botswana/namibia - Cour international de Justice

Agreement, and thereafter the assertion of acquiescence, or failure to protest becomes even
less convincing. The only 'evidence' offered by Namibia is the existence of South African
military patrolling in the region: see above, paras 694-6.
791. In the aftermath of the incident of October 1984, the Botswana Government affirmed
title over Kasikili/Sedudu Island and its view of the legal position was confirmed by the Joint
Survey Report of 1985. Thus, from 1951 onward there was no possibility of any ignorance by
South Africa of the entitlement of Botswana and its predecessor in title.
792. In the period from 1960 (if not earlier) until 1992, when the island was administered as
part of the Chobe Game Reserve and cultivation on the island was prohibited, no protest or
representation was received either from the South African Government or from local
administrators in the Eastern Caprivi. This silence is difficult to explain except on the basis
that there had at no point been an occupation of the island by the South African Government
or persons acting with its authority.
793. There is a final consideration. The prescription scenario invented by Namibia involves a
setting aside of the Anglo-German Agreement. The argument is stated to provide an 'entirely
independent basis for Namibia's claim': Namibian Memorial, p.60, para. 165. The difficulty is
that in relation to an argument based upon prescription and an alleged possession à titre de
souverain, it is impossible to pursue the legal argument in the absence of reference to the
Anglo-German Agreement. In order to demonstrate the existence of possession in good faith,
and accompanied by a belief in sovereignty, the law requires either adherence to the boundary
established by agreement, or an express waiver of title in face of a claim. In other words, the
process of prescription can only apply to a treaty-based boundary if the mode of application
reflects important considerations of public order, namely, the stability of boundaries and the
principle of pacta sunt servanda. In the absence of an express waiver of title, the possession (if
it existed) could not be à titre de souverain. No German or South African or Namibian official
could claim ignorance of the Anglo-German Agreement and its relevance to the determination
of sovereignty over the island. No express waiver of title took place on the part of Botswana
or its predecessors (and no other form of waiver occurred in any case).
794. Prior to 1948 no dispute had arisen in any event. After that, the South African
Government had notice that the British Government claimed title on the basis of the
Agreement. After the transactions of 1984 and 1985, the title of Botswana in accordance with
the Agreement was confirmed. At no stage, therefore, could any putative possession by South
Africa have been, in the legal sense, peaceful and undisturbed.
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CHAPTER 10
The Namibian Submissions and the Task of the Court
(A) The Special Agreement
795. The task of the Court in this case is described in the clear terms of Article 1: