botswana/namibia - Cour international de Justice

particular, there is no evidence to support the eccentric contention that the agricultural
activities of the Caprivi farmers on the island, in so far as these occurred, could generate title
and, much less, modify by their activities the provisions of a boundary treaty: see above,
paras. 683-99.
723. The evidence shows that officials on both sides were of the opinion that the main channel
was the northern and western channel: see above.
724. In these circumstances it is untenable to suggest that the silence of the British authorities
had any legal significance. There was no legal need to protest and therefore there was, in a
legal sense, no silence or passivity. There was no prejudicial status quo in face of which
silence could affect the legal position. It is significant that, when Major Trollope (Chief
Magistrate of the Eastern Caprivi) sought to change the status quo in 1948, this provoked
correspondence between the United Kingdom and South Africa at a high level.
725. This correspondence will be analysed in due course. The developments in the period
1948 to 1951 are wholly inimical to the Namibian assertion of acquiescence. On the one hand,
they confirm that no dispute had existed prior to 1948 and, on the other hand, the events of
this period involved notice to the South African Government of the views of the British
Government on the point of legal principle: namely, that the northern and western channel
constituted the main channel.
(iii) The Significance of Permits relating to Trans-boundary Cultivation
726. The Namibian Memorial seeks to mount an argument based upon two factual premisses.
The first is that in the period 1917 to 1929 the British administration issued permits to the
Barotse of Northern Rhodesia in respect of cultivation, grazing, fishing and wood cutting in
the Caprivi Strip: see the Memorial, pp.103-4, para. 258, and Namibian Annexes 50 and 51.
The second is that the British 'failed to require similar authorization for the Masubia of
Caprivi to farm there' (Namibian Memorial, p.104, para. 258). The alleged contrast, it is
suggested, indicates that the British did not regard Kasikili/Sedudu Island as part of
Bechuanaland.
727. The second premiss is unfounded. In 1924 the Chief Liswaninyana of Kasika requested
permission from the Resident Magistrate at Kasane for his people to plough on
Kasikili/Sedudu Island, and graze cattle there: see Chapter 1, para. 37.
Moreover, the correspondence between the British and South African authorities in the period
1948 to 1951 demonstrates clearly that it was the British side which controlled the Island: see
below, paras. 736-69.
728. In any case, the first premiss is false. There is no necessary connection between the
requirement of permits and the existence of title. Permission may be given informally. There
is no reason to assume a comparability between the two situations. In the case of the Barotse
it is clear that large numbers of people were involved and there appear to have been
substantial public order and revenue implications: see the Namibian Memorial, Annexes 50
and 51. The circumstances were radically different from those prevailing on the Chobe River,
where permission was given without any bureaucratic paraphernalia being required.