botswana/namibia - Cour international de Justice

761. This correspondence at the inter-governmental level provides not the slightest indication
of British recognition of South African title to Kasikili/Sedudu Island. Nor does the British
side accept that there is any 'occupation' of the Island by people from the Caprivi. The
absence of British recognition, and the real risk of South African recognition, appears from
the following South African letter dated 30 May 1951 from the Secretary to the Prime
Minister to the Secretary for Native Affairs:
"With reference to your Minute No. 5/412 of the 4th February, 1949, regarding Kasikili Island
in the Chobe River, I enclose for your information a copy of a letter addressed to the Chief
Secretary to the High Commissioner for Basutoland, the Bechuanaland Protectorate and
Swaziland on the 14th February, 1949, and of the reply received from the High Commissioner
on the 10th May, 1951.
In view of the High Commissioner's remarks as to the difficulties in the way of recognising
the Union's claim to the Island, I shall be glad to learn whether your Department, as the
authority responsible for the administration of the Caprivi Zipfel, considers the matter of
sufficient importance to warrant the Union pressing its prescriptive claim. If not, it would
appear inadvisable to seek a license on behalf of the Caprivi Tribesmen to cultivate land on
the island as proposed by the Administrative Secretary to the High Commissioner in his letter
of the 4th November, 1948, as this would presumably be tantamount to recognising the right
of the Bechuanaland Administration to dispose over the Island.
In either event it would perhaps be advisable to seek legal advice as to the further steps to be
taken in the matter". (Botswana Counter-Memorial, Annex 23)
762. As the Government of Botswana has pointed out in its Memorial, the previous
correspondence had included several express admissions by the South African Government
that the 'main channel' (in accordance with the Anglo-German Agreement) lies to the north of
Kasikili/Sedudu: Botswana Memorial, pp.67-71, paras. 153-9.
763. The final phase of the correspondence involved the remission of the issue to the local
administrators, Trollope and Dickinson, to give effect to the proposals for an adjustment 'by
administrative action' contained in the British High Commissioner's letter dated 10 May 1951
(see above, paragraph 759) 'without an alteration of the existing legal position'.
764. This correspondence appears in Annexes - of the present Counter-Memorial. The final
exchanges, leading to a local modus vivendi were as follows:
(i) Trollope to Dickinson, 23 August 1951 (Annex 25).
(ii) Dickinson to Trollope, 3 September 1951 (Annex 26).
(iii) Trollope to McLaren (Dickinson's successor), 13 September 1951 (Annex 27).
(iv) The Government Secretary (Bechuanaland Protectorate) to McLaren, 20 November 1951
(Annex 28).
765. The correspondence calls for careful perusal as a whole, but certain points are clear. The
British Government maintained its legal position unequivocally. As Dickinson reported in his
letter dated 3 September 1951: