botswana/namibia - Cour international de Justice

777. Thirdly, the Namibian Memorial refers to 'discussions ... held at Katima Mulilo' on 24
November 1981 (Memorial, page 115, para. 282), and asserts that at this meeting Botswana
did not 'claim ownership of Kasikili Island' (Memorial, page 115, para. 283.
778. These assertions cannot be justified to the slightest extent by reference to the meeting
which took place on 24 November 1981. The Minutes of the meeting appear in the Botswana
Memorial, Annex 39. The agenda of the meeting was confined to local problems of
neighbourhood and no reference was made to Kasikili/Sedudu Island. The Namibian
Government asserts that the absence of reference to the island was because 'both parties were
satisfied that Sidudu was part of Caprivi' (Namibian Memorial, p.115, para. 282). This is a
mere assumption based upon a South African Defence Force minute three years later. The
truth emerges clearly from the substantial Minutes of the 1981 Meeting.
779. The logic of this entire section of the Namibian Memorial is that silence is always
acquiescence on the part of Botswana. This artificial logic is carried to extraordinary lengths.
Thus, when an incident occurred in the southern channel in October 1984, the sequel was the
meeting in Pretoria on 19 December 1984 between high level delegations from Botswana and
South Africa. Whilst agreeing to a mechanism for peaceful resolution of the issue relating to
the boundary, the Botswana delegation firmly maintained its position that Kasikili/Sedudu
Island formed part of Botswana (see the Botswana Memorial, p. 77-9). This response is
caricatured in the Namibian Memorial (page 116, para. 285) as marking 'the first clear-cut
episode of non-acquiescence by Botswana or any of its predecessors in title'.
780. If this were such a change of position on the part of Botswana, and South Africa and its
predecessors had been in possession since 1890, why was the South African Government
willing to submit the issue to a procedure of peaceful settlement? This fact is particularly
striking, given the contrast in military strength between the two neighbours, and, as the
Namibian Memorial stresses, the fact 'that the South African Government considered control
over Kasikili Island a national security matter' (Namibian Memorial, p.116, para. 284 in fine).
781. The fact that eventually South Africa refused to implement the Joint Survey Report is
hardly evidence of acquiescence by Botswana, as the Namibian Memorial appears to suggest
(Memorial, pp.116-17, paras. 285-6).
782. In conclusion the statement by Namibia, that the Pretoria discussions of 19 December
1984 marked 'the first clear-cut episode of non-acquiescence by Botswana or of its
predecessors in title' (emphasis supplied), is distant from reality in two respects. First of all,
Botswana had not 'acquiesced' and there had been no South African occupation or other
initiative which would have called for any response. Secondly, the British Government, as
predecessor in title, had not 'acquiesced' as the prolonged exchanges of the period 1948 to
1951 unequivocally indicate.
783. The reality, in historical terms, was as follows:
- In the period 1890 to 1948 there had been no dispute relating to the island.
- After the exchanges between the British and South African Governments in the period 1948
to 1951, there could be no legal basis for acquiescence: the United Kingdom had affirmed its
title.