botswana/namibia - Cour international de Justice

However, subsequent actions may evidence consistency, and inconsistent conduct and
admissions against interest will be taken into account". (I. Brownlie, op.cit., Annex 46 2).
[2 The excerpt in the Namibian Memorial, Annex 116, does not include page 156 where this passage appears.]
540. The critical date in the present case is 1948 when the correspondence between the British
and South African Governments arising out of the Trollope/Redman Report of January 1948
took place. Until 1948 there had been no dispute, with the northern channel being regarded as
the main channel. Official maps up to 1948 showed no consistency; and of the early German
maps, the unpublished Streitwolf Map of 1909 omitted the southern channel and the Von
Frankenberg Map of 1912 showed it to be a tributary of the main stream. In 1948 South
Africa issued a challenge requesting the modification of the legal status quo. The British
Government upheld the principle that the northern and western channel constituted the 'main
channel' for the purposes of the Anglo-German Agreement. For a full account the Court is
respectfully referred to Chapter 9.
541. In the course of this correspondence, and in disregard of the specific exchanges in 1946
between the Bechuanaland High Commissioner and the Survey Directorate, South Africa,
relating to Bechuanaland's northern boundary (as set out in paragraphs 605-11 below), South
Africa published its 1949 1;250,000 Map, showing a boundary in the southern channel.
542. In terms of admissibility and by reference to the critical date, this 1949 Map is selfserving,
having been produced post litem motam. At the date of its publication the South
African Government was well aware of the dispute relating to the boundary by reason of the
above high-level correspondence. It should, therefore, be treated as inadmissible and without
evidentiary value.
(D) Botswana's Position
543. Botswana's case relating to maps, as stated in its Memorial, is that the evidence of the
available official maps shows no consistency. The maps, therefore, do not evidence any
'agreement between the parties' regarding the interpretation of the Anglo-German Agreement
in accordance with Article 31 (3) (a) of the Vienna Convention, nor any 'subsequent practice'
which establishes any such agreement of the parties, in accordance with Article 31 (3) (b) of
the Vienna Convention.
544. Notwithstanding the general status of official maps indicated in this conclusion,
individual maps may have evidential value, such maps including the Von Frankenberg map of
1912 and the South African military map compiled by JARIC (for which a firm date of 1978
can now be given), and other maps which have now come to hand. These include an
unpublished 1909 map of Captain Streitwolf showing the northern channel as the sole
navigable channel along which he descended in January 1909, the British Joint Operations
Graphic Ground and Air Maps of 1968, and the 1984 South African Military Intelligence
Map, all of which show the international boundary in the northern channel.
545. The official series of maps published by Botswana after gaining its independence in
1966, plans of the Chobe Game Park showing its limits, (subsequently revised from time to
time, after its establishment in 1960), and a series of tourist maps produced by the Wildlife
Department, Gaborone, all demonstrate a consistent position that the boundary ran along the
northern channel.