1208

DISSENTING OPINION OF JUDGE PARRA-ARANGUREN

The Anglo-German Agreement of 1890 — The Parties’ differing interpreta-
tions of the 1890 Treaty — Subsequent practice as a rule of treaty interpreta-
tion — Subsequent practice of the Parties in the application of the 1890 Agree-
ment — The Mandate for South West Africa (Namibia) — Relevant evidence
submitted to the Court — Captain H. V. Eason’s Report (1912) — Joint
Report of 1948 (Trollope-Redman) and Exchange of Letters between 1948 and
1951 — Mr. R. R. Renew’s Report (1965) — Witnesses called by Namibia —
Evidence presented by Botswana — Maps — Aerial photographs and satellite
images — Peaceful and public use of KasikililSedudu Island by Masubia Tribes-
men from Eastern Caprivi — Conclusion.

I. THE ANGLO-GERMAN AGREEMENT OF 1890

1. In 1884 Germany proclaimed a Protectorate over the coast south of
the Cape Colony’s enclave at Walvis Bay and some years later, before
1890, expanded its territorial claims in South West Africa, without
systematically establishing an effective administration on the ground.
The United Kingdom decided to accept Germany’s territorial claims in
South West Africa, even though it regarded this territory as lying within
Britain’s natural sphere of influence.

2. The only area in dispute was Ngamiland, north of British Bechuana-
land, a territory assigned to neither power and extending from the 20th
to the 24th degree of longitude. Discussions began in 1886 but it was only
in 1890 after the resignation of the German Chancellor Otto von Bis-
marck that the new Chancellor, General Georg Leo Von Caprivi and his
Foreign Minister, Baron Marschall, accelerated diplomatic discussions
with Britain over Africa.

3. The Anglo-German Agreement relating to Africa and Heligoland
was signed in Berlin, in English and in German, on 1 June 1890 by Sir
Edward Baldwin Malet, Her Britannic Majesty’s Ambassador Extraordi-
nary and Plenipotentiary; Sir Henry Percy Anderson, Chief of the Afri-
can Department of Her Majesty’s Foreign Office; the Chancellor of the
German Empire, General Leo Von Caprivi, and the Privy Councillor in
the German Foreign Office, Dr. Friedrich Richard Krauel. The signature
of the Treaty coincided with the declaration of British jurisdiction over
Northern Botswana by Order-in-Council of 30 June 1890.

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4, Excluding the question of the Island of Heligoland, the British
interest in this part of Africa was in controlling the area between Lake
Ngami, some 350 kilometres to the south and west of Kasikili Island and
the Victoria Falls, in order to protect the main trade routes from South
Africa to the centre of the continent from encroachments by the Germans
and Portuguese; while the Germans wanted to obtain the recognition of
a German sphere of influence extending eastward, providing them access
to the Zambezi. However, as Lord Salisbury informed Sir Edwin B.
Malet, British Ambassador in Berlin, in his letter of 14 June 1890,

“The character of this country is very imperfectly known, and the
very position of Lake Ngami has been the subject of considerable
uncertainty.” (Memorial of Botswana, Annexes, Vol. II, Ann. 7,
p. 37.)

5. Lord Salisbury, in his speech to the House of Lords on 10 July
1890, referred to German aspirations in Africa, making clear that for
Germany the conclusion of the agreement was subject to the condition
that

“at the very north of this Damaraland territory they should have a
strip of territory going along the Portuguese border, and giving them
direct access to the River Zambesi . . . it is the last route in the world
by which trade can pass. It is at the head of the waters of all
the affluents of the Chobe and the Zambesi, over an impracticable
country, and leading only into the Portuguese possessions.”

6. On the same occasion Lord Salisbury also informed the House of
Lords of the British interest in controlling Lake Ngami, even though he
made the following comments:

“I think that the constant study of maps is apt to disturb men’s
reasoning powers ... We have had a fierce conflict over the posses-
sion of a lake whose name I am afraid I cannot pronounce correctly
— 1 think it is Lake Ngami — our only difficulty being that we
do not know where it is. We cannot determine its position within
100 miles, certainly not within 60 miles, and there are great doubts
whether it is a lake at all, or only a bed of rushes.” (Memorial of
Namibia, Annexes, Vol. IV, Ann. 31, p. 137.)

7. The above-mentioned aims pursued by Germany and Great Britain
explain the terms in which Article III of the 1890 Anglo-German Agree-
ment is drawn:

“In South-West Africa the sphere in which the exercise of influ-
ence is reserved to Germany is bounded:

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2. To the east by a line commencing at the above-named point
[the point of intersection by the 20th degree of east longitude of a
line commencing at the mouth of the Orange River, and ascending
its north bank], and following the 20th degree of east longitude to
the point of its intersection by the 22nd parallel of south latitude, it
runs eastward along that parallel to the point of its intersection by
the 21st degree of east longitude, thence it follows that degree north-
ward to the point of its intersection by the {8th parallel of south lati-
tude, it runs eastward along that parallel till it reaches the River
Chobe; and descends the centre of the main channel of that river to
its junction with the Zambesi, where it terminates.

It is understood that under this arrangement Germany shall have
free access from her Protectorate to the Zambesi by a strip of terri-
tory which shail at no point be less than 20 English miles in width.

The sphere in which the exercise of influence is reserved to Great
Britain is bounded to the west and north-west by the above-
mentioned line. It includes Lake Ngami.

The course of the above boundary is traced in general accordance
with a Map officially prepared for the British Government in 1889.”

Furthermore, Article VI provides:

“All the lines of demarcation traced in Articles I to IV shall be
subject to rectification by agreement between the two Powers, in
accordance with local requirements.”

Article VII adds:

“The two Powers engage that neither will interfere with any
sphere of influence assigned to the other by Articles I to IV. One
Power will not in the sphere of the other make acquisitions, conclude
Treaties, accept sovereign rights or Protectorates, nor hinder the
extension of influence of the other.

It is understood that no Companies nor individuals subject to one
Power can exercise sovereign rights in a sphere assigned to the other,
except with the assent of the latter.” (Memorial of Botswana,
Annexes, Vol. IT, Ann. 12, pp. 206-207, 209-210.)

Il. THE PARTIES DIFFERING INTERPRETATIONS OF THE 1890 TREATY

8.

169

Namibia interprets the 1890 Anglo-German Agreement as follows:

“__ The object and purpose of the Treaty was to divide the spheres
of influence of Germany and Great Britain in Africa and to this
1211 KASIKILI/SEDUDU ISLAND (DISS. OP. PARRA-ARANGUREN)

end to establish, where possible, firm, stable and visible bound-
aries between them. In the stretch of the Chobe River of con-
cern in this case, the south bank of the River (including the
right bank of the southern channel in the vicinity of Kasikili
Island), is established by the Chobe Ridge, a stable and clearly
visible escarpment some 50 metres high, so depicted on the
map used by the negotiators, while the northern channel is in
the midst of the floodplain of the Zambezi River and is inun-
dated and invisible for nearly half of each year.

— The ordinary meaning of the ‘channel’ of a river is a conduit
through which the water of the river flows, and the ordinary
meaning of the ‘main channel’ is the channel that carries the
major part of the flow of the river.

— The topographic, hydrological and geomorphologic character-
istics of the Chobe River and the Zambezi floodplain establish
that the southern channel carries not only the major portion,
but substantially all of the flow of the River in the vicinity of
Kasikili Island, while the northern channel has almost no
longitudinal flow and is little more than a relict channel of
the Zambezi floodplain”.

Consequently, Namibia concludes:

“All the elements of interpretation converge on a single result: the
southern channel is the main channel of the Chobe River around
Kasikili Island. The Treaty therefore attributes the Island to
Namibia.” (Memorial of Namibia, Vol. I, p. 58, paras. 162-163.)

9. Botswana does not accept the conclusion of Namibia. In its opinion,

“the main channel of the Chobe in the vicinity of Kasikili/Sedudu
Island is the northern and western channel, the principal criterion on
which this assessment is based being that of navigability. In the
absence of evidence to the contrary, the presumption must be that
this was also the main channel at the time of the conclusion of the
Anglo-German Agreement”.

However, as alternative position Botswana accepts

“that, in accordance with the object and purpose of the Agreement,
the main channel is constituted by the navigable channel at any
given time, and that at present the northern and western channel is
the main channel on this basis” (Memorial of Botswana, Vol. I,
p. 52, paras. 116-117).

10. Therefore, Botswana and Namibia are not in agreement as to the
meaning of Article IJ], paragraph 2, of the 1890 Anglo-German Treaty.
The Treaty itself does not include a definition of the expression “the centre

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of the main channel (der Thalweg des Hauptlaufes) of the Chobe River”,
nor do any other of its provisions provide by implication guidelines that
might be useful for this purpose. Consequently, according to customary
international law as expressed in Article 31 of the Vienna Convention on
the Law of Treaties of 23 May 1969, the Court has to determine the mean-
ing of such expression “in good faith”, taking into account the rules of
interpretation provided by the Convention (Oil Platforms (Islamic Repub-
lic of Iran v. United States of America), Preliminary Objection, Judg-
ment, 1 C.J. Reports 1966 (IT), p. 812, para. 23.)

III. SUBSEQUENT PRACTICE AS A RULE OF TREATY INTERPRETATION

11. Asa general rule of interpretation, Article 31, paragraph 3 (b), of
the 1969 Vienna Convention on the Law of Treaties provides that account
shall be taken, together with the context, of “any subsequent practice in
the application of the treaty which establishes the agreement of the
parties regarding its interpretation”.

12. The International Law Commission has acknowledged that “[t]he
probative value of subsequent practice is well recognized”, because it
shows how the intention of the parties has been put into effect. More-
over, the interpretation of treaties by reference to subsequent practice is
well established in the jurisprudence of international tribunals and, more
especially, of the World Court (Yearbook of the International Law Com-
mission, 1964, Vol. II, p. 59).

13. Thus the Permanent Court of International Justice, in its Opinion
on the Competence of the ILO in Regard to International Regulation of
the Conditions of Labour of Persons Employed in Agriculture, stated:

“If there were any ambiguity, the Court might, for the purpose of
arriving at the true meaning, consider the action which has been
taken under the Treaty.” (7922, P.C.LJ., Series B, No. 2, p. 39.)

14. Similarly, this Court, in the Corfu Channel case found that:

“The subsequent attitude of the Parties shows that it was not their
intention, by entering into the Special Agreement, to preclude the
Court from fixing the amount of the compensation.” (.C./. Reports
1949, p. 25.)

15. Later pronouncements of this Court have confirmed the impor-
tance of subsequent practice for the interpretation of a Treaty, as is indi-
cated in paragraph 50 of the Judgment.

16. Subsequent practice can be relevant either as a means of establish-
ing the parties’ agreement to the Treaty’s interpretation or in order to
shed light on their original intentions. It is possible that the conduct of

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the parties may have been at variance with the provisions of the Treaty,
showing disregard for the natural and ordinary meaning of its terms. In
such cases, “there may be a blurring of the line between the interpretation
and the amendment of a treaty by subsequent practice”, even though
these two processes are legally quite distinct. In the opinion of the Inter-
national Law Commission this was exactly what happened in the Temple
of Preah Vihear case, where the line of action taken by the parties was
not reconcilable with the natural and ordinary meaning of the terms of
the Treaty. The Commission therefore concluded that the effect of sub-
sequent practice on that occasion was to amend the Treaty ( Yearbook of
the International Law Commission, 1964, Vol. II, p. 60).

17. The practice of an individual State may have special cogency when
it relates to the performance of an obligation which particularly concerns
that State, as was stated by the Court in its Opinion on the /nfernational
Status of South West Africa (1. C.J. Reports 1950, pp. 135-136). How-
ever, subsequent practice as a means of interpretation of bilateral treaties
requires the agreement of both parties. Such agreement may be expressed
through their joint or parallel positive activity, but it may also be ascer-
tained from the activity of only one of the parties, where there is assent or
lack of objection by the other party. As is remarked by the International
Law Commission, it is sufficient that the other party accepts that practice
(United Nations Conference on the Law of Treaties — First and Second
Sessions: Documents of the Conference (1968-1969), p. 42, para. 15).

18. The importance of the silence of one party in determining the sub-
sequent practice of the parties to a bilateral treaty was admitted very
recently in the Beagle Channel arbitration case, where it was stated:

“the Court cannot accept the contention that no subsequent con-
duct, including acts of jurisdiction, can have probative value as a
subsidiary method of interpretation unless representing a formally
stated or acknowledged ‘agreement’ between the Parties. The terms
of the Vienna Convention do not specify the ways in which ‘agree-
ment’ may be manifested. In the context of the present case the acts
of jurisdiction were not intended to establish a source of title inde-
pendent to the terms of the Treaty; nor could they be considered as
being in contradiction of those terms as understood by Chile. The
evidence supports the view that they were public and well-known to
Argentina, and that they could only derive from the Treaty. Under
these circumstances the silence of Argentina permits the inference
that the acts tended to confirm an interpretation of the meaning of
the Treaty independent of the acts of jurisdiction themselves.” (Inter-
national Law Reports, Vol. 52, p. 224, para. 169.)

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IV. SUBSEQUENT PRACTICE OF THE PARTIES IN THE APPLICATION OF THE
1890 ANGLO-GERMAN AGREEMENT

19. Namibia maintains that the subsequent conduct of the parties to
the 1890 Anglo-German Agreement demonstrates that Kasikili Island is
part of Namibia. It bases its contention upon

“The control and use of Kasikili Island by the Masubia of Caprivi,
the exercise of jurisdiction over the Island by the Namibian govern-
ing authorities, and the silence by Botswana and its predecessors
persisting for almost a century with full knowledge of the facts.”
(Memorial of Namibia, Vol. I. p. 60, para. 166.)

20. During the oral pleadings Namibia insisted on “continued pres-
ence of the Masubia on the ground under colonial rule plus the accept-
ance of the situation by Botswana’s predecessors” (CR 99/10, p. 27,
para. 21 (Chayes)). In its opinion, the Masubia people of the Eastern
Caprivi occupied the Island from 1890 to at least until the mid-1960s.
Then, from the time the German officials first arrived in 1909, they and
their successors incorporated the local institutions of the Masubia into
the structure of colonial governance, using them as instruments for
implementing their suzerainty; and the activities carried on by them were
under the rule of the indigenous Masubia authorities — the chief, his
kuta and the indunas, or local representatives. All these facts were well
known to the Bechuanaland authorities just across the river in Kasane,
but they made no objection or protest, at least until 1948, From this
interactive pattern, Namibia concludes, it can be seen that the parties
were in agreement that the Treaty, properly interpreted, attributed
Kasikili Island to Namibia (CR 99/11, p. 41, para. 6 (Chayes)).

21. In this respect Botswana observes that

“The Namibian argument based upon subsequent conduct of the
parties rests upon extraordinarily weak foundations, both in concep-
tual and in factual terms. The conceptual foundations are weak
because in truth, the ‘subsequent conduct’ argument of Namibia is
an argument grounded in acquisitive prescription. Thus, subsequent
conduct, which relates to an existing legal instrument, is opposed to
prescription, the purpose of which is to destroy and to supplant a
pre-existing title.” (Reply of Botswana, Vol. I, p. 55, para. 157.)

22. However, Namibia states very clearly in its Memorial that the sub-
sequent conduct of the parties to the 1890 Anglo-German Agreement

“is relevant to the present controversy in three distinct ways. In
the first place, it corroborates the interpretation of the Treaty ...
Second, it gives rise to a second and entirely independent basis for
Namibia’s claim under the doctrines concerning acquisition of terri-

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tory by prescription, acquiescence and recognition. Finally, the con-
duct of the parties shows that Namibia was in possession of the
Island at the time of termination of colonial rule, a fact that is per-
tinent to the application of the principle of uti possidetis.” (Memo-
rial of Namibia, Vol. I, p. 60, para. 165.)

23. Furthermore, in its oral pleadings Namibia stressed that “its pri-
mary claim is that its title is treaty based”; that its claim “of prescription
is asserted in the alternative”; and that

“the very meaning of the ability to plead in the alternative is that
each claim is to be considered in its own right, and no inference is to
be taken against one claim because an inconsistent claim has been
pleaded” (CR 99/10, p. 24, para. 10 (Chayes)).

24. Consequently, the Court has to examine in the first place the pri-
mary claim presented by Namibia, 1.e., subsequent practice as a means
of interpretation of the 1890 Anglo-German Agreement; and only if
Namibia’s primary claim fails will the Court have to examine the alter-
native claims, based upon prescription, acquiescence and recognition,
presented by Namibia to demonstrate its ownership of Kasikili Island.

V. THE MANDATE FOR SOUTH WEST AFRICA (NAMIBIA)

25. Following the outbreak of the First World War, the Eastern
Caprivi was occupied in September 1914 without resistance by para-
military police from Southern Rhodesia. Captain Eason was appointed
Special Commissioner for the Caprivi Zipfel on 6 November 1914 and
took up his duties at Schuckmannsburg on 20 November. As stated in
the Resident Commissioner’s Report on the Administration of the Caprivi
Zipfel during the period 1914 to 31 March 1922, “It was not desired that
authority should be asserted to a greater extent or over a wider area than
was absolutely essential.” (Memorial of Namibia, Ann. 52, p. 203.)

26. By Article 119 of the Treaty of Peace signed at Versailles on
28 June 1919, Germany renounced in favour of the Principal Allied and
Associated Powers all her rights over her overseas possessions, including
therein German South West Africa.

27. Article 22, paragraph 1, of the League of Nations Covenant pro-
vided that:

“To those colonies and territories which as a consequence of the
late war have ceased to be under the sovereignty of the States which
formerly governed them and which are inhabited by peoples not yet
able to stand by themselves under the strenuous conditions of the

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modern world, there should be applied the principle that the well-
being and development of such peoples form a sacred trust of civi-
lisation and that securities for the performance of this trust should
be embodied in this Covenant.”

28. Paragraph 2 of the same Article 22 added that:

“The best method of giving practical effect to this principle is that
the tutelage of such peoples should be entrusted to advanced nations
who by reason of their resources, their experience or their geographi-
cal position can best undertake this responsibility, and who are will-
ing to accept it, and that this tutelage should be exercised by them as
Mandatories on behalf of the League.”

29. Article 22, paragraph 6, of the League of Nations Covenant
supplemented the mandate’s system by providing that

“territories, such as South-West Africa and certain of the South
Pacific Islands, which, owing to the sparseness of their population,
or their small size, or their remoteness from the centres of civilisa-
tion, or their geographical contiguity to the territory of the Manda-
tory, and other circumstances, can be best administered under the
laws of the Mandatory as integral portions of its territory, subject to
the safeguards above mentioned in the interests of the indigenous
population”.

30. Furthermore, Article 22 provided that the Mandatory shall render
to the Council of the League of Nations an annual report in reference to
the territory committed to its charge (para. 7); that a permanent Com-
mission shall be constituted to receive and examine the annual reports of
the Mandatories and to advise the Council on all matters relating to the
observance of the mandates (para. 9); and that

“The degree of authority, control, or administration to be exer-
cised by the Mandatory shall, if not previously agreed upon by the
Members of the League, be explicitly defined in each case by the
Council.” (Para. 8.)

31. The Principal Allied and Associated Powers agreed that a Man-
date over the territory which formerly constituted the German Protector-
ate of South West Africa should be conferred upon His Britannic
Majesty, to be exercised on his behalf by the Government of the Union
of South Africa. His Britannic Majesty, for and on behalf of the Govern-
ment of the Union of South Africa, agreed to accept the Mandate and
undertook to exercise it on behalf of the League of Nations in accordance
with the terms defined by its Council on 17 December 1920, which con-
firmed a prior decision taken on 7 May 1919.

32. According to the terms of South West Africa’s mandate, the con-
sent of the League of Nations was required for the modification of its
provisions (Art. 7, para. 1); and the authority of the Union of South
Africa was defined by Article 2 as follows:

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“The Mandatory shall have full power of administration and
legislation over the territory subject to the present Mandate as an
integral portion of the Union of South Africa, and may apply the
laws of the Union of South Africa to the territory, subject to such
local modifications as circumstances may require.

The Mandatory shall promote to the utmost the material and
moral well-being and the social progress of the inhabitants of the
territory subject to the present Mandate.” (League of Nations, Offi-
cial Journal, January-February 1921, p. 89.)

33. Until 31 December 1920 the Strip was ruled as a de facto part of
the Bechuanaland Protectorate under martial law. Martial law in the
Eastern Caprivi was ended by the Governor General’s Proclamation
No. 12 of 1922 and High Commissioner’s Proclamation No. 23 of 1922,
which placed the Strip under civilian Protectorate authority retroactively
from 1 January 1922 (Memorial of Botswana, Annexes, Vol. III,
Ann. 19, p. 257.)

34. The Mandate of the Union of South Africa over South West
Africa continued after the dissolution of the League of Nations, even
though it was expected that the mandated territories, which had not
become independent, should be placed under the trusteeship system of
the United Nations. Notwithstanding, among the mandatory powers,
only the Union of South Africa refused to do this in respect to the terri-
tory of South West Africa, because in its opinion the mandate had
lapsed. As a result, the Union of South Africa not only refused to comply
with its obligations under the Covenant and the Mandate but also
invoked the special position of the mandated territory as a reason for
making it a part of its territory. For this reason the General Assembly of
the United Nations decided to request an Advisory Opinion from the
Court on the matter.

35. The Court stated in its Advisory Opinion of 11 June 1950 that the
creation of the Mandate:

“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.” (1 C.J. Reports 1950, p. 132.)

36. Furthermore, the Court added that

(a) “the Union of South Africa continues to have the international obli-
gations stated in Article 22 of the Covenant of the League of
Nations and in the Mandate for South-West Africa” (ibid, p. 143);

(b) “the General Assembly of the United Nations is legally qualified to
exercise the supervisory functions previously exercised by the League

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of Nations with regard to the administration of the Territory, and
that the Union of South Africa is under an obligation to submit to
supervision and control of the General Assembly and to render
annual reports to it” (ZC.J. Reports 1950, p. 137);

(c) “It is clear that the Union has no competence to modify unilaterally
the international status of the Territory or any of these international
rules”, as “is shown by Article 7 of the Mandate, which expressly
provides that the consent of the Council of the League of Nations is
required for any modification of the terms of the Mandate” (ibid.,
p. 141);

and

(d) “that the Union of South Africa acting alone has not the compe-
tence to modify the international status of the Territory of South-
West Africa, and that the competence to determine and modify the
international status of the Territory rests with the Union of South
Africa acting with the consent of the United Nations” (ibid,
p. 144).

37. The Union of South Africa’s mandate over South West Africa was
terminated by United Nations General Assembly resolution 2145 (XXI)
of 1966; and its resolution 2248 (S-V) of 1967 entrusted the administra-
tion of South West Africa, with the new name of Namibia, to the Secu-
rity Council. Furthermore, due to its refusal to withdraw from the terri-
tory, Security Council resolution 176 of 1970 declared South Africa’s
presence in Namibia (South West Africa) illegal; that illegality was con-
firmed by the Court in its Advisory Opinion of 26 January 1971 on the
Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council reso-
lution 276 (1970) (LC.J. Reports 1971, p. 58, para. 113) (see para. 69 of
the Judgment).

38. The legal position of the Union of South Africa did not change
during the existence of its mandate over South West Africa. The powers
of the Union of South Africa over the territory of South West Africa
were only administrative and legislative; they had to be exercised to “pro-
mote to the utmost the material and moral well-being and the social
progress of the inhabitants”. Acts of disposition of the territory of the
mandate were outside the powers conferred on the Mandatory. There-
fore, the Union of South Africa could not undertake such acts.

39. The British authorities acknowledged this legal situation in 1949,
when examining the possibility of entering into an agreement with the
Union of South Africa, as Mandatory Power for South West Africa,
regarding Kasikili Island. Mr. G. H. Baxter, Commonwealth Relations
Office, examined the proposal made by the Union of South West Africa
to set the boundary in the southern channel of the Chobe River, guaran-
teeing the use of the northern channel for navigation by the inhabitants

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and authorities of the Bechuanaland Protectorate (Letter of 14 October
1948 to the High Commissioner’s Office in Pretoria, Memorial of
Namibia, Vol. IV, Ann. 63, p. 280; Memorial of Botswana, Annexes,
Vol. HI, Ann. 23).

40. Mr. Baxter’s Report of 20 October 1949 to Sir Evelyn Baring,
High Commissioner for Basutoland, the Bechuanaland Protectorate and
Swaziland, commented on the international aspect of the matter in the
following terms:

“This is governed largely by the question whether the mandate is
still regarded as effective. It is understood that the view of the Union
Government is that the mandate has expired. [Mr. Baxter’s Report
was prepared in 1950 before the Court gave its Advisory Opinion on
the matter.] This view, however, is not universally shared by other
Governments and the position under International Law seems to be
obscure. The mandate is limited, by the preamble and Article 1, to
the territory which formerly constituted the German Protectorate of
South West Africa. By Article III of an Agreement made in 1900
with Germany, the boundary at this point was fixed at the centre of
the main channel of the river and if, as now appears to be the case,
the main channel was at all material times on the north side of the
island in question, the mandated territory did not include the island.
Under Article 7 of the Mandate no modification could be made
without the consent of the Council of the League of Nations. In so
far as the mandate is still operative, this might be interpreted as
referring to some organ of the United Nations or as making any
adjustment impossible. No doubt it is unlikely that anyone would
raise any objection in the United Nations, especially as the proposal
is to add to the territory and not in any way to reduce its area, but
the possibility cannot be entirely ignored.” (Memorial of Botswana,
Vol. IH, Annexes, Ann. 28, p. 288.)

Furthermore Mr. G. H. Baxter added the following observations:

“Article VI of the Agreement of 1900 provides that ‘the lines of
demarcation traced in Articles I to IV shall be subject to rectification
by agreement between the two Powers, in accordance with local
requirements’. It might be argued that this now operates to permit
the boundary to be varied, for the purposes of both international
and municipal law, by agreement between the United Kingdom
Government and the Government of the Union as successor of the
German Government. It is, however, doubtful whether the argument
would be sound, since rectification would alter what is in fact, the
boundary of the former German Protectorate. As between these two
Governments, Article VI is probably still effective, but we are

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here concerned with a document (the Mandate) in which others are
interested.” (Memorial of Botswana, Vol. III, Annexes, Ann. 28,
pp. 290-291.)

41. Taking into account these considerations, the High Commission-
er’s Office, Pretoria, concluded that “it would seem desirable to let sleep-
ing dogs lie” (19 November 1949 Letter of High Commissioner, Pretoria,
to V. F. Ellenberger, Memorial of Botswana, Annexes, Vol. HJ, Ann. 29,
p. 296). Therefore, the High Commissioner, Sir Evelyn Baring, took the
decision not to enter into a formal agreement, and his letter of 10 May
1951 explained to Mr. Forsyth of the South African Department of
External Affairs, that the matter was “beset by legal complications of an
international nature, the solution of which would entail difficulties dis-
proportionate to the importance of the matter at issue” (Memorial of
Namibia, Vol. IV, Ann. 69, p. 294; Memorial of Botswana, Annexes,
Vol. HI, Ann. 30, p. 298; CR 99/7, p. 12 (Brownlie)).

42. Consequently, after the confirmation of the creation of the man-
date 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. Con-
sequently, in my opinion, the subsequent practice of the parties for the
purpose of interpreting the Anglo-German Agreement should be deter-
mined on the basis of the situation existing up to September 1914.

VI. RELEVANT EVIDENCE SUBMITTED TO THE COURT

44. The Court stated in its Judgment of 26 November 1984 that “it is
the litigant seeking to establish a fact who bears the burden of proving it”
(Military and Paramilitary Activities in and against Nicaragua ( Nicara-
gua v. United States of America), Jurisdiction and Admissibility, Judg-
ment, LCJ. Reports 1984, p. 437, para. 101; cf. also Frontier Dispute
(Burkina Faso! Republic of Mali), 1 C.J. Reports 1986, p. 587, para. 65).

45. For this reason the Court has to examine in the present case the
evidence presented by Namibia to support its contention that the subse-

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quent practice of the parties to the 1890 Anglo-German Agreement
demonstrates that they considered the southern channel of the Chobe
River as the “main channel” referred to in Article HI of that Agreement;
and that, therefore Kasikili Island was part of Namibia. Thus the facts
indicative of the subsequent practice of the parties alleged by Namibia
are:

“(L) continuous, open and notorious occupation and use of the ter-
ritory in question over a long period of time; (2) exercise of sover-
eignty in the territory; and (3) failure of the other party, having
knowledge of these facts, to object, protest or assert its rights”
(Memorial of Namibia, Vol. I, p. 66, para. 180).

46. The evidence to be examined is the following:

A, Captain H. V. Eason’s Report (1912)

47. An exchange of communications took place between Great Britain
and Germany at the beginning of the century, dealing with the western
half of the southern boundary line established by the 1890 Anglo-
German Treaty. On 14 January 1911 Lord Harcourt, the Secretary of
State of the Colonial Office, instructed the High Commissioner of the
Bechuanaland Protectorate to gather “all available information from
local sources in support of the view that the north channel is the main
channel” of the Chobe river around Kasikili Island (Memorial of
Namibia, Vol. IV, Ann. 44, p. 170).

48. This despatch led to Captain H. V. Eason’s Report, dated 5 August
1912, where he states:

“Two miles above the rapids lies Kissikiri Island. Here I consider
that undoubtedly the North should be claimed as the main channel.
At the Western end of the island the North Channel at this period of
the year is over one hundred feet wide and eight feet deep, the South
Channel about forty feet wide and four feet deep. The South Chan-
nel is merely a back water, what current there is goes round the
North. The natives living at Kasika in German territory are at
present growing crops on it.” (Memorial of Namibia, Vol. IV,
Ann. 47, p. 177.)

49. Even though Captain Eason stated that the northern channel
“should be claimed as the main channel”, he acknowledged that “the
natives living at Kasika in German territory are at present growing crops
on it”, meaning Kasikili Island.

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B. Joint Report of 1948 (Trollope-Redman) and Exchange of Letters
between 1948 and 195]

50. The 1948 Joint Report prepared by L. F. W. Trollope and Noel W.
Redman, as well as its antecedents and the correspondence that followed
between 1948 and 1951, are comprehensively reviewed in paragraphs 56
to 61 of the Judgment. The relevant extracts need not therefore be repro-
duced here. In my opinion those documents demonstrate:

(a) that the Masubia of the Eastern Caprivi were the only tribesmen
who used the Island for cultivation not only until 1914, 1.e., the criti-
cal date for the purpose of interpreting the 1890 Anglo-German
Agreement, but also until 1947 when the border dispute arose
between the Parties;

(b) that during the same period neither the Bechuanaland tribesmen nor
the Bechuanaland Protectorate authorities ever complained about
that use;

(c) that the Bechuanaland Protectorate tribesmen had never used the
Island either for cultivation or for other purposes; and

(d) that the Bechuanaland tribesmen and Bechuanaland Protectorate
authorities enjoyed undisputed use of the northern channel of the
Chobe River around Kasikili Island.

These conclusions are accepted in the Judgment, where it is stated:

“From the various administrative and diplomatic documents
referred to above, the Court, for its part, observes the following:
(1) prior to 1947 no differences had arisen between Bechuanaland
and the power administering the Caprivi Strip with regard to the
boundary in the area of Kasikili/Sedudu Island; (2) it appears that,
on the basis of the maps available at the time, the boundary had
until then been supposed to be located in the southern channel of
the Chobe . . .” (Para. 62.)

C. Mr. R. R. Renew’s Report (1965)

51. In response to a request for information about Kasikili Island
from the Department of Public Works, Mr. R. R. Renew, Surveyor-
General of the Bechuanaland Protectorate, prepared his report of 10 Octo-
ber 1965. In the first place Mr. Renew recalled:

“Kasikili island became the subject of a dispute in 1947 when the
Native Commissioner of the eastern Caprivi Strip was alleged to
have chailenged Bechuanaland’s right to the use of the main channel
of the Chobe River along the north side of the island, as a water-
way.” (Memorial of Botswana, Annexes, Vol. III, Ann. 36, p. 321.)

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Then, after reviewing the Trollope-Dickinson exchange of letters (1948-
1951), Mr. Renew concluded that “It appears, therefore, that if we now
wish to use the island we have no alternative but to re-open the matter”.
Furthermore he added:

“] think that the South African case for possession of this island is
very weak. The fact that we did not use it, and allowed the Caprivi
tribesmen to use it, does not amount to prescription so much as
tolerating its use by the Caprivi people while it was inconvenient for
us to use it.” (Memorial of Botswana, Annexes, Vol. IJ, Ann. 36,
p. 325.)

52. Thus, the facts stated by Mr. R. R. Renew in his Report coincide
with the conclusions already reached in this opinion (see para. 50
above).

D. Witnesses called by Namibia

53. The statements in May and June 1994 by Namibia’s witnesses
before the Joint Technical Team of Experts confirm that only the Masu-
bia of the Eastern Caprivi used Kasikili Island for ploughing; that no one
from the Bechuanaland Protectorate had ever used the Island; that
permission to use the Island was only ever sought or obtained from the
Masubia authorities; and that these activities were known at the time
to the British authorities.

54. Botswana maintains that those statements cannot be accepted
because of the contradictions that emerged when the witnesses were
cross-examined. In particular it stresses that Chief Moraliswani, when
asked about the date people stopped ploughing on Kasikili Island,
answered :

“That was in 1937 when now a lot of elephants were now entering
Caprivi and then when people were ploughing it was found that
those elephants were destroying their fields, it’s when they decided to
move and come to the other side here in Caprivi.” (Memorial of
Namibia, Annexes, Vol. III, Ann. 2, p. 209.)

Therefore Botswana concludes that the cultivation of the Island ceased in
1937 (Counter-Memorial of Botswana, Vol. I. p. 205, para. 468).

55. However, as stated before, the subsequent practice of the parties
for purposes of interpreting the 1890 Anglo-German Agreement has to
be examined only until 1914 (see Section V of this opinion). Therefore,
Botswana’s contention that cultivation of Kasikili Island took place only
until 1937 is irrelevant. Besides, even though Namibia’s witnesses some-
times contradict themselves in details, the bulk of their statements is con-
sistent and for this reason, in my opinion, the statements should be

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accepted as valid evidence. Consequently, this objection by Botswana
cannot be upheld.

56. Additionally, Botswana contends that extraneous oral evidence
would only be relevant if it were intended to shed some light on either the
actual intentions of the parties to the 1890 Anglo-German Agreement or
on the ordinary meaning at the material time (1890) of the phrase “the
centre of the main channel of [the] river” included in its Article III. Con-
sequently, in Botswana’s view extraneous oral evidence of alleged activi-
ties on the Island as evidence of subsequent practice is of no legal
relevance for purposes of determining the boundary between Namibia
and Botswana on the basis of the Anglo-German Agreement of 1890
(Counter-Memorial of Botswana, p. 203, para. 461; CR 99/12, pp. 10-11
(Tafa)).

57. The Joint Team of Technical Experts was created as a consequence
of the Communiqué issued on 24 May 1992 by the President of Bot-
swana, the President of Namibia and the President of Zimbabwe (Memo-
rial of Botswana, Vol. III], Annexes, Ann. 55, pp. 413-415); and the
Memorandum of Understanding regarding its terms of reference, signed
by Namibia and Botswana on 23 December 1992, expressly permits the
taking of oral evidence. Thus, Article 7, paragraph 1, of the Memoran-
dum of Understanding provides that

“In the execution of its functions, the Team shall have authority to:
(f) hear, without prejudice to the 1890 and 1892 Treaties, any oral
evidence from any competent person in Botswana and Namibia

or from any other country which the Team may consider neces-
sary to enable it to arrive at a decision on the Kasikili/Sedudu

Island dispute.” (Memorial of Botswana, Annexes, Vol. III,
Ann. 57, pp. 433-434.)

58. Consequently the 1992 terms of reference did not restrict witness
testimony to the demonstration of the actual intentions of parties to the
1890 Anglo-German Agreement, or of the ordinary meaning of the words
“the centre of the main channel of the river” at the material time (1890),
as Botswana claims. Witness evidence was declared admissible in general
terms, whenever appropriate, to demonstrate facts relevant to the bound-
ary dispute over Kasikili/Sedudu Island. Therefore Namibia called wit-
nesses to demonstrate the subsequent conduct of the parties as a means
of interpretation of the 1890 Anglo-German Agreement. For the same
reason Botswana presented and relied upon the statements of its wit-
nesses aS good evidence to contradict the subsequent practice asserted by
Namibia and to prove that the Masubia from the Eastern Caprivi Zipfel
were not the only persons who used Kasikili Island. Consequently, in my
opinion, this objection of Botswana cannot be upheld.

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E. Evidence presented by Botswana

59. (i) Botswana presented affidavits by the following persons:
(a) Dominic Diau (dated 6 October 1997); Brian Egner (dated 19 Sep-
tember 1997); Peter Gordon Hepburn (dated 6 August 1997); Timothy
Neville Liversedge (dated 30 October 1997); and Michael Slogrove (dated
8 July 1997) (Counter-Memorial of Botswana, Anns. 47-51); and (6) Bot-
sweletse Kingsley Sebele (dated 14 August 1998); Michael Slogrove
(dated 24 August 1998); and Simon Adolph Hirschfield (dated 25 August
1998) (Reply of Botswana, Vol. I, Anns. 20-22).

60. The statements embodied in the above-mentioned affidavits limit
themselves to facts that took place between 1977 and 1979; 1959 and
1962; 1962 and 1970; 1969 and 1970 and 1972 and 1978, respectively
(Counter-Memorial of Botswana, Anns. 47-51); and between October
1971 and April 1975; 1972 and 1978 and 1971 and 1995 (Reply of Bot-
swana, Anns. 20-22). Therefore, in my opinion, they are not relevant to
the subsequent practice of the parties to the 1890 Anglo-German Agree-
ment in 1914, which is the critical date; nor even in 1947 when the dis-
pute arose for the first time between the Parties (see Section V of this
opinion).

61. (2) Mr. Noel Redman, the District Commissioner at Kasane, in
the cover letter of 26 January 1948 (para. 5), attaching his and Mr. Trol-
lope’s Joint Report, reported to the Government Secretary (Maefeking)
the following:

“Since the attached report was prepared I have received further
information from an inhabitant of the Island that in 1924 a Caprivi
Chief named Liswaninyana applied to Captain Neale (sic Nellie), the
Resident Magistrate at Kasane, for permission for his people to
plough on the Island and graze cattle there. This was evidently
granted verbally and no written agreement is known. At this time
Government Oxen were grazing on the Island but they were removed
in 1925. Before 1924 the same informant told me that there was one
Caprivi family ploughing there but they had no authority to do so.”
(Memorial of Botswana, Annexes, Vol. III, Ann. 22, p. 265; CR 99/7,
pp. 23-24 (Brownlie).)

62. However, the additional information reported by Mr. Redman
refers to acts which occurred after 1914, the critical date for determining
the subsequent practice of the parties in order to interpret the 1890
Anglo-German Agreement. Moreover, the witness testimony reported by
Mr. Redman was merely hearsay. Furthermore, as Namibia observes,

“in 1924 Captain Neale had a dual role. He was both District Com-
missioner for Kasane in the Bechuanaland Protectorate and admin-

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istrator of the Eastern Caprivi under the League of Nations Man-
date for South-West Africa. Thus, even if he had authorized Liswanin-
yana to cultivate on the Island, this action would not necessarily
prove that the Protectorate exercised control over the Island. Given
Captain’s Neale’s dual functions, his alleged authorization to use
Kasikili Island cannot be properly assessed without first determining
whether he was acting as administrator of the Eastern Caprivi or
as administrator of the Bechuanaland Protectorate’s District of
Kasane.” (Reply of Namibia, p. 108, para. 244.)

63. (3) Botswana relies on the fact that it was not until 6 March 1992
that Namibia made any representation complaining about its people
being unable to use Kasikili Island, notwithstanding that they ceased to
do so in 1937, according to the statements made by Chief Moraliswani,
or in 1958 as some of Namibia’s witnesses testified (CR 99/7, p. 25
(Brownlie)). However, 1914 is the critical date for determining the sub-
sequent practice of the Parties. Therefore these facts, which took place
afterwards are irrelevant because of the existence of the mandate over
South West Africa.

64. (4) According to Botswana, no group had exclusive use of the
Island for farming purposes because in the 1940s seven families of Barotse
migrants lived in the Sedudu area, the term Batoka being the local Chobe
name for people coming from what is now part of Zambia, and worked
fields on the Island. Botswana maintains that this fact is evidenced by the
Chobe annual reports attached to Botswana’s Reply (Anns. 7 and 8).
(Reply of Botswana, p. 45, para. 125; Annexes, Anns. 7 and 8, pp. 14-20,
21-22; CR 99/7, p. 25 ( Brownlie)). Furthermore, Botswana stresses that
one of the witnesses, Keorapetse Mokhiwa, a 70 year-old peasant, said
“fields were very small because people used to plough with hand, these
hand ploughs” (CR 99/8, p. 13, para. 4.5 (Fox)).

65. However, this contention is not relevant per se, because it refers to
facts which occurred after 1914, the critical date for the determination of
the subsequent practice of the Parties for the purpose of interpreting
Article HI of the 1890 Anglo-German Agreement. Furthermore, Sedudu
is a name identifying not only Kasikili Island but also Sedudu Valley on
the Botswana side of the River Chobe. Therefore, even admitting that
those families were living and working in “Sedudu”, it has not been
demonstrated that “Sedudu” in this specific case meant Kasikili Island.

66. (5) In its oral pleadings Botswana stressed that the exchange of
letters between Messrs. Trollope and Dickinson (1948-1951) maintained
the status quo ante. However, in my opinion, the status quo ante favours
Namibia’s position as to the subsequent practice of the Parties (see
para. 50 above).

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1227 KASIKILI/SEDUDU ISLAND (DISS, OP. PARRA-ARANGUREN)

67. (6) Botswana recalls the establishment by the British authorities of
the Chobe Game Reserve in 1960, its northern delimitation correspond-
ing with the international boundary between the Bechuanaland Protec-
torate and South West Africa. For this reason, in the opinion of Bot-
swana, no cultivation has taken place on the Island since 1960 and, of
course, in fact it had almost certainly ceased many years before (CR 99/7,
p. 27 (Brownlie)). However, this argument is not relevant because 1914 is
the critical date for determining the subsequent practice of the parties to
the 1890 Anglo-German Agreement. Besides, as pointed out by Namibia,
the Act creating the Chobe Game Reserve in 1960 refers to the 1933
British War Office GSGS 3915 Map, which indicates the southern channel
as the international boundary (CR 99/1, p. 40, para. 64 (Chayes)).

68. (7) Botswana points out that, on the occasion of the planned
visit of the President of Botswana to the vicinity of the [sland in 1972,
Mr. Slogrove stated:

“The landing on this Island of a fully armed squad of the Bot-
swana P.M.U. in August, 1972, during the Presidents visit for the
purpose of searching it as a security measure strengthened my con-
viction that this Island was regarded as Botswana Territory.” (Reply
of Botswana, Annexes, Ann. 10, p. 25; CR 99/7, p. 28 (Brownlie)).

The two affidavits by Mr. Slogrove have already been examined and
considered irrelevant because they refer to facts posterior to 1914, which
is the critical date for determining the subsequent practice of the parties
as a means of interpretation of the 1890 Anglo-German Agreement.

69. (8) For the same reason, the meeting of delegations of the Parties
at Katima Mulilo in 1981, the eventual Pretoria Agreement of 1984 and
the Botswana Note to South Africa dated 22 October 1986, referred to by
Botswana (CR 99/7, p. 28 (Brownlie)), are irrelevant for the purpose of
demonstrating the subsequent practice of the parties to the 1890 Anglo-
German Agreement.

70. (9) Botswana also recalls that some ten of its witnesses gave evi-
dence that they had been engaged in trekking cattle from Maun to the
ferry at Kazungula in the 1930s and 1940s; and that they grazed cattle on
Kasikili Island (CR 99/8, p. 26 (Fox)). However, those activities are also
irrelevant to a determination of the subsequent practice of the Parties in
1914, which ts the critical date for that purpose.

F. Maps

71. Since the critical date is 1914, all maps prepared afterwards are
irrelevant to an interpretation of the 1890 Anglo-German Agreement by

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reference to the subsequent practice of the parties. Therefore the only
maps that need to be examined are the following.

72. (1) The ID 776 Map (1889) made by the British War Office,
referred to in the 1890 Anglo-German Agreement, and the Map of
Southern Zambezia (1891). However, neither is of any use because no
boundary symbol appears along the Chobe River.

73. (2) The Kriegskarte 1:800,000 (1904) has a label indicating
“Sulumbu’s Island”. However, as Namibia remarks, “the reproductions
of this map in the Botswana Atlas (maps 4 and 5), on which Botswana
seems to rely for analysis, are extremely poor and are not two maps but
two copies of one map” (CR 99/4, p. 56 (Rushworth)). Botswana accepted
those criticisms and acknowledged that “ftlhe map depicts some features
which are now not in conformity with the known geographical features”
(Reply of Botswana, p. 71, para. 206). The map was not even mentioned
by Botswana in its oral pleadings (CR 99/14, p. 27 (Fox)). Therefore, in
my opinion, it is irrelevant.

74. Seiner’s Map 1:500,000 (1909) shows Kasikili Island, even though
labelled “Sulumbu’s Island”. However, as Namibia acknowledges, the
key to the map “does not say how international boundaries are por-
trayed” (CR 99/4, p. 43 (Rushworth)). Therefore it is irrelevant for the
purpose of determining the boundary line at Kasikili Island.

75. Streitwolfs Map 1:200,000 (1910) depicts Kasikili Island under
the name “Kassikiri”. However, it is irrelevant since no boundaries are
shown, as Namibia points out (CR 99/4, p. 44 (Rushworth)).

76. Von Frankenberg's Map 1:100,000 (1912) shows Kasikili Island,
again under the name “Kassikiri”. The German word “Flussarm” appears
above the southern channel and because of that Botswana concludes that
the southern channel is not the “main channel” but a “side branch” of
the Chobe River. Notwithstanding, Botswana has maintained that its
case “is not based on maps, by reason of their lack of accurate informa-
tion and their inconsistency” (Reply of Botswana, p. 99, para. 258).
Moreover, the map does not show the international boundaries between
the two countries. For this reason, in my opinion, it is irrelevant.

77. Hence none of the relevant maps which were submitted to the
Court can serve to demonstrate the subsequent practice of the Parties for
the purpose of interpreting the 1890 Anglo-German Agreement, bearing
in mind that 1914 is the critical date for such demonstration. Conse-
quently, in my opinion, it is not necessary to consider any questions
relating to the cartographic principles governing the preparation of maps
or the conditions which maps must satisfy in order to produce legal
consequences, or their importance in the resolution of legal disputes.

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G. Aerial Photographs and Satellite Images

78. The aerial photographs and satellite images submitted to the Court
do not contain any indication which would enable it to determine the
boundary between the Parties at Kasikili Island, even though they may
have relevance in relation to the question whether Kasikili Island was
occupied or cultivated. However, they are irrelevant because they were
taken after 1914, the critical date as regards the subsequent practice of
the Parties for purposes of interpreting the 1890 Anglo-German Agree-
ment. Moreover, aerial photographs or satellite images cannot determine
whether any occupation of Kasikili Island was carried out by Masubia
people of the Eastern Caprivi or by natives or authorities of the Bechua-
naland Protectorate.

H. Peaceful and Public Use of Kasikili!/Sedudu Island by Masubia
Tribesmen from Eastern Caprivi

79. The German Government first established an administrative pres-
ence in the Eastern Caprivi in February 1909. As Namibia acknow-
ledged, “Until then, from the European colonial perspective, the Eastern
Caprivi was ‘a no-man’s land’, essentially outside the law” (Memorial of
Namibia, Vol. I, p. 88, para. 222).

80. The German Governor in Windhoek, Bruno von Schuckmann,
issued an ordinance on 16 October 1908 closing the territory to all Euro-
peans without an official permit, “thus laying the legal basis for the exer-
cise of administrative authority in the region”. At the same time he
appointed Hauptmann Kurt Streitwolf as Imperial Resident of the Caprivi
who, at the head of a contingent of four German military officers and
14 African policemen, entered the Strip on 25 January 1909. Some days
later, on 3 February, Hauptmann Streitwolf reached the southern bank
of the Zambezi, opposite Sesheke, and established a new town, named
Schuckmannsburg, where he set up his headquarters.

81. Namibia adds that on 4 May 1909 Hauptmann Streitwolf installed
Chikamatondo at Schuckmannsburg “as the Masubia Chief, responsible
to him for the governance of the area”, Kasikili Island being “clearly
within his jurisdiction”. Thus Germany established the method of “indi-
rect rule” and the native chiefs were constituted as an integral part of the
machinery of the German administration. For this reason, Namibia con-
cludes, the German rule of the Eastern Caprivi was carried out through
Chikamatondo and the Masubia tribal organization (Memorial of
Namibia, pp. 88-93, paras. 222-232).

82. Namibia maintains that the same method of “indirect rule” per-
sisted after the creation of the mandate over the territory of South West

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1230 KASIKILI/SEDUDU ISLAND (DISS. OP. PARRA-ARANGUREN)

Africa. The Governor-General of the Union of South Africa delegated
responsibility for the Caprivi to the British High Commissioner for South
Africa, with effect from 1 January 1921 (Memorial of Namibia, Vol. V,
Ann. 93, pp. 5-8), who exercised his authority through the Bechuanaland
Protectorate (Memorial of Botswana, Annexes, Vol. III, Ann. 19, p. 257).

83. The British Administration lasted until 1929, when it was taken
over directly by the Union of South Africa (Memorial of Namibia,
Vol. V, Ann. 94, pp. 9-11; Memorial of Botswana, Annexes, Vol. III,
Ann. 20, pp. 259-260.) During that period, British colonial officers also
relied on the traditional authorities of the Masubia to carry out impor-
tant governmental functions, such as administration of justice. This fact
is evidenced by the reports written by Bechuanaland officials, acting as
delegates of South Africa. Thus, all their Reports for the years 1927, 1928
and 1929 include the following paragraph:

“Each village has its Induna or Headman who has authority to
adjudicate according to Native Law and Custom amongst his fol-
lowers. He is generally assisted by the older men. If they do not
agree or if the plaintiff or defendant is not satisfied, then the case it
taken to the Chief’s Kgotla.

The Chiefs Kgotla or Court is the principal one and its judgments
are final except that provision is made under Proclamation No. 1 of
1919 for appeals against the judgments of native chiefs in the Bechua-
naland Protectorate, in the first instance to a Court composed of the
Assistant Commissioner or Magistrate of the district and of the
chief, and in the event of their disagreeing, then the Resident Com-
missioner decides the matter in dispute. When members of a tribe
are punished by their own courts the penalty is usually one or more
head of cattle. The fines become the sole property of the chief,
although he may give some of the cattle to his councillors.” (Report
of the Government of the Union of South Africa on South-West
Africa for the Year 1927, Counter-Memorial of Botswana, Ann. 11,
p. 123; Report of the Government of the Union of South Africa on
South-West Africa for the Year 1928, Counter-Memorial of Bot-
swana, Ann. 12, p. 108; Report of the Government of the Union of
South Africa on South-West Africa for the Year 1929, paras. 458-
459, Counter-Memorial of Botswana, Ann. 13, p. 69, paras. 459-460.)

84. Botswana maintains that “it is implausible to suggest that the title
could be generated by the agricultural activities of the Basubia”; that
“there is simply no evidence that indirect rule conferred competence upon
the Caprivi chiefs to make or unmake international boundaries”; and
that Article VII of the 1890 Anglo-German Agreement provides that:

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1231 KASIKILI/SEDUDU ISLAND (DISS. OP. PARRA-ARANGUREN)

“The two Powers engage that neither will interfere with any
sphere of influence assigned to the other by Articles I to IV. One
Power will not, in the sphere of the other, make acquisitions, con-
clude treaties, accept sovereign rights or protectorates, nor hinder
the extensions of influence of the other.

It is understood that no Companies nor individuals subject to one
Power can exercise sovereign rights in a sphere assigned to the other,
except with the assent of the latter.”

Therefore Botswana concludes that occupation of Kasikili Island by the
Masubia of the Eastern Caprivi cannot create any Namibian title to
Kasikili Island (Counter-Memorial of Botswana, Vol. 1, p. 12, para. 23.)

85. Nevertheless, Botswana admits:

“The Government of Botswana is willing to accept that, both in
German-controlled territory and in Bechuanaland Protectorate, the
authority of the traditional chiefs was subjected to a process of colo-
nial approval. The chiefs thus became in a certain sense agents of the
colonial administration on both sides of the River Chobe. But there
is no evidence, and no evidence is offered, to the effect thar the chiefs
had authority to engage in title-generating activities. Both legally
and historically this would be eccentric.” (Counter-Memorial of Bot-
swana, p. 278, para. 685.)

86. However, Namibia does not claim that Germany was engaged in
title-creating activities on Kasikili Island through the Masubia tribal
organization. In the opinion of Namibia the title remained the same, the
1890 Anglo-German Agreement. However, the boundary delimitation
made by its Article IT was not clear and needed interpretation. There-
fore, Namibia relies on the subsequent practice of the Parties in order to
interpret the existing title, i.e., the 1890 Anglo-German Agreement; no
new title was created, the existing title was confirmed and interpreted by
subsequent practice.

87. The evidence presented by Namibia demonstrates that Germany
administered the Eastern Caprivi Zipfel through the Masubia Chiefs and
their tribal organization. They exercised judicial functions and had
authority to render judgments. Their positive acts of exercise of jurisdic-
tion over Kasikili Island were frequent enough, taking into account that
they were undertaken in areas sparsely populated and very remote from
the centres of civilization, as the territory of South West Africa was
described in Article 22, paragraph 6, of the League of Nations Covenant

190
1232 KASIKILI/SEDUDU ISLAND (DISS, OP. PARRA-ARANGUREN)

(see para. 27 above). The Bechuanaland authorities never challenged
such jurisdictional acts. For this reason, in my opinion, the Chiefs were
agents of the colonial administration and their acts represent the subse-
quent practice of the Parties for purposes of the interpretation of the
1890 Anglo-German Agreement.

VIE CONCLUSION

88. The considerations set out in the foregoing sections lead to the
conclusion that the Masubia of the Eastern Caprivi were the only tribes-
men who occupied Kasikili/Sedudu Island, at least until 1914; that their
occupation of Kasikili/Sedudu Island was peaceful and public; and that
even Botswana acknowledged that their chiefs “became in a certain sense
agents of the colonial administration” (see para. 85 above). Therefore, in
my opinion, the subsequent practice of Germany and Great Britain
reflected their understanding that Kasikili/Sedudu Island formed part of
German South West Africa and that the southern channel of the Chobe
River was the “main channel” referred to in Article III, paragraph 2, of
the 1890 Anglo-German Agreement. No subsequent practice of the parties
to the Treaty was possible during the First World War when British
troops exercised de facto control over South West Africa. In 1920 the
League of Nations confirmed the establishment of the Mandate over
South West Africa. During the existence of the Mandate over South
West Africa (Namibia) neither of the Parties to the 1890 Anglo-German
Agreement had competence to recognize, either by express agreement or
by subsequent practice, that the aforementioned “main channel” of the
Chobe River was the northern channel and not the southern channel,
since this new interpretation would have represented a modification of
the territory submitted to the Mandate. Consequently, the original under-
standing was maintained and for this reason, in my opinion, Kasikili/
Sedudu Island forms part of Namibia and the southern channel of the
Chobe River is the “main channel” referred to in Article II], paragraph 2,
of the 1890 Anglo-German Agreement.

( Signed) Gonzalo PARRA-ARANGUREN.

19]


                               INTERNATIONAL COURT OF JUSTICE

                                 REPORTS OF JUDGMENTS,
                              ADVISORY OPINIONS AND ORDERS

                         DISPUTE OVER THE STATUS
                    AND USE OF THE WATERS OF THE SILALA
                                    (CHILE v. BOLIVIA)

                                   ORDER OF 1 JULY 2016

                                      2016
                               COUR INTERNATIONALE DE JUSTICE

                                   RECUEIL DES ARRÊTS,
                            AVIS CONSULTATIFS ET ORDONNANCES

                       DIFFÉREND CONCERNANT LE STATUT
                      ET L’UTILISATION DES EAUX DU SILALA
                                     (CHILI c. BOLIVIE)

                              ORDONNANCE DU 1er JUILLET 2016

3 CIJ1099_anc_1101.indb 1                                       23/01/17 11:12

                                                  Official citation :
                             Dispute over the Status and Use of the Waters of the Silala
                                      (Chile v. Bolivia), Order of 1 July 2016,
                                             I.C.J. Reports 2016, p. 243

                                               Mode officiel de citation :
                            Différend concernant le statut et l’utilisation des eaux du Silala
                                   (Chili c. Bolivie), ordonnance du 1er juillet 2016,
                                              C.I.J. Recueil 2016, p. 243

                                                                                1099
                                                                    Sales number
                ISSN 0074-4441                                      No de vente:
                ISBN 978-92-1-157294-0

3 CIJ1099_anc_1101.indb 2                                                                        23/01/17 11:12

                                                              1 JULY 2016

                                                                ORDER

                                 DISPUTE OVER THE STATUS
                            AND USE OF THE WATERS OF THE SILALA
                                     (CHILE v. BOLIVIA)

                             DIFFÉREND CONCERNANT LE STATUT
                            ET L’UTILISATION DES EAUX DU SILALA
                                      (CHILI c. BOLIVIE)

                                                           1er JUILLET 2016

                                                           ORDONNANCE

3 CIJ1099_anc_1101.indb 3                                                     23/01/17 11:12

                    243

                                   INTERNATIONAL COURT OF JUSTICE

        2016                                        YEAR 2016
       1 July
     General List
      No. 162                                       1 July 2016

                             DISPUTE OVER THE STATUS
                        AND USE OF THE WATERS OF THE SILALA
                                              (CHILE v. BOLIVIA)

                                                     ORDER

                    Present: President Abraham; Vice‑President Yusuf; Judges Owada,
                             Tomka, Cançado Trindade, Greenwood, Xue, Donoghue,
                             Gaja, Sebutinde, Bhandari, Robinson, Gevorgian;
                             Registrar Couvreur.

                        The International Court of Justice,
                       Composed as above,
                       After deliberation,
                       Having regard to Article 48 of the Statute of the Court and to Arti-
                    cles 31, 44, 45, paragraph 1, 48 and 49 of the Rules of Court,
                       Having regard to the Application filed in the Registry of the Court on
                    6 June 2016, whereby the Government of the Republic of Chile instituted
                    proceedings against the Plurinational State of Bolivia with regard to a
                    dispute concerning the status and use of the waters of the Silala;
                       Whereas a signed copy of the Application was communicated to Bolivia
                    on the day it was filed;
                       Whereas Chile has appointed H.E. Ms Ximena Fuentes Torrijo as
                    Agent and H.E. Ms María Teresa Infante Caffi and Mr. Juan Ignacio
                    Piña Rochefort as Co‑Agents; and whereas Bolivia has appointed H.E.
                    Mr. Eduardo Rodríguez Veltzé as Agent;

                    4

3 CIJ1099_anc_1101.indb 24                                                                      23/01/17 11:12

                    244 	         status and use of the silala (order 1 VII 16)

                       Whereas, at a meeting held by the President of the Court with the
                    Agents of the Parties on 23 June 2016, the latter indicated that they had
                    come to an agreement that Chile should have a period of twelve months
                    at its disposal, from the day of the present Order, in which to prepare its
                    Memorial, and that Bolivia should then have a period of twelve months
                    for the preparation of its Counter‑Memorial;
                       Taking into account the agreement of the Parties,
                        Fixes the following time‑limits for the filing of the written pleadings:

                      3 July 2017 for the Memorial of the Republic of Chile; and
                      3 July 2018 for the Counter‑Memorial of the Plurinational State of
                    Bolivia;
                        Reserves the subsequent procedure for further decision.

                       Done in English and in French, the English text being authoritative, at
                    the Peace Palace, The Hague, this first day of July, two thousand and
                    sixteen, in three copies, one of which will be placed in the archives of the
                    Court and the others transmitted to the Government of the Republic of
                    Chile and the Government of the Plurinational State of Bolivia, respec-
                    tively.

                                                                  (Signed) Ronny Abraham,
                                                                              President.
                                                                (Signed) Philippe Couvreur,
                                                                              Registrar.

                    5

3 CIJ1099_anc_1101.indb 26                                                                          23/01/17 11:12


189 RÉFORME AGRAIRE POLONAISE

ANNEXE

DOCUMENTS SOUMIS A LA COUR

PIÈCES DÉPOSÉES AU COURS DE LA PROCÉDURE ORALE:
Par l'agent du Gouvernement allemand:

Article 99 de la Constitution de la République de Pologne (Dz. Ust. R. P.,
n° 44 du ref juin 1921, pos. 267, p. 633).

Loi du 28 décembre 1925 concernant l’exécution de la réforme agraire
(Dz. Ust. R. P., n° 1 du 9 janv. 1926, pos. ï, p. 2).

P.-V. de la 6gme Session du Conseil (S. d. N., Journal officiel, XITIMe année,
n° 12 (2me Partie), déc. 1932, pp. 1970 ef sqq.).

P.-V. de la 69me Session du Conseil (S.d.N., Journal officiel, XIIIME année,
n° 12 (2me Partie), déc. 1932, pp. 1987 ef sgq.).

P.-V. de la 7ome Session du Conseil (S.d.N., Journal officiel, XTVME année,
n° 2, févr. 1933, pp. 223 et sqq.).

Loi du 17 mars 1933 concernant la publication de la liste nominative des
biens ruraux soumis à l'achat forcé en 1933 (Dz. Ust. R. P., n° 21 du

29 Mars 1933, POS. 150, P. 443).

Arrêté du Conseil des Ministres du 30 mars 1933, concernant la rédaction
de la liste nominative des biens ruraux soumis à l'achat forcé pour l’année
1933 (Dz. Ust. R. P., n° 22 du 31 mars 1933, pos. 175, p. 466).

Reproduction photographique des «listes nominatives » pour 1926, 1927,

1928, 1929, 1930 et 1932.
Arrêt du Tribunal arbitral mixte roumano-hongrois du 4 juillet 1925.

18