botswana/namibia - Cour international de Justice

712. The second solution is as follows. In reliance upon an eccentric version of the concept of
indirect rule, the Namibian Memorial relies upon the authority of the Basubia chiefs in the
Eastern Caprivi. Without any proof, it is asserted that the activities of the Chiefs and their
subjects could generate title (for Germany in the period 1890 to 1914). This assertion does
not, of course, take care of the issue of finding the source of a 'title believed in.' But the
Namibian Memorial provides an answer: "... the chiefs, and indeed all the Masubia, regarded
Kasikili Island as a part of their traditional territory." (p.92, para. 230). Elsewhere, the
Namibian Memorial refers to an alleged 'Namibian/Masubia occupation and use of Kasikili
Island" (p.102, para. 255).
713. Thus the only source of a 'title believed in', once the Anglo-German Agreement is set
aside, is the traditional title of the Basubia, which (if it existed) antedated the Anglo-German
Agreement of 1890. The Namibian Memorial in effect treats the traditional title of the
Basubia as a type of jus cogens, which would automatically modify the application of the
provisions of Article III of the Anglo-German Agreement in the Chobe district. The Namibian
Government makes no attempt to explain how such a reference to traditional title could be
compatible with contemporary international law of the period 1890 to 1914.
714. The assumption that a carefully negotiated boundary treaty was subject to locally applied
traditional title is one of quite remarkable novelty. However, such an assumption is the
inevitable result of seeking to mount a case based upon prescription which involves a setting
aside, without any justification, of the provisions of the Anglo-German Agreement.
715. There is thus an absence of proof of any legally valid 'genuine belief' in the existence of
title. At this point, it is necessary to remind the Court that there is no proof (in any case) that
the Basubia chiefs had authority to change the international boundary or that the island was
subject to the jurisdiction of the Caprivi chiefs. Indeed, the available evidence indicates that
no one owned land on Kasikili/Sedudu Island either on the basis of customary law title or
otherwise.
(vi) Conclusion: there was no basis at any stage for a genuine belief in the existence of
title
716. In the absence of a belief in the existence of title based upon the Anglo-German
Agreement, the Government of Namibia is placed in a very invidious position. The question
of title depends upon the definition of a river boundary in an international agreement. The
only alternative source of title would be a belief in a waiver of title on the part of Botswana or
its predecessors. But a waiver could only operate when a dispute arose and this did not occur
until 1948. The result of the correspondence between the British and South African
Governments in the period 1948 to 1951 was a firm affirmation of title by the United
Kingdom. Moreover, when the issue resurfaced in 1984 the Government of Botswana
reaffirmed its title to the island: see the statement of Mr. Mokama, Botswana Memorial,
Annex 44, para. 3.
717. In this connection, it may be recalled that the Court has been reluctant to accept that
conduct may establish sovereignty in derogation of the provisions of a boundary treaty. This
reluctance is evident in the Judgment of the Court in the Frontier Land Case. I.C.J. Reports,
1959, p.209 at pages 217, 227-30.
(F) The Namibian Argument based upon Acquiescence and Recognition