botswana/namibia - Cour international de Justice

546. Even if these maps and plans were published after the dispute had surfaced, their
existence makes plain the absence of any subsequent practice (with reference to maps)
establishing an 'agreement of the parties' regarding the interpretation of the Anglo-German
Agreement in accordance with Article 31 (3) (b) of the Vienna Convention on the Law of
Treaties. The maps and plans published in Botswana also establish the absence of any
acquiescence by Botswana in the South African cartographic representations. All the above
maps are further described in the chronological account of the relevant maps which will be
found at paragraphs 564 to 628 and below. A fuller analysis, including an examination of the
individual maps described in the Rushworth Report, is provided in Appendix 1 to this
Counter-Memorial
(E) Namibia's case relating to Maps
547. Namibia's case relating to maps falls into two parts, the section in Chapter IV of its
Memorial entitled The 1889 Map, and Chapter V in Part 2, Maps as Evidence of Subsequent
Conduct of Parties. Its Memorial cites Oppenheim's International Law and a number of
decisions concerning boundary disputes to produce a twofold classification of the use of
maps, 'maps accompanying the treaty or referred to in the text', and maps as 'specialised forms
of subsequent conduct' of the parties". A more accurate classification, it is suggested, might
be:-
(i) maps accompanying the treaty;
(ii) maps as evidence of an 'agreement between the parties' as to the interpretation of the
Anglo-German Agreement in accordance with Article 31 (3) (a) of the Vienna Convention on
the Law of Treaties;
(iii) maps published but having no relevance to the case.
(i) Maps accompanying the treaty
548. The first part of Namibia's case on maps which it seeks to place under this heading is
shortly disposed of. Whichever version of the map prepared by the Intelligence Division of
the War Office was used by the negotiators of the 1890 Anglo-German Agreement, and
whatever its status3, its scale, 1:1,584,000 was far too small to depict any relevant
information concerning Kasikili/Sedudu Island and its surrounding channels, or to locate the
boundary midstream of the Chobe River. In the "improved version of serial 4", the War Office
Map of 18914, which Rushworth states was "the map...thought to be the Treaty map", the
boundary is shown with broad red hatchings spreading a mile or so in width along both north
and south banks of the Chobe River.
[3 To assert that the 1889 Map is part of the 1890 Agreement is clearly contrary to the facts. The Namibian
Memorial seeks to endow the 1889 Map with a special legal status:-
"289. Obviously, in determining the intention of the parties, special significance is accorded to maps
accompanying the treaty or referred to in the treaty text. In the present case there is such a map. the 1889 Map (
Atlas, Map II )."
The text of the treaty makes it plain that no map was annexed or formed part of the agreement. The wording at
the end of Article III makes this plain: