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[p.10]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Article 26, paragraphs 2 and 3, Article 31 and Article 48
of the Statute of the Court, and to Articles 17, 18, 31, 35 and 44 of the
Rules of Court,
Makes the following Order:
1. Whereas by a joint letter dated 11 December 1986, filed in the Registry
of the Court the same day, the Ministers for Foreign Affairs of the Republic
of Honduras and the Republic of El Salvador transmitted to the Registrar a
certified copy of a Special Agreement in the Spanish language entitled "compromiso
entre Honduras y el Salvador para someter a [p 11] LA DECISION DE LA CORTE
INTERNACIONAL DE JUSTICIA LA CONTROVERSIA FRONTERIZA TERRESTRE, INSULAR Y
MARITIMA EXISTENTE ENTRE LOS DOS ESTADOS, SUSCRITO EN LA CIUDAD DE
ESQUIPULAS, REPUBLICA DE GUATE-MALA, el dia 24 de mayo de 1986", and
entering into force on 1 October 1986;
2. Whereas by letters dated 11 December 1986 and 19 March 1987 the
Government of Honduras informed the Court of the appointment of Mr. Carlos
Roberto Reina as Agent and Mr. Mario Carias as Co-Agent; and whereas the
Government of El Salvador informed the Court, by a letter dated 16 February
1987, of the appointment of Mr. Francisco Roberto Lima as Agent, by a letter
of 7 March 1987 of the appointment of Mr. Alfredo Martinez Moreno as
Co-Agent, and by a letter of 27 March 1987 of the appointment of Mr. Abel
Salazar Rodezno as Co-Agent;
3. Whereas in the said joint letter of 11 December 1986, written in English,
the Special Agreement was referred to as the "Special Agreement between El
Salvador and Honduras to submit the land, island and maritime frontier
dispute between the two States to the International Court of Justice for a
decision, signed in the City of Esquipulas, Republic of Guatemala, on 24
May 1986"; and whereas in a further joint letter in English dated 8 February
1987, the Ministers for Foreign Affairs referred to "the Special Agreement
between El Salvador and Honduras, submitting to the decision of the Court
the land, insular and maritime frontier controversy between both States";
4. Whereas up to the present the Parties have not supplied the Court with an
agreed translation of the Special Agreement into one of the official
languages of the Court, nor has either Party submitted a translation of its
own; whereas the Government of El Salvador has indicated that it had no
observations to make on translations of the Special Agreement into English
and French prepared by the Registry of the Court, subject to a reservation
as to the translation of the title of the Special Agreement; whereas however
the Government of Honduras, having also been sup plied with the
translations prepared by the Registry, has indicated that it accepts only
the Spanish text "and its literal translations, as the ones made in French
and in English in New York", effected by the Secretariat of the United
Nations, on the deposit of the Special Agreement under Article 102 of the
Charter;
5. Whereas for the purposes solely of determining the title to be given to
the case, it is therefore appropriate to use the form of words adopted by
both Parties in the joint letter of 11 December 1986, namely the "land,
island and maritime frontier dispute" between the Parties, the adoption of
this title being without prejudice to the proper interpretation of the
provisions of the Special Agreement defining the subject of the dispute;
6. Whereas the Special Agreement, according to both existing translations
into the official languages of the Court already referred to, defines in
Article 2 the questions submitted for decision, and provides in Article 1 [p
12] that the Parties submit those questions to a Chamber of the Court
composed of three members, and further that in addition, the Chamber shall
comprise two judges ad hoc, who may have the nationality of the Parties; and
whereas the Court understands the Special Agreement as requesting the Court
to form a Chamber to deal with the case in accordance with Article 26,
paragraph 2, of its Statute;
7. Whereas the Parties were duly consulted, on 17 February 1987, as to the
composition of the proposed Chamber of the Court in accordance with Article
26, paragraph 2, of the Statute and Article 17, paragraph 2, of the Rules of
Court;
8. Whereas the Parties in the course of such consultation confirmed the
indication, given in the Special Agreement, that as regards the number of
judges to constitute such chamber, they approve, pursuant to Article 26 of
the Statute, that number being fixed at five judges, including two judges ad
hoc chosen by the Parties pursuant to Article 31, paragraph 3, of the
Statute;
9. Whereas by a letter dated 7 March 1987 the Minister for Foreign Affairs
of El Salvador notified the Court of its choice of Mr. Nicolas Valticos to
sit as judge ad hoc in the Chamber; and whereas by a letter dated 8 April
1987, the Agent of Honduras notified the Court of its choice of Mr. Michel
Virally to sit as judge ad hoc in the Chamber; and whereas no objection has
been raised by either Party to the choice of judge ad hoc made by the other,
and no objection to such choice appears to the Court itself;
The Court,
unanimously,
1. Decides to accede to the request of the Governments of El Salvador and
Honduras to form a special Chamber of five judges to deal with the present
case;
2. Declares that at an election held on 4 May 1987 Judges Oda, Sette-Camara
and Sir Robert Jennings were elected to form, with the above- named judges
ad hoc, a Chamber to deal with this case, and that accordingly such a
Chamber is duly constituted by the present Order, with the following
composition:
Judges Oda,
Sette-Camara,
Sir Robert Jennings,
Judges ad hoc Valticos,
Virally;
and reserves the subsequent procedure for further decision.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this eighth day of May, one thousand [p 13] nine
hundred and eighty-seven, in three copies, one of which will be placed in
the archives of the Court, and the others transmitted to the Government of
El Salvador and to the Government of Honduras, respectively.
(Signed) Nagendra Singh,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Oda makes the following declaration:
In the case of a chamber provided for in Article 26, paragraph 2, of the
Statute of the Court, the consent of the two parties is essential and, as
that provision clearly States, the number of judges to constitute such a
chamber shall be determined by the Court with the approval of the parties.
At the same time, regarding the composition of the chamber, the views of the
parties shall be ascertained by the President in accordance with Article 17,
paragraph 2, of the Rules of Court. The Court, being sovereign in judicial
proceedings, is free to choose any composition it likes; yet the possibility
must also be borne in mind that sovereign States have the legal right to
withdraw a case if they prefer a composition different from that determined
by the Court. In practical terms, therefore, it is inevitable, if a chamber
is to be viable, that its composition must result from a consensus between
the parties and the Court. To ensure that viability, it accordingly behoves
the Court to take account of the views of the parties when proceeding to
the election. Nevertheless, the chamber is a component of the Court, bound
by its Statute and Rules; and the process of election whereby it comes into
being should be as judicially impartial as its subsequent functioning.
(Initialled) N.S.
(Initialled) E.V.O. |
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