botswana/namibia - Cour international de Justice

697. In the result there is no credible evidence that either Namibia or its predecessors
exercised State authority in respect of Kasikili/Sedudu. The Memorial of Namibia is unable to
invoke a single act of sovereignty in relation to the island. The absence of such evidence is
highlighted by the eccentric reliance by Namibia upon the agricultural activities of the people
of Kasika (in certain periods) and upon the activities of South African military patrols in the
region.
(E) Any Exercise of Authority could not have been à titre de souverain
(i) Introduction
698. In the previous section the first condition for the existence of title by prescription was
examined: the exercise of State authority over the area concerned for a sufficient period of
time. The conclusion was that neither Namibia nor its predecessors have exercised state
authority in respect of Kasikili/Sedudu Island at any time. This conclusion renders academic
any examination of the fulfilment of the second condition for the existence of title by
prescription: the existence on the part of the state exercising authority of a genuine belief that
it has title (in other words, the possession must be à titre de souverain). Nevertheless, it will
be of assistance to the Court to demonstrate that, in any case, no genuine belief in the
existence of title could have existed at any time since the conclusion of the Anglo-German
Agreement in 1890.
(ii) As a preliminary issue; what is the title to which any genuine belief would relate?
699. The Namibian Memorial in its chapters relating to prescription (Part Two, Chapters II
and III) refers in general terms to the display of State sovereignty and repeats the standard
formula according to which: 'The possession of the prescribing State must be exercised à titre
de souverain..." (ibid., pp.86-7, paras. 218-19). In Chapter III (which is apparently intended to
deal with the issue of genuine belief) the substance of the exposition relates to purported
'exercise of sovereignty'. No consideration is given to the nature of the title assumed or
believed in by the alleged possessor. (See the Namibian Memorial, pp. 86-100 passim).
700. This omission is not very surprising. The 'prescription' scenario is dated back to 1890 in
Namibia's argument. The Anglo-German Agreement had just been concluded. In the Eastern
Caprivi the German Government had, in a major agreement carefully negotiated with Great
Britain, established a river boundary. This fact was not obscure, but very recent and very
public. The only possible title in which any German official could have genuine belief would
be a title in terms of Article III of the Anglo-German Agreement. Moreover, given that no
cession was involved, the title could only be related to the identification of the 'main channel'
of the Chobe River.
701. In the historical and legal context the only title which could be believed would be that
based upon the river boundary. There is no comparison with the ambiguities of cases such as
the Island of Palmas case. And yet the whole point of the Namibian argument is to allege a
title over the island 'by operation of the doctrines of prescription, acquiescence and
recognition, entirely independently of its treaty-based claim.' (Namibian Memorial, p.66, para.
180). Whilst the doctrines are identified, the title supporting the alleged possession is not. The
nearest the Memorial comes to pleading an alternative title is the invocation of traditional title
of the Basubia (ibid., p.83, para. 214; and para. 230). Indeed, on occasion, this Basubia title is