botswana/namibia - Cour international de Justice

administration. The presence of a school at Kasika (and not on the Island) is established by
the following evidence:-
(i) Lists of schools in the Reports of the Government of South Africa on South-West Africa,
for the years 1927, 1928 and 1929, to the Council of the League of Nations: see Report for
1927, p.122; Report for 1928, p.107; and Report for 1929, p.67(Botswana Counter-Memorial,
Annexes 11-13). These refer only to a school at Kasika.
(ii) The South African official document: Major Trollope, Report on the Administration of the
Eastern Caprivi, 1940 (Namibian Memorial, Annex 58), at page 25. This refers to the school
at Kasika.
(iii) Documents in the Botswana National Archives refer to the school established at Kasika
with support from the British authorities: see the Resident-Commissioner's Report, dated 29
April 1929 (Botswana Counter-Memorial, Annex 14).
676. The Namibian Memorial (pp.73-80) relies upon the testimony before the Joint Team of
Technical Experts of Basubia who claimed to have knowledge of agricultural activities on the
island at various times. The credibility and other aspects of this evidence is examined in
Chapter 7 of the present Counter-Memorial. The evidence of Chief Moraliswani, which the
Government of Botswana considers to be reliable, in any event makes it clear that cultivation
on the island ceased the year after Chief Liswaninyana died, that is, in 1937.
677. The photographic evidence in the form of the 1925, 1943 and 1947, air-photographs
shows no sign of huts or structures of any kind on the island. The same photographs show no
signs of cultivated areas, with the exception of the 1943 photograph which shows some small
fields on the sector of the island opposite the Sedudu valley. The available evidence
establishes that these fields were established by Batoka living in the Sedudu valley in the
years up to 1941. During the JTTE witness hearings, several witnesses recalled that Batoka
used to stay on the Island: Final Report, JTTE, Transcript of Hearings, Vol. 1 (Fourth Round),
pp. 27, 35, 37, 79, 81, 85-87. It is to be noted that the aerial photograph of 1943 contains
evidence of recent human activity: see site marked D: Attachment to this Counter-Memorial.
678. During the recent coring exercise on the island, no evidence of settlements or cultivation
in the form of artefacts, charcoal or bones of animals, was found. The coring contractor was
specifically instructed to be on the look-out for such objects. Despite a close matrix of 13
holes on an island of less than 4 square km, no such object was found.
679. In fact all this evidence is irrelevant. The acts of private persons cannot generate title
unless those acts are subsequently ratified by the State. As has been pointed out earlier, it is
eccentric to propose that the boundaries established in the Anglo-German Agreement were, as
from 1890 onwards, subject to modification as a result of local agricultural activities, whether
these were sponsored by the given colonial administration or not.
680. In any event, the Basubia tribe, both in the nineteenth century and to the present day, live
on both sides of the boundary.
681. The Namibian Memorial also presents the 'agricultural activities' argument in another
form, relying upon the Basubia chiefs as agents of the State for the present purposes. This
question calls for separate examination.