botswana/namibia - Cour international de Justice

"Although this action seemed to imply Bechuanaland jurisdiction over the Island, the High
Commissioner's Office made no explicit claim to this effect. The letter simply informed South
Africa that the instruction had been issued." (Namibian Memorial, p.111).
But, of course, no claim, explicit or otherwise, was needed. Even South Africa's own officials,
like Trollope, knew that the northern channel was the boundary fixed by the Anglo-German
Agreement.
753. The reaction of the South African Government was to send a note (dated 10 December
1948) to Trollope asking 'whether you consider this arrangement to be satisfactory'.
(Botswana Counter-Memorial, Annex 20). Trollope's response was unfavourable: see his
letter dated 15 January 1949, in which he repeats his earlier unfounded assertions of South
African 'de facto possession of the island'. (Botswana Counter-Memorial, Annex 21).
754. The next document available consists of a recommendation to the South African
Government from the Secretary for Native Affairs (dated 4 February 1949) in the following
terms:
"With reference to your minute, No. P.M. 1/18/11 of 18th November, 1948, I have the honour
to forward herewith a copy of a report received from the Magistrate, Eastern Caprivi Zipfel.
If it is not the intention of your Department to press a possible claim to the island on the
ground of prescription it would seem that the arrangements made by the High Commissioner
will be suitable provided that the suggested permit to "cultivate land" on the island can be
interpreted to embrace practices customarily connected therewith such as temporary residence
during dry spells, the depasturing of cattle, the collection of grass and reeds and fishing and
hunting.
Is it intended that one annual renewable permit be granted to the Magistrate in respect of all
the Native users of the island generally, or is a separate permit to be issued to each individual?
The former alternative would undoubtedly be preferable." (Botswana Counter-Memorial,
Annex 22).
755. On 14 February 1949 the South African Government wrote to the British High
Commissioner making a claim to Kasikili/Sedudu Island for the first time, and proposing an
arrangement 'on the basis of your Administration recognising the Union's claim to Kasikili
Island subject to it issuing a general permit for the use of the Northern waterway for
navigation purposes': Botswana Memorial, Annex 25.
756. The result of this South African proposal was a letter from the British High
Commissioner (dated 6 June 1949) to the British Government recommending acceptance of
the proposal: Botswana Memorial, Annex 26.
757. At this point it is clear that the British Government was not prepared to accept the
proposal for the 'slight alteration' of the boundary: see the letter of the British High
Commissioner to the Prime Minister's Office, Pretoria, dated 24 August 1949: Botswana
Memorial, Annex 27. On 20 October 1949 the legal advisers of the Commonwealth Relations
Office wrote to the British High Commissioner explaining the legal problems in detail:
Botswana Memorial, Annex 28.