botswana/namibia - Cour international de Justice

lower depths of 3.00 to 3.50 metres and 4.50. to 5.00 metres the presence of a limited quantity
of rolling particles along the northern channel at Bore-holes Nos.11 and 12 and along the
southern channel at Bore-holes Nos. 8 and 9 is consistent with such overbank flow at even
earlier periods. Similarly, a limited presence at Bore-hole No.7 on the Island at the greater
depth suggests that at some point well prior to 10,000 years ago high flows resulted in
deposition at that point.
(G) Further Scientific Evidence in support of Botswana's Case
354. Paragraphs 355 to 381 of this Chapter elaborate the six propositions supporting the
Botswana case. Paragraphs 383 to 389 provide further support for the criterion for
determination of the main channel. An analysis of the aerial photographs is provided at
paragraphs 390 to 441, followed by an analysis of the satellite imageries.
(i) The Chobe River as the geographical feature in Article III of the 1890 Agreement
355. Article III(2) of the Anglo-German Agreement of 1890 provides that the boundary in the
relevant sector "descends" the Chobe River. The treaty-makers intended the line drawn on the
1889 Map labelled "Kuando or Chobe R." to be the boundary, not an indeterminate flood zone
of the Zambezi River. They identified the Chobe River as "the prominent geographical
feature", not the Zambezi floodplain. The use of the word "descends" is particularly
significant in that it indicates gradient and the directional flow of a river and can have no
application to a ridge which neither ascends nor descends. Similarly gradient, but in an
upstream direction, was in the minds of the treaty-makers when drafting Article I(2) of the
1890 Agreement which describes the German sphere of influence in East Africa by a line "till
it reaches and ascends that river", and again in the section of the boundary between the
German Protectorate of Togo and the British Gold Coast where Article IV states that the line
"..runs along that parallel westwards till it reaches the left bank of the River Aka; it ascends
the mid-channel of that river to the 6_20' parallel of north latitude...".
356. The Namibian Memorial invites the Court "to shed any preconceptions which it may
have about rivers in general". (Namibian Memorial, p.19,para.55). Although it admits that on
all the aerial photographs and maps the Chobe appears much like "a conventional river", it
admonishes the Court that "this visual appearance is profoundly misleading" (Namibian
Memorial, p.51, para.135).
357. This advice is all the more extraordinary when set against the Namibian Memorial's own
admission that "in choosing the Chobe River the negotiators selected what they could identify
as a major and prominent geographical feature" (Namibian Memorial, p.44, para.116).
358. That the Chobe River was so considered at the time of negotiation of the 1890 Anglo-
German Agreement is apparent from the various accounts of European explorers which the
Namibian Memorial itself cites. Thus James Chapman writes of "the banks of the Chobe...and
the continuous flow of the stream running at 3 knots per hour". Dr. David Livingstone speaks
of "crossing the five branches of the Chobe before arriving at the main stream" which "should
the country ever become civilised would be a convenient natural canal". Emil Holub tells of
"the valley of the Chobe river near its mouth one half to three English miles broad", and finds
"the Chobe most attractive at and above the rapids". Frederick Selous speaks of the Chobe
"which here runs nearly due east" and Bradshaw writes of "the course of the river". (Namibian
Memorial, p.26, para.72)6.