botswana/namibia - Cour international de Justice

(ii) The existence on the part of the State exercising authority of a genuine belief that it has
title (the possession must be a titre de souverain).
652. The basic conditions for the application of the doctrine of prescription set forth in the
Namibian Memorial appear to be substantially similar: see, in particular, pages 68-9, paras.
185-7. That being said, the Government of Botswana must make an important reservation.
The exposition of the law in the Namibian Memorial is characterised by a certain blandness.
The case before the Court is treated as a part of an undifferentiated whole, that is, the law
relating to acquisition of territory.
653. In this context, various familiar authorities are invoked, including the Island of Palmas
case and the Eastern Greenland Case (Namibian Memorial, pp.67-8, para. 184). As the Court
will readily appreciate, these cases involve widely different circumstances, both of political
background and legal context. Moreover, such cases did not involve a boundary agreement,
and this significant difference is to be borne in mind.
(B) The Impropriety of the Namibian Prescription Argument
654. The position of the Government of Botswana can be conveniently summarised as
follows:
First: given the nature and purpose of the definition of the river boundary in the Anglo-
German Agreement there is ipso jure no room for the application of the doctrine of
prescription.
Secondly: in the alternative, the conditions for the application of the doctrine of prescription
have not been fulfilled.
Thirdly: in any event the Namibian Government is bound by the recognition by its
predecessors that, in terms of the Anglo-German Agreement, the northern channel constitutes
the 'main channel' of the River Chobe.
655. The first objection to the prescription argument must be its impropriety, that is to say, the
inapplicability of such an argument to a river boundary expressly defined by treaty as in
Article III, paragraph 2, of the Anglo-German Agreement.
656. As a preliminary step, it is appropriate to recall that the whole point of prescription is to
give a relative legitimacy to what would otherwise be unlawful. Numerous authorities give
emphasis to this role. Thus, writing only six years after the conclusion of the Anglo-German
Agreement, Professor Audinet observes that:
"La prescription aurait donc pour but de suppléer au consentement, qui a fait défaut:
consentement de l'État, de la population ou de l'un et l'autre". (Revue générale de droit
international public, Vol. 3 (1896), p.313, at p.318: the text of the article is reproduced in
Annex 2).
657. In his study, The Acquisition of Territory in International Law, Professor Jennings (as he
then was) refers to 'prescription strictly so-called, where the actual exercise of sovereign
rights over a period of time is allowed to cure a defect in title; the case, that is to say, where