botswana/namibia - Cour international de Justice

(i) The Namibian Argument
718. In Chapter IV of the Namibian Memorial the claim to sovereignty in respect of
Kasikili/Sedudu Island is justified (in the rubric) on the basis of 'acquiescence, acceptance and
recognition'. The text appears to treat acquiescence as a separate basis of claim although the
account of the law stresses that 'acquiescence is an essential element - some would say the
essential element - in the acquisition of prescriptive title' (Namibian Memorial, p.101, para.
251). The relevant part of the Namibian Submissions do not distinguish the two bases of
claim. Thus the relevant request to the Court is as follows:
"3. Namibia and its predecessors have occupied and used Kasikili Island and exercised
sovereign jurisdiction over it, with the knowledge and acquiescence of Botswana and its
predecessors since at least 1890.'
719. The Namibian position relating to acquiescence emerges clearly from the following
passages in the Namibian Memorial:
"During the entire period from 1890 to 1966, when they were responsible for the
administration of Bechuanaland, the British authorities, with full knowledge of the facts set
forth in the two preceding sections concerning Namibian/Masubia occupation and use of
Kasikili Island and German and South African exercise of sovereignty there, failed to protest,
object or interfere in any way with the situation as it existed. As is shown in para. 258, infra,
this unbroken record of silence and passivity contrasted markedly with British conduct in
neighbouring areas where it was the colonial power. After Botswana became independent,
Botswana maintained its silence for almost two additional decades." (Namibian Memorial,
p.102, para. 255).
720. Two cases, the Temple Case (Namibian Memorial, pp.1108-9, paras. 271, 173), and
Minquiers and Ecrehos Case (Namibian Memorial, p.128, para. 311), are relied upon in the
Namibian Memorial to support a principle that will not allow a State to escape the
consequences of some previous statement or act. In the Temple Case the use of a map over a
period of fifty years was the issue, and in the Minquiers and Ecrehos Case a clear statement as
to title was contained in an official despatch; and both were effected in the forum of active
diplomacy and negotiations. These situations are in no way comparable to the alleged failure
'to follow up on Eason's recommendation' or 'the promulgation of GSGS 3915' (the 1933
British map) which used the cartographic device of depicting the boundary along the southern
bank of the Chobe River.
721. In the present Chapter the Government of Botswana will examine the merits of the
Namibian argument thus formulated. It may be noted that the concepts of 'acceptance' and
'recognition' referred to in the rubric to the relevant chapter are not given separate treatment
by Namibia and therefore will be left on one side.
(ii) The Weaknesses of the Namibian Argument
722. The Namibian argument based upon acquiescence contains a whole series of major
flaws. The first, in logical sequence, is that it rests upon false premisses. For there to be a
legally significant record of 'silence and passivity', the acquiescence must be in response to a
situation which is legally prejudicial. The evidence available contradicts the Namibian
premiss that the island was 'occupied' by the German authorities or their successors. In