botswana/namibia - Cour international de Justice

German Agreement of 1890. The Cuando/Linyanti/ Chobe River is independent of the
Zambezi basin except during persistent droughts when some flow from the Zambezi reaches
the Chobe by defined and well confined channels such as the Bokalo, Mokama, and Kasai
channels. See the Map D opposite page 13 of this Counter-Memorial).
(iv) The Chobe is a perennial River
365. The Encyclopaedia Britannica characterises the Chobe as a 'source of permanent surface
water':-
"The Kalahari is largely semidesert with grass and acacia thorn scrub, and only in the
southwest, where there are sand dunes, do true desert conditions prevail. The only sources of
permanent surface water are the Chobe River with a drainage basin of 56,000 square miles
(145,000 square km.). which marks Botswana's boundary with Namibia; in the northwest, the
Okavango River with a basin of 53,000 square miles (77,700 square km.), which marks
Botswana's boundary with South Africa in the southeast. Most of southern Botswana is
without surface drainage." (The New Encyclopaedia Britannica, 15th edn. 1992, Vol. 2, p.412
under the entry "Botswana").
366. The Glossary of Hydrology, published by the American Geological Institute, defines an
ephemeral stream as "A stream or reach of a stream that flows briefly only in direct response
to precipitation in the immediate locality and whose channel is at all times above the water
table", Professor Sefe's Second Opinion, p.25, para. 47). This cannot be said of the Chobe
River. Even during the persisting droughts in the last 15 years the Chobe River has
maintained its characteristics as a perennial river, as evidenced by the data collected by the
Department of Water Affairs of the Botswana Government at the seven gauging stations on
the Kwando/Linyanti/Chobe River south of the Caprivi Strip at Upper Kwando down to
Shaile. This data is summarised in Table 3 in Professor Sefe's Second Opinion and illustrated
in Figures 7(a) and (b), reproduced at pages 143 and 144. Thus, at the lower end, the Chobe
River maintains a minimum level at Kasane of 925.6 metres; during the dry season in the
months of August and September the base flow from the Kasai and other channels is equal to
the losses, artificial or natural, such as evaporation.
G18 - Mean monthly water levels in the Kwando-Linyanti-Chobe systems: (a) October-March
G19 - Mean monthly water levels in the Kwando-Linyanti-Chobe systems: (b) April-
September
367. The Namibian Memorial misquotes Professor Alexander, stating:
"in the lower reaches of the Linyandi, the river ceases to flow and dries up for long periods,
leaving only isolated pools which are sustained by local rainfall (See the Alexander Report.
para.5.7)." (Namibian Memorial, p.20, para.59).
In fact paragraph 5.7 of the Alexander Report adds "ground water contributions". (Namibian
Memorial, Vol.VI, Part 1, p.12). This a serious omission from the Namibia Memorial; by
inclusion of "ground water contributions", Professor Alexander himself acknowledges the
intermittent, rather than ephemeral, nature of the Chobe River. Rivers that experience ground
water contributions cannot be ephemeral rivers. Such rivers may lose surface expression in
part of their courses and continue to flow underground (Maidment (1992), Moore and Wilson