botswana/namibia - Cour international de Justice

758. This interesting opinion includes the following passage:
"By Article III of an Agreement made in 1900 (sic) with Germany, the boundary at this point
was fixed at the centre of the main channel of the river and if, as now appears to be the case,
the main channel was at all material times on the north side of the island in question, the
mandated territory did not include the island. Under Article 7 of the Mandate no modification
could be made without the consent of the Council of the League of Nations. In so far as the
mandate is still operative, this might be interpreted as referring to some organ of the United
Nations or as making any adjustment impossible. No doubt it is unlikely that anyone would
raise any objection in the United Nations, especially as the proposal is to add to the territory
and not in any way to reduce its area, but the possibility cannot be entirely ignored."
759. In the result on 10 May 1951 the British High Commissioner wrote to the South African
Government in the following terms:
"I must apologise for not having written to you earlier in connection with the Island of
Kasikili in the Chobe River, the correspondence about which rests with your letter No.
P.M.1/18/11 of the 24th January, 1951.
2. I have, however, taken the opportunity since receipt of your letter of the 14th October,
1948, to visit the island myself. As you remark the Island has been cultivated by Caprivi
tribesmen for many years without dispute though there has been no actual occupation. The
Island is always flooded between March and May so that habitation is in effect impossible.
3. The possibility of making a declaration on behalf of the Government of the Bechuanaland
Protectorate to the effect that the Island is not claimed as lying within the boundaries of the
Protectorate has been examined by the Legal Advisers to the Secretary of State for
Commonwealth Relations. I am afraid that they have found this proposal to be beset by legal
complications of an international nature, the solution of which would entail difficulties
disproportionate to the importance of the matter at issue.
4. The Bechuanaland Protectorate Government might possibly wish to arrange for some land
on the Island at some time to be cultivated by the few African public servants at Kasane.
Apart from this minor matter, I venture to suggest that it is unlikely that any development in
the foreseeable future will damage the interests of the Caprivi tribesmen, who have in the past
used the Island. It should, I think, be possible to adjust by administrative action any difficulty
arising in connection with the Island and the adjacent waterway without an alteration of the
existing legal position.
5. The instruction to the Assistant District Commissioner, Kasane, of which you were
informed in Mr. Priestman's letter No. 9628 of the 4th November, 1948 would be maintained,
and it is assumed that the free use of the main channel of the Chobe, to the north of the Island,
would continue to be assured under the international rules governing waterways that form the
common boundary of two states. (Emphasis supplied) (Botswana Memorial, Annex 30).
760. In response, on 29 May 1951, Mr. Forsyth of the South African Department of External
Affairs wrote:
"I note that there are difficulties in the way of recognising the Union's claim to the island and
will inform the appropriate authorities accordingly." (Botswana Memorial, Annex 31).