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[p.323]
THE CHAMBER OF THE INTERNATIONAL COURT OF JUSTICE formed to deal with the
above-mentioned case,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 10 September 2002 the Republic of El Salvador (hereinafter "El
Salvador") filed in the Registry of the Court an Application instituting
proceedings dated the same day, whereby, citing Article 61 of the Statute
and Articles 99 and 100 of the Rules of Court, it 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).
2. Pursuant to Article 40, paragraph 2, of the Statute, the Registrar
communicated a certified copy of the Application to the Republic of Honduras
(hereinafter "Honduras") on 10 September 2002. A copy of the Application was
also communicated to the Republic of Nicaragua for information purposes,
since that State had been authorized, pursuant to Article 62 of the Statute,
to intervene in the original proceedings. In accordance with Article 40,
paragraph 3, of the Statute, all States entitled to appear before the Court
were notified of the Application.
3. In its 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."
4. The Parties, duly consulted by the President of the Court on 6 November
2002, expressed their wish for the formation of a new chamber of five
members, of whom two would be judges ad hoc to be chosen by them pursuant to
Article 31, paragraph 3, of the Statute. By a letter of 7 November 2002 the
Agent of El Salvador informed the Court that his Government had chosen H.E.
Mr. Felipe H. Paolillo to sit as judge ad hoc; and by a letter of 18
November 2002 the Agent of Honduras informed the Court that his Government
had chosen Mr. Santiago Torres BernArdez to sit as judge ad hoc.
5. By an Order of 27 November 2002 the Court, acting pursuant to Article 26,
paragraph 2, of the Statute and Article 17 of the Rules of Court, decided to
accede to the request of the Parties that a special chamber be formed to
deal with the case; it declared that, at an election held on 26 November
2002, [p 395] President Guillaume and Judges Rezek and Buergenthal had been
elected to form a chamber to deal with the case, together with the
above-named judges ad hoc, stating further that the said chamber as so
composed had accordingly been duly constituted pursuant to that Order. In
accordance with Article 18, paragraph 2, of the Rules of Court, Judge
Guillaume, who held the office of President of the Court when the Chamber
was formed, was to preside over the Chamber.
6. By the same Order, the Court, acting pursuant to Articles 92, paragraph
2, and 99, paragraph 2, of the Rules of Court, fixed 1 April 2003 as the
time-limit for the filing of Written Observations by Honduras on the
admissibility of the Application, and reserved the subsequent procedure for
further decision.
7. On 1 April 2003, within the time-limit fixed, Honduras filed in the
Registry its Written Observations on the admissibility of El Salvador's
Application.
8. In a letter of 8 April 2003 the Agent of El Salvador, referring to the
Written Observations of Honduras, contended that the latter had submitted
new documents with corresponding arguments, and that these required a
response from El Salvador, accompanied by the necessary documents, and to
that end requested authorization for his Government to submit new documents.
In a letter of 24 April 2003 the Co-Agent of Honduras opposed that request.
Following a meeting held by the President of the Chamber with the Parties'
Agents on 28 April 2003, the Chamber decided that the filing of additional
written pleadings was not necessary in the circumstances, that the written
proceedings were accordingly closed, and that, if El Salvador wished to
submit new documents, its request would then be considered in accordance
with the procedure laid down in Article 56 of the Rules of Court. The
Registrar advised the Parties of this decision by letters dated 8 May 2003.
9. By a letter of 23 June 2003 El Salvador sought authorization to produce
new documents pursuant to Article 56 of the Rules of Court. Those documents,
having been filed in the Registry that same day, were transmitted to
Honduras in accordance with paragraph 1 of that Article. By a letter of 10
July 2003 Honduras informed the Chamber that it objected to the production
of those documents. El Salvador and Honduras were authorized to submit
further observations on the matter, which they did by letters of 17 and 24
July 2003 respectively. After examining the views thus expressed by the
Parties, the Chamber decided, in accordance with Article 56, paragraph 2, of
the Rules of Court, to authorize the production of only some of the
documents submitted by El Salvador. The Chamber further noted that a new
document attached by Honduras to its Observations of 10 July 2003 was
admissible only if authorized pursuant to the same provision of the Rules,
and decided not to authorize its production. By letters of 29 July 2003, the
Deputy-Registrar informed the Parties of these decisions, advising them
that, pursuant to Article 56, paragraph 3, Honduras was authorized to
comment by not later than 19 August 2003 on the documents which the Chamber
had authorized El Salvador to produce, and to submit documents in support of
its comments. On 19 August 2003, within the time-limit thus fixed, Honduras
filed its comments in the Registry together with four supporting documents.
10. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Chamber,
having ascertained the views of the Parties, decided to make accessible to
the [p 396] public, with effect from the opening of the oral proceedings,
copies of Honduras's Written Observations on the admissibility of El
Salvador's Application and of the documents annexed to those Observations,
together with all new documents subsequently produced by the Parties with
the Chamber's authorization.
11. Public sittings were held on 8, 9, 10 and 12 September 2003, at which
the Chamber heard the oral arguments and replies of:
For El Salvador: H.E. Ms Maria Eugenia Brizuela de Avila,
Mr. Maurice Mendelson,
Mr. Antonio Remiro Brotons,
Mr. Gabriel Mauricio Gutierrez Castro.
For Honduras: H.E. Mr. Carlos Lopez Contreras,
Mr. Pierre-Marie Dupuy,
Mr. Carlos Jimenez Piemas,
Mr. Richard Meese,
Mr. Luis Ignacio Sanchez Rodriguez,
Mr. Philippe Sands.
*
12. In its Application, El Salvador made the following requests:
"For all the foregoing reasons, the Republic of El Salvador requests the
Court:
(a) 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;
(b) To declare the application of the Republic of El Salvador admissible on
the grounds of the existence of new facts of such a character as to lay the
case open to revision under Article 61 of the Statute of the Court; and
(c) Once the application is admitted, to proceed to the revision of the
Judgment of 11 September 1992, so that a new Judgment will determine the
boundary line in the sixth disputed sector of the land frontier between El
Salvador and Honduras to be as follows:
'Starting from the old mouth of the GoascorAn river in the inlet known as
the La Cutu Estuary situated at latitude 13 [degree] 22'00" N and longitude
87 [degree] 41'25" W, the frontier follows
the old course of the GoascorAn river for a distance of 17,300 meters as far
as the place known as the Rompicion de los Amates situated at latitude 13
[degree] 26' 29" N and longitude 87 [degree] 43' 25" W, which is where the
GoascorAn river changed its course.'."
13. In its Written Observations, Honduras made the following submission:
"In view of the facts and arguments presented above, the Government of the
Republic of Honduras requests the Chamber to declare inadmissible the
Application for revision presented on 10 September 2002 by El Salvador." [p
397]
14. At the oral proceedings, the following final submissions were presented
by the Parties:
On behalf of the Government of the Republic of El Salvador,
"The Republic of El Salvador respectfully requests the Chamber, rejecting
all contrary claims and submissions to adjudge and declare that:
1. The application of the Republic of El Salvador is admissible based on the
existence of new facts of such a nature as to leave the case open to
revision, pursuant to Article 61 of the Statute of the Court, and
2. Once the request is admitted that it proceed to a revision of the
Judgment of 11 September 1992, so that a new judgment fixes the boundary
line in the sixth disputed sector of the land boundary between El Salvador
and Honduras as follows:
'Starting at the old mouth of the GoascorAn River at the entry point known
as the Estero de la Cutu, located at latitude 13 degrees 22 minutes 00
seconds north and longitude 87 degrees 41 minutes 25 seconds west, the
border follows the old bed of the GoascorAn River for a distance of 17,300
metres up to the place known as Rompicion de Los Amates, located at latitude
13 degrees 26 minutes 29 seconds north and longitude 87 degrees 43 minutes
25 seconds west, which is where the GoascorAn River changed course.'."
On behalf of the Government of the Republic of Honduras,
"In view of the facts and arguments presented above, the Government of the
Republic of Honduras requests the Chamber to declare the inadmissibility of
the Application for Revision presented on 10 September 2002 by El Salvador."
***
15. By a Judgment of 11 September 1992, the Chamber of the Court formed to
deal with the case concerning the Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening) decided the course of the land
boundary between El Salvador and Honduras in six disputed sectors of that
boundary. By the same Judgment the Chamber settled the dispute between the
Parties over the legal status of various islands in the Gulf of Fonseca and
the legal status of waters in the Gulf and outside it.
16. El Salvador has submitted an Application to the Court for revision of
the 1992 Judgment in respect of the sixth sector of the land boundary, lying
between Los Amates and the Gulf of Fonseca. During the original proceedings,
it was the contention of Honduras that in that sector "the boundary . . .
follows the present stream [of the River GoascorAn], flowing into the Gulf
north-west of the Islas Ramaditas in the Bay of La Union". El Salvador
however claimed that the boundary was defined by "a previous course followed
by the river . . . and that this course, since abandoned by the stream, can
be traced, and it reaches the Gulf at Estero La Cutu" (Judgment, para. 306).
In the Judgment revision of which is [p 398] now sought, the Chamber
unanimously upheld the submissions of Honduras (ibid., paras. 321, 322 and
430).
17. In its Application for revision of the 1992 Judgment, El Salvador relies
on Article 61 of the Statute, which provides:
"1. An application for revision of a judgment may be made only when it is
based upon the discovery of some fact of such a nature as to be a decisive
factor, which fact was, when the judgment was given, unknown to the Court
and also to the party claiming revision, always provided that such ignorance
was not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court
expressly recording the existence of the new fact, recognizing that it has
such a character as to lay the case open to revision, and declaring the
application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment
before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of
the discovery of the new fact.
5. No application for revision may be made after the lapse often years from
the date of the judgment."
18. Article 61 provides for revision proceedings to open with a judgment of
the Court declaring the application admissible on the grounds contemplated
by the Statute; Article 99 of the Rules of Court makes express provision for
proceedings on the merits if, in its first judgment, the Court has declared
the application admissible.
Thus the Statute and the Rules of Court foresee a "two-stage procedure". The
first stage of the procedure for a request for revision of the Court's
judgment should be "limited to the question of admissibility of that
request" (Application for Revision and Interpretation of the Judgment of 24
February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports 1985, p. 197, paras. 8 and 10; Application for Revision of the
Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia
and Herzegovina), Judgment, 3 February 2003, para. 15).
19. Therefore, at this stage, the present Chamber's decision is limited to
the question whether El Salvador's request satisfies the conditions
contemplated by the Statute. Under Article 61, these conditions are as
follows:
(a) the application should be based upon the "discovery" of a "fact";
(b) the fact the discovery of which is relied on must be "of such a nature
as to be a decisive factor";
(c) the fact should have been "unknown" to the Court and to the party
claiming revision when the judgment was given; [p 399]
(d) ignorance of this fact must not be "due to negligence"; and
(e) the application for revision must be "made at latest within six months
of the discovery of the new fact" and before ten years have elapsed from the
date of the judgment.
20. The Chamber observes lastly that "an application for revision is
admissible only if each of the conditions laid down in Article 61 is
satisfied. If any one of them is not met, the application must be
dismissed." (Application for Revision of the Judgment of 11 July 1996 in the
Case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, 3
February 2003, para. 17.)
*
21. However, El Salvador appears to argue in limine that there is no need
for the Chamber to consider whether the conditions of Article 61 of the
Statute have been satisfied. According to the Applicant,
"Honduras implicitly acknowledged the admissibility of El Salvador's
Application when, by letter dated 29 October 2002, it informed the
distinguished President of the Court that, pursuant to Article 61, paragraph
3, of the Statute, it would ask that the Court require previous compliance
with the 1992 Judgment as a condition precedent to the admissibility of the
Application for revision."
In El Salvador's view, "The back step that Honduras took with its letter of
24 July 2003", by which it decided not to ask for prior compliance with the
judgment, "does nothing to diminish [the] acknowledgment [of the
admissibility of the Application], and instead serves to confirm it". The
Chamber is consequently requested to "adjudge and decide accordingly".
22. The Chamber observes first that, in its letter of 29 October 2002,
Honduras informed the President of the Court that it would "request that the
Court make the admission of the proceedings in revision conditional on
previous compliance with the judgment" and that accordingly it would "submit
a formal petition" to that effect. However, Honduras never submitted that
request and stated in its observations of 24 July 2003 (see paragraph 9
above) that it had "decided, on reflection, not to ask the Chamber to
require prior compliance with the terms of the Judgment". Thus, Honduras's
conduct cannot be construed as implying a tacit acceptance of the
admissibility of El Salvador's Application for revision.
Further, paragraph 3 of Article 61 of the Statute and paragraph 5 of Article
99 of the Rules of Court afford the Court the possibility at any time to
require previous compliance with the terms of the judgment whose revision is
sought, before it admits proceedings in revision; accordingly, even if
Honduras had submitted a request to the Court to require previous compliance
without awaiting the Chamber's decision on the [p 400] admissibility of El
Salvador's Application, the request would not have implied recognition of
the admissibility of the Application.
Finally, the Chamber notes that, regardless of the parties' views on the
admissibility of an application for revision, it is in any event for the
Court, when seised of such an application, to ascertain whether the
admissibility requirements laid down in Article 61 of the Statute have been
met. Revision is not available simply by consent of the parties, but solely
when the conditions of Article 61 are met.
23. In order properly to understand El Salvador's present contentions, it is
necessary to recapitulate at the outset part of the reasoning in the 1992
Judgment in respect of the sixth sector of the land boundary.
El Salvador admitted before the Chamber hearing the original case that the
river GoascorAn had been adopted as the provincial boundary during the
period of Spanish colonization. It argued, however, that
"at some date [the GoascorAn] abruptly changed its course to its present
position. On this basis El Salvador's argument of law [was] that where a
boundary is formed by the course of a river, and the stream suddenly leaves
its old bed and forms a new one, this process of 'avulsion' does not bring
about a change in the boundary, which continues to follow the old channel."
(Para. 308.)
That was claimed to be the rule under both Spanish colonial law and
international law. Thus, according to El Salvador, the boundary between the
two States should be established not along the present stream of the river,
flowing into the Bay of La Union, but along the "previous course . . . since
abandoned by the stream", probably during the seventeenth century, emptying
into the Estero La Cutu (paras. 306 and 311).
24. After setting out this argument by El Salvador, the Chamber stated in
its Judgment of 11 September 1992 that "No record of such an abrupt change
of course having occurred has been brought to the Chamber's attention"
(para. 308). It added: "were the Chamber satisfied that the river's course
was earlier so radically different from its present one, then an avulsion
might reasonably be inferred" (para. 308). The Chamber observed, however,
that: "There is no scientific evidence that the previous course of the
GoascorAn was such that it debouched in the Estero La Cutu" or in another
neighbouring inlet (para. 309). It did not take a position on the
consequences that any avulsion, occurring before or after 1821, would have
had on provincial boundaries, or boundaries between States, under Spanish
colonial law or international law.
The Chamber went on to find that "any claim by El Salvador that the boundary
follows an old course of the river abandoned at some time [p 401] before
1821 must be rejected. It is a new claim and inconsistent with the previous
history of the dispute." (Para. 312.) In this regard, the Chamber noted
inter alia that on several occasions, including in particular during the
Saco negotiations between the two States in 1880, El Salvador had adopted
conduct excluding any "claim . . . that the 1821 boundary was not the 1821
course of the river, but an older course, preserved as provincial boundary
by a provision of colonial law" (para. 312).
The Chamber then considered "the evidence made available to it concerning
the course of the river GoascorAn in 1821" (para. 313). It examined in
particular a "chart (described as a 'Carta Esferica') of the Gulf of Fonseca
prepared by the captain and navigators of the brig or brigantine El Activo,
who sailed in 1794, on the instructions of the Viceroy of Mexico, to survey
the Gulf (para. 314). It noted that the mouth of the GoascorAn on that chart
was "quite inconsistent with the old course of the river alleged by El
Salvador, or, indeed, any course other than the present-day one" (para.
314). The Chamber concluded that "the report of the 1794 expedition and the
'Carta Esferica' leave little room for doubt that the river GoascorAn in
1821 was already flowing in its present-day course" (para. 316).
Finally, after having examined various other arguments by El Salvador which
it is not necessary to repeat here, the Chamber "found that the boundary
follows the present course of the GoascorAn" (para. 319) and defined the
boundary line in the mouth of the river (paras. 320-322).
*
25. In its Application for revision, El Salvador, acting under Article 61 of
the Statute, relies on facts which it considers to be new within the meaning
of that Article; those facts relate, on the one hand, to the avulsion of the
river GoascorAn and, on the other, to the "Carta Esferica" and the report of
the 1794 El Activo expedition.
**
26. El Salvador first claims to possess scientific, technical and historical
evidence showing, contrary to what it understands the decision of the
Chamber to have been, that the GoascorAn did in the past change its bed, and
that the change was abrupt, probably as a result of a cyclone in 1762.
In support of this contention El Salvador submits to the Chamber a report
dated 5 August 2002 entitled Geologic, Hydrologic and Historic Aspects of
the GoascorAn Delta -- A Basis for Boundary Determination. It also produces
a study it conducted in 2002 "to check for the presence of vestiges of the
GoascorAn's original riverbed and additional information about its
hydrographic behaviour". Finally, it refers to various pub-[p 402]lications,
including in particular Geografia de Honduras by Ulises Meza CAlix,
published in 1916, and Monografia del Departamento de Valle, prepared under
the direction of Bernardo Galindo y Galindo and published in 1934.
27. El Salvador argues that evidence can constitute "new facts" for purposes
of Article 61 of the Statute. In this regard it relies on the travaux
preparatoires of the provision of the Statute of the Permanent Court of
International Justice, on which Article 61 is modelled, which are said to
confirm that a document can be considered to be a "new fact". It also
invokes an arbitral award handed down on 7 August and 25 September 1922 by
the Franco-German Mixed Arbitral Tribunal in the Heim et Chamant c. Etat
allemand case, which, in El Salvador's view, recognized that evidence can
constitute "a fact".
El Salvador further contends that the evidence it is now offering
establishes the existence of an old bed of the GoascorAn debouching in the
Estero La Cutu, and the avulsion of the river in the mid-eighteenth century
or that at the very least, it justifies regarding such an avulsion as
plausible. These are said to be "new facts" for purposes of Article 61.
28. The facts thus set out are, according to El Salvador, decisive. It
maintains that the considerations and conclusions of the 1992 Judgment are
founded on the rejection of an avulsion which, in the Chamber's view, had
not been proved: that avulsion has ceased to be a matter of conjecture -- it
is an established fact which actually occurred. On the basis of Spanish
colonial law, the provincial boundaries remained unchanged, notwithstanding
the avulsion, until 1821. El Salvador concludes that, contrary to what the
Chamber held in 1992, the boundary arising from the uti possidetis juris
should accordingly follow those boundaries and not the new course of the
GoascorAn.
29. El Salvador finally maintains that, given all the circumstances of the
case, in particular the "bitter civil war [which] was raging in El Salvador"
"for virtually the whole period between 1980 and the handing down of the
Judgment on 11 September 1992", its ignorance of the various new facts which
it now advances concerning the course of the Goascor An was not due to
negligence.
In particular, it states that the scientific and technical studies it has
produced could not have been carried out previously, given both the state of
science and technology in 1992, and the political situation prevailing at
the time in the sixth sector of the boundary and, generally, in El Salvador
and the region. As for the publications mentioned above (see paragraph 26),
El Salvador contends that it could not have "access to the documents in
Honduras's National Archives and, despite all its efforts, could not locate
them in the archives of other States to which it did have access".
30. El Salvador concludes from the foregoing that, as the various con-[p
403]ditions laid down by Article 61 of the Statute are satisfied, the
Application for revision founded on the avulsion of the river GoascorAn is
admissible.
31. Honduras, for its part, argues that with regard to the application of
Article 61 of the Statute, it is "well-established case law that there is a
distinction in kind between the facts alleged and the evidence relied upon
to prove them and that only the discovery of the former opens a right to
revision". It quotes in this connection the Advisory Opinion rendered on 4
September 1924 by the Permanent Court of International Justice concerning
the question of the Monastery of Saint-Naoum. According to Honduras, a
"fact" cannot "include evidentiary material in support of an argument, or an
assertion, or an allegation". Accordingly, the evidence submitted by El
Salvador cannot open a right to revision.
Honduras adds that El Salvador has not demonstrated the existence of a new
fact discovered by El Salvador since 1992 "which establishes that the
GoascorAn River previously ran in a former bed which debouched at Estero La
Cutu or that a process of 'avulsion' occurred, or that it occurred on a
particular date". In reality, El Salvador is seeking "a new interpretation
of previously known facts" and asking the Chamber for a "genuine reversal"
of the 1992 Judgment.
32. Honduras further maintains that the facts relied on by El Salvador, even
if assumed to be new and established, are not of such a nature as to be
decisive factors in respect of the 1992 Judgment. According to Honduras,
"the material presented by El Salvador on that subject is irrelevant to the
operative factual determination" made at that time by the Chamber. That
decision is alleged to have been founded solely on the finding of fact that
"from 1880, during the Saco negotiations, until 1972 El Salvador had treated
the boundary as being based on the 1821 course of the river". The Chamber is
said to have acted on that basis alone when in paragraph 312 of its Judgment
it rejected El Salvador's claim "that the boundary follows an old course of
the river abandoned at some time before 1821", considering it to be "a new
claim and inconsistent with the previous history of the dispute". Thus,
according to Honduras, it does not matter whether or not there was avulsion:
avulsion is irrelevant to the ratio decidendi of the Chamber.
33. Honduras argues lastly that El Salvador's ignorance in 1992 of the facts
on which it is relying in the present proceedings in support of its theory
of avulsion was due to negligence. El Salvador has "never proved that it
exhausted -- or even initiated -- means that would have given it diligent
knowledge of the facts that it is alleging today". In Honduras's view, El
Salvador could have had the scientific and technical studies and historical
research which it is now relying on carried out before 1992.
34. Honduras concludes from the foregoing that, as the various conditions
laid down by Article 61 of the Statute have not been satisfied, the
Application for revision founded on the avulsion of the river GoascorAn is
not admissible. [p 404]
35. Finally, the Parties raise the question whether the Application for
revision was properly made within the six-month time-limit stipulated in
paragraph 4 of Article 61 of the Statute. They do acknowledge, however, that
the Application was submitted within the ten-year time-limit provided for in
paragraph 5 of that Article, specifically, one day before the expiry of that
time-limit. Honduras maintains nevertheless that, by proceeding in this
fashion, the Applicant showed procedural bad faith. That is denied by El
Salvador.
*
36. Turning to consideration of El Salvador's submissions concerning the
avulsion of the GoascorAn, the Chamber recalls that an application for
revision is admissible only if each of the conditions laid down in Article
61 is satisfied, and that if any one of them is not met, the application
must be dismissed; in the present case, the Chamber will begin by
ascertaining whether the alleged facts, supposing them to be new facts, are
of such a nature as to be decisive factors in respect of the 1992 Judgment.
37. In this regard, it is appropriate first to recall the considerations of
principle on which the Chamber hearing the original case relied for its
ruling on the disputes between the two States in six sectors of their land
boundary.
According to that Chamber, the boundary was to be determined "by the
application of the principle generally accepted in Spanish America of the
uti possidetis juris, whereby the boundaries were to follow the colonial
administrative boundaries" (para. 28). The Chamber did however note that
"the uti possidetis juris position can be qualified by adjudication and by
treaty". It reasoned from this that "the question then arises whether it can
be qualified in other ways, for example, by acquiescence or recognition". It
concluded that
"There seems to be no reason in principle why these factors should not
operate, where there is sufficient evidence to show that the parties have in
effect clearly accepted a variation, or at least an interpretation, of the
uti possidetis juris position." (Para. 67.)
Applying these principles to the first sector of the land boundary, the
Chamber considered that in this sector "The situation was susceptible of
modification by acquiescence in the lengthy intervening period" since the
early nineteenth century. It added that, whatever may have been the colonial
administrative boundaries, "the conduct of Honduras from 1881 until 1972 may
be regarded as amounting to such acquiescence" to a part of the boundary
claimed by El Salvador in this sector (para. 80).
38. The Chamber proceeded similarly in paragraphs 306 to 322 of its Judgment
in respect of the sixth sector. After having identified the [p 405] object
of the dispute in this sector in paragraph 306, the Chamber first observed
"that during the colonial period a river called the GoascorAn constituted
the boundary between two administrative divisions of the Captaincy-General
of Guatemala: the province of San Miguel and the Alcaldia Mayor de Minas of
Tegucigalpa" (para. 307).
The Parties were in agreement that El Salvador had succeeded in 1821 to the
territory of the Province of San Miguel. On the other hand, they disagreed
as to whether or not the Alcaldia Mayor of Tegucigalpa had passed to
Honduras. The Chamber decided that point in favour of Honduras (ibid.).
The Chamber then considered "The contention of El Salvador that a former bed
of the river GoascorAn forms the uti possidetis juris boundary." In this
respect, it observed that:
"[this contention] depends, as a question of fact, on the assertion that the
GoascorAn formerly was running in that bed, and that at some date it
abruptly changed its course to its present position. On this basis El
Salvador's argument of law is that where a boundary is formed by the course
of a river, and the stream suddenly leaves its old bed and forms a new one,
this process of 'avulsion' does not bring about a change in the boundary,
which continues to follow the old channel." (Para. 308.)
The Chamber added that:
"No record of such an abrupt change of course having occurred has been
brought to the Chamber's attention, but were the Chamber satisfied that the
river's course was earlier so radically different from its present one, then
an avulsion might reasonably be inferred." (Ibid.)
Pursuing its consideration of El Salvador's argument, the Chamber did
however note:
"There is no scientific evidence that the previous course of the GoascorAn
was such that it debouched in the Estero La Cutu . . . rather than in any of
the other neighbouring inlets in the coastline, such as the Estero El
Coyol." (Para. 309.)
Turning to consideration as a matter of law of El Salvador's proposition
concerning the avulsion of the GoascorAn, the Chamber observed that El
Salvador "suggests . . . that the change in fact took place in the 17th
century" (para. 311). It concluded that "On this basis, what international
law may have to say, on the question of the shifting of rivers which form
frontiers, becomes irrelevant: the problem is mainly one of Spanish colonial
law." (Para. 311.)
At the conclusion of its consideration of El Salvador's line of argument [p
406] as to the avulsion of the GoascorAn, the Chamber did not take any
position on the existence of an earlier course of the GoascorAn which might
have debouched into the Estero La Cutu, or on any avulsion of the river, nor
a fortiori, on the date of any such avulsion or its legal consequences. It
confined itself to defining the framework in which it could possibly have
taken a position on these various points.
39. Beginning in paragraph 312 of the Judgment, the Chamber turned to a
consideration of a different ground. At the outset, it tersely stated the
conclusions which it had reached and then set out the reasoning supporting
them. In the view of the Chamber, "any claim by El Salvador that the
boundary follows an old course of the river abandoned at some time before
1821 must be rejected. It is a new claim and inconsistent with the previous
history of the dispute." (Para. 312.)
The Chamber then noted: "A specific assertion that the boundary should
follow an abandoned course of the river GoascorAn was first made during the
Antigua negotiations in 1972" (para. 312). It also quoted an excerpt from
the record of the negotiations between the two States at Saco in 1880,
stating that the two delegates had agreed "to recognize" the river GoascorAn
"as the frontier between the two Republics, from its mouth in the Gulf of
Fonseca, Bay of La Union, upstream in a north-easterly direction . . ."
(ibid.). The Chamber observed that to interpret "the words 'River GoascorAn'
[in the text] as meaning a Spanish colonial boundary which in 1821 followed
a long-abandoned course of the river, is out of the question" (ibid.). It
added that similar considerations applied to the circumstances of further
negotiations in 1884 (para. 317).
Having on these grounds arrived at the conclusion that the boundary in 1821
followed the course of the GoascorAn at that date, the Chamber turned to
consideration of the evidence submitted to it in respect of that course
(paras. 313 et seq.), evidence which will be examined in due course (see
paragraph 50 below).
40. It is apparent from this discussion that, while the Chamber in 1992
rejected El Salvador's claims that the 1821 boundary did not follow the
course of the river at that date, it did so on the basis of that State's
conduct during the nineteenth century. In other words, applying the general
rule which it had enunciated in paragraph 67 of the Judgment, the Chamber
proceeded, in paragraph 312, concerning the sixth sector of the land
boundary, by employing reasoning analogous to that which it had adopted in
paragraph 80 in respect of the first sector. In the sixth sector, this
reasoning led the Chamber to uphold the submissions of Honduras, while in
the first sector it had proved favourable to El Salvador's position.
In short, it does not matter whether or not there was an avulsion of the [p
407] Goascoran. Even if avulsion were now proved, and even if its legal
consequences were those inferred by El Salvador, findings to that effect
would provide no basis for calling into question the decision taken by the
Chamber in 1992 on wholly different grounds. The facts asserted in this
connection
by El Salvador are not "decisive factors" in respect of the Judgment which
it seeks to have revised. In light of the 1992 Judgment, the Chamber cannot
but reach such a conclusion, independently of the positions taken by the
Parties on this point in the course of the present proceedings.
**
41. In support of its Application for revision, El Salvador relies on a
second "new fact", that is, the discovery in the Ayer Collection of the
Newberry Library in Chicago of a further copy of the "Carta Esferica" and of
a further copy of the report of the expedition of the El Activo, thereby
supplementing the copies from the Madrid Naval Museum to which the Chamber
made reference in paragraphs 314 and 316 of its Judgment (see paragraph 24
above).
El Salvador states that in 1992, the Chamber had before it only copies of
the documents that had been obtained from Madrid, and been produced by
Honduras. It contends that it was on the basis of those copies that the
Chamber decided the "point at which the GoascorAn emptied into the Gulf" and
the course of the boundary.
According to El Salvador, the documents discovered in Chicago differ from
those in Madrid on several significant points. It maintains that:
"The fact that there are several versions of the 'Carta Esferica' and the
Report of the Gulf of Fonseca from the El Activo expedition, that there are
differences among them and the anachronisms they share, compromises the
evidentiary value that the Chamber attached to the documents that Honduras
presented, essential in the Judgment [of 1992]."
Further, the evidentiary value is claimed to be all the more doubtful in
that the Madrid documents enjoyed no official status and have not been
certified to be originals. Accordingly, maintains El Salvador, there exists
"a second new fact, whose implications for the Judgment have to be
considered once the application for revision is admitted".
42. El Salvador adds that "the discovery of hitherto unknown documents is a
typical example of the type of fact which lays a case open to revision . . .
either because they themselves constitute the factum or because they are the
source of knowledge of them". It further states that "evidence which rebuts
a fact established by a judgment of which revision is sought undoubtedly
constitutes a fact for purposes of Article 61 of the Statute".
El Salvador asserts that in the present case the fact in question pre-[p
408]dated the 1992 Judgment but was not "known at the time the Judgment was
given". Thus, it is a "new fact" for purposes of Article 61. It is said to
be decisive because its discovery has highlighted "the insubstantiality of
the Madrid Naval Museum documents" from which the Chamber inferred "such
significant" geographical "consequences".
43. Lastly, El Salvador states that the Ayer Collection is "not an
indispensable reference source" and that the El Activo expedition was not a
well-known expedition. It refers in more general terms to the "bitter civil
war [which] was raging in El Salvador" "for virtually the whole period
between 1980 and the handing down of the Judgment on 11 September 1992".
Accordingly, it argues, "El Salvador's ignorance until 2002 of the existence
of copies of the El Activo documents in collections situated in
out-of-the-way places cannot be characterized as 'negligent'".
44. El Salvador concludes from the foregoing that, as the various conditions
laid down by Article 61 of the Statute are satisfied, the Application for
revision founded on the discovery of the new chart and new report is
admissible.
45. For its part, Honduras denies that the production of the documents found
in Chicago can be characterized as a new fact. This is simply "another copy
of one and the same document already submitted by Honduras during the
written stage of the case decided in 1992, and already evaluated by the
Chamber in its Judgment". Honduras adds that it "never sought to argue the
point whether the spherical chart was an original document (it always spoke
of copies) or an official document". But it contends that there are no
discrepancies between the three copies of the chart, merely "insignificant
differences". Honduras maintains that those differences in no way contradict
the content of the logbook. Finally, it notes that all three charts place
the mouth of the river GoascorAn in its present-day position, a finding on
which the 1992 Judgment was based and which in any event remains valid.
46. Honduras further states that the new documents produced by El Salvador
were part of a prestigious public collection and have been included in the
Newberry Library catalogue at least since 1927. It concludes from this that
El Salvador could easily have learned of those documents, and that it
breached its duty of diligence in failing to seek them out or produce them
before 1992. According to Honduras, no excuse for this failure can be found
in the internal conflict prevailing in El Salvador at the time, as that
conflict in no way prevented the conduct of research outside the national
territory.
47. Honduras concludes from the foregoing that, as the various conditions
laid down by Article 61 of the Statute are not satisfied, the Application
for revision founded on the discovery of the new chart and the new report is
not admissible.
48. Finally, as regards the conditions laid down in paragraphs 4 and 5 of
Article 61 of the Statute, the Parties put forward arguments similar to [p
409] those they made in respect of the avulsion of the Goascoran (see
paragraph 35 above).
*
49. The Chamber will proceed, as it did in respect of the avulsion (see
paragraph 36 above), to determine first whether the alleged facts concerning
the "Carta Esferica" and the report of the El Activo expedition are of such
a nature as to be decisive factors in respect of the 1992 Judgment.
50. It should be recalled in this regard that the Chamber in 1992, after
having held El Salvador's claims concerning the old course of the GoascorAn
to be inconsistent with the previous history of the dispute, considered "the
evidence made available to it concerning the course of the river Goascoran
in 1821" (para. 313). It paid particular attention to the chart prepared by
the captain and navigators of the vessel El Activo around 1796, described as
a "Carta Esferica", which Honduras had found in the archives of the Madrid
Naval Museum. It noted that the chart
"appears to correspond with considerable accuracy to the topography as shown
on modern maps. It shows the 'Estero Cutu' in the same position as modern
maps; and it also shows a river mouth, marked 'R [degree] Goascoran', at the
point where the river GoascorAn today flows into the Gulf. Since the chart
is one of the Gulf, presumably for navigational purposes, no features inland
are shown except the '. . . best known volcanoes and peaks . . .' ('. . .
volcanes y cerros mas conocidos . . .'), visible to mariners; accordingly,
no course of the river upstream of its mouth is indicated. Nevertheless, the
position of the mouth is quite inconsistent with the old course of the river
alleged by El Salvador, or, indeed, any course other than the present-day
one. In two places, the chart indicates the old and new mouths of a river
(e.g., 'Barra vieja del Rio Nacaume' and 'Nuevo Rio de Nacaume'); since no
ancient mouth is shown for the GoascorAn, this suggests that in 1796 it had
for some considerable time flowed into the Gulf where indicated on the
chart." (Para. 314.)
The Chamber then analysed the report of the expedition and observed that it
also places "the mouth of the river Goascoran at its present-day position"
(ibid.).
The Chamber concluded from the foregoing "that the report of the 1794
expedition and the 'Carta Esferica' leave little room for doubt that the
river Goascoran in 1821 was already flowing in its present-day course"
(para. 316).
51. The Judgment rendered by the Chamber in 1992 is thus based upon certain
information conveyed by the "Carta Esferica" and the [p 410] report of the
El Activo expedition, in the versions held in Madrid. It should therefore be
determined whether the Chamber might have reached different conclusions in
1992 had it also had before it the versions of those documents from Chicago.
52. The Chamber observes in this connection, that the two copies of the
"Carta Esferica" held in Madrid and the copy from Chicago differ only as to
certain details, such as for example, the placing of titles, the legends,
and the handwriting. These differences reflect the conditions under which
documents of this type were prepared in the late eighteenth century; they
afford no basis for questioning the reliability of the charts that were
produced to the Chamber in 1992.
53. The Chamber notes further that the Estero La Cutu and the mouth of the
Rio GoascorAn are shown on the copy from Chicago, just as on the copies from
Madrid, at their present-day location. The new chart produced by El Salvador
thus does not overturn the conclusions arrived at by the Chamber in 1992; it
bears them out.
54. As for the new version of the report of the El Activo expedition found
in Chicago, it differs from the Madrid version only in terms of certain
details, such as the opening and closing indications, spelling, and placing
of accents. The body of the text is the same, in particular in the
identification of the mouth of the GoascorAn. Here again, the new document
produced by El Salvador bears out the conclusions reached by the Chamber in
1992.
55. The Chamber concludes from the foregoing that the new facts alleged by
El Salvador in respect of the "Carta Esferica" and the report of the El
Activo expedition are not "decisive factors" in respect of the Judgment
whose revision it seeks.
**
56. Finally, El Salvador contends that proper contextualization of the
alleged new facts "necessitates consideration of other facts that the
Chamber weighed and that are now affected by the new facts". Moreover, El
Salvador claims that
"other evidences and proofs exist that, while not a new fact, were not taken
up in the proceedings and are useful, even essential, whether to supplement
and confirm the new facts or to better understand them".
It cites the great eruption of Cosiguina volcano and the appearance of the
Farallones del Cosiguina, the Saco negotiations between 1880 and 1884, and
the characteristics of the lower reaches of the river Goascoran.
57. Honduras responds that El Salvador, by submitting for the Chamber's
consideration "evidence additional to the alleged new facts", is acting "as
though the Court had to ignore its previous reasoning, on the [p 411]
pretext that it is in the light of the context that the existence or
non-existence of the alleged new facts falls to be assessed". In the view of
Honduras, this approach would be tantamount to expanding "the restrictive
list of elements in Article 61, paragraph 1, of the Court's Statute to
unheard-of lengths, calculated to turn revision into a habitual method of
appeal and to undermine the authority of res judicata".
58. The Chamber agrees with El Salvador's view that, in order to determine
whether the alleged "new facts" concerning the avulsion of the GoascorAn,
the "Carta Esferica" and the report of the El Activo expedition fall within
the provisions of Article 61 of the Statute, they should be placed in
context, which the Chamber has done in paragraphs 23 to 55 above. However,
the Chamber must recall that, under that Article, revision of a judgment can
be opened only by
"the discovery of some fact of such a nature as to be a decisive factor,
which fact was, when the judgment was given, unknown to the Court and also
to the party claiming revision, always provided that such ignorance was not
due to negligence".
Thus, the Chamber cannot find admissible an Application for revision on the
basis of facts which El Salvador itself does not allege to be new facts
within the meaning of Article 61.
**
59. Given the conclusions to which it has come in paragraphs 40, 55 and 58
above, it is not necessary for the Chamber to ascertain whether the other
conditions laid down in Article 61 of the Statute are satisfied in the
present case.
60. For these reasons,
THE CHAMBER,
By four votes to one,
Finds that the Application submitted by the Republic of El Salvador for
revision, under Article 61 of the Statute of the Court, of the Judgment
given 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), is inadmissible.
IN FAVOUR: Judge Guillaume, President of the Chamber; Judges Rezek,
Buergenthal; Judge ad hoc Torres BernArdez;
AGAINST: Judge ad hoc Paolillo.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this eighteenth day of December, two [p 412]
thousand and three, 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 of the Chamber.
(Signed) Philippe COUVREUR,
Registrar.
Judge ad hoc PAOLILLO appends a dissenting opinion to the Judgment of the
Chamber.
(Initialled) G. G.
(Initialled) Ph. C.
[p 413]
DISSENTING OPINION OF JUDGE PAOLILLO
[Translation]
Need for the Court to verify compliance with the conditions of admissibility
laid down by Article 61 of the Statute; no role played by the Parties' views
on the matter Disagreement as to the main ground for rejection by the
Chamber in the original proceedings on El Salvador's claims in respect of
the sixth sector of the land boundary True ratio decidendi of the 1992
Judgment in respect of the sixth sector of the boundary Belated
presentation by Honduras of its argument in this regard Implicit
acknowledgment by the Chamber that documentary evidence may constitute
"facts" within the meaning of Article 61 of the Statute New facts alleged
by El Salvador largely satisfying the conditions laid down by Article 61 of
the Statute Decisive nature of evidence demonstrating the fact of
avulsion Doubts as to the reliability of the copies of the "Carta
Esférica" and the report of the brigantine El Activo on which the Chamber
based its 1992 decision regarding the sixth sector of the land boundary No
negligence on the part of El Salvador in presenting the new evidence.
1. I regret that the Chamber has missed the opportunity to declare
admissible, for the first time in the Court's history, an application for
revision which, to my mind, satisfied all the conditions laid down by
Article 61 of the Statute of the Court. My disagreement with the majority of
the Chamber is based on a difference of opinion as to the reasoning which
led the Chamber hearing the original proceedings in 1992 to reject El
Salvador's claims regarding the course of the land boundary between its
territory and that of Honduras in the sixth sector. I cannot share the view
of a majority of the Chamber's Members on what constituted the ratio
decidendi of the decision rendered by the Chamber in 1992 in respect of that
sector.
2. In the reasoning of its decision holding El Salvador's Application for
revision inadmissible, the present Chamber maintained that the material
presented by the latter as "new facts" did not constitute " 'decisive
factors' in respect of the Judgment which it seeks to have revised" (paras.
40 and 55), in other words that those facts had no impact on the ratio
decidendi of the Judgment in question. The Chamber reached that conclusion
because it considers that the ratio decidendi in respect of the sixth sector
of the land boundary between El Salvador and Honduras is explained in
paragraph 312 of the 1992 Judgment, in which the Chamber, referring to El
Salvador's contention that the uti possidetis juris defined the boundary in
that sector as following an old course that the river Goascoran had left
following an avulsion, states that "[i]t is a new claim and inconsistent
with the previous history of the dispute". [p 414]
3. Viewed in the general context of the 1992 Judgment, this statement, which
follows the detailed reasoning contained in paragraphs 308, 309 and 310
concerning evidence of the phenomenon of avulsion as alleged by El Salvador,
seems to me to be an ancillary argument in relation to the main ground
invoked by the Chamber in 1992 for its rejection of El Salvador's claims.
This main ground, in my view, was that El Salvador had been unable to
demonstrate that, on a specific date in the seventeenth century, the river
Goaseoran had suddenly changed its course. It is this view of the ratio
decidendi of the 1992 Judgment in respect of the sixth sector of the land
boundary a view that conflicts with that of a majority of Members of the
present Chamber which prompts me to draw an equally different conclusion
regarding the admissibility of El Salvador's Application for revision.
4. I fully agree with the Chamber's statement in paragraph 22 of the present
Judgment that "it is in any event for the Court, when seised of.. . an
application [for revision], to ascertain whether the admissibility
requirements laid down in Article 61 of the Statute have been met",
regardless of the parties' views on the matter. In ascertaining whether
these conditions have been satisfied, the Chamber's assessment will
necessarily depend on the terms of the Judgment whose revision is sought and
the Chamber must act in conformity with the findings in that Judgment. This
is particularly important for purposes of ascertaining whether the new facts
presented by the party seeking revision are "of such a nature as to be a
decisive factor". That phrase has to be construed as meaning that, if the
facts had been known previously, the Chamber would have taken a different
decision. The new facts must, as noted by the present Chamber, be "'decisive
factors' in respect of the Judgment which [the Applicant] seeks to have
revised" (paras. 40 and 55), that is to say in relation to the ground that
led the Chamber to take its decision in the original proceedings. Hence, the
trickiest part of the process of considering an application for revision of
a judgment consists in correctly identifying the real ratio decidendi of the
judgment. In the case before us, the Chamber identified as ratio decidendi
of the 1992 Judgment an observation by the Chamber, to my mind of secondary
importance, related to the previous history of the dispute but not to its
object or to the rights claimed by the Parties.
5. The dispute between the Parties regarding the sixth sector of their land
boundary focused on the course of the boundary on the basis of the
application of the principle of uti possidetis juris to that sector. In
1992, the Chamber's sole task consisted in establishing where this boundary
line lay. Should it follow the course of the Goaseoran in 1821 (Hondu-ras's
position) or the course of the river prior to the avulsion alleged by El
Salvador? Those were the terms in which the Chamber stated the problem in
1992. In the first paragraph of the section of the Judgment dealing with the
sixth sector, it described the crux of the dispute in very simple and
straightforward terms: [p 415]
"The dispute between the Parties in this sector is simple. Honduras
contends that in 1821 the river Goascorán constituted the boundary between
the colonial units to which the two States have succeeded, that there has
been no material change in the course of the river since 1821, and that the
boundary therefore follows the present stream, flowing into the Gulf
north-west of the Islas Ramaditas in the Bay of La Unión. El Salvador
however claims that it is a previous course followed by the river which
defines the boundary, and that this course, since abandoned by the stream,
can be traced, and it reaches the Gulf at Estero La Cum." (1992 Judgment,
para. 306.)
6. This was the issue that the Chamber had to resolve with respect to the
sixth sector of the land boundary and which it addressed in the paragraphs
of the Judgment dealing with that sector. In its description of the dispute,
the Chamber made no reference to the incompatibility of El Sal-vador's claim
with the previous history of the dispute.
7. In its 1992 decision, the Chamber, having examined the evidence presented
by the Parties, rejected El Salvador's claim "[f]or the reasons set out in
the present Judgment, in particular paragraphs 306 to 322 thereof' (para.
430). And the reasons in question were set out clearly in paragraphs 308 and
309. In the former it stated that:
"No record of such an abrupt change of course having occurred has been
brought to the Chamber's attention, but were the Chamber satisfied that the
river's course was earlier so radically different from its present one, then
an avulsion might reasonably be inferred."
In the latter, it indicated that "[ijhere is no scientific evidence that the
previous course of the Goascorán was such that it debouched in the Estero La
Cutu . . .".
8. The ratio decidendi of the decision rendered by the Chamber in 1992 in
respect of the sixth sector is in effect contained in paragraphs 308 and
309. The reasoning in the subsequent paragraphs is subject to the conclusion
reached by the Chamber in those two paragraphs regarding the avulsion
alleged by El Salvador. I am convinced that this was also the Chamber's
perception of the matter in 1992. not only because this is what emerges from
its discussion of El Salvador's claim in paragraphs 307 to 321 of its
decision but also because the Chamber itself expressly states as much in
paragraph 321. This last part of that paragraph reads as follows:
"Having been unable to accept the contrary submissions of El Salvador as to
the old course of the Goascorän, and in the absence of any reasoned
contention of El Salvador in favour of a line to the south-east of the
Ramaditas, the Chamber considers that it may [p 416] uphold the Honduran
submissions in the terms in which they were presented." (Emphasis added.)
9. All these passages show that in 1992 the Chamber's reasoning focused on
what constituted the crucial and sole point of dispute between the
Parties with respect to the sixth sector, namely what was the course of the
Goascoran which, by application of the uti possidetis juris, defined the
boundary in the sixth sector. As El Salvador was unable to prove its
allegation in the original proceedings, the Chamber rejected its claim.
10. It was only in paragraph 312 of the Judgment, after a relatively
detailed analysis of the extent to which El Salvador had substantiated the
fact of the avulsion, that the Chamber described El Salvador's claim as "new
. . . and inconsistent with the previous history of the dispute". This
brief, isolated and indeed ambiguous statement (what is meant by
"inconsistent with the previous history of the dispute"?) seems to have
been inserted after the Chamber's discussion of the evidence of El
Salvador's allegations as an additional or supplementary line of argument
rather than a decisive finding in the case.
Yet the Chamber, in paragraph 40 of the present Judgment, asserts that
"while the Chamber in 1992 rejected El Salvador's claims that the 1821
boundary did not follow the course of the river at that date, it did so on
the basis of that State's conduct during the nineteenth century";
it accordingly concludes that
"[e]ven if avulsion were now proved, and even if its legal consequences
were those inferred by El Salvador, findings to that effect would provide no
basis for calling into question the decision taken by the Chamber in 1992 on
wholly different grounds".
11. As I see it, the Chamber, in so stating, overlooks what was said in
paragraphs 308 and 309 of the 1992 Judgment, which suggest, on the contrary,
that if El Salvador had provided the Chamber during the original
proceedings with satisfactory evidence of the fact that the Goascoran had
suddenly changed course by avulsion, the Chamber's decision regarding the
sixth sector of the boundary would have been different (see paragraph 17
below).
12. If the ground for the Chamber's dismissal of El Salvador's claims in
1992 was that the claim concerning the sixth sector was new and
"inconsistent with the previous history of the dispute", one may well ask
(to cite the language of paragraph 38 of the present Judgment) why it
proceeded to "consideration as a matter of law" of that State's proposition
concerning the avulsion of the Goascoran, The fact is that, having
considered El Salvador's claim and the evidence adduced to substantiate it,
the Chamber concluded that no record of a sudden change in the course of the
river had been brought to its attention (1992 Judgment, [p 417] para. 308)
and that there was no scientific evidence that the previous course of the
Goascoran was such that it debouched into the Estero La Cutii (1992
Judgment, para. 309). The Chamber could certainly have spared itself the
trouble of assessing the weight of the evidence presented if the grounds on
which it then rejected El Salvador's claim were its newness and its
inconsistency with the previous history of the dispute.
13. I therefore find little justification for today's assertion that in 1992
"the Chamber did not take any position on the existence of an earlier course
of the Goascoran which might have debouched into the Estero La Cutii, or on
any avulsion of the river" (para. 38). Inasmuch as it examined El
Salvador's allegations concerning the avulsion of the Goascoran and the
existence of an old riverbed, and concluded that those allegations had not
been proved, the Chamber unquestionably did not confine itself in 1992 "to
defining the framework in which it could possibly have taken a position on
these various points" (ibid). Granted that in 1992 the Chamber "did not take
a position on the consequences that any avulsion, occurring before or after
1821, would have had on provincial boundaries, or boundaries between States,
under Spanish colonial law or interna-tional law" (para. 24). But what
purpose would it have served for the Chamber to take a position on the
consequences of an avulsion after finding that no such avulsion had been
proved?
14. Relying solely on paragraph 312 of the 1992 Judgment, the present
Chamber concludes that El Salvador's claims that the 1821 boundary defined
by application of the uti possidetis juris principle did not follow the
course of the river at that date were rejected by the Chamber in 1992 on the
basis of "that State's conduct during the nineteenth century" (para. 40). In
so doing, it appears to attach no importance to the points made in the
preceding paragraphs, especially paragraphs 308 and 309, which, to my mind,
contain the real grounds for the Chamber's rejection of El Salvador's claims
in the sixth sector.
15. It is on the basis of this alleged "inconsistency" of EI Salvador's
claim with the previous history of the dispute that the present Judgment
indicates that in 1992
"applying the general rule which it had enunciated in paragraph 67 of the
Judgment, the Chamber proceeded, in paragraph 312, concerning the sixth
sector of the land boundary, by employing reasoning analogous to that which
it had adopted in paragraph 80 in respect of the first sector" (para. 40).
In other words, a majority of the Members of the present Chamber view the
course of the land boundary between El Salvador and Honduras in the sixth
sector, as defined in the 1992 Judgment, as a further instance of
modification, by acquiescence or acknowledgment of the Parties, of a
situation resulting from uti possidetis juris.[p 418]
16. Yet I see nothing in paragraph 312 of the 1992 Judgment, or in any other
paragraph thereof, from which it might be inferred that the Chamber wished
to apply to the sixth sector of the boundary the same criterion as it had
applied to the first sector. In my opinion, the present Chamber is
attributing to the 1992 Chamber more than it wished to say in paragraph 312
of its decision. All the Chamber did in that passage was to draw attention
to certain aspects of the previous history of the boundary dispute in
support of the conclusions it had reached in the preceding paragraphs,
namely that El Salvador had not substantiated its claims concerning the land
boundary in the sixth sector.
17. In 1992 the Chamber did not even imply that evidence of an avulsion was
irrelevant by virtue of the fact that El Salvador, in the sixth sector of
the boundary, had accepted a change in the position resulting from the
application of uti possidetis juris. On the contrary, the Chamber pro-ceeded
to consider the claims of the two Parties and concluded that El Salvador had
been unable to substantiate its argument. Moreover, it added that if it had
been satisfied that the river's course was earlier so radically different
from its present one, "then an avulsion might reasonably be inferred" (1992
Judgment, para. 308). The Chamber thus implied that this would have led it
to draw different legal conclusions from those reached in its decision, for
its function would not normally involve simply determining whether the
phenomenon of avulsion had in fact occurred: its role is not to take a
position on the occurrence of hydro-logical phenomena without drawing legal
inferences from them.
18. Moreover, even if analogies may be drawn between the uti possidetis
juris positions in respect of the first and sixth sectors, and even if it
may be inferred in principle from these analogies that the same criterion
should be applied in the both cases, it is clear, in my view, that the
Chamber did not adopt that approach. First, because if, as assumed in the
present Judgment, the Chamber had in 1992 applied the same criterion to the
sixth sector as it had applied to the first, it would have done so
expressly, as in paragraph 80 of its decision. Furthermore, acknowledgment
of a modification of the uti possidetis juris position or acquiescence in
such a modification is far more difficult to infer in the case of the sixth
sector than in that of the first. It should be borne in mind in this regard
that, as the Chamber stated in 1992 in paragraph 67 of its Judgment, such a
modification must be based on "sufficient evidence to show that the parties
have in effect clearly accepted a variation, or at least an interpretation,
of the uti possidetis juris position" (emphasis added).
19. I have not found such evidence in respect of the application of the uti
possidetis juris principle to the sixth sector. The lack of an express
reference to the old course of the Goascoran during the negotiations that
took place prior to 1972 does not constitute sufficient evidence to show [p
419] that El Salvador "clearly accepted" a variation of the uti possidetis
juris position. Construing this lack of a reference as a waiver by El
Salvador of its claim to have the boundary follow the old riverbed by
application of the uti possidetis juris principle would be giving undue
weight to, and drawing unduly far-reaching legal consequences from, the
silence of the Parties. This silence cannot imply "clear acceptance" of a
modification of the application of the principle in question.
20. Even if one infers from El Salvador's conduct during the Saco
negotiations that it accepted settlement formulas establishing the present
course of the Goascoran as the boundary between the territories of the two
countries, it does not follow that El Salvador thus definitively waived its
claim to base the boundary line on the course of the old riverbed. There is
no evidence to demonstrate beyond doubt that El Salvador's intention was to
waive its right to application of the uti possidetis juris without
variation.
21. During the Saco negotiations, the two States tried to find apolitical
solution to their boundary dispute, and it was natural, indeed necessary,
in the circumstances in which the negotiations took place, to make
concessions by waiving rights at the political level that they could have
asserted at the judicial level. Moreover, the Saco negotiations "were
unsuccessful" (Written Observations of Honduras, para. 3.54) and the
conference records say nothing about the precise location of the point in
the Bay of La Union into which the Goascoran flows, a question on which the
Parties have never agreed.
22. The contention that the "newness" of El Salvador's claim cannot be the
ratio decidendi of the Chamber's 1992 decision is borne out by the fact that
Honduras's claim in respect of the boundary line to the northwest of the Is
las Ramaditas was also first asserted during the Antigua negotiations of
1972, In any case, are these negotiations not part of the "previous history
of the dispute"? In what way is El Salvador's claim "inconsistent" with the
previous history of the dispute? In the light of these negotiations, can El
Salvador's claim be described in 1992 or in 2003 as a "new claim"?
23. Honduras's approach to the question of revision was clearly based on the
same understanding of the ratio decidendi of the 1992 Judgment as is set
forth in this opinion, at least prior to the final public sitting of the
Chamber on 12 September 2003. Honduras's opposition to El Salvador's
Application for revision was based on the premise that the Chamber had
rejected El Salvador's claim on the ground that that State had not provided
sufficient evidence of the avulsion. It follows that, in the view of
Honduras, the ratio decidendi of the decision was unrelated to the
historical pertinence of the claim. This premise represents the substance of
Honduras's Written Observations and also of the statements of its Agents and
counsel, who occasionally express it in explicit terms (see, for example,
the statements by the Agent, Mr. Lopez Contreras, [p 420] on 9 September
(C6/CR 2003/3, p. 12, para. 1.20) and by a counsel, Mr. Jiménez Piernas, on
the same day (C6/CR 2003/3, p. 35, para. 15)).
24. As the Chamber stated in 1992, "[f]or Honduras the norm of
international law applicable to the dispute is simply the uti possidetis
juris" (1992 Judgment, para. 40). During the present proceedings, Honduras
not only reiterated this view but made it the cornerstone of its Written
Observations in response to El Salvador's Application for revision. Honduras
stated that
"in general a fact can be of such a nature as to be a decisive factor for
the purposes of an application for revision of a final, binding judgment
bearing the sacrosanct authority oí res judicata only if that fact is the
discovery of a title, or of additional colonial effectivités in cases where
title is either non-existent or indeterminate" (Written Observations, para.
3.9).
It added that "[i]t must in all events be kept in mind that the dispute
decided by the Judgment of 11 September 1992 very specifically concerns the
uti possidetis of 1821" (ibid., para. 3.10) and that "[t]he [new] fact must
be important per se . . . in proving the uti possidetis" (ibid., para.
3,11). Honduras did not explicitly address the issue of the "inconsistency"
of El Salvador's claim with the previous history of the dispute.
25. It was only at a late stage, at the last public sitting on 12 September
2003 during the second round of oral argument (El Salvador, the applicant
State, thus had no opportunity to respond), that Honduras asserted that the
Chamber's brief reasoning in paragraph 312 of the 1992 Judgment concerning
the historical pertinence of El Salvador's claim constituted the ratio
decidendi of the decision or, in other words, that it was on the basis of
that reasoning that the Chamber had defined the boundary of the sixth sector
as following the present course of the Goascorán. It was only at this stage
in its oral argument that Honduras alleged for the first time that "the
material presented by El Salvador to that subject is irrelevant to the
operative factual determination" (Mr. Philippe Sands, C6/CR 2003/5, pp.
9-10, para, 5), To paraphrase the Chamber's words in 1992, I would say that
Honduras's last-minute line of argument is incontestably "new and
inconsistent with the previous history" of the case.
*
26. This unexpected last-minute change of strategy by Honduras had the
unfortunate consequence of preventing El Salvador from expressing its
opinion on the questions thus raised.
27. The late presentation of a new argument would not appear, under the
circumstances, to have been consistent with sound procedural practice or
with the principle of equality of the Parties.
*
28. The new facts on which El Salvador based its Application for revision
consist of a series of items of documentary evidence (scientific [p 421]
studies, technical reports, cartographic material, publications) discovered
or produced after 1992 which, according to El Salvador, were unknown both to
itself and to the Chamber and are alleged to be of such a nature as to be a
decisive factor.
29. The Chamber did not ask itself whether or not this documentary evidence
could be regarded as "new facts" within the meaning of Article 61 of the
Statute of the Court. It concluded that it failed to satisfy one of the
conditions laid down by that Article (being of such a nature as to be a
decisive factor), which is tantamount to an implicit acknowledgment of its
status as "new facts". The Chamber thus confirms that the production of
such documents may substantiate an application for revision provided that
they meet the criteria laid down by Article 61 of the Statute.
30. The proposition that documents may be put forward as "new facts" has not
always been accepted. A minority view in the literature, seeking to restrict
recourse to revision proceedings, has opted for a narrow interpretation of
Article 61, arguing that the term "facts" does not cover documents or other
evidenceFN1. This position stems from a negative perception of the
institution of revision, which is viewed as a means of breaching the
sacrosanct principle of res judicata. According to this view, revision is a
substitute for appeal and as such represents a threat to legal certainty.
This fear seems to be shared by Honduras, which cautioned the Chamber in the
following terms:
---------------------------------------------------------------------------------------------------------------------
FN1See
Daniel Bardonnet, "De l'équivoque des categories juridiques: la révision des
sentences arbitrales pour 'erreur de fait' ou "fait nouveau' dans la
pratique latino-américaine", in Liber Amkorum "In Memoriam" of Judge José
Maria Rttda, C. A. Armas Barea et ai. (eds.), p. 199; Simpson and Fox,
International Arbitration Law and Practice, 1959, p. 245.
---------------------------------------------------------------------------------------------------------------------
"[i]f this Application for revision were to be held admissible, the
unfortunate precedent which this would create would come to be seen in
future as an encouragement to any State dissatisfied with a judgment of the
Court to apply for its revision , . ." (Written Observations, para.
1.19)FN2.
------------------------------------------------------------------------------------------------------------
FN2Time
has shown, however, that this fear is unfounded. No application for revision
has been filed under the Hague Conventions, none was filed before the
Permanent Court of International Justice, and this Court; has dealt with
only three applications for revision (including that filed by El Salvador)
during the 60 years of its existence and has declared all three
inadmissible.
------------------------------------------------------------------------------------------------------------
31. Honduras also put forward a narrow interpretation of the terms of
Article 61 of the Statute of the Court. It argued that "the objective
reality of a fact must be distinguished from the interpretation which . . .
[one] seeks to place upon it, and from inferences or other new 'intellectual
constructs' " (ibid,, para. 2.17). According to Honduras, there is "a
distinction in kind between the facts alleged and the evidence relied upon
to prove them, and only the discovery of the former opens a right to [p 422]
revision" (Written Observations, para. 2.20). Honduras claimed to be relying
on "well-established case law", although it merely cited the Advisory
Opinion of the Permanent Court of International Justice on the delimitation
of the boundary between Serbia and Albania at the Monastery of Saint Naoum,
which states that "fresh documents do not in themselves amount to fresh
facts"FN3.
---------------------------------------------------------------------------------------------------------------------
FN3Advisory
Opinion, 1924, P.C.!.J., Serins B, No. 9, p. 22.
---------------------------------------------------------------------------------------------------------------------
32. While it is true that an application for revision is by its very nature
and object exceptional and hence that "the conditions in which it is
exercised are . . . necessarily limited"4 and that it is admissible only
when all the very strict conditions of Article 61 of the Statute are
satisfied, the restrictive nature of the conditions governing its exercise
cannot be extended to the manner in which the language of those conditions
is interpreted. To say that the admissibility of an application for revision
is subject to strict conditions is one thing; to argue that the provisions
governing the use of such an application must therefore be narrowly
interpreted and applied is quite a different matter. There is no
justification for applying a narrow interpretative criterion to the terms of
Article 61 of the Statute of the Court, by virtue of which documents are not
to be regarded as "facts" within the meaning of Article 61. The Article
should be interpreted in accordance with general rules of interpretation,
which require that terms should be given their ordinary meaning. And there
can be no doubt whatsoever that the ordinary meaning of the term "facts"
includes documents5.
---------------------------------------------------------------------------------------------------------------------
FN4 Michel
Dubisson, La Cour internationale de Just ice, 1964, p. 250.
FN5 What is true, real ; what really exists (Larousse) ; what constitutes the
substance of something known (Laiande. Vocabulaire technique el critique de
la philosophie) [translations by the Registry]. See also Jean Salmon, "Le
fait dans l'application du droit international". Recueil des cours de
l'Académie de droit international de La Haye (RCADI), Vol. 175 (1982), p.
273.
---------------------------------------------------------------------------------------------------------------------
33. The discussions that preceded the adoption of Article 59 of the Statute
of the Permanent Court of International Justice (which subsequently became
Article 61 of the Statute of this Court) show that, in the minds of the
drafters of the Article, documents constituted "facts"FN6. This opinion also
prevails in the literatureFN7 and in that, albeit scant, corpus of [p 423]
international jurisprudence. It is the approach that the Court adopted in
the past in interpreting the requirement of discovery of a "new fact" as
grounds for an application for revisionFN8. In its Judgment of 10 December
1985 (Application for Revision and Interpretation of the Judgment of 24
February 1982 in the Case concerning the Continental Shelf (Tunisia/ Libyan
Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya)), the Court, while
refraining from taking an explicit position on this point, nevertheless
treated the documents presented by Tunisia in support of its Application for
revision as "facts". The Court declared the Application inadmissible because
those facts did not satisfy two of the conditions for admissibility laid
down in Article 61: that ignorance of the new fact by the Applicant must not
be due to negligence and that the new fact must be of such a nature as to be
a decisive factorFN9. This conclusion implies that the Court acknowledged
that the documents constituted "facts" within the meaning of Article 61.
---------------------------------------------------------------------------------------------------------------------
FN6 A
proposal by Italy to insert the word "document" in the text of the Article
was withdrawn after Mr. Politis pointed out that "the discovery of a
document was included in the discovery of a fact" (League of Nations,
Minutes l- VIH of the Third Committee, First Assembly, Records, p. 375).
FN7 See, for example, M. Scerni, "La procédure de la Cour permanente de
Justice internationale", RCADI, Vol. 65 (1938), p. 672; Paul Renter, "La
motivation et la revision des sentences arbitrales à la conférence de la
paix de La Haye (1899) et le conflit frontalier entre le Royaume-Uni et le
Venezuela", Mélanges offerts à Jura} Andrassy, pp. 243, 245 ; P. Lalive,
Questions actuelles concernant l'arbitrage international, I.H.E L, Cours
1959-1960, pp. 100, 101 ; W, M. Reisman, Nullity and Revision. The Review
and Enforcement of international Judgments and Awards, pp. 38, 210; E.
Zoller, "Observations sur la revision et l'interprétation des sentences
arbitrales", Annuaire français de droit européen, Vol. XXIV (1978), pp. 331,
351 ; D. V. Sandifer. Evidence before International Tribunals, 1975, p. 453.
FN8 Other similar decisions by international tribunals may be cited. See, for
example, the Heim el Chamant c: Etat ultemand case, Recueil ties decisions
des tribunaux arbitrmtx mixtes, Vol. 3, pp. 54-55; more recently
Inter-American Court of Human Rights, Genie Laeayo case, decision of 13
September 1997, para. 12. In its Judgment on the Application for Revision of
the Judgment of 11 July ¡996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia
and Herzegovina), the Court took no position on this point, but the judges
who produced separate or dissenting opinions addressed the issue and took it
as self-evident that newly produced evidence, including documentary
evidence, could constitute new facts within the meaning of Article 61 of the
Statute; see, for example, the separate opinion of Judge Koroma it (I.C.J
Reports 2003, p. 34, para. 2); dissenting opinion of Judge Dimitrijevic
(ibid., pp. 54 and 55, paras, 6 and 9).
FN9 I.C J Reports I9S5, pp. 206 and 213, paras. 28 and 39.
---------------------------------------------------------------------------------------------------------------------
34. By refraining from expressly addressing the issue of the admissibility
of documents or other evidence presented in support of an application for
revision, the present Chamber also seems to endorse a broad interpretation
of what may constitute a "fact" within the meaning of Article 61 of the
Statute of the Court. On this point I find the Chamber's Judgment, with
which 1 am regrettably unable to associate myself, a positive development in
jurisprudence of which I am pleased to take note.
*
35. I have come to the conclusion that, taken overall, the material and
information that El Salvador presented in these proceedings as "new facts"
largely satisfy the conditions laid down by Article 61 of the Statute of the
Court. Given that the ratio decidendi of the 1992 Judgment in respect of the
sixth sector of the land boundary is, in my opinion, explained in paragraphs
308, 309 and 321 of that decision (no evidence of an abrupt change of course
of the river; lack of scientific evidence that the previous course of the
river was such that it debouched in the Estero [p 424] La Cutú), any
evidence demonstrating the fact of the Goascorán avulsion may he of such a
nature as to be a decisive factor.
36. During the present proceedings. EI Salvador produced technical evidence
that irrefutably demonstrates, in its view, the existence of the old bed,
which the Goascorán allegedly left following an avulsion and which debouched
into the Cutú inlet. El Salvador also produced scientific evidence contained
in an expert report which states categorically that an abrupt change in the
course of the river occurred after the Spanish colonial authorities had
defined the boundary between the Alcaldía Mayor de Tegucigalpa and the
municipality of San Miguel as following the riverbed, and that the Cutú
inlet and its distributory channels were the primary outlets of the
Goascorán at the time when the old course was abandoned.
37. To this new evidence should be added the copies of the "Carta Esférica"
and of the report of the expedition of the brigantine El Activo recently
discovered in the Ayer Collection of the Newberry Library in Chicago, by
means of which EI Salvador seeks to weaken the probative force of the only
evidence on which the Chamber based its determination of the course of the
boundary in the sixth sector in 1992, namely copies of the same documents
held at the Madrid Naval Museum and produced by Honduras in the original
proceedings. In the absence of other evidence, it was exclusively on the
basis of these copies that the Chamber decided that the boundary line should
follow the present course of the Goascorán as far as its mouth in the Gulf
of Fonseca, north-west of the Islas Rama-ditas.
38. The copies produced by El Salvador in these proceedings differ in many
respects from those of the Madrid Naval Museum (different dates, conflicting
data especially as regards the general configuration of the coast,
differences in presentation, type of characters, calligraphy and symbols
used). A majority of the Members of the Chamber hold that these
discrepancies "afford no basis for questioning the reliability of the charts
that were produced to the Chamber in 1992" (Judgment, para. 52). It is
possible that, considering in isolation, each such discrepancy would not
appear to be of great importance. However, one is justified in questioning
the reliability of the documents and the accuracy of the informa-tion they
contain when the discrepancies are viewed as a whole. If we add to this the
fact that during the present proceedings El Salvador presented other
evidence designed to show that an avulsion phenomenon effectively shifted
the mouth of the Goascorán from the Estero La Cutú to the Estero Ramaditas,
the question arises whether the Chamber may not in 1992 have relied as the
basis for its decision on a document having no evidential value. If the
reliability of this evidence is now brought into question by the discovery
of a new document, there are then grounds to believe that the decision taken
by the Chamber in 1992 in respect of the sixth sector of the land boundary
between El Salvador and Honduras was perhaps not entirely correct. [p 425]
39. Any assessment of the terms "diligence" and "negligence" is likely to be
highly subjective owing to their abstract content. It is thus generally not
possible to determine a priori whether conduct has been diligent or
negligent. The degree of diligence or negligence involved must be assessed
on a case-by-case basis, having regard to the context. In examining an
application for revision, each individual situation must be considered,
taking into account, in particular, the nature of the facts presented as
"new facts", the means of access to these "facts" by the party applying for
revision, and the conduct of the parties.
40. The arguments employed by El Salvador to demonstrate its diligence, or
at least its lack of negligence, in presenting the new evidence that it
produced in support of its Application for revision seemed to me, in any
event, to be persuasive (except for the arguments concerning the material
that it characterizes as "historical evidence", which in reality consists of
two geographical works by Honduran authors published in Honduras). The
unstable social and political situation in El Salvador resulting from the
violent civil war raging on its territory during the Court's examination of
the case, the unavailability of technical facilities that would have enabled
that State to obtain certain important evidence to substantiate its
allegations, difficulties in gaining access to some of the new material and,
in the case of the "Carta Esférica" and the logbook of the El Activo
expedition, the impossibility of consulting all existing sources of
cartographic information, go a long way towards explaining, in my opinion,
why the evidence on the basis of which El Salvador sought to have the 1992
Judgment revised was not presented sooner.
41. I do not know whether the Chamber, had it been aware in 1992 of the
information produced by El Salvador during these proceedings, would
necessarily have taken a different decision from that actually taken. At
this stage, the present Chamber is merely required to rule on the
admis-sibility of the Application for revision without taking a position on
the merits. I have therefore confined myself to ascertaining whether the
material that El Salvador presented as "new facts" satisfied the conditions
laid down by Article 61 of the Statute of the Court. On this point, I
reached an affirmative conclusion: the conditions were satisfied and the
Application for revision was therefore admissible.
42. Having concluded, erroneously in my view, that the ratio decidendi of
the 1992 Judgment in respect of the sixth sector of the land boundary was
not related to the substance of the dispute but to its previous history, and
that the new facts presented during the proceedings were therefore not of
such a nature as to be a decisive factor, the Chamber decided that the
Application for revision filed by El Salvador was inadmissible. It follows
that the second stage of the revision proceedings, during which the Chamber
would have had to rule on the merits of the Application, cannot commence.
This is regrettable, since a fresh examination of the merits [p 426]of the
dispute limited, of course, to the sixth sector of the land boundary
would have allowed the Court to confirm or revise the 1992 Judgment on the
basis of considerably more abundant and reliable information than had been
available to the Chamber during the original proceedings. A new decision on
the merits, relating to the sixth sector, might have better served the cause
of justice than the 1992 Judgment, inasmuch as the better informed a court
is, the greater are its chances of adopting correct decisions. To my great
regret, and for the reasons men-tioned in this opinion, I have no choice but
to express my disagreement with the present decision holding inadmissible
the Application for revision filed by El Salvador.
(Signed) Felipe H. Paolillo.
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