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Reply of the Republic of Namibia Volume 1

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Reply of the Republic of Namibia Volume 1 INTERNATIONAL COURT OF JUSTICE CASE CONCERNING KASIKILIISEDUDU ISLAND (BOTSWANAmAMIBIA) REPLY OF THE REPUBLIC OF NAMIBIA VOLUME 1 REPLY 27 NOVEMBER 1998 INTERNATIONAL COURT OF.JUSTICE CASE CONCERNING KASIKILIISEDUDU ISLAND (BOTSWANAINAMIBIA) REPLY OF THE REPUBLIC OF NAMIBIA CONTENTS Volume 1 REPLY Volume II EXPERTREPORTS Second Supplementary Report of Professor W.J.R. Alexander Geomorphological Study by Professor Keith S. Richards Volume III ANNEXES Map-Related Annexes, Legal Instruments and Authorities, Diplomatic Correspondence and Other Officia1 Materials, Materials Related to the Scientific Case and Miscellaneous Page PART ONE: INTRODUCTION ............................................................... 1 Chapter 1. INTRODUCTION AND SUMMARY ...............................1 A . Preliminarv Remarks ......................................................... 1 B . The Text of the Treaty .......................................................-6 1. The language of Article III(2) .......................................6 2 . The question of access to the navigational resources of the Chobe River ....................................... 8 C . The Subsequent Practice of the Parties Establishinn Their Aaeement as to the Treaty's Intemretation ..............................11 1. The meaning of 'subsequent practice' under Article 3 1(3)(b) of the Vienna Convention on the Law of Treaties ....................................................... 11 2 . Botswana's attempts to negate the 'subsequent practice' of the parties ............................................... 13 D . The Evidence of Maps as a Guide to the Proper Intemretation of Article III(2) of the 1890 Treatv .......................15 E . The Scientific Evidence and the Intemretation of the 1890 Treatv .................................................................... 19 1. The legal standard applicable to the determination of the 'centre of the main channel .................................19 2 . Namibia's case on the identification of the 'main channel' of the Chobe River at Kasikili Island .................. 21 3. Response to Botswana's 'scientific case'. ........................ 26 (a) The six propositions....................................... 26 (b) Secondary hydrological arguments...................... 30 (i) Bedslope ............................................31 .. (il) Erosion .............................................31 (iii) Flow measurements .............................. 31 (c) The aerial photographs and satellites images ........... 32 4 . Identimg the 'centre' of the main channel ..................... 33 F . Prescription and Acquiescence ............................................. 36 E . Conclusion..................................................................... -37 PART TWO: THE INTERPRETATION OF THE ANGLO-GERMAN TREATY OF 1890 ............................................................... 39 Chapter II . THE TEXT OF THE TREATY IN THE LIGHT OF ITS OBJECT AND PURPOSE .................................. 39 A . In General ...................................................................... -39 B . Interpretation of the Words of the Treaty ...................................40 C . Interpretation of the 1890 Treaty in ~i&tof its Obiect and Puniose .....................................................................46 D . The A1leg;ed Self-Executing;Character of the Treatv .....................52 E . Conclusion ......................................................................54 Chapter III . INTERPREATATION OF ARTICLE III (2) OF THE 1890 TREATY: REBUTTAL TO BOTSWANA'S SCIENTIFIC EVIDENCE ............................................ 56 A . The Proportion of the Flow of the River Passinp; through the Northem Channel ........................................................58 1. The Chobe River is not a perennial river ......................... 59 2 . The data as to water levels at gauging stations along the Chobe River .............................................. 64 a . The comparison of the readings at the seven stations....................................................... 64 b . The gauge readings at the Kasane station ...............66 3 . Other asserted indicators of greater flow in the northem channel ..................................................... 68 a . The 'capacity' of the channels ............................68 b . Slope......................................................... 69 c . The sedimentological study ............................... 70 d . Asserted flow measurements.............................. 74 B . Aerial Photographv and Satellite Images ................................ -73 1. General cornments ................................................... 74 2 . Botswana's photographic cornparisons ...........................76 (a) The comparative width of the two channels ............ 77 (b) The comparative depth of the two channels ............78 (c) The sediment bars at the opening of the main channel ...............................................-79 (d) Other indicia of the presence of absence of erosion in the two channels ................................ 80 (i) As to the stability of the configuration of the northern channel. ......... .8 1 (ii) As to the absence of erosion in the southern channel.. ................................8 1 (e) Striation patterns. ..........................................83 (f) The so-called sub-channel draining the southern portion of the Island.. ...........................83 3. Discussion of particular aerial photographs.. .................. .85 4. Conclusions as to aerial photogràphs.. ...........................89 D. Determination of the 'Boundarv between Narnibia and Botswana around Kasikili Island' within the Meaning of Article III(2) of the 1890 Treatv. .......................................93 CHAPTER IV: 'SUBSEQUENT PRACTICE IN THE APPLICATION OF THE TREATY' WITHIN THE MEANING OF ARTICLE 31(3)@) OF THE VIENNA CONVENTION. ..............................-97 A. Botswana's Arments as to the Meaninn of Article 3 1(3)(b). ......................................................................97 1. In general.. ...........................................................97 2. The correct interpretation of Article 3 1(3)@) of the Vienna Convention of the Law of Treaties.. ............... .98 B. Botswana's Factual Arguments on Subsequent Conduct.. ...........IO2 1. Botswana's contention that until 1948 the parties to the Anglo-German Treatv were of the opinion that the northern channel was the main channel and that Kasikili Island was uart of the Bechuanaland Protectorate. ...................................... 103 (a) Lord Harcourt's Despatch of 14 January 1911 ..................................................... ..IO3 (b) Eason's Report.. ........................................ .IO5 (c) The alleged permission to cultivate on the Island granted in 1924.. ........................... .IO7 (d) Conclusion. ...............................................IO9 2. Botswana's contention that the exchanges that culminated in the 1951 Trolloue-Dickinson arrangement confirmed that the parties reconnized the northern channel as the boundarv and Kasikili Island as part of the Bechuanaland Protectorate.. .............-1 10 (a) Botswana's allegation that South Afnca challenged the status quo and sought to modifL the boundary.. ...................................Il0 (b) Botswana's allegation that Britain, with South Afiica's acquiescence, exercised jurisdiction over Kasikili Island.. ......................Il3 (c) The allegation that both parties recognized the northem channel as the main channel for the purpose of the Anglo German Agreement of 1890.. .....................................115 (d) Conclusion.. ...............................................116 3. Botswana's Contention that the 1984186 discussions between Botswana and South Afnca resulted in an a~eementbetween the varties regarding- the avvlication of the Annlo-Geman Treatv of 1890 that resolved the present boundarv disvute in favour of Botswana.. ............ 117 Conclusion. ....................................................120 CHAPTER V: THE MAP EVIDENCE RELATING TO THE INTEPRETATION OF ARTICLE III(2) OF THE 1890 TREATY.. ........................................122 A. General Legal and Theoretical Considerations as to the Mav Evidence in this Case.. .............................................-123 1. The relevance and weight of map. evidence in boundary determinations. ..........................................123 2. Namibia's alleged 'quandary'. .................................. ..126 3. Botswana's four general propositions.. .......................... 127 B. Cornments on Svecific Maps. .............................................13 1 C. Botswana's General Conclusions on Mav Evidence.. ................ .137 D. Conclusions. ................................................................ -141 PART THREE: PRESCRIPTION AND ACQUIESCENCE AS AN INDEPENDENT TITLE OF SOVEREIGNTY..................... .142 CHAPTER VI: PRESCRIPTION AND ACQUIESCENCE.................. .142 A. Botswana's Fallacies ....................................................... -142 B. Namibia Has Met the Reauirements for Establishing . Title bv Prescnvtion.. .......................................................144 1. General considerations. ...........................................-146 2. Botswana's argument on the 'critical date'. .....................146 3. Legal aspects of the doctrine of prescription.. .. .. .. .. .147 (a) The facts: peaceful occupation and use
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