botswana/namibia - Cour international de Justice

commissioned a study of the question (Botswana Memorial, Annex 16), and Captain Eason of
the Bechuanaland Protectorate Police was ordered to carry out a reconnaissance of the Chobe
River. The Report was acknowledged by Lord Harcourt on 26 October 1912 (Botswana
Counter-Memorial, Annex 7).
29. In his Report (Botswana Memorial, Annex 15) Captain Eason states:
"Two miles above the rapids lies Kissikiri Island. Here I consider that undoubtedly the North
should be claimed as the main channel. At the western end of the island the north channel at
this period of the year is over one hundred feet width and 8 feet deep. The south channel
about forty feet width and four feet deep. The south channel is merely a back water, what
current there is goes round the North. The natives living at Kasika in German territory are at
present growing crops on it." (Botswana Memorial, Vol. III, pp. 234-5).
30. Two points may be emphasized. In the first place, Captain Eason does not regard the
cultivation of the island by the residents of Kasika as relevant to the issue of sovereignty.
Secondly, he takes the view that, whilst Kasika is in 'German territory', the island of
Kasikili/Sedudu was not. It may also be noted that Captain Eason did not record the existence
of a village on the island. This was the position when he signed his Report on 5 August 1912.
Nor does Captain Eason's map (No. 2 at p.242 of Vol. III of the Botswana Memorial) indicate
a village on the island.
G2 - Map B: Relief of Kasikili/Sedudu Island
31. It may also be noted that it did not occur to Captain Eason to regard the Seiner Map,
which was the first of the appendices to his Report, as in any way decisive on the question.
32. The Namibian Memorial (page 108, para. 271) refers to Captain Eason's recommendation
that 'undoubtedly the North should be claimed as the main channel' (see the quotation above,
para. 29), and draws the implication that 'until then, the northern channel had not been
claimed as the main channel.' This implication lacks any foundation. In particular, it is based
on a misunderstanding of a treaty-related title. The boundary is self-executing and it was
ascertainment of the identity of the main channel which was required. The introduction of the
concept of 'claim' suits Namibian assumptions about title. Captain Eason, of course, was not
employed to prepare a legal analysis, but to confirm the identification of the main channel.
33. The alleged failure 'to follow up on Eason's recommendation' is linked by Namibia to the
Temple Case (Namibian Memorial, pp.108-9, paras. 271, 273). Two points arise. First, given
the character of the boundary, there was no call for the British Government 'to follow up on'
the recommendation. Secondly, the Temple Case involved the use of a map over a period of
fifty years (1908 to 1958) in the forum of active diplomacy and negotiations. There is no
comparison whatsoever with the function of Eason's internal Report, which was at no point
used in negotiations with the German Government.
34. The available evidence indicates that there was no 'subsequent practice' relating to the
Anglo-German Agreement in the period 1890 to 1914. The British Government no doubt
made arrangements relating to the contingency of an arbitration but that is all. The use of the
island by people from the Caprivi was not regarded as decisive of title and tells us nothing as
to whether the parties understood the northern or southern channel to be the main channel.
Eason's Report on the contrary, when read in relation to other documents, makes it clear that