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|II.||Substantive International Law - Second Part|
|1.||TERRITORY OF STATES|
|1.1.||Acquisition and Loss|
Judgment of 13 December 1999
[pp. ] 96. The Parties agree between themselves that acquisitive prescription is recognized in international law and they further agree on the conditions under which title to territory may be acquired by prescription, but their views differ on whether those conditions are satisfied in this case. Their disagreement relates primarily to the legal inferences which may be drawn from the presence on Kasikili/Sedudu Island of the Masubia of Eastern Caprivi: while Namibia bases its argument primarily on that presence, considered in the light of the concept of "indirect rule", to claim that its predecessors exercised title-generating State authority over the Island, Botswana sees this as simply a "private" activity, without any relevance in the eyes of international law.
97. For present purposes, the Court need not concern itself with the status of acquisitive prescription in international law or with the conditions for acquiring title to territory by prescription. It considers, for the reasons set out below, that the conditions cited by Namibia itself are not satisfied in this case and that Namibia's argument on acquisitive prescription therefore cannot be accepted.
98. The Court has already considered the presence of the Masubia on Kasikili/Sedudu Island when it examined the subsequent practice of the parties to the 1890 Treaty (see paragraphs 71 et seq. above).
It follows from this examination that even if links of allegiance may have existed between the Masubia and the Caprivi authorities, it has not been established that the members of this tribe occupied the Island à titre de souverain, i.e., that they were exercising functions of State authority there on behalf of those authorities. Indeed, the evidence shows that the Masubia used the Island intermittently, according to the seasons and their needs, for exclusively agricultural purposes; this use, which began prior to the establishment of any colonial administration in the Caprivi Strip, seems to have subsequently continued without being linked to territorial claims on the part of the Authority administering the Caprivi. Admittedly, when, in 1947-1948, the question of the boundary in the region arose for the first time between the local authorities of Bechuanaland Protectorate and of South Africa, the Chobe's "main channel" around the Island was said to be the northern channel, but the South African authorities relied an the presence of the Masubia on the Island in order to maintain that they had title based an prescription. However, from then on the Bechuanaland authorities took the position that the boundary was located in the northern channel and that the Island was part of the Protectorate; after some hesitation, they declined to satisfy South Africa's claims to the Island, while at the same time recognizing the need to protect the interests of the Caprivi tribes. The Court infers from this, first, that for Bechuanaland, the activities of the Masubia on the Island were an independent issue from that of title to the Island and, second, that, as soon as South Africa officially claimed title, Bechuanaland did not accept that claim, which precluded acquiescence on its part.
99. In the Courts view, Namibia has not established with the necessary degree of precision and certainty that acts of State authority capable of providing alternative justification for prescriptive title, in accordance with the conditions set out by Namibia, were carried out by its predecessors or by itself with regard to Kasikili/Sedudu Island. The Court has already observed above that it is unable to draw conclusions from the map evidence produced in this case (see paragraph 87 above). Nor in its view, can conclusions be drawn from the incident involving Botswana and South African defence forces in the channel to the south of the Island in October 1984.
[p. D.O. Weeramantry] 35. ... I believe there is no dispute regarding Masubian cultivation of the Island until 1947, allowing for such occasional intervals as were necessitated by climatic conditions. I believe the evidence supports the view that, from 1890 to 1947, such cultivation during the period when the Island was not flooded was a regular feature.
36. Colonial governments depended heavily on chiefly authority at a local level, and the claims and movements of chieftains were not matters of indifference to them.
What do we infer from this?
This may not have been occupation by a sovereign government such as is necessary for the acquisition of title by adverse prescription, though it could come close to such an interpretation. However, it was an occupation of the land of which the administrations on both sides were not unaware. If this occupation was in disregard of the 1890 Treaty, one would have expected the Government of Botswana or its predecessors to lodge a protest, or at least to make it clear that the Masubia were there on sufferance. There is no evidence of any such action on Botswana's part.
[p. D.O. Rezek] 11. There is scope, in principle, for the application in this case of the doctrines os prescription and acquiescence. Such application is fully in keeping with the provisions of the Special Agreement, as readily acknowledged.
These doctrines give expresson to customary rules of international law, which are moreover of long standing, based on general principles such as "effectivité" and good faith, as well as on the dictates of reason, such as consideration of the passage of time and failure to act. The Court has jurisdiction, under the terms of the Special Agreement, to give a ruling "on the basis of the Anglo-German Teaty of July 1890 and the rules and principles of international law".
12. I consider that the occupation of the Island by the Masubia from the Caprivi side of the Chobe, an indisputable fact, dating back to a point in time close to the entry ito force of the 1890 Treaty, and continuing at least until and perhaps even beyond a date close to that of Botswana's independance, can be considered to provide justification for aquisitive prescription. However, in my view interpretation of the 1890 Treaty in the light of history, and in a manner at least fully compatible with the hydromorphology of the disputed area, in itself provides sufficient grounds for recognition of the rights of the potential beneficiary of prescription, i.e., Namibia. Even if that were not so in particualr, if the intepretation of the Treaty effectively resulted in placing the main channel of the Chobe to the north of Kasikili/Sedudu I would find myself unable to take the view that the process of acquisitive prescription in favour of Namibia was completed even before the two former colonies became independent: a process involving all the attendant elements of prescription, including acquiescence by the other colonial power.
13. The Judgment does not deny that "links of allegiance may have existed between the Masubia and the Caprivi authorties" (para. 98). It does not, however, consider it "proven that the members of this tribe occupied the Island à titre de souverain". To my mind, the animus of the occupation, its nature and its effects must be evaluated in the light of the surrounding circumstances and the period. What actions or indicia would have had to mark the presence of the Masubia on Kasikili/Sedudu Island in order for it to be recognized that they were there à titre de souverain?. In my opinion, to deny that the indigenous occupation of the Island has any legal legitimacy and to take the view that this people lacked the necessary rights to live there à titre de souverain is an approach which would only make sense if we were still living in the fist half of the century and the boundary dispute was not between the successors of Germany and Great Britain, but between the to powers themselves.
14. The Masubia were "private persons" according to the Judgment. Their allegiance did not, therefore, constitute sufficient title. It would perhaps have required the continued presence of agents of the German State to justify either acquisitive prescription or the idea of conduct serving to confirm a particular interpretation of the 1890 Treaty. I nevertheless incline to the view that private persons provide perfect evidence of a peaceful occupation which deserves the protection of the law. Private persons not agents of the State wrote the history of uti possidetis in much of the American continent, where they altered the course of frontiers, frequently in defiance of the claims of the colonial powers.
15. I would readily admit that occupation by private persons would have no such legitimacy if the community in question was there under the authority of the other power or, at the very least, if it lived side by side with agents of the other power. In this case, even the presence on Kasikili/Sedudu Island of private persons bearing allegiance to Great Britain has not been confirmed with a minimum degree of permanency. Hence the relevance of the lesson drawn by the Permanent Court of International Justice in the case concerning the Legal Status of Eastern Greenland:
«It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries." (Judgment of 5 April 1933, P.C.I.J., Series A/B, No. 53, p. 46.).