botswana/namibia - Cour international de Justice

771. Map evidence prior to 1965 is inconclusive. After that date, British, Bechuanaland and
Botswana maps clearly showed the boundary to descend the northern channel. However, prior
to this date there was no acquiescence by the British or Bechuanaland authorities; the Seiner
map did not show a boundary line in the river and was never accepted as authoritative; the
depiction of an intercolonial boundary along the southern edge of the Chobe River in the 1933
British map was no more than a cartographic device and not an accurate location of the
boundary which 'descends' the river as provided by the 1890 Anglo-German Agreement. The
correspondence between the Bechuanaland Resident Commissioner and the mapping
authorities of South Africa in 1946 demonstrates that there was no acquiescence in the
erroneous depiction of the boundary in the southern channel in the 1949 South African map,
which in any event was published at a time when South Africa was seeking in high level
correspondence to modify the legal status quo. South African authorities themselves
recognised that the correct location of the boundary was in the northern channel in their
military maps of 1978 and 1984.
(viii) The Evidence relating to the Period since the Independence of Botswana in 1966
772. The Namibian Memorial rounds off the chapter relating to 'acquiescence, acceptance and
recognition' with a section covering 'the period of Botswana independence' (pp.114-17, paras.
280-86). The key assertion is simply that, after achieving independence in 1966, 'almost two
decades passed before Botswana registered any formal protest or entered any formal claim
with respect to Kasikili Island.' (Namibia Memorial, p.114, para. 281).
773. This assertion does not depend upon any evidence but upon a certain surrealist logic. The
absence of 'any formal protest' is meaningless in legal terms unless the Botswana authorities
believed that the South African Government was exercising sovereignty over the island. But
there is no evidence of this. Moreover, the correspondence of the period 1948 to 1951 (see
above, paras. 736-69) provides cogent evidence that the British authorities, both in London
and in the Bechuanaland Protectorate, considered the northern channel to be the boundary in
accordance with the Anglo-German Agreement. After independence Botswana inherited the
boundary by operation of law.
774. The principle of inheritance of boundaries (Uti possidetis) is recognised by the
Government of Namibia (Memorial, page 114, para. 280), but illogically it is not considered
applicable in relation to the boundary established by the Anglo-German Agreement.
775. The Namibian Government offers an eccentric medley of evidence supposed to indicate
the acquiescence of Botswana in an unproven exercise of sovereignty over the island by South
Africa. In the first place, reference is made to South African military activity in respect of 'the
border area' and its 'de facto authority over the area' (Namibia Memorial, pp.114-15, para.
281). As the Government of Botswana has pointed out earlier in the present pleading (above,
paras. 694-6), it is inappropriate to rely on such military activity as evidence of title.
However, the significant point for present purposes is the absence of any evidence that South
African patrolling involved possession of the island.
776. In the second place, the Namibian Memorial invokes 'discussions' alleged to have taken
place at 'the governmental level' in 1974-1975 (Memorial, page 115, para. 282). There is no
record of such a meeting (see Chapter 1, paras. 60-61) and consequently it would be
incautious to treat assertions based upon it as evidence.