botswana/namibia - Cour international de Justice

"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).