botswana/namibia - Cour international de Justice

(c) any relevant rules of international law applicable in the relations between the parties."
(emphasis supplied)
(iii) The Argument of Namibia based upon Prescription is incompatible with the
Principle of Subsequent Conduct
247. By way of conclusion on the topic of subsequent conduct, the Government of Botswana
would respectfully draw the attention of the Court to the remarkable inconsistency in the
modalities adopted in the Namibian treatment of subsequent conduct (Part Two, Chapter 1 of
the Namibian Memorial).
248. The Namibian Government deliberately places subsequent conduct, as an aspect of treaty
interpretation, in the same framework as prescription, acquiescence and recognition, as
independent forms of acquisition of territory (Namibian Memorial, p.60, para. 165). The
distinct subjects are placed together in a Chapter with the heading: 'The legal relevance of the
subsequent conduct of the parties to a treaty'.
249. The difficulty which arises is that subsequent conduct is a facet of a lawful status quo: a
boundary created by the provisions of a treaty. In contrast, prescription, as pleaded by
Namibia, involves an adverse possession which displaces the lawful status quo. To seek to
combine these elements in the same vehicle must involve a high degree of optimism. The
question of prescriptive title will be examined further in Chapter 9 of this Counter-Memorial.
CHAPTER 5
The Scientific Evidence Presented on Behalf of Namibia
(A) Botswana's Case
250. The approach of Botswana to the issue before the Court can be summarised in short
answers to three questions:-
(i) What is the geographical feature referred to in Article III of the Anglo-German Agreement
of 1890?
Answer: The Chobe River.
(ii) Which is the main channel?
Answer: the northern and western channel around Kasikili/ Sedudu Island.
(iii) Why?
Answer: Its greater depth, width and its bed profile configuration, and all the
geomorphological and hydrological evidence, indicate that it is the navigable channel capable
of and carrying the greater flow of water. (For a fuller account of the approach of Botswana