|I.||Substantive International Law - First Part|
|5.||THE UNITED NATIONS|
Judgment of 13 December 1999
[pp. ] 69. The Court has reached the conclusion that there was no
agreement between South Africa and Botswana "regarding the ... application
of the [1890 Treaty]". This is in itself sufficient to dispose of the
matter. It is unnecessary to add that in 1984 and 1985 the two States had no
competence to conclude such an agreement, since at that time the United Nations
General Assembly had already terminated South Africa's Mandate over South West
Africa by resolution 2145 (XXI) of 27 October 1966, and the Security Council had
approved that measure by resolution 276 (1970) of 30 January 1970. The Court
itself, in its Advisory Opinion of 21 June 1971 on the Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), stated the
following in this regard:
"(1) ... the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory;
(2) ... States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of ... such presence and administration" (I.C.J. Reports 1971, p. 58, para. 133).
Furthermore, the evidence indicates that the Botswana Government's preliminary contacts with the President of the United Nations Council for Namibia and the United Nations Commissioner for Namibia with a view to obtaining their approval prior to the Pretoria meeting of 19 December 1984 were not pursued further, and did not have the result sought by Botswana.
[p. D.O. Fleischhauer] The Court should however have gone into the conditions under which title to territory may be acquired by prescription, far enough to state that South Africa could not have acquired title to the Island by prescription. South Africa, whose presence in the Caprivi Strip including the Island lasted longer than the presence there of Germany or Britain, prior to the termination of the Mandate by the General Assembly in 1966 exercised authority there not à titre de souverain but à titre de mandataire. As mandatory, South Africa certainly was vested by virtue of the Mandate instrument of 17 December 1920 (League of Nations Journal Officiel, 2nd Year, No. 1, p. 89) with the "full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Union of South Africa"; however, as the Court observes in its Advisory Opinion an the International Status of South West Africa (I.C.J. Reports 1950, p. 128, at p. 132):
"On the other hand, the Mandatory was to observe a number of obligations, and the Council of the League was to supervise the administration and see to it that these obligations were fulfilled."
And the Court added:
"The terms of this Mandate, as well as the provisions of Article 22 of the Covenant and the principles embodied therein, show that the creation of this new international institution did not involve any cession of territory or transfer of sovereignty to the Union of South Africa. The Union Government was to exercise an international function of administration on behalf of the League, with the object of promoting the well-being and development of the inhabitants." (Ibid.)
This perception of the nature of the Mandate is incompatible with acquisitive prescription working in favour of the Mandatory. After the termination of the Mandate, the continued presence of South Africa in South West Africa (Namibia) was no longer "peaceful", i.e., uncontested, as is confirmed by Security Council resolution 276 (1970) and by the Courts Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (I.C.J. Reports 1971, p. 16).
[pp. D.O. Parra-Anguren] 42. Consequently, after the confirmation of the creation of the mandate by the Council of the League of Nations in 1920, the Union of South Africa could not dispose by its own actions of the territory of South West Africa, as it had been determined by the subsequent practice of the parties to the 1890 Anglo-German Agreement.
43. For this reason, 1914 is the latest date to be taken into account for the determination of the subsequent practice of the parties, Germany and Great Britain, in regard to the interpretation of Article III of the 1890 Anglo-German Agreement. In fact, no subsequent practice could exist on the part of Germany after September 1914 when the Eastern Caprivi was occupied by Southern Rhodesia. During the existence of the mandate the Union of South Africa had no competence either to enter into any express agreement to delimit the international boundary of South West Africa or to modify the prevailing subsequent practice with regard to the interpretation of Article III of the 1890 Anglo-German Agreement. Consequently, in my opinion, the subsequent practice of the parties for the purpose of interpreting the Anglo-German Agreement should be determined on the basis of the situation existing up to September 1914.