Geographical Hegelianism in Territorial Disputes Involving Non-European Land Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)

Abstract

This article extensively reviews the ICJ's decision in the Case Concerning Kasikili/Sedudu Island, particularly with reference to its application of law on acquisition of title to territory under international law. I trace how the Court uses evidence of African use and occupation of territory to establish territorial sovereignty in a European state as opposed to a non-European entity. In so doing, I demonstrate that the tests adopted by the Court in determining title to the disputed island are based on the Eurocentric assumption that only the consent of European states is necessary to adjudicate nineteenth century claims of title to territory to the exclusion of the consent of non-European peoples. In effect, international law still carries forward within it the colonial notion that treaties between colonial powers in the nineteenth century extinguished pre-existing title to territory based on African use and occupation. I also analyze how the Court's decision gives more probative value to the economic intentions of the colonizing powers and the geographical and scientific evidence to interpret the 1890 Anglo German Treaty in determining title to the disputed island at the expense of the evidence of the use and occupation of the disputed island the Masubia - a non-European community. In effect, Africa is treated as an unconscious geographical entity - its occupant's intent and consent remain as irrelevant as they did during the height of colonial rule in the nineteenth century - a feature I refer to as geographical Hegelianism in the article. Finally, the article argues that although the Court ostensibly interprets the 1890 Anglo-German Treaty on the basis of its ordinary meaning and in the context of its object and purpose in terms of Article 31(1) of the Vienna Convention of the Law of Treaties, the Court's analysis applies the much higher standard of a strict grammatical and logical construction which leads the Court to mistakenly overstate the significance of the animus or the will to lawfully possess territory, a subjective requirement that has no application in the international law of acquisition of territory. This subjective test taken from the realm of private law is inconsistent with prior ICJ cases and was therefore incorrectly applied at the expense of the usual (and more objective) test of a showing of superior evidence of continuous and effective control or display of sovereignty in relation to claims by other states in the law on proving title to territory.

Keywords: International Law, Acquisition of Territory, Eurocentricity, Geographical Hegelianism, Africa