botswana/namibia - Cour international de Justice

the exercise of sovereign rights either rests upon a demonstrably defective title or is even in
origin wrongful.' (The Acquisition of Territory in International Law, Manchester, 1963, p.21)
658. The role of prescription in legitimating an ab initio wrongful possession is indicated
clearly in the ninth edition of Oppenheim, Volume I, edited by Sir Robert Jennings and Sir
Arthur Watts. The relevant passage is as follows:
"... There is no doubt that, in international practice, a state has been considered to be the
lawful owner even of those parts of its territory of which originally it took possession
wrongfully, provided that the possessor has been in undisturbed possession for so long as to
create the general conviction that the present condition of things is in conformity with
international order. Prescription in international law was therefore defined in the previous
edition of this work as the acquisition of sovereignty over a territory through continuous and
undisturbed exercise of sovereignty over it during such a period as is necessary to create
under the influence of historical development the general conviction that the present condition
of things is in conformity with international order." (Footnote omitted) (Oppenheim's
International Law, Vol. 1, The Law of Peace, 9th ed., by Sir Robert Jennings and Sir Arthur
Watts, 1992, p.706.
659. It is against this doctrinal background that the Namibian argument is to be assessed. The
prescription argument is based upon: 'The conduct of the parties for the century after 1890..'
(Namibian Memorial, p.66, para. 180). Moreover, the Namibian Government quotes Johnson
for the view that 'the essence of prescription is the acquiescence ... of the one State in the
adverse possession of the other'. (ibid., p.101, para. 251).
660. Thus, for Namibia, there could be an 'adverse possession' as from the date of the
conclusion of the Anglo-German Agreement. This position runs counter to both legal
principle and common sense. In the first place, this position is inimical to the very concepts of
public order and stability in international relations which are recognised in the legal literature
as justifying the existence of prescription. Prescription is not intended and was not intended in
nineteenth century doctrine (see Audinet above), to be employed to subvert the legal status of
a boundary expressly created by treaty.
661. There could not, in the circumstances, be an adverse possession by either party. Even
when the existence of a difference of view emerged as to the identification of the 'main
channel', many years after the conclusion of the treaty, this dispute could not involve any
'adverse possession'. The issue could only give rise to the contingency that, when the dispute
was resolved, title to the island would follow the determination of the boundary.
662. The matter can be expressed as follows. If either a third party dispute settlement process,
or a procedure agreed between the parties, had resulted in a decision that the main channel
was the northern and western channel, and, in spite of that, Botswana had acquiesced in
Namibian (or South African) possession, then there would have been room for the application
of the principle of acquisitive prescription.
663. This double hypothesis is inapplicable. First of all, there was in fact a procedure agreed
between the parties (the Pretoria Agreement of 1984) and there was a resulting decision in the
form of the Joint Survey Report of 1985 (see above, Chapter 3). In consequence, South Africa
was under an obligation to accept the resolution of the dispute, according to which the 'main
channel' was identified by the Joint Survey as the northern and western channel.