INTERNATIONAL LAW AND THE PROTECTION OF NAMIBIA'S TERRITORIAL INTEGRITY: BOUNDARIES AND TERRITORIAL CLAIMS

Transcription

1 INTERNATIONAL LAW AND THE PROTECTION OF NAMIBIA'S TERRITORIAL INTEGRITY: BOUNDARIES AND TERRITORIAL CLAIMS by S. AKWEENDA KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / BOSTON

2 vn TABLE OF CONTENTS Foreword Table of Contents v vii CHAPTER I PRELIMINARY ISSUES RESPECTING THE BOUNDARY REGIME AND TERRITORIAL INTEGRITY OF NAMIBIA 1 1. Introduction 1 2. Consideration of Certain Legal Aspects 'Boundary'and'Frontier' 'Delimitation' and 'Demarcation' 'Boundary Dispute' and 'Territorial Claim' Territorial Integrity of Namibia: Measures Adopted by the U.N The Concept of'sphere of Influence' 8 4. Notification Regarding Acquisition of Territories Definition and Legal Effect of Notice Notification Under Berlin Act, Notifications Relating to German S.W.A The Creation of German S.W.A. and the Development of Boundaries Symbol ic Annexation of Coast by Portugal Title to Angra Pequena and Adjacent Territory 'Hinterland' Doctrine and the Boundaries of German S.W.A. Protectorate Measures Adopted to Extend the Limits of German S.W.A. Protectorate Occupation of German S.W.A. and Declaration of a Protectorate General Consideration Administration of German S.W.A. Protectorate Occupation, Invasion and Conquest Occupation and Invasion Conquest Capacity to Settle Boundary: Union and Britain 33

3 VI11 Modification of Boundaries of Mandated Territories Special Issues Concerning Namibia Modification and Settlement of Boundaries Terms of Mandate Agreements Consideration of State Practice 38 (a) Belgium and British Mandated Territories in East Africa 38 (b) The Tanganyika-Mozambique Boundary Sovereignty in Cases of Mandated Territories 40 CHAPTER II STATE SUCCESSION, UTIPOSSIDETIS AND THE BOUNDARIES OF NAMIBIA State Succession and Boundary Regime Uti Possidetis Origin and Scope of Uti Possidetis The OAU and the Boundaries of African States The Charter of the OAU The Resolution on Boundary Disputes, CHAPTER III THE SOUTHERN BOUNDARY OF NAMIBIA: ORANGE RIVER Introduction The Principles of International Law Regulating River Boundaries Delimitation and Title to Rivers Delimitation of Mouths of Rivers Definition of Navigable Rivers Islands in Rivers Bridges Over River Boundaries Accretion and River Boundaries Utilisation of the Waters of International Rivers The Orange River Question: Delimitation Geographical Features, Communities and Irrigation Diversion of the Orange River Delimitation of the Orange River North-Western Boundary of Cape Colony 72

4 4.2 Anglo-German Agreement of 1 July Introduction Delimitation in East Africa Delimitation in West Africa Certain Anglo-German Commitments Cession of Zanzibar and Heligoland (Helgoland) Delimitation in South-West Africa: Orange River 78 (a) General Consideration 78 (b) Conflict of Interests between Britain and Germany78 (i) Ferry at Rahman's Drift 79 (ii) Construction of Military Road Along the Orange 81 (iii)boring for Water Along the Orange 82 (iv) Shipping of Consignment Across the Orange 82 (c) Claims of the German Government 83 (d) Claims of the British Government 84 (i) Original Claim 84 (ii) Opinions of the Attorneys-General 85 (iii)offer of Thalweg 86 (e) Claims of the Union and Republic of South Africa88 (f) Article 111(1) of the Anglo-German Agreement 90 (i) Tracing the Intention of the Parties 90 (ii) Application of Renunciation 97 (iii)case Law on Mouths of Rivers 98 (iv)case Law Respecting Banks of Rivers Application of Estoppel and Acquiescence to the Orange River Substance of Estoppel and Acquiescence Estoppel and the Conduct of British Authorities Proclamation of 17 December Declaration of the British Foreign Secretary Instructions of State Secretary for Colonies Reaction of Germany to the British Acts Application of Acquiescence Nemo Debet Esse Judex and the Orange Question The T.G.N.U. in Namibia Application of Nemo Debet Esse Judex The Claim of Namibia Settlement of Orange River Dispute 115 IX

5 CHAPTER IV THE EASTERN BOUNDARIES OF NAMIBIA Introduction Maps in Boundary Questions Definition and Classification of Maps Function of Maps in International Law Legal Significance of a Disclaimer on a Map Conclusions on Maps Evolution of the Boundary Question Introduction The British Order-in-Council of The Anglo-German Agreement of 1 July The Southern Boundary of Caprivi Strip The Line between 21" E and the Chobe The Nature of the Problem The German Claim The British Claim 133 (a) Opinions of Authorities in Bechuanaland 133 (b) Solution of High Commissioner for South Africa 135 (c) Lord Crewe's Solution Regarding Caprivi Strip Settlement of the Boundary: Bechuanaland and the Union Claim of Botswana Map Evidence Interpretation of Article 111(2) The Line Constituted by the Chobe River Outline of the Dispute Claim Respecting Renunciation of Main Channel Interpretation of Article 111(2) The United Nations Map of Namibia Background and Scope Legal Significance The Claim of Namibia Settlement of the Dispute by Botswana and Namibia Boundaries Constituted by Degrees Demarcation of the Boundaries 165

6 XI CHAPTER V THE NORTH-EASTERN BOUNDARY OF NAMIBIA: THE ZAMBEZI RIVER Introduction Dependent Territories: Capacity to Conclude Treaties 'Independent' and 'Self-Governing' Colonial Clauses in Treaties Capacity of Dependent Territories to Conclude Treaties Consideration of Exchange of Notes The Term'Treaty' Informal Instruments Exchange of Notes Delimitation of the Zambezi River Introductory The German Claim The Union Claim The British Claim Exchange of Notes Defining the Alignment General Consideration Application of Certain Legal Principles 186 (a) Provisions Relevant for Mandated Territories 186 (b) The Statute of Westminster 187 (c) The Status of the Union Act, (d) The Republic of South Africa Constitution Ac/, (e) Nemo Debet Esse Judex 190 (f) Lack of Protest by the League of Nations Exchange of Notes Conferring Local Rights Severance of Treaty Provisions Reservation Clause 196 CHAPTER VI QUADRIPOINT THEORY 201

7 Xll CHAPTER VII THE NORTHERN BOUNDARIES OF NAMIBIA Introduction 'Neutral Zone' in International Law Terminologies: 'Neutral' and 'Neutralization' the Nature of a Neutral Zone 'Neutral Zone' distinguished from 'Condominium' 'Neutral Zone' distinguished from 'Demilitarised Zone' Delimitation of Territory between the Mouth of Kunene and Zambezi Rivers Attempt by Portugal and Britain to Establish Spheres of Influence The German-Portuguese Declaration of 30 December General Consideration Provisions Regarding the Kunene-Okavango Line Whether the Declaration is Void or Voidable due to Mistake The British Protest Regarding the Declaration Anglo-Portuguese Modus Vivendi of 1915 Regarding the Neutral Zone 'Modi Vivendi' in International Law Provisions of Modus Vivendi Ruacana Agreement of 5 July Determination of the League of Nations Delimitation of the Neutral Zone Introduction Delimitation Treaty of 22 June Customary Rights in Delimitation Treaties Issue of Local Customary Rights Customary Rights in International Law The Alignment Constituted by Okavango River to Zambezi River Provisions Respecting the Okavango River The Andara-Katima Rapids Line Ambiguity Respecting 'Andara' Settlement by Caprivi Zipfel Boundary Commission 238 (a) Terminal Point at Katima Rapids 238 (b) The Boundary at Andara 240 (i) Claim of the Union 240

8 X1U (ii) Claim of Northern Rhodesia and Bechuanaland 241 (iii)claim of Portugal 241 (c) Delimitation of Dikuyu Island 241 (d) Demarcation of the Andara-Katima Line 242 (e) 'Provisional Beacons' at Disputed Triune Point 243 (f) Portuguese-Northern Rhodesia-Union Agreement League of Nations and Andara-Katima Line Consideration of the Triune Point Anglo-Portuguese Agreement of 11 June The Barotse Boundary Award of Anglo-Portuguese Agreement of League of Nations, U.N. and the Triune Point 247 CHAPTER VIII LEGAL ISSUES OF SPECIAL IMPORTANCE TO THE PENGUIN ISLANDS AND WALVIS BAY Introduction Modes of Acquisition of Title to Territories The Concept of 'Title' Prescription Occupation Loss of Title Legal Effect of Resolutions of the General Assembly and Security Council The Nature of 'Resolutions' Legal Force of General Assembly Resolutions Legal Force of Security Council Resolutions 259 CHAPTER IX THE LEGAL STATUS OF THE PENGUIN ISLANDS Introduction Evolution of the Annexation Guano Deposit as a Cause of Annexation Proclamations of Jones, 1861, and Forsyth, Title to Penguin Islands by Claim of Portugal British Letters Patent of 27 February

9 XIV 2.6 Leases and Licences Annexation oflchaboe and Penguin Islands Act, Ichaboe and Penguin Islands Annexation Act, German Claim Angra Pequena and West Coast Claims Commission The Anglo-German Protocol, 15 July General Consideration Implementation of Article 4 of the Protocol General Consideration Lease of Penguin Islands, The Claim of South Africa General Consideration of Map Evidence 288 CHAPTER X THE LEGAL STATUS OF WALVIS BAY AND FURTHER CONSIDERATION OF THE PENGUIN ISLANDS Introduction Evolution of the Annexation Customs House at Walvis Bay Offer to Protect Walvis Bay for the Chief Captain Dyer's Mission to Annex Walvis Bay British Letters Patent of 14 December Special Issues Dispute Concerning Southern Boundary of Walvis Bay Claim of South Africa Claim of S.W.A.P.O. Respecting Walvis Bay and Penguin Islands Introductory Notes Consideration of S.W.A.P.O.'s Claim S.W.A.P.O.'s Protest Against Annexation in The U.N. and the Legal Status of Walvis Bay and the Penguin Islands Measures Adopted by the General Assembly Measures Adopted by the Security Council Boundaries and Territorial Questions Referred to League of Nations and U.N Provisions of the Covenant The Practice of the League of Nations Mosul Boundary (Iraq-Turkey) 327

10 XV Hungary-Austrian Boundary Upper-Silesia (Polish-German) Boundary Further Disputes Settled and Conclusions Implied Power of the U.N The Practice of the U.N Boundaries of Libya and Somaliland Partition of Palestine and Creation of Israel Self-Determination and Title to Penguin Islands and Walvis Bay Acquiescence, Admission, Estoppel and Title to Walvis Bay Application of Martial Law to Walvis Bay, District Administration of Walvis Bay, Arrangement Regarding Detainees and Prisoners South West Africa Affairs Act, Memorandum of 13 October Residents of Walvis Bay Further Acts and Unilateral Declarations Application of Legal Principles Settlement of the Walvis Bay and Penguin Islands Dispute: Joint Administration 342 CHAPTER XI THE MARITIME BOUNDARIES OF NAMIBIA 346 Abbreviations 349 Table of Cases 354 Index 363