of 1912, Trollope and Redman in their Joint Report of January 1948 were of that view, as was the Surveyor-General of Bechuanaland in his Opinion of 18 October, 1965, and so concluded the Joint Survey Report of 1985. In the light of such unanimity of view, reference to scientific experts would seem supererogatory and unnecessary. Examination of the remarkable series of aerial photographs beginning in 1925 to the present day (Attachment to the Botswana Counter-Memorial, Professor Sefe's Second Opinion, Appendix 2 in Vol. II, and see paragraphs 390 to 441 below) supports the same conclusion, namely that the northern channel manifests itself, consistently over the period of seventy years, as the broader and deeper channel, without the sinuosities of the southern channel, and hence is the main channel. The satellite imageries taken in June 1975, March 1995 and June 1996, provide further evidence in support, (paragraphs 442 to 456 below and see Satellite imagery opposite page 99 of this Counter-Memorial, and in the Attachment). Such of the maps as accurately portray the topography of the Island and its channels also demonstrate that the northern channel is possessed of the characteristics required for the main channel. (B) Scientific evidence is supererogatory 324. When the facts on the ground and all observers of those facts speak with such unanimity, recourse to scientific evidence seems wholly superfluous, and contrary to common sense. Namibia, in an attempt to divert the Court's attention from the facts and the strength of Botswana's case, produces Professor Alexander as a scientific expert and adopts his idiosyncratic definition of the main channel. It is to rebut these unscientific assertions and his
unsubstantiated thesis that Botswana now adduces scientific evidence and refers to the considerable published writings on the geomorphology and hydrology of the Chobe and Upper Zambezi Rivers. 325. The Court is respectfully referred to the scientific evidence based on geomorphology and hydrology and substantiated by fieldwork contained in the First Opinion of Professor F.T.K. Sefe, University of Botswana, in the Appendix to Chapter VII of the Memorial of Botswana for a general description of the geomorphology of the region, to his Second Opinion relating more specifically to the hydrology of the Chobe River and the Island, and to the Sedimentological Study of Professor Sefe, made with the assistance of Mr. I.M. Muzila, B.Sc. (C. Engineering), Principal Hydrological Engineer, Department of Water Affairs, Ministry of Mineral Resources and Water Affairs, Government of Botswana. Mr. Muzila by training and by reason of his professional duties, has unrivalled knowledge and experience of the hydrology of the Chobe River. This Second Opinion and Sedimentological Study and the Analysis of Professor Alexander's Expert Report, also carried out by Professor Sefe, are all contained in Volume 2 of this Counter-Memorial, and form an integral part of Botswana's case. 326. The population and habits of the wildlife provide evidence that the southern channel constitutes no barrier for transit to the island, and its shallow tranquil waters are used by hippopotamus as a resting place, undisturbed by river flow or navigation of craft. (C) Botswana's case relating to the River Chobe based on scientific evidence 327. Botswana's case is supported by the following propositions relating to the Chobe River; each of these are dealt with in greater detail below at the passages as indicated. (i) The Chobe is the geographical feature in Article III of the 1890 Agreement 328. Article III of the Anglo-German Agreement of 1890 identifies the Chobe River as the geographical feature along which the boundary "descends" to its junction with Zambezi, (paras.355 to 362 below). (ii) The Chobe is a river independent of the Zambezi River 329. The Chobe River is a river independent of the Zambezi River. It flows downstream from its source in the Angolan Highlands to its junction with the Zambezi at Kazungula (paras.363 to 364 below). (iii) The Chobe has a stable profile as a perennial mature river 330. Scientific evidence based on geomorphology and hydrology and substantiated by field work and analysis demonstrates the independent function of the Chobe River as a perennial mature river, the existence over many thousand years of the present alignment of the northern channel, and the stability of the present configuration of the island with visible and nonerodible banks in the northern channel (paragraphs 363 to 364). (iv) The Chobe is a perennial river with visible and stable banks
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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
Page 15 and 16: the herds have taken to crossing on
Page 17 and 18: Secextern would appreciate the seri
Page 19 and 20: 1984) to a decisive resolution of t
Page 21 and 22: entrepreneur to construct a tourist
Page 23 and 24: 105. The South African regime there
Page 25 and 26: (F) Boundary Pressures 116. Through
Page 27 and 28: Africa not to violate her territory
Page 29 and 30: Secondly: the Namibian Government r
Page 31 and 32: "The dispute concerns the reach of
Page 33 and 34: (i) The Intergovernmental Agreement
Page 35 and 36: 161. Earlier in the present chapter
Page 37 and 38: demonstrated in Chapter 9, the lega
Page 39 and 40: 182. The cardboard character of the
Page 41 and 42: 194. The preparatory work of the An
Page 43 and 44: 204. In the Joint Report itself the
Page 45 and 46: 213. Thus the South African letter
Page 47 and 48: 223. The first of these is an absen
Page 49 and 50: para. 169) went on to refer to the
Page 51 and 52: (c) any relevant rules of internati
Page 53 and 54: 256. The key passages in his Report
Page 55 and 56: partisan approach is characterised
Page 57 and 58: the River Rovuma in Article I(2) an
Page 59 and 60: 282. This statement is somewhat con
Page 61 and 62: plain and its greater depth must re
Page 63 and 64: 303. The Namibian Memorial exhibits
Page 65: to sidestep these inconvenient fact
Page 69 and 70: (Goudie. ed.; The Encyclopaedic Dic
Page 71 and 72: "Representatives of the two nationa
Page 73 and 74: (v) The mud-peat deposits in the ar
Page 75 and 76: [6. Selous' more contemporary accou
Page 77 and 78: 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
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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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