Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

II. Substantive International Law - Second Part

¤ Kasikili/Sedudu Island
Judgment of 13 December 1999

[pp. ] 21. ... As far as the region covered by the present case is concerned, this provision locates the dividing line between the spheres of influence of the contracting parties in the "main channel" of the River Chobe; however, neither this, nor any other provision of the Treaty, furnishes criteria enabling that "main channel" to be identified. It must also be noted that the English version refers to the "centre" of the main channel, while the German version uses the term "thalweg" of that channel (Thalweg des Hauptlaufes).

22. Throughout the proceedings, the Parties have expressed differing opinions regarding the method to be applied for the purpose of interpreting these expressions. Botswana contends that:

"[i]n a bifurcated stretch of river, such as the Chobe River in the vicinity of Kasikili/Sedudu Island, both channels will have their respective thalwege. However, the thalweg of the main channel will be at a lower elevation than the thalweg of the other channel. Only the thalweg of the main channel can be logically connected to the thalweg of the channel upstream of the point of bifurcation and downstream of the point of reunion."

Botswana maintains that, in order to establish the line of the boundary around Kasikili/Sedudu Island, it is sufficient to determine the thalweg of the Chobe; it is that which identifies the main channel of the river. For Botswana, the words "des Hauptlaufes" therefore add nothing to the text.

23. For Namibia, however, the task of the Court is first to identify the main channel of the Chobe around Kasikili/Sedudu Island, and then to determine where the centre of this channel lies:

"The 'main channel' must be found first; the 'centre' can necessarily only be found afterward. This point is equally pertinent to the German translation of the formula' ... im Thalweg des Hauptlaufes ...' In the same way as with the English text, the search must first be for the 'Hauptlauf' and for the 'Thalweg' only after the 'Hauptlauf' has been found. The 'Hauptlauf' cannot be identified by first seeking to find the 'Thalweg'."

24. The Court notes that various definitions of the term "thalweg" are found in treaties delimiting boundaries and that the concepts of the thalweg of a watercourse and the centre of a watercourse are not equivalent. The word "thalweg" has variously been taken to mean "the most suitable channel for navigation" on the river, the line "determined by the line of deepest soundings", or "the median line of the main channel followed by boatmen travelling downstream". Treaties or conventions which define boundaries in watercourses nowadays usually refer to the thalweg as the boundary when the watercourse is navigable and to the median line between the two banks when it is not, although it cannot be said that practice has been fully consistent.

25. The Court further notes that at the time of the conclusion of the 1890 Treaty, it may be that the terms "centre of the [main] channel" and "Thalweg" des Hauptlaufes were used interchangeably. In this respect, it is of interest to note that, some three years before the conclusion of the 1890 Treaty, the Institut de droit international stated the following in Article 3, paragraph 2, of the "Draft concerning the international regulation of fluvial navigation", adopted at Heidelberg an 9 September 1887: "The boundary of States separated by a river is indicated by the thalweg, that is to say, the median line of the channel" (Annuaire de l'Institut de droit international, 1887-1888, p. 182), the term "channel" being understood to refer to the passage open to navigation in the bed of the river, as is clear from the title of the draft. Indeed, the parties to the 1890 Treaty themselves used the terms "centre of the channel" and "thalweg" as synonyms, one being understood as the translation of the other (see paragraph 46 below).

The Court observes, moreover, that in the course of the proceedings, Botswana and Namibia did not themselves express any real difference of opinion on this subject. The Court will accordingly treat the words "centre of the main channel" in Article III, paragraph 2, of the 1890 Treaty as having the same meaning as the words "Thalweg des Hauptlaufes" (cf. 1969 Vienna Convention on the Law of Treaties, Article 33, paragraph 3, under which "the terms of the treaty are presumed to have the same meaning in each authentic text").

[pp. ...] 29. The Parties to the dispute agree on many of the criteria for identifying the "main channel", but disagree on the relevance and applicability of several of those criteria.

For Botswana, the relevant criteria are as follows: greatest depth and width; bed profile configuration; navigability; greater flow of water. Botswana also lays stress, in the following terms, on the importance, from the standpoint of identification of the main channel, of "channel capacity", "flow velocity" and "volume of flow":

"channel capacity - This is determined by width and depth of the channel and in the discharge equation it is represented by cross-sectional area. From the cross-section survey and the analysis of satellite imagery, it is clear that the northern channel is deeper than the southern channel ... .

flow velocity - Flow velocity is a function of bed slope, hydraulic radius and roughness coefficient. ... the northern channel has a steeper bed slope; both of its banks are smooth (compared to the southern channel), therefore velocity will be higher in that channel.

volume of flow - Volume of flow in a channel is computed as the product of channel capacity (cross-section area) and mean velocity through the cross-section."

Namibia acknowledges that

"[p]ossible criteria for identifying the main channel in a river with more than one channel are the channel with the greatest width, or the greatest depth, or the channel that carries the largest proportion of the annual flow of the river. In many cases the main channel will have all three of these characteristics."

It adds, however, referring to the sharp variations in the level of the Chobe's waters, that:

"neither width nor depth are suitable criteria for determining which channel is the main channel."

Namibia nevertheless further states the following:

"Various criteria may be employed; these include width, depth, velocity, discharge, and sediment transport capacity. Since discharge is the product of width, mean depth and mean velocity, and is a determinant of transport capacity, it is the most straightforward and general criterion."

Among the possible criteria, Namibia therefore attaches the greatest weight to the amount of flow: according to Namibia, the main channel is the one "that carries the largest proportion of the annual flow of the river". Namibia also emphasized that another key task was to identify the channel that is "most used for river traffic".

30. The Court finds that it cannot rely on one single criterion in order to identify the main channel of the Chobe around Kasikili/Sedudu Island, because the natural features of a river may vary markedly along its course and from one case to another. The scientific works which define the concept of "main channel" frequently refer to various criteria: thus, in the Dictionnaire français d'hydrologie de surface avec equivalents en anglais, espagnol, allemand (Masson, 1986), the "main channel" is "the widest, deepest channel, in particular the one which carries the greatest flow of water" (p. 66); according to the Water and Wastewater Control Engineering Glossary (Joint Editorial Board Representing the American Public Health Association, American Society of Civil Engineers, American Water Works Association and Water Pollution Control Federation, 1969), the "main channel" is "the middle, deepest or most navigable channel" (p. 197). Similarly, in the Rio Palena Arbitration, the arbitral tribunal appointed by the Queen of England applied several criteria in determining the major channel of a boundary river (Argentina-Chile Frontier Case (1966), United Nations, Reports of International Arbitral Awards (RIAA), Vol. XVI, pp. 177-180; International Law Reports (ILR), Vol. 38, pp. 94-98). The Court notes that the Parties have expressed their views on one or another aspect of the criteria mentioned in paragraph 29 above, distinguishing between them or placing emphasis on their complementarity and their relationship with other criteria. It will take into account all of these criteria.

[p. ] 33. The Court will now consider the criterion of width. The width of a river may increase or decrease in line with the variable level of its waters. In order to deal with this phenomenon, the width has often been determined on the basis of the low water mark (see, e.g., Article IX of the Boundary Convention between Baden and France of

30 January 1827 (De Clerq, Recueil des Traites de la France, Vol. III, pp. 429 et seq.); see also the judgment of the United States Supreme Court of 19 May 1933 in the case Vermont v. New Hampshire, United States Reports, Vol. 289, p. 619 (1933)) or the mean water level (see, e.g., the Arbitral Award rendered an 23 January 1933 by the Special Boundary Tribunal constituted by the Treaty of Arbitration between Guatemala and Honduras (League of Nations Treaty Series, Vol. 137, p. 259; United Nations Reports of International Arbitral Awards (RIAA), Vol. II, p. 1365)), which offer an acceptable basis for defining the characteristic features of a watercourse (channels, centre, flow, etc.).

[pp. ] 37. The Court is of the opinion that the determination of the main channel must be made according to the low water baseline and not the floodline (see in this regard the practice referred to in paragraph 33 above). The evidence shows that when the river is in flood, the Island is submerged by flood water and the entire region takes on the appearance of an enormous lake. Since the two channels are then no longer distinguishable, it is not possible to determine the main channel in relation to the other channel. As for the channel described by Namibia as the main channel, the Court finds that the largest part of its bed remains dry for the greater part of the year. High sand bars which are among the highest points of the Island (927 metres above sea-level) are found there, but it must also be noted that it was in this bed that cultivation took place, according to the evidence of a 1943 aerial photograph submitted by both Parties. It is difficult to accept that this bed, generally dry, and which would occupy the south-western part of the Island, can be the bed of the main channel. The Court therefore is not persuaded by Namibia's argument concerning the existence of this major "main" channel whose visible southern channel would merely constitute the thalweg.

38. Namibia emphasizes the importance of the Chobe Ridge in the area in question as a "stable and clearly visible escarpment some 50 metres high"; it uses this as an argument for determining the main channel, by maintaining that the right bank of the southern channel, which follows the Chobe Ridge, has certain characteristics ("a steep, well-defined bank with a strip of riverine vegetation along it") that make it readily identifiable. The Court would observe that, even if one part of the right bank of this channel is easily identifiable from a distance, other parts of this bank are not, and neither is the left bank. The Court is therefore unable to conclude that, in terms of visibility - or of general physical appearance - the southern channel is to be preferred to the northern channel.

39. The Court turns now to the criteria put forward by Botswana concerning "bed profile configuration". The Court finds that the northern channel of the Chobe, around Kasikili/Sedudu Island, does not contain any of the meanders that are so typical of the secondary branches of watercourses. The southern channel, however, does show such meanders. Namibia indeed acknowledges the curved nature of the southern channel but, in light of the sediment deposition, draws contrary conclusions with regard to the importance of this channel. Having examined the arguments, maps and photographs put forward by the Parties, the Court is unable to conclude that, from its bed configuration, the southern channel constitutes the principal and natural prolongation of the course of the Chobe before the bifurcation.

40. The navigability of a watercourse is the combined result of its depth, its width and the volume of water it carries, taking account of natural obstacles such as waterfalls, rapids, shallow points, etc., along its course. The Parties to the dispute do not accord equal importance to navigability in the determination of the main channel of the Chobe. Botswana maintains that "in the period at which the [1890] Treaty was concluded ... navigability and access to navigable waters were primary considerations in the minds of the negotiators". In Namibias view, on the other hand, "it would be anomalous to apply a criterion of navigability to a river boundary that is non-navigable for most of its length"; Namibia attaches no less importance to the actual use of the southern channel of the Chobe around Kasikili/Sedudu Island for the purpose of navigation by tourist vessels.

The Court notes that the navigability of watercourses varies greatly, depending on prevailing natural conditions. Those conditions can prevent the use of the watercourse in question by large vessels carrying substantial cargoes, but permit light flat-bottomed vessels to navigate. In the present case, the data furnished by the Parties tend to prove that the navigability of the two channels around Kasikili/Sedudu Island is limited by their shallowness. This situation inclines the Court to the view that, in this respect, the "main channel" in this part of the Chobe is that of the two which offers more favourable conditions for navigation. In the Courts view, it is the northern channel which meets this criterion.

[pp. ] 43. The Court will now consider how and to what extent the object and purpose of the treaty can clarify the meaning to be given to its terms. While the treaty in question is not a boundary treaty proper but a treaty delimiting spheres of influence, the Parties nonetheless accept it as the treaty determining the boundary between their territories. The major concern of each contracting party was to protect its sphere of influence against any intervention by the other party and to obviate any risk of future disputes. Article VII of the 1890 Treaty is worded as follows:

"The two Powers engage that neither will interfere with any sphere of influence assigned to the other by Articles I to IV. One Power will not in the sphere of the other make acquisitions, conclude Treaties, accept sovereign rights or Protectorates, nor hinder the extension of influence of the other.

It is understood that no Companies nor individuals subject to one Power can exercise sovereign rights in a sphere assigned to the other, except with the assent of the latter."

The contracting powers, by opting for the words "centre of the main channel", intended to establish a boundary separating their spheres of influence even in the case of a river having more than one channel. They possessed only rudimentary information about the Chobe's channels. If they knew that such channels existed, their number, features, navigability, etc., and their relative importance remained unknown to them. This situation explains the method adopted to define the southern boundary of the Caprivi Strip.

The Court stated in the Temple of Preah Vihear, (Merits) case:

"There are boundary treaties which do no more than refer to a watershed line, or to a crest line, and which make no provision for any delimitation in addition." (I.C.J. Reports 1962, p. 34.)

In that Judgment the Court added that this was "an obvious and convenient way of describing a frontier line objectively, though in general terms" (ibid., p. 35). In the present case, the contracting parties employed a similar approach.

44. The Court notes that navigation appears to have been a factor in the choice of the contracting powers in delimiting their spheres of influence. The great rivers of Africa traditionally offered the colonial powers a highway penetrating deep into the African continent. It was to gain access to the Zambezi that Germany sought "a strip of territory which shall at no point be less than 20 English miles in width" - terms which were eventually included in the provisions of Article III, paragraph 2, of the Treaty. Admittedly, this strip of territory did provide access to the Zambezi, but its southern boundary was formed by the Chobe River, which was apparently assumed to be navigable, as suggested by the use of the word "thalweg" in the text of the German version of the Treaty. The difficulties of the land route owing to regular flooding, and the obstacles to navigation on the Chobe, were, in all probability, little known at the time.

45. The fact that the words "centre of the main channel" were included in the draft Treaty on the initiative of the British Government suggests that Great Britain no less than Germany sought to have access to the Zambezi. In order to mark the separation of their spheres of influence, the contracting parties chose "the centre of the main channel" of the Chobe, thus ensuring that there was a well-defined, recognizable boundary, in a watercourse that was assumed to be navigable. There are grounds for thinking that one of the reasons underlying their decision was navigation, but the Court does not consider that navigation was the sole objective of the provisions of Article III, paragraph 2, of the Treaty. In referring to the main channel of the Chobe, the parties sought both to secure for themselves freedom of navigation on the river and to delimit as precisely as possible their respective spheres of influence.

[pp. ] 100. The Court's interpretation of Article III, paragraph 2, of the 1890 Treaty has led it to conclude that the boundary between Botswana and Namibia around Kasikili/Sedudu Island follows the line of deepest soundings in the northern channel of the Chobe.

101. Since the Court has not accepted Namibia's argument on prescription, it follows for this reason also that Kasikili/Sedudu Island forms part of the territory of Botswana.

102. The Court observes, however, that the Kasane Communiqué of 24 May 1992 records that the Presidents of Namibia and Botswana agreed and resolved that:

"(c) existing social interaction between the people of Namibia and Botswana should continue;

(d) the economic activities such as fishing shall continue on the understanding that fishing nets should not be laid across the river;

(e) navigation should remain unimpeded including free movement of tourists".

The Court further observes that in explanation and in pursuance of the foregoing agreement, Botswana stated at the oral hearings:

"Botswana's policy is to allow free navigation, including unimpeded movement of tourist boats even in the southern channel. This policy applies to boats owned by Namibian tourist operators as well. The only requirement is that all tourist boats should be registered. This requirement is meant solely to prevent the danger of environmental pollution of the Chobe River. Experience has shown that some tourist boat operators tended to transport their boats from Okavango waters, infested with river weeds, down to the Chobe River, without applying for a trans-zonal permit. The Department of Water Affairs, and not the Botswana Defence Force, is responsible for enforcing the policy on anti-pollution of the river waters.

Botswana's policy on free navigation, including the free movement of tourist boats, was set out in paragraph (e) of the Kasane Communiqué ... Since the Kasane Communiqué was agreed in May 1992, there has been no complaint from the Namibian Government that Botswana ever breached paragraph (e) of the Communiqué which guarantees unimpeded navigation."

Subsequently, Botswana added that:

"Botswana also wishes to reiterate that tourist boats from Namibia are free to travel in the southern channel. The only requirement is that all such boats should be registered, in order to control noxious aquatic weeds ... this requirement is backed by proper legislation, namely, the Laws of Botswana Aquatic Weeds (Control) Act, which commenced in December 1971. The provisions of this Act were later discussed with, and endorsed by the Water Affairs Department of Namibia. Since then, Namibian tourist boat operators have registered as many as 53 boats, to travel in Botswanan waters of the Chobe River. These 53 Namibian boats are permitted to navigate in the southern channel, like any others that have been licensed."

103. The Court, which by the terms of the Joint Agreement between the Parties is empowered to determine the legal status of Kasikili/Sedudu Island concludes, in the light of the above-mentioned provisions of the Kasane Communiqué and in particular of its subparagraph (e) and the interpretation of that subparagraph given before it in this case, that the Parties have undertaken to one another that there shall be unimpeded navigation for craft of their nationals and flags in the channels of Kasikili/Sedudu Island. As a result, in the southern channel of Kasikili/Sedudu Island, the nationals of Namibia, and vessels flying its flag, are entitled to, and shall enjoy, a treatment equal to that accorded by Botswana to its own nationals and to vessels flying its own flag. Nationals of the two States, and vessels, whether flying the flag of Botswana or of Namibia, shall be subject to the same conditions as regards navigation and environmental protection. In the northern channel, each Party shall likewise accord the nationals of, and vessels flying the flag of, the other, equal national treatment.

[pp. S.O. Kooijmans] 25. The Chobe River around Kasikili/Sedudu Island can be said to be part of a "watercourse" in the sense of the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses. Article 2 (a) of that Convention gives the following definition of a watercourse:

"'Watercourse' means a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus."

26. This idea of a watercourse-system as a unitary whole was already recognized by the Institut de Droit International in its 1961 Salzburg Resolution an the utilization of non-maritime international waters (except for navigation) (Annuaire de l'Institut de Droit International, Vol. 49, Part II (1961), pp. 381 ff.). In this Resolution, which was adopted unanimously, the Institute referred to "waters which form part of a watercourse or hydrographic basin which extends over the territory of two or more States". In Article 2 the Institut observes that the right of a State to utilize waters which traverse or border its territory "is limited by the right of utilization of other States interested in the Same watercourse or hydrographic basin", whereas Article 3 states that "if States are in disagreement over the scope of the right of utilization, settlement will take place on the basis of equity, taking particular account of their respective needs, as well as of other pertinent circumstances".

27. In 1966 at its Fifty-Second Conference the International Law Association adopted, with only eight abstentions, the so-called Helsinki Rules on the Uses of the Waters of International Rivers (ILA, Report of the Fifty Second Conference, Helsinki 1966, London 1967, pp. 484 ff.). These refer to the waters of an international drainage basin which in Article II is defined as "a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus".

The Helsinki Rules are far more detailed than the Instituts 1961 Salzburg Resolution and in certain respects can be called a precursor of the 1997 United Nations Convention. With regard to the principle of equitable utilization Article IV states: "Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin".

28. It can, therefore, be said that in doctrine there was already overwhelming support for the principle of the equitable utilization of shared water resources when in 1971 the International Law Commission included the topic "The Non-navigational Uses of International Watercourses" in its general programme of work.

29. From the pleadings in the present case it is clear that the waters around Kasikili/Sedudu Island are nearly exclusively used for tourist purposes. Tourists are carried by flat-bottomed boats (mainly, but not exclusively in the southern channel) to view the wild animals in the Chobe Game Park south of the river, and on Kasikili/Sedudu Island to which these animals regularly cross. Such navigation as there is has virtually nothing to do with fluvial transport in the normal sense of the word "navigation", as this is understood to mean transport by boat in a river from one place to another. The use which is made of the waters around Kasikili/Sedudu Island is more similar to the non-navigational uses of watercourses in the sense of the 1997 Convention.

30. Already in 1929 the Permanent Court of International Justice stressed the community of interest for navigation purposes of all riparian States and the exclusion of any preferential privilege of any of them in relation to the others (Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, p. 27). In the Gabcíkovo-Nagymaros case the present Court observed that "modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly" (I.C.J. Reports 1997, p. 56, para. 85).

31. The 1997 Convention has not yet entered into force and it will take in all probability a number of years before the 35 instruments of ratification necessary for its entry into force have been deposited.

Nor is there any indication that the Parties before the Court have the intention to become bound by its provisions.

This does not mean, however, that a number of the principles, which are formulated in the Convention, have not yet become part of the corpus of international law.

32. In paragraph 1 of its commentary an Article 5 of the 1997 Convention, which deals with the principle of equitable and reasonable utilization and participation, the International Law Commission observes:

"Article 5 sets out the fundamental rights and duties of States with regard to the utilization of international watercourses for purposes other than navigation. One of the most basic of these is the well-established rule of equitable utilization, which is laid down and elaborated upon in paragraph 1".

And the Commission continues by saying that

"a survey of all available evidence of the general practice of States, accepted as law, in respect of the non-navigational uses of international watercourses ... reveals that there is overwhelming support for the doctrine of equitable utilisation as a general rule of law for the determination of the rights and obligations of states in this field" (para. 10).

33. Both Article 5 of the 1997 Convention and Article IV of the 1966 Helsinki Rules seemingly contain a territorial limitation by providing that watercourse States (Helsinki Rules: basin States) in their territories are entitled to a reasonable and equitable share of the uses and benefits of an international watercourse.

Both Instruments, however, clearly reject the so-called "Harmon Doctrine" which embodies the claim that a State has the unqualified right to utilize and dispose of the waters of an international river flowing through its territory.

The comment on Article IV of the Helsinki Rules states that the Harmon Doctrine has never had a wide following among States and has been rejected by virtually all States which have had occasion to speak out on the point and it continues by saying that each basin State has rights equal in kind and correlative with those of each co-basin State.

34. By the commitments contained in the Kasane Communiqué of 24 May 1992 (see para. 102 of the Judgment) the Parties have implicitly recognized that the Chobe River around Kasikili/Sedudu Island is part of a unitary whole, irrespective of the exact location of the boundary as a result of the determination by the Court.

35. The southern channel does not all of a sudden turn into an internal water once it is decided that the northern channel is or contains the "main channel" in the terms of the 1890 Treaty, even if the former is wholly within Botswana territory. It continues to be part of a system of surface waters and groundwaters which by virtue of their physical relationship constitute a unitary whole.

36. In their future dealings concerning the uses of the waters around Kasikili/Sedudu Island the Parties should let themselves be guided by the rules and principles as embodied in the 1997 Convention and in the Helsinki Rules. They should keep in mind that, as the International Law Commission said, "the rule of equitable and reasonable utilization rests on sound foundations and provides a basis for the duty of States to participate in the use and development and protection of an international watercourse in an equitable and reasonable manner".

37. This rule has now been widely accepted both for the navigational and the non-navigational uses of international watercourses. For a further implementation of the rule, Article 6 of the 1997 Convention enumerates in a non-exhaustive way the factors which are relevant to equitable and reasonable utilization.

38. It is clear that the use of the waters around Kasikili/Sedudu Island for tourist purposes has in the course of time become far more important from an economic point of view than the use of the Island itself, e.g., for cultivation purposes; this is also exemplified by the Kasane Communiqué. But even the present economic interest resulting from eco-tourism may be of a transient character. It would, therefore, be commendable if the Parties would place any further co-operation in a wider and more general framework. In this respect it may be recalled that in the Preamble to its 1961 Resolution the Institut de Droit International observes that "in the utilization of waters of interest to several States, each of them can obtain, by consultation, by plans established in common and by reciprocal concessions, the advantages of a more rational exploitation of a natural resource".

[pp. D.O. Weeramantry] 77. It is an important principle of riparian law that equitable factors also play a significant role in determining riparian boundaries, where there is room for a difference of opinion.

One of the principal uses of rivers is navigation and transport and the need especially to use rivers for transportation downstream. That was probably the rationale underlying the thalweg principle, already referred to in this opinion.

There is another factor as well that is relevant to this aspect. Since the vast bulk of the tourist traffic, which is the most vital traffic carried on either channel, uses the southern channel, this is a substantial source of revenue to both countries.

A riparian boundary is meant to afford to both riparian States equal use arid benefit from the boundary river. If the boundary is decided to be the channel which is not suited to carry the bulk of the vessels using the river, both States would not be able to use the river equitably. To hold in the present case that the northern channel is the boundary would, by denying Namibia the use of the southern channel, cause far greater loss to Namibia than the loss that would ensue to Botswana if the southern channel were held to be the boundary, in which case Botswana would be denied only the use of the northern channel which is comparatively of far less value.

This important use of the river must be equitably shared by both riparian States. This use is particularly essential to the economy of both countries. As Namibia informed the Court at the oral hearing, tens of thousands of tourists from all over the world come to Namibia to visit its game parks, arid the same is no doubt true of Botswana. The use of the southern channel to observe the wildlife an Kasikili/Sedudu Island would be a natural arid important part of the agenda of the tourists in both countries.