Counter-Memorial of the Republic of Botswana
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INTERNATIONAL COURT OF JUSTICE CASE CONCERNING KASIKILI/SEDUDU ISLAND (BOTSWANA/NAMIBIA) COUNTER-MEMORIAL OF THE REPUBLIC OF BOTSWANA VOLUME I NOVEMBER 1997 TABLE OF CONTENTS CHAPTER 1: THE HISTORY OF THE DISPUTE CHAPTER 2: THE DIPLOMATIC RESURGENCE OF THE BOUNDARY DISPUTE CHAPTER 3: THE SUBSTANTIAL FLAWS IN THE NAMIBIAN MEMORIAL CHAPTER 4: THE INTERPRETATION OF THE ANGLO-GERMAN AGREEMENT OF 1890 CHAPTER 5: THE SCIENTIFIC EVIDENCE PRESENTED ON BEHALF OF NAMIBIA CHAPTER 6: THE SCIENTIFIC EVIDENCE PRESENTED ON BEHALF OF BOTSWANA CHAPTER 7: THE ORAL EVIDENCE CHAPTER 8: THE MAP EVIDENCE CHAPTER 9: NAMIBIA'S ALLEGED TITLE ON THE BASIS OF PRESCRIPTION, ACQUIESCENCE AND RECOGNITION CHAPTER 10: THE NAMIBIAN SUBMISSIONS AND THE TASK OF THE COURT SUBMISSIONS CHAPTER 1 The History of the Dispute (A) The Purpose 1. The case proposed by Namibia consists of two interlinked arguments based upon a certain version of the subsequent conduct of the parties and an alleged independent title related to prescription. These two legal arguments are alleged to receive confirmation from the scientific evidence offered on behalf of Namibia. 2. It is thus the arguments based upon subsequent conduct and prescription which are the essence of the Namibian legal case. In this context it is to be appreciated that these two arguments, both taken separately and operating in tandem, are built upon four propositions, as follows: 3. First: Namibia has had the continuous and exclusive occupation and use of Kasikili/Sedudu Island since 1890 or 'from the beginning of the century' (the Namibian Memorial offers different dates). 4. Secondly: this alleged occupation takes the form of the episodic agricultural activities on the Island of peasants from the village of Kasika, which is sited within Namibia. 5. Thirdly: that the village of Kasika was allegedly no more than an associate of a village actually sited on Kasikili/Sedudu Island. 6. Fourthly: that there was no dispute prior to 1984 and, consequently, there was no interruption in an alleged Botswana acquiescence in the putative adverse possession until 1984. 7. The individual legal elements in the Namibian Memorial will be examined in the appropriate chapters. The present purpose is to deal at the very outset with these contentious and misleading assertions which are disseminated throughout the Namibian Memorial. 8. The four propositions on which Namibia relies are intended to mask the realities which can be summarised as follows: 9. First: the Anglo-German Agreement of 1890 was, in so far as it stipulated a river boundary along the Chobe, self-executing. No withdrawal of officials was called for, as it was in the case of Article IV of the Agreement (relating to West Africa). G1 - Map A; The Chobe District and Eastern Caprivi Strip 10. Secondly: none of the officials concerned in the administration of the Eastern Caprivi (South West Africa) or Chobe District (Bechuanaland Protectorate) in the colonial period regarded the activities of the local population as title-generating. There is no evidence to suggest that either German or, subsequently, South African officials, had authority from central government to carry out activities which had the purpose of modifying the treaty boundary. 11. Thirdly: the available evidence establishes that there was no village on, and no permanent population living on, Kasikili/Sedudu Island. 12. Fourthly: the dispute originated in the exchanges between the British and South African Governments in the period 1948 to 1951 and, consequently, in any event there could be no question of acquiescence from 1948 onward. 13. Fifthly: there was no evidence of British acquiescence at any stage. British officials regarded the boundary as determined by the Anglo-German Agreement and recognised that the northern channel was the 'main channel'. Moreover, since these officials did not regard the agricultural activities of people from the Caprivi on Kasikili/Sedudu Island as title-generating, the question of protest or opposition could not arise. After independence in 1966 Botswana maintained the same legal position. 14. Sixthly: when the use of the island for agricultural purposes was prohibited by the British authorities in 1960, when the Chobe Game Reserve was created, there was no protest from any source in Namibia. Moreover, when, after thirty-two years, a Namibian official, in the course of making proposals for commercial development, made representations at local level, no reference was made to any disruption of the agricultural activities of people from Kasika: see the Report of the District Commissioner at Kasane, Mr. Mayane, dated 7 March 1992 (Annex 43). (B) The Namibian Assertions 15. Before the evidence is examined further, it is necessary to indicate the precise character of the Namibian assertions concerning the chronology of events and the history of the dispute. 16. The key passages in the Namibian Memorial are as follows. G5 - 1997 aerial photograph of Kasikili/Sedudu Island (i) "2. Moreover, by virtue of continuous and exclusive occupation and use of Kasikili Island and exercise of sovereign jurisdiction over it from the beginning of the century, with full knowledge, acceptance and acquiescence by the governing authorities in Bechuanaland and Botswana, Namibia has prescriptive title to the Island." (emphasis supplied) (Namibian Memorial, p.4, para. 14) (ii) "Throughout these many changes, the British officials just across the Chobe River in Bechuanaland, and after 1966 the Botswana authorities, were fully aware that Kasikili Island was continuously and exclusively used by the Basubia people and ruled by the authorities currently in charge of South West Africa. Yet not once, throughout the whole period of British rule in Bechuanaland, did the British authorities raise a formal or explicit challenge, protest or objection to this state of affairs. Even after Botswana's independence, almost two decades elapsed before an exchange of fire with a South African patrol boat in the southern channel finally led Botswana for the first time to challenge the existing status quo on the Island." (emphasis supplied). (Namibian Memorial, p.10. para. 31) (iii) "The control and use of Kasikili Island by the Masubia of Caprivi, the exercise of jurisdiction over the Island by the Namibian governing authorities and the silence by Botswana and its predecessors persisting for almost a century with full knowledge of the facts confirm the conclusion, reached as a matter of analysis of the text of the Treaty, that Kasikili Island is a part of Namibia" (emphasis supplied) (Namibian Memorial, p.60, para. 166). (iv) "Namibia and its predecessors were in peaceful possession from before the beginning of the century and exercised sovereign power over the Island from the time of the establishment of the first German station in the Caprivi in 1909, all in clear view and with the full knowledge of the Bechuanaland authorities at Kasane, on the south side of the Chobe, only a kilometre or two from the Island. After becoming independent in 1966, Botswana itself was aware of the facts, but remained silent for almost two further decades." (emphasis supplied). (Namibian Memorial, p.69, para. 188). (v) "The territorial situation existing at the moment of Botswana's independence, 30 September 1966, is defined by the conduct of the colonial powers on the ground up to that moment. The evidence of that conduct is discussed at length in Chapters II, III, IV and V. It demonstrates that Botswana's colonial rulers had recognised, without interruption from at least 1909, that Kasikili Island was a part of Namibian territory." (emphasis supplied). (Namibian Memorial, p.72, para. 193). (vi) "254. The remainder of this Chapter analyzes the conduct since 1890 of the British authorities (in London and Bechuanaland) and of the government of Botswana since its independence in 1966. The record is one of unbroken silence and inaction, let alone formal protest or objection, persisting for almost a century, despite full and continuous knowledge of the occupation and use of Kasikili Island by Namibia. The legal requirements for acquiescence are amply fulfilled. "255. During the entire period from 1890 to 1966, when they were responsible for the administration of Bechuanaland, the British authorities, with full knowledge of the facts set forth in the two preceding sections concerning Namibian/Masubia occupation and use of Kasikili Island and German and South African exercise of sovereignty there, failed to protest, object or interfere in any way with the situation as it existed. As is shown in para. 258, infra, this unbroken record of silence and passivity contrasted markedly with British conduct in neighbouring areas where it was the colonial power. After Botswana became independent, Botswana maintained its silence for almost two additional decades." (emphasis supplied). (Namibian Memorial, p.102). (vii) "Submissions ... 3. Namibia and its predecessors have occupied and used Kasikili Island and exercised sovereign jurisdiction over it, with the knowledge and acquiescence of Botswana and its predecessors since at least 1890." (emphasis supplied). (Namibian Memorial, p.141) 17. These confident assertions are unfounded both in fact and in law. The evidence will be analysed in detail below. By way of a preamble it is necessary to underline the impressionistic 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.