botswana/namibia - Cour international de Justice

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729. In general, it is difficult to see any relevance in the episode. The documents certainly assume that the process of cultivation had no legal consequences in the context of title by virtue of public international law. (iv) The 1909-1914 Negotiations 730. The Namibian Memorial invokes the Anglo-German negotiations of 1909 to 1914 as the basis for an argument that, because the British Government addressed the Andara question in detail, its silence in relation to the boundary in the Chobe River sector 'gives rise to presumption of acquiescence and recognition of the alignment in the second sector': Namibian Memorial, pp. 105-9, paras. 263-73; at page 109, para. 273. 731. It has been shown earlier (Chapter 1) that the issue of 'main channel' was not the subject of negotiations between the two Governments. Moreover, the internal British opinion was that the northern channel constituted the 'main channel'. And, in any case, there could be no 'acquiescence and recognition of the alignment' unless the British Government believed that Kasikili/Sedudu Island was under German occupation. 732. There was no evidence of German occupation. Captain Eason did not report any German activity. Moreover, Captain Eason, like other British officials over the years, considered that the northern was the main channel. 733. It is also to be recalled that, in the course of the correspondence of 1948 to 1951, the British and South African interlocutors make no reference to the period 1909 to 1914: see below. There is some evidence (Chapter 1) that, if an arbitration had taken place, this might have included the 'main channel' issue: but this evidence is inimical to any theory of British acquiescence of any kind. (v) Transactions Relating to the Andara Problem, 1930-1932 734. In the period 1930 to 1932 the British and South African Governments were involved in a series of transactions relating to the siting of the western terminal beacon of the northern boundary of the Caprivi Zipfel on the line from Andara to Katima Mulilo: see above, Chapter 1, para. 40. 735. It is significant that, during this process of resolving residual issues relating to the Anglo- German Agreement, the South African Government made no reference to any problem concerning Kasikili/Sedudu. (vi) The Correspondence of 1948 to 1951 between the British and South African Governments 736. The hollowness of the assertions relating to 'acquiescence, acceptance and recognition' in Chapter IV of Part Two of the Namibian Memorial is particularly evident in the context of the correspondence between the British and South African Governments in the period 1948 to 1951. In this correspondence South Africa issued a challenge to the status quo in the form of a request for a modification of the legal status quo. The British Government upheld the standard view that the northern and western channel constituted the 'main channel' for the purposes of the Anglo-German Agreement. The outcome was an exclusively political modus vivendi.
737. The episode as a whole provides unequivocal evidence for the following propositions: First: until 1948 there had been no dispute. Secondly: British officials had at all stages taken the position that the northern channel was the main channel for the purposes of the Anglo-German Agreement of 1890. Thirdly: there was no evidence of any British acquiescence as alleged by Namibia. 738. In addition, the relevant documents include official South African admissions that the 'main channel' is the northern and western channel. 739. The Namibian Memorial (pp.109-14, paras. 274-9) produces an analysis of the relevant correspondence which has a number of marked eccentricities. The emphasis (in the rubric, for example) is on 'the Trollope-Dickinson Arrangement', whereas the dealings between the two officials were simply the consequence of exchanges at the inter-governmental level. 740. The second eccentricity involves the acceptance by Namibia that the British Government adopted the position that the northern channel was the main channel for the purposes of the Anglo-German Agreement, accompanied by the statement by Namibia that the British Government did not assert 'a formal claim that the island was within the Bechuanaland Protectorate': Namibian Memorial, pp.109-10, para. 274. As the Court will appreciate, given the nature of the boundary, the assertion that the northern channel was the 'main channel' for the purposes of applying the Anglo-German Agreement necessarily involved a formal claim. This is a good example of the Namibian Government's flawed logic: thus it does not follow that, because the prescription/acquiescence argument is independent of the Anglo-German Agreement, that the existence of the Agreement can be ignored. 741. There are other eccentricities and misreadings of the situation in the relevant section of the Namibian Memorial and it is necessary to look carefully at the entire sequence of documents. 742. The sequence of events begins with the following letter from Mr. Redman, the Assistant District Commissioner at Maun (Bechuanaland Protectorate), to Major Trollope, the Magistrate for the Eastern Caprivi Zipfel (forming part of South-West Africa under the League of Nations Mandate): 'I have the honour to inform you that I have received a letter from the Zambezi Transport & Trading Company stating that they wish to recommence the transport of timber by river from Serondellas but that they have been informed by you that the channel between Kasane and Serondela which they intend to use, is in the Caprivi Strip. 2. At low water I understand that this channel is the only water connection between Kasane and Serondellas and I suggest that if this channel does happen to run into the Caprivi Strip from the Chobe river along which our boundary runs, it will be in both our interests and a matter of convenience if we can come to an arbitrary agreement that half this channel is included in this Territory for the purpose of the transport of the timber by the Zambesi Transport and Trading Company.
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INTERNATIONAL COURT OF JUSTICE CASE
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10. Secondly: none of the officials
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and cloudy mode of argumentation ad
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commissioned a study of the questio
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"5. Since the attached report was p
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The Report discloses that while the
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more general point of continuity th
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the herds have taken to crossing on
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Secextern would appreciate the seri
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1984) to a decisive resolution of t
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entrepreneur to construct a tourist
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105. The South African regime there
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(F) Boundary Pressures 116. Through
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Africa not to violate her territory
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Secondly: the Namibian Government r
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"The dispute concerns the reach of
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(i) The Intergovernmental Agreement
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161. Earlier in the present chapter
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demonstrated in Chapter 9, the lega
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182. The cardboard character of the
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194. The preparatory work of the An
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204. In the Joint Report itself the
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213. Thus the South African letter
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223. The first of these is an absen
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para. 169) went on to refer to the
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(c) any relevant rules of internati
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256. The key passages in his Report
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partisan approach is characterised
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the River Rovuma in Article I(2) an
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282. This statement is somewhat con
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plain and its greater depth must re
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303. The Namibian Memorial exhibits
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to sidestep these inconvenient fact
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unsubstantiated thesis that Botswan
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(Goudie. ed.; The Encyclopaedic Dic
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"Representatives of the two nationa
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(v) The mud-peat deposits in the ar
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[6. Selous' more contemporary accou
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German Agreement of 1890. The Cuand
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372. The shape of the southern chan
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382. When a river channel bifurcate
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[8. List of Air-Photographs reviewe
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402. The marked stand of big hardwo
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G28 - 1947 aerial photograph with l
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421. This photograph is part of a s
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Nambian Memorial (p.56,paragraph 15
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449. Three bands were chosen for th
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(c) That there is flow at all seaso
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466. It is clear that, even if the
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Page 107 and 108: scientific evidence, in which case
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Page 111 and 112: 552. Upon appropriate analysis, it
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Page 119 and 120: 589. This sketch map includes the i
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Page 125 and 126: 616. The map is annotated in red in
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Page 131 and 132: 643. VIII. As regards the 1949 Sout
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Page 139 and 140: 670. The primary legal condition fo
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Page 143 and 144: Schuckmannsburg to pay it. (footnot
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Page 157 and 158: 761. This correspondence at the int
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Page 165: (signed) Abednego Batshani Tafa, De
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botswana/namibia - Cour international de Justice

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