botswana/namibia - Cour international de Justice

706. The extensive correspondence will be examined below (in relation to the argument based
upon acquiescence). For present purposes the important result was the emergence of the
dispute and the knowledge of South Africa that the British Government considered
Kasikili/Sedudu Island to be part of the Bechuanaland Protectorate. Even if South Africa had
possession (which it did not at any stage), the correspondence of the period 1948 to 1951
would have ruled out possession à titre de souverain.
707. Two other elements strengthen this conclusion. First, from the outset the South African
Government recognised that the main channel was the northern and western channel.
Accordingly, the South African Government adopted the view that it was necessary to
propose a modification of the boundary. At no stage did the South African Government
challenge the view that the northern channel constituted the main channel for the purposes of
the Anglo-German Agreement.
708. The result was an informal modus vivendi which was concluded on the basis of the
maintenance of the legal status quo: see below, paras. 736-69.
709. In these circumstances, it was impossible for South Africa to qualify as an actor in a
prescription scenario. The issue during the correspondence of 1948 to 1951 was not primarily
the identification of the main channel, but whether the British Government could be
persuaded to modify the existing legal status quo. The South African Government did not
plead title on the basis of prescription.
(v) The Namibian Government has not provided adequate or credible evidence of a
genuine belief in the existence of a lawful title
710. The Namibian Memorial (pp.86-100) purports to present evidence of possession à titre
de souverain in Chapter III of Part Two, entitled 'The Exercise of Sovereignty'. This chapter
has the following eccentric features:
A. The substance of the chapter is devoted to generalities about the system of administration
in the Eastern Caprivi. Specific references to the island in question are very infrequent.
B. The content, in so far as it has a legal orientation, addresses the exercise of sovereignty (the
alleged 'exercise of jurisdiction') and not the existence of a genuine belief in the existence of
title.
C. No attempt is made to explain how a process of prescription could begin just as the Anglo-
German Agreement was concluded in 1890. If the boundary was defined by treaty the only
genuine belief relevant would derive from the provisions of the Anglo-German Agreement:
and yet the Namibian case is built upon a title stated expressly to be entirely independent of
that Agreement (see the Namibian Memorial, p.66, para. 180).
711. The scarcity of reference in this chapter of the Namibian Memorial to specific evidence
of genuine belief is not surprising. If the Anglo-German Agreement could not provide the
source of such belief, what could the source be? The solutions adopted by Namibia appear to
be as follows. First, there is a reliance upon an alleged exercise of jurisdiction and to leave the
Court to assume a genuine belief. As a matter of principle this must be insufficient proof, and
this the more so when the 'title believed in' is supposed to displace a treaty-based boundary of
very recent origin (for the prescription argument is dated back to 1890 or, on occasion, 1909).