botswana/namibia - Cour international de Justice

and cloudy mode of argumentation adopted by Namibia. Even within the corners of the key
propositions advanced by Namibia there are substantial inconsistencies. Thus, the key
propositions quoted above employ three versions of the beginning of the period of alleged
Namibian 'occupation' of the island, as follows:
(i) 'Since 1890' or 'from 1890' (second, sixth and seventh quotations above).
(ii) 'From the beginning of the century' (first quotation above).
(iii) 'From the time of the establishment of the first German station in the Caprivi in 1909' or
'from at least 1909' (fourth and fifth quotations above).
(C) Evidence Relating to the Period 1890 to 1914
18. According to some of the Namibian assertions quoted above, the subsequent practice or
conduct of the parties relevant to title by prescription in favour of Namibia begins in 1890 at
the time of the conclusion of the Anglo-German Agreement. This is an extravagant scenario.
The German administration of the Caprivi Strip did not begin to develop until after 1909 and,
indeed, this is recognised by the Namibian Government in its Memorial: see pages 29-30,
paras. 77-8; pages 88-93, paras, 222-32. As the Memorial explains:
"Although the Caprivi Strip was allocated to Germany by the Anglo-German Treaty of 1890,
formal administration was not established until 1909". (Namibian Memorial, p.88, para.
222).
19. The Namibian Memorial fails to refer to a single act of jurisdiction on behalf of Germany
relating to Kasikili/Sedudu Island. But the Namibian Memorial seeks to avoid this
considerable difficulty by the argument that the agricultural activities of the Basubia on the
island were title-generating:
"It was through Chikamatondo and the Masubia tribal organization that German rule of the
Eastern Caprivi was carried out". (Namibian Memorial, p.92, para. 230).
20. This argument is unacceptable for a number of reasons. In the first place, the Namibian
Government invites the Court to assume that, because the chiefs of the Basubia derived
recognition of their tribal status from the colonial overlord to act in relation to tribal matters,
therefore the chiefs had authority to act as agents of the German State in matters involving
territorial sovereignty. This is a total non-sequitur. No evidence is offered that such authority
existed either in German colonial law or in the general international law of this period.
21. At this point the Court is requested to consider the consequences of the Namibian
argument in the context. The context is the conclusion of the Anglo-German Agreement. The
Agreement came into force immediately and the provisions of Article III relating to the Chobe
River sector were self-executing. Would any diplomat or administrator in the contemporary
world have accepted that the partition boundaries were to be alterable by reference to forms of
local legitimacy? The Anglo-German Agreement divided the traditional territories of the
Basubia. Accordingly, the issue is not one of the rights of the Basubia but whether at the
relevant time the island formed part of German South West Africa or British Bechuanaland.