botswana/namibia - Cour international de Justice

10. Secondly: none of the officials concerned in the administration of the Eastern Caprivi
(South West Africa) or Chobe District (Bechuanaland Protectorate) in the colonial period
regarded the activities of the local population as title-generating. There is no evidence to
suggest that either German or, subsequently, South African officials, had authority from
central government to carry out activities which had the purpose of modifying the treaty
boundary.
11. Thirdly: the available evidence establishes that there was no village on, and no permanent
population living on, Kasikili/Sedudu Island.
12. Fourthly: the dispute originated in the exchanges between the British and South African
Governments in the period 1948 to 1951 and, consequently, in any event there could be no
question of acquiescence from 1948 onward.
13. Fifthly: there was no evidence of British acquiescence at any stage. British officials
regarded the boundary as determined by the Anglo-German Agreement and recognised that
the northern channel was the 'main channel'. Moreover, since these officials did not regard the
agricultural activities of people from the Caprivi on Kasikili/Sedudu Island as title-generating,
the question of protest or opposition could not arise. After independence in 1966 Botswana
maintained the same legal position.
14. Sixthly: when the use of the island for agricultural purposes was prohibited by the British
authorities in 1960, when the Chobe Game Reserve was created, there was no protest from
any source in Namibia. Moreover, when, after thirty-two years, a Namibian official, in the
course of making proposals for commercial development, made representations at local level,
no reference was made to any disruption of the agricultural activities of people from Kasika:
see the Report of the District Commissioner at Kasane, Mr. Mayane, dated 7 March 1992
(Annex 43).
(B) The Namibian Assertions
15. Before the evidence is examined further, it is necessary to indicate the precise character of
the Namibian assertions concerning the chronology of events and the history of the dispute.
16. The key passages in the Namibian Memorial are as follows.
G5 - 1997 aerial photograph of Kasikili/Sedudu Island
(i) "2. Moreover, by virtue of continuous and exclusive occupation and use of Kasikili Island
and exercise of sovereign jurisdiction over it from the beginning of the century, with full
knowledge, acceptance and acquiescence by the governing authorities in Bechuanaland and
Botswana, Namibia has prescriptive title to the Island." (emphasis supplied) (Namibian
Memorial, p.4, para. 14)
(ii) "Throughout these many changes, the British officials just across the Chobe River in
Bechuanaland, and after 1966 the Botswana authorities, were fully aware that Kasikili Island
was continuously and exclusively used by the Basubia people and ruled by the authorities
currently in charge of South West Africa. Yet not once, throughout the whole period of
British rule in Bechuanaland, did the British authorities raise a formal or explicit challenge,
protest or objection to this state of affairs. Even after Botswana's independence, almost two