Locating the channel and other tales from the river bank: constants and change in river boundary delimitation

ABSTRACT

Nowhere is the contrast between the top-down process of drawing a boundary and the ground-up reality of living with it so obvious as in delimitations along rivers – live features not just physically but also, potentially, navigable arteries. Illustrations are drawn from the chequered history of two famous colonial river boundaries along the Shatt al-Arab and Jordan rivers; and in the invocation of history in legal settlements of the status of Kasikili/Sedudu Island in the Caprivi Strip (1995–99) and the Abyei region on the Bahr al Arab between Sudan and South Sudan (2008–09).

KEYWORDS:

• River boundary delimitation
• Botswana
• Israel
• Jordan
• Namibia
• South Sudan
• Sudan

Acknowledgement

I would like to thank Matthew Tillotson for his useful comments on an earlier draft and also three individuals who, like Tony Allan, are sadly no longer with us but with whom I have enjoyed so many great conversations about river boundaries over the years: Mike Burrell, Kaiyan Kaikobad and Keith McLachlan.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The author and Tony Allan were involved together with the dispute resolution process in two of these cases. In conjunction with Tony’s late colleague, Keith McLachlan, we put together a Report on Jordan’s Western Boundary during 1993–94 in conjunction with Jordan’s Royal Scientific Society (Geopolitics Research Centre, 1994) with Tony leading on water and myself on territorial issues. Fast forward one-and-a-half decades to February 2009, we later co-authored a report entitled The Boundaries and Hydrology of the Abyei Area, Sudan (referred to as the Menas Borders report in subsequent court proceedings) (Schofield & Allan, 2009) to support the Sudan People’s Liberation Movement/Army’s (SPLM/A) case at the Permanent Court of Arbitration in the Abyei case. We would then defend this under cross-examination a couple of months later at the hearings stage of the case when appearing as expert witnesses for the SPLM/A.

2. This general rule would later be summed up neatly by a 1970 US Supreme Court decision (Arkansas vs. Tennessee, 1970): ‘It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing into it, and irrespective of subsequent changes in the new channel’ (US Supreme Court, 25 February 1970).

3. Imperial access to the continent’s prominent physical features was seen as a prestige indicator, hence the Kenya/Tanzania boundary was reputedly defined in a manner that shared colonial control of East Africa’s two highest mountains, Mount Kenya and Mount Kilimanjaro – a sort of natural boundaries mindset writ large!

4. Hence during the Permanent Court of Arbitration case, the SPLM/A (South) went for a tribal interpretation that reflected the extent of territory inhabited by the Ngok Dinka in 1905, while the Government of Sudan went for a more conventional territorial interpretation that argued for the existence of a known provincial river boundary (Born & Raviv, 2017).

5. ‘The Bahr region extends south from the boundary of the ‘go’z area in the west of Southern Kordofan at a latitude of approximately 10 degrees 0 minutes N, and south from Lake Keliak in the east of Southern Kordofan, and encompasses the areas around the Ngol/Ragaba ez Zarga and Kiir/Bahr el Arab’ (Schofield & Allan, 2009, p. 1).

6. In its definition of delimitation, the Permanent Court of Arbitration relied upon what this author had said in court during the hearings stage in April 2009: ‘As explained by […] Schofield, there are three stages in a boundary’s evolution: allocation, delimitation and demarcation. Allocation deals with allocating territory and not the actual boundary, while demarcation simply physically marks out the boundary on the ground. Delimitation, quite differently, is when the line is established and specified. It requires “an executive act” of determining where the actual boundary line should be, and calls for a detailed description of the location of a boundary line’ (SPLM/A Oral Pleadings, 22 April 2009, Transcr.121/03-122/02).

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Funding

The author reports there is no funding associated with the work featured in this article.