NAMIBIA'S WALVIS BAY ISSUE -
ORIGIN AND RISE OF A COLONIAL DISPUTE (1992)
© Dr. Klaus Dierks 2000
1.0 HISTORY OF THE WALVIS BAY ISSUE AND THE OFF-SHORE ISLANDS
1.1 THE ANNEXATION OF THE NAMIBIAN COAST
The little jointed Atlantic coastline of Namibia has a length of about 1.350 km between the Cunene Mouth (17o 17' south) in the north and the Orange Mouth (28o 38' south) in the south.
Namibia's exploration by Europeans commenced from this coastline as early as 1485, although the inhospitable Namib desert barred access to the interior. The probably first European to set foot on Namibian soil was the Portuguese Diogo Cao or Diogo Cam, followed by Bartholomeu Diaz two years later, on 8 December 1487. This date represented the holiday of "Maria's Conception". Therefore the bay received the name" Santa Maria da Conceicao" (Conception Bay). Since the 16th century the Portuguese called Conception Bay "Bahia das Bahleas" (Walvis Bay), due to the rich occurrence of whales .
The next contacts happened nearly two centuries later, when the Dutch East India Company, which had established itself at the Cape of the Good Hope in 1652, decided to explore the Atlantic west coast. The Grundel (around 1670) landed at Angra Pequeña and Sandwich Bay, south of present-day Walvis Bay, while the Bode (1677) sailed as far north as the Kuiseb Mouth, where it was reported that the crew of the Bode had been involved in a skirmish with local Nama. This incident is the first recorded occurrence of Namibian resistance to the expanding European advances .
The next phase of coastal exploration was marked by the increasing tensions between British and Dutch interests. The British Nautilus (1786), under the command of Thomas Thompson, surveyed sections of the Namibian coastline and proceeded as far as Angra Pequeña and the Orange River mouth in order to find a place for the reception of British convicts. Due to the inhospitable nature of this coast, it was duly decided to make New South Wales (Australia) a place for such a reception . This expedition was followed by the Dutch Meermin in 1793, which proclaimed Dutch sovereignty over Angra Pequeña, Halifax Island and Walvis Bay . During this expedition the brothers Dirk Gijsberg and Sebastiaan Valentijn van Reenen, as well as Pieter Pienaar, were the first travellers on record who entered the Namibian interior through the Swakop valley .
In 1795 the British vessel "Star" under Captain Alexander took possession of all potential harbour sites to 15o south (to the present-day Angolan harbour of Namibe) for the British crown. A conflict between the British and Portuguese colonial interests - the Portuguese had taken possession of the coastal areas along the Namibian and Angolan coastlines as early as 1485/86 - was resolved during the Vienna Congress in 1815. A Treaty dated 22 January 1815 and later slightly amended on 18 July 1817, revealed that Great Britain would give up all claims to coastal areas north of 18o (Cape Fria in Namibia).
But the areas south of Cape Fria were, with the exceptions of the "Penguin Islands" (Namibian Off-Shore islands) in 1867 and the Enclave of Walvis Bay in 1878, never claimed by Great Britain. In fact, Great Britain pushed only slowly its South African Cape Colony border to the Orange Border. A proclamation by the British Governor on 14 July 1798 extended the territory of the Cape Colony to the small rivers Koussie and Riet, about 140 km southwards to the Orange River .
During December 1847 Harry Smith, Governor of the Cape Colony, proclaimed the southern bank of the Orange River as the north boundary of the colony. This boundary line was defined as follows: "thence down the left bank of the last mentioned River, to where it falls into the Orange River and thence, following the course of the last mentioned river along its left bank to where it empties itself into the Atlantic Ocean." (vide Government Gazette No. 2195 dated 23 December 1847).
As the 1847 unilateral boundary delimitation along the left (southern) bank was not revised by the British in the following decades, this southern Orange bank line, at the time when the German Chancellor, Otto von Bismarck claimed the Orange boundary in 1884 and during the negotiations to settle all the stagnating African territorial disputes in 1890, was unquestionable the Cape Colony's northern border in 1890 .
This scene was changed by the sudden advent of the German Empire on the colonial stage of the south-western African region. The fraudulent sales agreement between the German merchant Adolf Lüderitz and the Namibian Nama Chief Joseph Fredericks was officially sanctioned by Germany on 24 April 1884 when Bismarck sent a telegram to Lippert, the German Consul based in Cape Town, instructing him to inform the Cape Government that "Lüderitz Land" was now formally under the protection of the German Empire. The first colonialised territory consisted of the Angra Pequeña Bay (soon to be renamed Lüderitz Bay after the sudden death of Lüderitz on 24 or 25 October 1886) and the Atlantic coast between the Orange Mouth and a point 26o south.
After this drum roll, Germany at first had to invest its entire energy into preventing the British, who were also advancing from their Cape Colony, eager to occupy the hinterland of the German port, from encircling it in the "barren wilderness" of Lüderitz Bay. Hectically and far-reaching the Germans expanded their colony by annexing "uninhabited regions", "terra nullius", and signing so-called "protection treaties" with different Namibian communities far into the interior. Within the only six years from 1884 to 1890 the giant "Schutzgebiet Deutsch-Südwestafrika" developed out of Lüderitz's small private enterprise .
The whole Namibian Atlantic coast from the Orange River to the Cunene River - with the exception of the British Off-Shore islands and the Enclave of Walvis Bay - came under German authority on 30 December 1886 when the German and Portuguese authorities reached an agreement to recognise the Cunene River border as their common boundary.
The original Orange boundary along the southern bank could, however, not be kept, due to the incompetence of the German negotiators during the Berlin talks for the "Heligoland-Zanzibar Treaty" of July 1890. Instead of maintaining the boundary which already had been legislated in 1847 or to insist at least on the usual thalweg (for navigable rivers) or median line (for unnavigable rivers), the Germans had inattentively given way to the British demand to relocate it on the northern bank of the Orange River. The regrettable result reads as follows in Article III of above treaty: "In Southwest Africa the sphere in which the exercise of influence is reserved to Germany is bounded ... . To the south by a line commencing at the mouth of the Orange rivers, and ascending the north bank of that river to the point of its intersection by the 20th degree of east longitude" .
During the following years the German colonial authority became aware of their carelessness in signing this boundary treaty document. In an attempt to save what they could out of this blunder, the Germans entered in 1906 into an interpretation dispute with the British administration in South Africa regarding the exact location of the border line along the Orange River. In 1910 a further Anglo-German dispute developed concerning the exact course of the south-western boundary of the Caprivi Strip. The German side now tried to create a linkage between both problems and suggested that they should be settled by international arbitration. The British were, however, of the opinion that they were in a legally strong position regarding the Caprivi boundary but in case of the Orange border they felt their position could be vulnerable. Therefore they decided to ignore the German note and to drop any further negotiations regarding this issue. The results of the First World War forestalled any further discussion about the Orange boundary issue .
In the light of these occurrences it can be concluded that the issue regarding the position of the Orange River boundary is a non-issue as raised by the Minister for Foreign Affairs of the Republic of Namibia during the Cape Town Talks regarding the Walvis Bay and the Off-Shore Islands issues on 14 March 1991.
1.2 THE OFF-SHORE ISLANDS
Along the Namibian coastline between the Orange River mouth and Walvis Bay the 12 Off-Shore islands, also called the "Penguin Islands", can be found, scattered along a distance of about 330 km. During the 1840s rich guano deposits were discovered on these islands, especially on the Ichaboe Island, north of Lüderitz.
Ichaboe was annexed by the British on 21 June 1861. During August 1861 this annexation was expanded to the remainder of the Off-Shore islands, subject to ratification by the British Government. On 13 August 1861 Sir George Grey proclaimed the sovereignty and dominium of Queen Victoria over the islands: "a cluster of small islands ... adjacent to the ... Island of Ichaboe ... that is to say Hollamsbird, Mercury, Long Island, Seal Island, Penguin Island, Halifax, Possession, Albators Rock, Pomona, Plum Pudding and ... Sinclair's Island." (vide Proclamation 53 of 1861, Cape Colony).
This ratification was disallowed by the British Queen Victoria. (vide Proclamation of the Cape dated 9 May 1864). The situation was again reversed on 5 May 1866 when Ichaboe and the remaining 11 Off-Shore islands were annexed by Charles C. Forsyth, Captain of H.M. Vessel "Valorous". In pursuance of this annexation, the Governor of the Cape, Sir Philip Wodehouse, issued Proclamation 66 of 1866 annexing the islands, now collectively known as "the Penguin Islands" to the Colony of the Cape of Good Hope. The annexation was confirmed by a "Royal Patent" on 27.02.1867. This act empowered the Cape Parliament to incorporate the "Penguin Islands" into the Cape Colony. This was affected by the "Ichaboe and Penguin Islands Act 1874 (Act 4 of 1874 (Cape))". An Agreement of Protocol ratified by Britain and Germany in 1886 shows that Germany recognised the twelve islands as British (vide article 4 thereof) . Act 4/78 results in the fact that the 12 Off-Shore islands, with a surface area of only 198 ha, occupy between 14 to 16% of the total "Exclusive Economic Zone" of the Republic of Namibia with all its mineral and fishing deposits and treasures, depending on the method of calculation. It must, however, be stated that the major share of fishing deposits are found north of Walvis Bay and a theoretical 14% fishing quota for South Africa is highly disputable.
1.3 THE WALVIS BAY ENCLAVE
Except the peripherally situated Lüderitz Bay, Walvis Bay is the only suitable natural harbour along the Namibian coast. This surely was the reason that the Governor and the Cape Parliament recommended the annexation of a coastal strip along the coast of Namibia including Walvis Bay during 1875. In order to examine the situation a special emissary, W.C. Palgrave, was sent to the territory of Damaraland which included Walvis Bay. The result of Palgrave's findings was his proposal to annex Walvis Bay and the whole of the northern Namibian coast in order to prevent an expansion of the Portuguese colonial power to the south. The Cape Governor agreed and tabled a Bill in parliament to annex Walvis Bay and the surrounding territories on 25 May 1877. He informed the British Government accordingly and demanded additionally the annexation of the whole Namibian coast from the Orange River to the Portuguese territories and the establishment of a protectorate between the Transvaal and the Atlantic coast. This was, however, refused by the British authorities. Only the acquisition of Walvis Bay and surroundings was approved .
Consequently Captain Richard C. Dyer of H.M. vessel "Industry" received orders to annex the tiny Walfish and trading station Walvis Bay and its surroundings for the British Crown on 12 March 1878. The borders of the enclave were determined by the following delimitation: "Bounded ... on the south by a line from a point on the coast 15 miles south of Pelican Point to Scheppmannsdorf; on the east by a line from Scheppmannsdorf to the Rooibank, including the plateau, and thence to 10 miles inland from the mouth of the Swakop River; on the north by the last 10 miles of the course of the said Swakop River: (vide British Foreign & State Papers, Vol.69, p.1177) .
This Proclamation was ratified by British Letters Patent on 14 December 1878, and the annexation of Walvis Bay to the Colony of Good Hope, itself a British possession, was accordingly authorised. (Id, Vol.70, p.495-6). The Walvis Bay Enclave with a size of 1.124 km2 was formally incorporated into the South African Cape Colony by the Cape Governor, Sir Hercules Robinson, on 7 August 1884. He promulgated the Walfish Bay and St. John's River Territories Annexation Act No.35 of 1884 under the authority conferred by above Letters Patent .
In this connection it is remarkable that the annexation of Walvis Bay took place without the consent of the Herero Chief Maharero. Since 1870 Maharero claimed not only the actual Herero territories but also those of the Orlam Afrikaners from Windhoek, the Swartbooi Nama from Ameib and the Topnaar Nama from Walvis Bay. On 26 September 1884 "the Topnaar Chief Captain Piet Heibib and his councillors" declared under oath in the house of missionary Daniel Cloete in Scheppmannsdorf that "the Territory of Walvis Bay was annexed by the British without any compensation to Captain Piet Heibib" .
A more precise delimitation of the borders between the Walvis Bay Enclave and the newly established "German South-West Africa" became necessary in September 1884. Expressively the German Empire had recognised Great Britain's older rights on Walvis Bay. In order to establish the borders of the enclave a commission came into being, consisting of the South African Judge Shippard and the German Consul General, Dr Bieber, both from Cape Town. The two main commissioners commenced the commission's work separately. Shippard soon discovered some irregularities in the border fixings, involving a discrepancy between the places "Rooibank" (or the near-by Scheppmannsdorf) and "Rooikop". Shippard used this discrepancy in order to re-establish the borderline at the south-eastern corner of the enclave, to the disadvantage of the German "Schutzgebiet" and included the water-rich "Kuiseb-delta" with the place Ururas into the enclave. Both, Rooikop and Ururas were not mentioned by Dyer in 1878. Shippard created a unilateral "fait accompli" by sending the Cape Town surveyor, Phillip Wrey, in 1885 and marking the revised border with bacons. Consequently Wrey compiled a report dated 14 January 1886 which was tabled in the Cape Parliament.
Dr Bieber protested in June 1886 against the unilateral British delimitation. A German-British "Proceeding of the Angra Pequeña and West Coast Claims Joint Commission" was formed in 1889, without any result. In February 1890 the Walvis Bay border dispute reached a new dimension. On 2 February 1890 Lieutenant von Francois, brother of Curt von Francois, commander of the German "Schutztruppe", informed the commander of the British troops in Walvis Bay, one Cleverly, that he intended marching through the disputed terrain. The British warning was clear: "You will commit an act of war" doing this. However, Lieutenant von Francois ignored the British protest and marched through. Given the fact that both parties tried to maintain normal relations no open conflict ensued .
On 1 July 1890 the "Agreement between Germany and Great Britain", the so-called "Heligoland-Zanzibar Treaty" established that "The delimitation of the southern boundary of the British Territory of Walfisch Bay is reserved for arbitration, unless it shall be settled by consent of the two Powers within two years from the date of the conclusion of this agreement". In this treaty it was furthermore confirmed and it proved the incompetence of the German imperial negotiators that "the enclave Walvis Bay, encircled by German territory, remained British" and the southern border shifted to the northern high-water mark of the Orange River .
It took until 1909 and the unsuccessful results of the activities of another three border delimitation joint commissions, until it was agreed to accept the Spanish King Alfons XIII as arbitrator. Alfons XIII appointed Joaquim F. Prida, Professor for International Law at the University of Madrid who gave his judgement in May 1911 which established the legality of the British standpoint. This concluded the border dispute and proved once more the colonial application of the controversial international law doctrine of the "ownerless sovereignty", although the main interested party, the Topnaar-Nama were not involved in this legal battle .
Further attempts by the German authorities proved uneffective. During June and July 1912 the State Secretary of the Imperial Colonial Office, Wilhelm Solf, undertook an inspection journey through German-Southwest-Africa. His concluding report revealed that "the acquisition of Walvis Bay has to be strived for" . Solf was in agreement with Bismarck who said in June 1890 that "For Great Britain Walvis Bay is completely worthless, but for Germany it is of high importance due to the absence of natural harbours along the southwestern coast of Africa" . The results of World War 1 closed this chapter of colonialism in Africa.
The further history of the Walvis Bay Enclave since 1915 proved that South Africa didn't treat the enclave as a separate entity from the German colony since it was included into the martial law for "German South-West Africa" in 1915. The "South West Africa Affairs Act", Act No.24 of 1922 transferred officially the administration of the Walvis Bay Enclave to the Administration for South West Africa. Until 1 September 1977 Walvis Bay was treated as an integral part of Namibia. The South African Proclamation R 202 reversed this situation, when it was clear that Namibia had finally entered the path to independence. United Nations Resolution 32/9 D dated 4 November 1977 declared the renewed South African claim on Walvis Bay as "null and void". This resolution was confirmed by the UNO Security Council Resolution 432 (1978) dated 27 July 1978. According to Article 1(4) of the Constitution of the Republic of Namibia the Enclave of Walvis Bay and the Off-Shore islands as well as the centre line of the Orange River are integral parts of the Republic of Namibia.
The Namibian-South African negotiations which were commenced on 14 March 1991 will finally result in the re-integration of Walvis Bay and the Off-Shore islands into Namibia. This will not only conclude the process of de-colonisation of Namibia but would also mean a contribution to the de-colonisation of some controversial sections of international law because modern international law also contains principles like self-determination of peoples and de-colonisation and cannot anymore be based on out-dated principles like that of "terra nullius" .
It is said that if you cannot argue facts than you have to argue legally and if you can't argue legally argue facts. It is my conviction that both, factual and legal evidence, are in favour of Namibia's claim on Walvis Bay. Geographically , economically and historically the Enclave of Walvis Bay formed always and is to-day an integral part of Namibia. It is also clear that both, Namibia and her only deep-sea harbour need each other. On this basis a solution to the problems of the long history of the Walvis Bay issue will and must be found.
(Walvis Bay was finally - under direct involvement of the author - re-integrated into the Republic of Namibia at midnight on 28 February 1994).
 Reith, Wolfgang: Südafrika's Enklave Walfischbucht,
Allgemeine Zeitung, Windhoek, 1991, p.6
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 Herslet, E.: The Map of Africa by Treaty, 3rd edition (reprint), London, 1967
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 See footnote 1
 Memorandum concerning the Southern Boundary of the British Territory of Walvis Bay, according to the view of the Imperial German Government, Berlin, 1909, p.1-43, "ZSTA", Potsdam, "RkolA", No. 36740, p.11
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 Fisch, Jörg: Die europäische Expansion and das Völkerrecht, Stuttgart, 1984, p.426
 "ZSTA", Potsdam, "RkolA": Reisen Seiner Exzellenz des Staatssekretärs des Reichskolonialamtes Dr Solf im Juni and Juli 1912, No.1496, p.10
 Sell, M.: Das Deutsch-Englische Abkommen von 1890 über Helgoland and die afrikanischen Kolonien im Lichte der deutschen Presse, Berlin-Bonn, 1926, p.32
 Melber, Henning: Walvis Bay - Integraler Bestandteil Namibias, Namibia Magazin No.3, 1990, p.8
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