6 CONCLUSION

It is evident that Namibia's independence has to be followed by restructuring and reorientation of internal relations and external linkages if it is taken more than another token. The dimensions of this task can clearly be illustrated with respect to the whole Namibian transport and communications sectors since it supports the entire economy, forming the basis of linkages between the domestic and external domains, and therefore symbolises clearly a potential "noose or lifeline" for the Republic of Namibia. This is especially valid for Namibia's maritime position, especially as far as the Walvis Bay issue is concerned. Namibia's transport and communication's system can only fulfil its expected role to improve the life of Namibians and to unite the nation if it will be balanced and if it will be the future "Link to Africa".

It was found that the Government of the Republic of Namibia will have to decide on a strategy with respect to if and how to use Walvis Bay, while possible negotiations for the transfer of the enclave will have to be initiated. The government could, for instance, get the services of an "International Recognised Legal Expert" to investigate the international legal status of Walvis Bay. If this expert finds that according to international law Walvis Bay belongs undoubtedly to Namibia, Namibia should get its right at the International Court of The Hague, otherwise Namibia has to obtain its birthright regarding Walvis Bay by negotiations with South Africa.

It was further analysed that at this very moment the government has no choice but to continue to use Walvis Bay, at least for some time. During this time it will have to determine whether an arrangement exists which allows Namibia to use Walvis Bay, without such an arrangement being construed as an explicit or implicit recognition of the legality of South Africa's claim to the enclave and the islands. If such an arrangement could be envisaged, it does not seem unlikely that South Africa would give its assent, since it can be expected that South Africa's government would want that use should be made of Walvis Bay's facilities and that it would want to tie down the new Government of Namibia.

It was found during the analysis for this Memorandum that in most cases legal and commercial arrangements and agreements in existence cannot be interpreted as an explicit or implicit recognition of the legality of South Africa's claim to the enclave and the off-shore islands.

Therefore, in the case of acceptable arrangements concerning access, it is recommended that the Government must simultaneously consider what it should do in a longer term perspective in order to put pressure on South Africa to relinquish Walvis Bay. Additional actions must as a minimum involve the start-up of full-scale studies of and planning for the establishment of alternative harbour facilities somewhere on the coast north of Swakopmund and/or for the upgrading of Lüderitz. Without a credible threat it will be difficult to put pressure on the Republic of South Africa to negotiate the status and control of Walvis Bay.

If, on the other hand, there will be doubts about above-mentioned arrangement, the government will have to decide between (i) accepting the circumstances and start to plan for a different course of actions or (ii) stopping traffic to and from Walvis Bay (but not necessarily with South Africa), and make use of emergency operations (by using Lüderitz, Swakopmund, Namibe in Angola and overland transport routes to and from SADCC-member states), until a long-term solution (a new harbour) has been realised. All these different options and scenarios are discussed and analysed with in depth-studies and identified projects in the Appendices and Annexures of this Memorandum.

The decision of the government to develop a strategy for Walvis Bay is also influenced by the issue of staying in the "Southern African Customs Union (SACU)" or leave the union. It has already been outlined that in the long run it seems plausible that Namibia would benefit economically from not being a member of SACU. But, it has to be considered that without Namibian control over Walvis Bay and without being anymore a member of "SACU", the government could land into the situation to negotiate a transit agreement with South Africa and to establish customs facilities at the perimeter of the Walvis Bay Enclave. These two actions could be considered to be unacceptable to the Namibian Government.

The above mentioned arrangement for the use of Walvis Bay may consequently influence the decision to remain an informal member or to become a full member of SACU. The threat to push South Africa to accept negotiations regarding the status of Walvis Bay would hence consist of two components, i.e. not only the planning for a new port, but also preparations for setting-up a new separate trade and customs regime for Namibia.

It has been proved in this Memorandum together with its Appendices and Annexures that the proposals regarding emergency plans and strategies are all technically feasible, but it was also found that they seem in actual fact not realistic at the present stage. At present it can be derived from all factual evidence that Walvis Bay is to the full disposal of the Republic of Namibia. Therefore it can be concluded that there is currently no reason to deliberately initiate emergency operations. Such operations would only be required in order to prevent eventual harassment and denied access and eliminate the consequences thereof. Under the present circumstances no evidence exists for such a scenario.

More importantly, emergency operations would not be possible to execute easily and cheaply. It would be difficult to impossible to mobilise the required support actions within the country. There is also the involved risk that many of the investment requirements for the emergency operations initiated in Lüderitz would lead to an increased dependence on South Africa. There is, however, a need to uplift and revive Lüderitz and gradually to prepare for alternatives. The recommended projects to upgrade moderately the port facilities and to improve the access routes to the town should be gradually initiated as funds become available without hampering other important development projects in the country.

But, in order to be prepared for all eventualities, the Government of the Republic of Namibia needs to continue to plan for possible operations without implementing them physically at this stage. This is the main motive in having developed this Memorandum.

It is also recommended to make the basic guidelines regarding Namibian ports and port access formulated by the Ministry of Works, Transport and Communication public. It would be difficult to negotiate favourable terms for Namibia regarding ports and port access without disclosing its aims as far as the policy of the Ministry and the Government of the Republic of Namibia is concerned. Maximum publicity concerning this and its transport-policy background would be in the best interest of the Republic of Namibia.

In conclusion, it can be stated that it appears to be possible to make arrangements for enabling continued traffic to and from as well as communications with Walvis Bay without implicitly or explicitly recognising the legality of South Africa's claim to Walvis Bay and/or without contravening the intentions of UNSCR 432/78. It was also found that South Africa - wilfully or unwilfully - has been putting in place arrangements which could be acceptable to the Republic of Namibia. The present arrangements in respect of rail, air and telecommunications traffic point into this direction, although it must be emphasised that it would only be wise that caution in this regard must be exercised. It also seems possible to exploit the present legislation in the field of road transportation for making acceptable arrangements, provided it remains valid in Namibia and South Africa. In sum, therefore, it seems that the proper approach would be to wait, and in particular not to start discussions with the Republic of South Africa regarding access to Walvis Bay. Negotiations can only have the one objective, namely to fulfil the mandate of the Constitution of the Republic of Namibia and to re-incorporate Walvis Bay into Namibia.

Technically it is feasible to construct new port facilities as an alternative to Walvis Bay. It is also feasible to construct smaller ports initially, to serve as a fishing port, and later develop them into fully-fledged ports, if warranted.

Emergency operations also appear to be technically feasible and could in principle be set in motion within one year. But, under the current circumstances it appears to be unrealistic to expect that the Namibian Government could been forced to start with preparations according to above mentioned emergency proposals. It also seems to be unrealistic to make provisions to start mobilising the necessary support and funds within the country within the proposed time frame.

The government must therefore look for a different alternative to protect the Republic of Namibia against harassment and denied access. The only realistic way appears to be to make certain that such actions will entail heavy political costs, which will be too much of a burden and which cannot be afforded by the Republic of South Africa under the present circumstances. It is believed by the Ministry that if such a policy is skilfully and persistently pursued, it could be effective as Walvis Bay is believed to be essentially an internal South African problem.

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