botswana/namibia - Cour international de Justice

scientific evidence, in which case the maps and aerial photographs provide no support for, and
indeed directly contradict Professor Alexander's thesis that the southern channel is located in
a flood zone overlaying the western part of Kasikili/ Sedudu Island, or, basing its case on the
map evidence which depicts a southern channel, it must jettison Professor Alexander's thesis,
and all its fallacious scientific assertions.
[1 A quandary which the Namibian Memorial itself finds difficulty in resolving, see paragraph 66.]
(B) The map evidence is solely corroborative
537. In developing its case on map evidence, Namibia has sought to rely on selective citation
of writings of Professor Brownlie. It has not, however, drawn the Court's attention to his
recommendation to use of map evidence solely as corroboration:-
"(i) Map Evidence
The general approach of international tribunals is to restrict the role of map evidence to that of
the corroboration of a conclusion reached on the basis of other evidence. This was the view
adopted in the following cases: the Beagle Channel Arbitration; the case concerning the
Frontier Dispute (Burkina Faso/Republic of Mali); and the case concerning the Land Island
and Maritime Frontier Dispute." (footnotes omitted)
(I. Brownlie,"International law at the Fiftieth Anniversary of the United Nations: General
Course on Public International Law" in Académie du Droit International, Recueil des Cours
(1995) p.159, reproduced in the Namibian Counter-Memorial, Annex 116, p.126).
(C) The critical date in relation to map evidence is 1948 in the present case
538. In assessing the admissibility and weight of maps as evidence, it is necessary to bear in
mind the state of knowledge of the parties as to the dispute at the time of their making. This is
particularly so where the map is published officially by one of the parties or a predecessor
state. It is a general principle of law that declarations as to public or general rights must have
been made before a dispute has arisen over the right in question, (Botswana Memorial,
Para.280 and the authorities there cited). The evidentiary notion of a critical date which
prevents window-dressing also works against the admission of self-serving statements made
after the date of crystallization of the dispute:-
"the critical moment is, normally, not the date when the dispute was born, but that on which it
crystallized into a concrete issue....one object of the critical date is to prevent one of the
parties from unilaterally improving its position by means of some step taken after the issue
has been definitely joined....." (Sir Gerald Fitzmaurice in his argument to the International
Court in The Minquiers and Ecrehos Case, ICJ Pleadings, Oral Arguments, Documents, Vol.
II, pp. 68,69.)
539. The point is well put by Professor Brownlie in the work already cited:-
"The critical date is a concept linked to the admissibility and weight of evidence. The critical
date is the point at which the dispute has crystallized and is apparent to the parties. Evidence
emanating from the parties after this date is presumed to be self-serving and unreliable.