botswana/namibia - Cour international de Justice

The course of the above boundary is traced in general accordance with a Map officially prepared for the British
Government." (emphasis added).
The manuscript minute signed by Edward Hertslet and dated 7 July 1890, attached to a later version of the map
which is bound up with the 1890 Treaty in the British Foreign Office archives, confirms and expressly records
that
'(t)his (the 1889) map was not annexed to the Anglo-German Treaty of 1 July 1890'. (emphasis added).
The 1889 Map was not annexed to the treaty, and does not form an integral part of it. Accordingly, Namibia's
attempt to give the 1889 Map exceptional status must be dismissed out of hand. As to the exception to the
general rule which distinguishes the status of maps forming or adopted by the parties as an integral part of a
boundary treaty the court is respectfully referred to Appendix 1 to this Counter-Memorial where The Temple
Case, ICJ Reports, 1962,p.6 at 22-5, and The Case Concerning a Frontier Dispute, ICJ Reports, 1986, are
discussed.
4 ID No.846b (Botswana Atlas, Map 3, Serial 5 in Rushworth's list).]
(ii) Maps as evidence of the 'agreement of the parties' in accordance with Article
31(3)(a) of the Vienna Convention on the Law of Treaties
549. Significantly, Namibia does not put forward any map as evidence of any 'agreement
between the parties' in accordance with Article 31(3) (a) of the Vienna Convention. It thereby
ignores, as pointed out in Chapter 3, the Sketch Plan, along with the Joint Survey Report of
1985, which constitutes such an agreement (Botswana Memorial, Annex 48 at p.392).
(iii) Maps published but of no relevance to the case
550. Namibia's two-fold classification of maps also overlooks the third class of map referred
to by Judge Fitzmaurice in the passage from The Temple of Preah Vihear cited in Oppenheim,
namely "a mere published sheet or atlas page in which case it would, in itself have no binding
character for the parties". Botswana submits that the majority of maps relied upon in the
Namibian Memorial fall into this third class, and consequently are of no assistance to the
Court.
(F) Namibia's Maps as Subsequent Practice
551. Namibia summarises the major part of its case relating to maps as follows:-
"..Maps of the area, produced by all the parties in interest, with substantial uniformity portray
Kasikili Island as being located in Namibian territory. In particular, the principal maps used
by the political entities with governing authority during the colonial period - Seiner's map for
the German authorities until 1915 and the British until 1933; Bechuanaland Protectorate
GSGS 3915, used by the officials of Bechuanaland until 1965, the South African maps
beginning with TSO 400/558 1949: and the UN map of 1985 - clearly place Kasikili Island in
Namibian territory, again without any protest from Botswana or its predecessors. Two
exceptions during the colonial period are shown to result from cartographers' errors. Only
after 1974, did Botswana itself produce a map showing the boundary in the northern channel."
(Namibian Memorial,p.139, para. 334).