botswana/namibia - Cour international de Justice

204. In the Joint Report itself the two officials stated:
"4. We express the opinion that the "main channel" lies in the waterway which would include
the island in question in the Bechuanaland Protectorate". (Botswana Memorial, Annex 22).
205. A compelling feature of the diplomatic exchanges of the period 1948 to 1951 between
South Africa and the United Kingdom is the unvaried assumption by all concerned that the
'main channel' was the northern channel. This assumption lies behind the South African
decision to ask the British Government to adjust the existing alignment (see High
Commissioner to Commonwealth Relations Office, 6 June 1949; Annex 26).
206. The assumption that the northern channel was the 'main channel' was, of course, made in
relation to a debate precipitated by Mr. Ker's application for permission to use the northern
channel for navigation. Key elements in the correspondence are as follows.
207. On 14 October 1948 the South African Secretary to the Prime Minister and for External
Affairs wrote as follows to the British High Commissioner;
"I have the honour to enclose a copy of a Joint Report by the Magistrate of the Eastern
Caprivi Zipfel and the District Commissioner at Kasane, Bechuanaland Protectorate,
regarding the boundary between the Protectorate and the Eastern Caprivi Zipfel.
It is understood that the necessity for consideration of the matter arises from the fact that a
certain river transport venture, which proposes to transport timber down the river from a
sawmill in Bechuanaland has raised the question of the correct boundary both in
representations to the Magistrate, Eastern Caprivi Zipfel, and to the Bechuanaland authorities.
The Report discloses that while the main channel of the Chobe River is shown on maps as
passing to the South of Kasikili Island it in fact passes to the North of that Island.
It has been confirmed, as a result of exhaustive enquiries, that there has been no shifting of the
main channel of the river from South to North within living memory. The facts, therefore,
point to the maps being incorrect.
As against the foregoing there is evidence that the Island has been cultivated by Caprivi
Tribesmen since at least 1907 and that their right to the occupation of the Island has at no time
been disputed.
The Union Government is anxious to preserve the rights of the Caprivi Zipfel tribesmen on
the Island and it is understood that the Bechuanaland authorities desire the use of the Northern
channel for navigation purposes. As there would appear to be no conflict of interests it should
be possible to come to an arrangement which is mutually satisfactory. Your views in the
matter would be appreciated." (emphasis supplied) (Botswana Memorial, Annex 23)
208. At a later stage in this correspondence the British High Commissioner expressed his
views in a letter to the South African Government dated 10 May 1951:
"I must apologise for not having written to you earlier in connection with the Island of
Kasikili in the Chobe River, the correspondence about which rests with your letter No. P.M.
1/10/11 of the 24th January, 1951.