botswana/namibia - Cour international de Justice

"I feel that I must make one point clear to you. Although accepting the position and being
prepared to honour it; in any discussion or controversy on this Island in future, our
Government will [be] adamant in its attitude that the Island is B.P. - and any attitude in regard
to our "administrative settlements" will of course be based on that fact." (Correction made by
inserting [be]; Botswana Counter-Memorial, Annex 26).
766. In the second place Trollope clearly recognised that the local arrangements were without
prejudice to the legal position. This is clear from the 'we agree to differ' formula in Trollope's
letter of 4 August 1951 (Annex 24) and from his letter dated 23 August 1951 (Annex 25). It is
additionally clear from his letter dated 13 September 1951 in which he states that '... the fact
of Dickinson's caveat is now on record.'
767. The account given of this correspondence in the Namibia Memorial focuses exclusively
on the earlier part of the Trollope-Dickinson exchanges and seeks to give the impression that
the British side did not claim the island: Namibia Memorial, p.113, para. 278. The
correspondence, and especially Dickinson's letter dated 3 September 1951 (above, para. 112),
shows that this is not the case. Moreover, the Dickinson-Trollope exchange must be read in
conjunction with the prior inter-governmental exchanges for the true picture to emerge (see
above, paras. 742-56).
768. From all this no evidence emerges of British acquiescence in a South African claim. This
is in fact accepted in the Memorial of Namibia. There, in paragraph 278, in a passage full of
artificial readings of the relevant documents, the reader is surprised to see the following.
Referring to the attitudes of British officials, the Namibian Government observes:
"Of course, these officials spoke of a 'slight adjustment of the northern boundary of the
Bechuanaland Protectorate'. They were not going to give away legal points, as the exchanges
discussed previously make clear,...." (emphasis supplied).
769. The correspondence between British and South African officials at various levels in the
period 1948 to 1951 exhibits certain consistent features:
First, the exchanges and their outcome were without prejudice to the legal position.
Secondly, the British Government maintained its position that the northern channel was the
'main channel' and that therefore Kasikili/Sedudu formed part of Bechuanaland Protectorate.
Thirdly, the South African Government held the opinion that any claim to the island must be
based upon prescription and the premiss of this position was a recognition that the northern
channel was the 'main channel'.
(vii) The Map Evidence
770. In 1965, shortly before independence, the British authorities had published a map of
Bechuanaland at a scale of 1:500,000. This map was subsequently published in new editions
after the independence of Botswana: see Chapter 8 above, paras. 620-25. In 1974 Botswana
published the first maps of the Chobe district at a scale of 1:50,000: see above. All these maps
place the boundary in the northern channel. This consistent post-independence official
cartography failed to elicit any reservation on the part of South Africa.