botswana/namibia - Cour international de Justice

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3. If however the channel referred to is part of the Chobe river and not a branch off from it then it seems probable that the actual boundary is formed by the deep water-channel in the river, which would mean that they would not be entering your Territory. 4. I would be glad to have your views on this matter. 5. From the beginning of the New Year an Assistant District Commissioner will be stationed permanently at Kasane and I have asked him to write to you shortly after his arrival to fix a date when it will be convenient for you to see him and discuss any matters which have recently arisen concerning the Ngamiland and Chobe district.' (Letter dated 18 December 1947; Botswana Counter-Memorial, Annex 18) 743. The response of Major Trollope on 3 January 1948 was to propose the holding of a 'joint informal investigation', followed by reports to the respective governments: see Namibia Memorial, Annex 59. The sequel was the preparation of a Joint Report by Trollope and Redman, signed on 19 January 1948 (Botswana Memorial, Annex 22). The key paragraphs in the Report are as follows: "2. We attach hereto a sketch map (not drawn to Scale) of the Kasikili Island in the Chobe River and the waterways relative thereto. 3. We find after separate examination of the terrain and the examination of an aerial photograph that the "main Channel" does not follow the waterway which is usually shown on maps as the boundary between the two Territories. 4. We express the opinion that the "main Channel" lies in the waterway which would include the island in question in the Bechuanaland Protectorate. .... 8. We record the foregoing as facts particularly recording that we have neither arrived at, nor expressed any joint opinion on the effect of those facts on the question of the ownership of the Island.' 744. The Joint Report was then sent to the respective Governments. In his covering letter Noel Redman, District Commissioner at Kasane (Bechuanaland Protectorate), made it clear that it was Trollope who had persisted in raising the issue at the higher level: "4. It is a matter which I feel could have been decided between us but the Native Commissioner concerned will not come to an agreement recognising the Island as belonging to this Territory even if the Caprivi natives were allowed to stay there. He has therefore referred the matter to the Secretary of Native Affairs, Pretoria suggesting that a decision should be reached between the two Governments concerned." (Botswana Memorial, Annex 22). 745. Trollope's letter to the Secretary of Native Affairs, Pretoria, dated 21 January 1948, includes the following revealing observations:
"3. There is no doubt that if the wording of the 1890 Treaty is applied to the geographical facts as they exist today the true inter-territorial boundary would be the northern waterway and would include Kasikili Island in the Protectorate. 4. There is just a possibility that since 1890 when the Treaty was made the course of the river has altered - but that proposition could only rest on supposition as there is no direct evidence thereof. .... 12. The geographical and Treaty position are clearly in favour of Bechuanaland but I feel that I would be failing in my duty to the tribesmen were I to recommend alternative No. I in view of their long and undisturbed use of the island. If the acceptance of the Bechuanaland case is however irresistible, then I would recommend alternative No. II.' (emphasis supplied; Namibia Memorial, Annex 61) 746. Thus Trollope accepts that the main channel is the northern channel. The other considerations (not set forth above) consist of his own amateur suppositions concerning a case based upon prescription. In this context, the suggestion that the Bechuanaland Administration failed to object in face of cultivation of the island by 'Caprivi tribesmen' is based upon the false premiss that such cultivation had legal implications and therefore some objection was called for. 747. Trollope's letter was forwarded to the Secretary for External Affairs (Pretoria) with a request for advice. In his covering letter the Secretary for Native Affairs stated the following: "I have the honour to forward herewith for your consideration a copy of minute No. 17/15/2-5 of the 21st January, 1948, received from the Magistrate, Eastern Caprivi Zipfel, relating to the ownership of an island known as "Kasikili" in the Chobe River. I am unable to find anything directly bearing on the point in the records of this office, and there is nothing I could usefully add to the Magistrate's representations. The position would appear to be:- (a) that according to Article three of the Agreement between Germany and Great Britain respecting the delimitation of the possessions of the two countries and their respective spheres of influence in South Africa, which was signed at Berlin on the 1st July, 1890, the boundary line between what is now the Eastern Caprivi Zipfel and the Bechuanaland Protectorate 'descends the centre' of the main channel of the Chobe river to its junction with the Zambesi. (b) that the island in question probably lies on the Bechuanaland Protectorate side of this line; (c) that the island has been made use of by the Caprivi Zipfel Natives as part of their territory for over 40 years at least and is still being used by them, without any objection on the part of the Bechuanaland and Protectorate authorities. Will you kindly advise me what the position is?" (Letter dated 9 April 1948; Botswana Counter-Memorial, Annex 19).
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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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"Yes, because when you build a hous
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Page 113 and 114: 561. At paragraphs 294 to 296 the B
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Page 117 and 118: 579. From the first moment when the
Page 119 and 120: 589. This sketch map includes the i
Page 121 and 122: Military Survey, Ministry of Defenc
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Page 125 and 126: 616. The map is annotated in red in
Page 127 and 128: depicted along the boundary. Inexac
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Page 131 and 132: 643. VIII. As regards the 1949 Sout
Page 133 and 134: 24. Joint Operations Graphic Ground
Page 135 and 136: (b) as regards notification when th
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Page 139 and 140: 670. The primary legal condition fo
Page 141 and 142: (iii) The Alleged Authority of the
Page 143 and 144: Schuckmannsburg to pay it. (footnot
Page 145 and 146: invoked on the basis that it pre-da
Page 147 and 148: 712. The second solution is as foll
Page 149 and 150: particular, there is no evidence to
Page 151: 737. The episode as a whole provide
Page 155 and 156: "Although this action seemed to imp
Page 157 and 158: 761. This correspondence at the int
Page 159 and 160: 771. Map evidence prior to 1965 is
Page 161 and 162: - From the time of Botswana's indep
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Page 165: (signed) Abednego Batshani Tafa, De
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