27 November 2002

 

General List No. 1127

 
     

international Court of Justice

     
     
     

El Salvador

 

v. 

Honduras

     
     
 

Order

 
     
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BEFORE: President: Guillaume;
Vice-President: Shi;
Judges: Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2002.11.27_land_island_maritime.htm
   
Citation: Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.: Nicar. intervening) (El Sal. v. Hond.), 2002 I.C.J. 618 (Order of Nov. 27)
   
Represented By: El Salvador:  Mr. Gabriel Mauricio Gutiérrez Castro;
H.E. Mrs. María Eugenia Brizuela de Avila;
H.E. Mr. Héctor González Urrutia;
H.E. Mr. Rafael Zaldívar Brizuela;

Honduras: H.E. Mr. Carlos López Contreras;
H.E. Mr. Julio Rendón Barnica.

 
     
 
 
     
 

[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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