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[p.618]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Article 26, paragraphs 2 and 3, Article 31, Article 48 and
Article 61 of the Statute of the Court, and to Articles 17, 18, 31, 35, 44,
paragraph 1, 90, 99, paragraph 2, and 100, paragraph 1, of the Rules of
Court, [p 619]
Makes the following Order:
1. Whereas, by an Application filed in the Registry on 10 September 2002,
the Republic of El Salvador, citing Article 61 of the Statute, submitted a
request to the Court for revision of the Judgment delivered on 11 September
1992 by the Chamber of the Court formed to deal with the case concerning the
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening) (I.C.J. Reports 1992, p. 351); and whereas, in that
Application, El Salvador, citing Article 100, paragraph 1, of the Rules of
Court, requested the Court “to proceed to form the Chamber that will hear
the Application for revision of the Judgment, bearing in mind the terms that
El Salvador and Honduras agreed upon in the Special Agreement of 24 May
1986”;
2. Whereas on 10 September 2002 a certified copy of the Application was
transmitted to the Republic of Honduras;
3. Whereas the Republic of El Salvador has appointed Mr. Gabriel Mauricio
Gutiérrez Castro as Agent and H.E. Mrs. María Eugenia Brizuela de Avila, H.E.
Mr. Héctor González Urrutia and H.E. Mr. Rafael Zaldívar Brizuela as
Co-Agents; and whereas the Republic of Honduras has appointed H.E. Mr.
Carlos López Contreras as Agent and H.E. Mr. Julio Rendón Barnica as
Co-Agent;
4. Whereas, at a meeting on 6 November 2002 between the President of the
Court and the Agents of the Parties, the latter indicated that they desired
the formation of a new Chamber of five members, of whom two would be the
judges ad hoc to be chosen by them; and whereas at the same meeting the
Agent of Honduras stated that his Government wished to be granted a period
of three months from the date of the Order constituting the Chamber for the
filing of its Written Observations on the admissibility of the request for
revision; and whereas the Republic of El Salvador made no objection to the
fixing of that time-limit;
5. Whereas, by a letter of 20 November 2002, the Agent of Honduras stated
that hisGovernment proposed that the date for the filing of its Written
Observations on the admissibility of the request for revision should be
fixed at 15 April 2003; and whereas by a letter of 22 November 2002 the
Agent of El Salvador replied that his Government wished to adhere to what
had been proposed at the meeting with the President;
6. Whereas by a letter of 7 November 2002 the Agent of the Republic of El
Salvador informed the Court that his Government had chosen H.E. Mr. Felipe
H. Paolillo to sit as judge ad hoc; and whereas by a letter of 18 November
2002 the Agent of Honduras informed the Court that his Government had chosen
Mr. Santiago Torres Bernárdez to sit as judge ad hoc; and whereas no
objection has been raised by either Party to the other’s choice of judge ad
hoc, and no objection to such choice has appeared to the Court itself; [p
620]
THE COURT,
Unanimously,
1. Decides to accede to the request of the Governments of the Republic of El
Salvador and the Republic of Honduras that it should form a Special Chamber
of five judges to deal with the present case;
2. Declares that at an election held on 26 November 2002, President
Guillaume and Judges Rezek and Buergenthal were elected to form, together
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:
President Guillaume;
Judges Rezek,
Buergenthal;
Judges ad hoc Torres Bernárdez,
Paolillo;
3. Fixes 1 April 2003 as the time-limit for the filing of Written
Observations by the Republic of Honduras on the admissibility of the
Application; 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 twenty-seventh day of November, two thousand
and two, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Republic of El
Salvador and to the Government of the Republic of Honduras, respectively.
(Signed) Gilbert GUILLAUME,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge ODA appends a declaration to the Order of the Court.
(Initialled) G. G.
(Initialled) Ph. C.
[p 621]
DECLARATION OF JUDGE ODA
1. I should like to add a few lines of explanation in regard to my vote in
favour of the Court’s Order constituting the Chamber to deal with El
Salvador’s Application for revision.
2. Article 100, paragraph 1, of the Rules of Court provides as follows:
“If the judgment to be revised or to be interpreted was given by the Court,
the request for its revision or interpretation shall be dealt with by the
Court. If the judgment was given by a Chamber, the request for its revision
or interpretation shall be dealt with by that Chamber.”
The meaning of the expression “that Chamber” is not entirely clear. It
certainly cannot mean that the Chamber charged with dealing with a request
for the revision of a judgment should have precisely the same composition as
that which rendered the judgment. Under the terms of Article 61, paragraph
5, of the Statute, a request for revision may be made up to ten years from
the date of the judgment concerned. Clearly, in many cases it will be
materially impossible to reconstitute a Chamber in its original composition
after so great a lapse of time. To require that the Chamber to be formed to
deal with a request for revision should have the same composition as the
original Chamber might thus in practice render an application for revision
before a Chamber impossible. That cannot have been the Court’s intention in
adopting paragraph 1 of Article 100 of the Rules.
The fact remains, however, that it is in general the judges having rendered
a judgment who are naturally in the best position to deal with a request for
the revision of that judgment. It follows that the composition of a Chamber
charged with dealing with a request for revision should be as similar as the
circumstances permit to that of the Chamber which rendered the judgment in
question. This in my view is one way in which the term “that Chamber” in
Article 100 might reasonably be interpreted.
3. In the present case, El Salvador recognizes in paragraph 167 of its
Application that it is for the Court to constitute the Chamber charged with
hearing it, in accordance with Article 26, paragraph 2, of the Statute, and
Articles 17 and 18 of the Rules of Court. However, in paragraph 166 of the
Application, El Salvador also quotes Article 100 of the Rules of Court,
adding: “This application falls within that category, since the Judgment of
11 September 1992 was given by a Chamber.” El Salvador requests the Court
“[t]o proceed to form the Chamber that will hear the application for
revision of the Judgment” and expressly asks it [p 622] to “[bear] in mind
the terms that El Salvador and Honduras agreed upon in the Special Agreement
of 24 May 1986” (Application for Revision of the Judgment of 11 September
1992, para. 170 (a)). These terms read as follows:
“In application of Article 34 of the General Treaty of Peace, signed on 30
October 1980, the Parties submit the issues mentioned in Article 2 of the
present Special Agreement to a chamber of the International Court of
Justice, composed of three members, with the consent of the Parties, who
will express this in a joint form to the President of the Court, this
agreement being essential for the formation of the chamber, which will be
constituted in accordance with the procedures established in the Statute of
the Court and in the present Special Agreement.” (Special Agreement of 24
May 1986, Art. 1, para. 1; emphasis added.)
Since I am the only Member of the Court still sitting to have been a member
of the Chamber which rendered the Judgment of 11 September 1992 in the Land,
Island and Maritime Frontier Dispute (El Salvador/Honduras) case, I ought in
principle, in view of all of the foregoing, to be a member of the Chamber
that the Court has just constituted to rule on the request for revision of
that Judgment submitted by El Salvador.
4. I note that, under the terms of Article 17, paragraph 4, of the Rules of
Court:
“Members of a Chamber formed under this Article who have been replaced, in
accordance with Article 13 of the Statute following the expiration of their
terms of office, shall continue to sit in all phases of the case, whatever
the stage it has then reached.”
Examination of El Salvador’s request for revision could potentially continue
over a relatively lengthy period, extending well beyond the end of my third
full term at the Court.
While I deeply appreciate the continuing confidence shown in me both by El
Salvador (in its Application for revision) and by Honduras, it would be
neither reasonable nor advisable in view of my health for me to remain in
office for an indefinite period after 5 February 2003, the date on which my
current term is due to expire. The time will have come after 27 full years
in office at the Court for me honourably to take my leave at that date.
5. Finally, I would like to repeat a comment I have often made in the past,
including most recently in my declaration appended to the Order by the Court
in the case concerning the Frontier Dispute (Benin/Niger) made on the same
day as the present Order. An ad hoc Chamber formed under Article 26 of the
Statute is essentially an arbitral tribunal. In order for such a Chamber to
be constituted, there must be an agreement by the parties, before the Court
decides on the constitution, not only as to the number of judges forming the
Chamber but also as to their names. Furthermore, the parties must jointly
express that agreement when the President, acting pursuant to Article 17 of
the Rules of Court, ascertains their views regarding the composition of the
Chamber.
(Signed) Shigeru ODA.
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