botswana/namibia - Cour international de Justice

more general point of continuity the Government of Botswana observes that during the JTTE
proceedings both sides relied upon transactions involving the South African Government in
their submissions.
(iii) The Prohibition of Agricultural Activities as a Result of the Establishment of the
Chobe Game Reserve: the Absence of Protest from the South African Authorities in the
Period 1960 to 1992
58. The Namibian case is built upon an alleged 'occupation' of the Island by the Basubia,
allegedly on behalf of the South African Government, in the period of the Mandate, and
thereafter until Namibia's independence in 1990 (Namibian Memorial, p.100, para. 249). The
evidence available indicates that from 1960 onwards all cultivation was prohibited on the
island by the authorities of British Bechuanaland and Botswana as a consequence of the
establishment of the Chobe Game Reserve (subsequently constituted as the Chobe National
Park).
59. If the Namibian allegations of fact had any basis, the exclusion of the Basubia from the
Island would have provoked protests from the authorities in South West Africa. In fact no
representation was made until March 1992 (Botswana Counter-Memorial, Annex 43). When a
representation was made, it related to the proposal from a Namibian entrepreneur to construct
a tourist centre on the Island, and had no relation to cultivation.
60. This picture is confirmed by the talks between a 'delegation of Caprivians' and a Botswana
delegation in 1981 at Katima Mulilo. The Minutes of the meeting appear in the Botswana
Memorial, Annex 29. The meeting was concerned to discuss local problems and yet no single
reference was made to Kasikili/Sedudu Island. The Namibian Government accepts this but
asserts, without any supporting evidence, that this was because 'both parties were satisfied
that Sidudu was part of Caprivi' (Namibian Memorial, p.115, para. 282, quoting a South
African document of 1984).
61. The Chobe Game Reserve was established by High Commissioner's Notice No. 65 of
1960 (Botswana Memorial, Annex 32). Both this measure and subsequent legislation provided
that the northern boundary of the Game Reserve corresponded with the international boundary
of the Bechuanaland Protectorate and of Botswana. The subsequent legislation was as
follows:
(i) The Fauna Conservation Proclamation, 1961 (Botswana Memorial, Annex 33). (First
Schedule).
(ii) Government Notice No. 86 of 1964 (Botswana Memorial, Annex 34).
(iii) The National Parks Act, 1967 (Botswana Memorial, Annex 37) (Schedule (Section 3))
(and see also Botswana Counter-Memorial, Annex 31).
(iv) The Chobe National Park (Amendment of Boundary) Order, 1980 (Botswana Counter-
Memorial, Annex 33).
(v) The National Parks Constitution Order, 1987 (Botswana Counter-Memorial, Annex 38).