botswana/namibia - Cour international de Justice

664. But the second part of the hypothesis does not apply. There was no South African or
Namibian possession subsequent to the Joint Survey Report. Instead, the Government of
Botswana, in reliance upon the confirmation of its title in the Joint Survey Report, decided to
exercise its sovereignty in 1986 (see above, Chapter 1, paras. 72-77).
665. The outcome of this analysis is as follows:
(i) No form of prescription could be relevant in the period 1890 to 1985.
(ii) After the Joint Survey Report, that is, the bilateral resolution of the dispute in 1985,
prescription might have been applicable if certain conditions were fulfilled (but those
conditions were not).
666. The point can also be expressed by saying that before the identification of the 'main
channel' was effected (in 1985), no possession (by either State) could be 'adverse' for the
purpose of acquisitive prescription. The very existence of the Anglo-German Agreement
defining the boundary constituted a form of mandatory treaty law excluding prescription
subject to the contingency that the 'main channel' was identified by means of an appropriate
legally binding procedure.
667. The above analysis is not affected by the fact that eventually South Africa reneged on the
Pretoria Agreement of 1984 and the Joint Survey Report of 1985.
668. By way of conclusion, precisely because this is a boundary created by treaty, prescription
was, as from 1890, ab initio and ipso jure inapplicable. Subsequent to the Joint Survey Report
of 1985, it became applicable in principle but only if two conditions were fulfilled, that is to
say, a binding dispute settlement procedure followed by acquiescence by Botswana in an
adverse possession by South Africa/Namibia. In fact the second of these conditions was not
fulfilled, that is to say, there was a binding instrument (the Joint Survey Report), identifying
the 'main channel' but there was no subsequent adverse possession. Only when the
identification was effected could there be any basis for 'adverse' possession.
(C) In any event the Legal Conditions required for Title by Prescription have not been
satisfied either by Namibia or by her predecessors
669. The position of the Government of Botswana is that the doctrine of prescription is not
applicable to the issue concerning the interpretation of the provisions of Article III of the
Anglo-German Agreement, for the reasons given above. However, in order to assist the Court
and without prejudice to the position of principle, the Namibian argument will be examined
on its own terms. Accordingly, the material presented in the Namibian Memorial will be
reviewed with reference to the two conditions for the creation of title by prescription: the
exercise of State authority over the area concerned and the exercise of such authority à titre de
souverain.
(D) There has been no exercise of State authority over Kasikili/Sedudu Island by either
Namibia or its predecessors
(i) Introduction