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 docu-
nientary evidence may constitute “facts” within the meaning of Article 61 of the
Statute — New facts alleged by El Salvador largely satisfying the conditions
laid dawn by Article 61 of the Statute — Decisive nature of evidence demon-
strating the fact of avulsion — Doubis as to the reliability af the copies of the
“Carta Esférica” and the report of the brigantine El Activo on which the Cham-
ber 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 “‘deci-
sive 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”.

25

APPLICATION FOR REVISION (DISS. OP, PAOLILLO) 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 Sal-
vador’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 Goascoran 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 major-
ity 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. E 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 Judg-
ment. 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 Goascorän 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:

26

APPLICATION FOR REVISION (DISS. OP. PAOLILLO) 415

“The dispute between the Parties in this sector is simple. Hondu-
ras contends that in 1821 the river Goascoran constituted the bound-
ary between the colonial units to which the two States have suc-
ceeded, 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 Uniôn. El Salvador however claims that it is a previ-
ous 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 Cutü.” (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 para-
graphs 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 “[fJor 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 “[t]here is no scientific evidence that the
previous course of the Goascoran 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 Sal-
vador as to the old course of the Goascoran, 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

27

APPLICATION FOR REVISION (DISS. OP. PAOLILLO) 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 uéf 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.

19. 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 “incon-
sistent 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

“[elven if avulsion were now proved, and even if its legal conse-
quences were those inferred by El Salvador, findings to that effect
would provide no basis for cailing into question the decision taken
by the Chamber in 1992 on wholly different grounds”.

li. 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 origi-
nal proceedings with satisfactory evidence of the fact that the Goascoran
had suddenly changed course by avulsion, the Chamber’s decision regard-
ing the sixth sector of the boundary would have been different (see para-
graph 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 proposi-
tion concerning the avulsion of the Goascorän, 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 broughi to its attention (1992 Judgment,

28

APPLICATION FOR REVISION (DISS. OP. PAOLILLO) 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
Cutt (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 new-
ness 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
Cuth, or on any avulsion of the river” (para. 38). Inasmuch as it exam-
ined 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 Jaw” (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 ciaims 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. Ht is on the basis of this alleged “inconsistency” of E] 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, con-
cerning the sixth sector of the land boundary, by employing reason-
ing 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.

29

APPLICATION FOR REVISION (DISS. OP. PAOLILLO) 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. Ali the Chamber did in that passage was
to draw attention to certain aspects of the previous history of the bound-
ary 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 avul-
sion was irrelevant by virtue of the fact that El Salvador, in the sixth sec-
tor 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 reason-
ably 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 wii passi-
detis 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 Cham-
ber did not adopt that approach. First, because if, as assured 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, acknowledg-
ment of a modification of the uri possideris 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 clear/y accepted a variation, or at least an inter-
pretation, 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

30

APPLICATION FOR REVISION (DISS. OP. PAGLILLO) 419

that El Salvador “clearly accepted” a variation of the uii 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 questicn.

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 a politi-
cal solution to their boundary dispute, and it was natural, indeed neces-
sary, 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 Uniôn 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 north-
west of the Islas 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,

3]

APPLICATION FOR REVISION (DISS. GP. PAOLILLO} 420

on 9 September (C6é/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, “(flor Honduras the norm of inter-
national law applicable to the dispute is simply the wii 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 of 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 “Tilt 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 wii possidetis” (ibid,
para. 3.11). Honduras did not explicitly address the issue of the “incon-
sistency” 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 Septem-
ber 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
Goascoran. 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 mcontestably “new and inconsistent with the previous
history” of the case,

26. This unexpected last-minute change of strategy by Honduras had
the unfortunate consequence cf 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 prac-
tice 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

32

APPLICATION FOR REVISION (DISS. OF. PAOLILLO) 4? 1

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 acknowledg-
ment of its status as “new facts”. The Chamber thus confirms that the pro-
duction 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 evidence!. 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:

“ff 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)°.

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 con-
structs’ ” (ibid., para. 2.17). According to Honduras, there is “a distine-
tion 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

1 See Daniel Bardonnet, “De l’équivoque des catégories juridiques: la revision des sen-
tences arbitrales pour ‘erreur de fait’ ou ‘fait nouveau’ dans la pratique latino-améri-
caine”, in Liber Amicorum “In Memoriam’ of Judge José Maria Ruda, €. A. Armas
Barea et ai. (eds.), p. 199; Simpson and Fox, futernational Arbitration — Law and Prac-
tice, 1959, p. 245.

2? Time 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.

33

APPLICATION FOR REVISION (DISS. OP. PAOLILLO) 422

revision” (Written Observations, para. 2.20). Honduras claimed to be
relying on “well-established case law”, although it merely cited the Advi-
sory Opinion of the Permanent Court of International Justice on the
delimitation of the boundary between Serbia and Albania at the Monas-
tery of Saint Naoum, which states that “fresh documents do not in them-
selves amount to fresh facts” >.

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 exer-
cised are . . , necessarily limited”* 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 gov-
erning the use of such an application must therefore be narrowly inter-
preted 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 documents.

33. The discussions that preceded the adoption of Article 59 of the
Statute of the Permanent Court of International Justice (which subse-
quently became Article 61 of the Statute of this Court) show that, in the
minds of the drafters of the Article, documents constituted “facts”, This
opinion also prevails in the literature’ and in that, albeit scant, corpus of

3 Advisory Opinion, 1924, PCI, Series B, No. 9, p. 22.

* Michel Dubisson, La Cour internationale de Justice, 1964, p. 250.

> What is true, real; what really exists (Larousse); what constitutes the substance of
something known (Lalande, Vocabulaire technique et critique de la philosophie} ftrans-
lations by the Registry}. See also Jean Salmon, “Le fait dans application du droit inter-
national”, Recueil des cours de l'Académie de droit international de La Haye (RCADI),
Vol. 175 (1982), p. 273.

$ A proposal by Italy to insert the word “document” in the text of the Article was with-
drawn alter Mr. Politis pointed out that “the discovery of a document was included in the
discovery of a fact” (League of Nations, Minutes 1 VIH of the Third Committee, First
Assembiy, Records, p. 375).

7 See, for example, M. Scerni, “La procédure de ia Cour permanente de Justice inter-
nationale”, RCADI, Vol. 65 (1938), p. 672: Paul Reuter, “La motivation et la revision des
sentences arbitrales à la conférence de la paix de La Haye (1899) ct le conflit frontalier
entre le Royaume-Uni et le Vénézuela”, Mélanges offerts à Juraj Andrassy, pp. 243, 245;
P. Lalive, Questions actuelles concernant l'arbitrage international, 1.H.E.1., 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 arbitraks”, Annuaire français de droit européen,
Vol. XXIV (1978), pp. 331, 351: D. V. Sandifer, Evidence before International Tribunais,
1975, p. 453.

34

APPLICATION FOR REVISION (DISS. OP, PAOLILLO) 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 revision. In its Judgment of 10 Decem-
ber 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 Jamahiriva)), 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 factor”. This conclusion implies
that the Court acknowledged that the documents constituted “facts”
within the meaning of Article 61.

34. By refraining from expressly addressing the issue of the admissi-
bility of documents or other evidence presented in support of an applica-
tion 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 I am regrettably unable to associate
myself, a positive development in jurisprudence of which I am pleased
to take note.

#

35. [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

® Other similar decisions by international tribunals may be cited. See, for example, the
Heim et Chamant €. Etat allemand case, Recueil des décisions des tribunaux arbitraux
mixtes, Vol. 3, pp. 54-55; more recently Inter-American Court of Human Rights, Genie
Laeayo case, decision of 13 September 1997, para. 12. En its Judgment on the 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 r. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herze-
govina), 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 6] of the Statute; see, for example, the separate opinion of Judge Koroma
(ECF Reports 2003, p. 34, para. 2): dissenting opinion of Judge Dimitrijevic (ébid.,
pp. 54 and 55, paras. 6 and 9}

SIC Reports 1985, pp. 206 and 213, paras. 28 and 39.

35

APPLICATION FOR REVISION (DISS. OP. PAOLILLO} 424

La Cutt), any evidence demonstrating the fact of the Goascoran avulsion
may be 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 Goascoran allegedly left following an avulsion and
which debouched into the Cut inlet. Ei 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 colo-
nial authorities had defined the boundary between the Alcaldia Mayor de
Tegucigalpa and the municipality of San Miguel as following the river-
bed, and that the Cutt iniet and its distributory channels were the pri-
mary outlets of the Goascoran at the time when the old course was
abandoned.

37. To this new evidence should be added the copies of the “Carta

Fsférica” and of the report of the expedition of the brigantine E/ Active
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 Goascoran
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 ef great importance. However, one is justified in ques-
tioning 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 Goascoran from the Estero La Cutt 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.

36

APPLICATION FOR REVISION (DISS. OP. PAOLILLO) 425

39. Any assessment of the terms “diligence” and “negligence” is likely
to be highly subjective owing te their abstract content. It is thus generally
not possible to determine @ 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 dili-
gence, 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 authers 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 £i Active 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 condi-
tions 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 ratie 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 fol-
lows that the second stage of the revision proceedings, during which the
Chamber would have had to rule on the merits of the Application, can-
not commence. This is regrettable, since a fresh examination of the merits

37

APPLICATION FOR REVISION (DISS. OP. PAOLILLO) 426

of the dispute — limited, of course, to the sixth sector of the land bound-
ary — would have allowed the Court to confirm or revise the 1992 Judg-
ment on the basis of considerably more abundant and reliable infor-
mation 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 revi-
sion filed by El Salvador.

(Signed) Felipe H. PAOLILLO.

38


279

      JOINT DECLARATION OF JUDGES SHI AND KOROMA

   Serious doubts regarding interpretation of the Genocide Convention “by
implication” that a State could be held directly to have committed crime of
genocide — Convention envisages the trial and punishment of individuals for the
crime of genocide rather than the criminal responsibility of the State as a State
— Task of treaty interpretation is to determine meaning of its provisions as
intended at the time of the treaty’s negotiation and conclusion — Article 31 of
the Vienna Convention on the Law of Treaties : a treaty should be interpreted in
accordance with the ordinary meaning of its terms in their context and in the
light of its object and purpose — Convention binds States Parties to undertake
to prevent and to punish persons responsible for committing genocide.

   Intrinsic humanitarian value of the Judgment’s conclusion and the overriding
legal imperative established by Article I of the Convention for a State to do
what it properly can, within its means and the law, to try to prevent genocide
when there is a serious danger of its occurrence of which the State is or should
be aware — Obligation to prevent requires identification of a clear missed
moment of opportunity to act — Chapter VII Security Council resolutions
clearly warned of the imminent and serious humanitarian risk posed by any
advance of Bosnian Serb paramilitary units on Srebrenica and its surroundings
— Mr. Milošević could and should have exerted whatever pressure he had at his
disposal to try to prevent the genocide at Srebrenica.

   1. We entertain more than serious doubts regarding the interpretation
given to the Genocide Convention in the Judgment to the effect that a
State can be held directly to have committed the crime of genocide. This
interpretation is not only highly questionable but also inconsistent with
the object and purpose of the Convention, as well as its wording and
plain meaning. As an international criminal instrument, the Convention
envisages the trial and punishment of individuals for the crime of geno-
cide. It does not impose criminal responsibility on the State as a State.
Indeed, it could not have done so at the time it was adopted given that
the notion of crime of State was not part of international law and even
today general international law does not recognize the notion of the
criminal responsibility of the State. We therefore do not subscribe to an
expansive interpretation of the Convention producing an outcome which
is contrary to its plain meaning. The Court has stressed that “[i]nterpreta-
tion must be based above all upon the text of the treaty” (Territorial Dis-
pute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
p. 22, para. 41). It should be further emphasized that the purpose of
interpreting a treaty is to determine the meaning of its provisions which

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280         APPLICATION OF GENOCIDE CONVENTION (JOINT DECL.)

the parties must be taken to have intended at the time the treaty was
negotiated and concluded, and not to achieve a desired outcome. Accord-
ingly, it is not within the power of the Court to give an arbitrary and
subjective interpretation to a treaty contrary to its plain meaning and the
intention of the parties.
   2. According to the canons of interpretation reflected in Article 31 of
the Vienna Convention on the Law of Treaties, a treaty should be inter-
preted in accordance with the ordinary meaning of its terms in their con-
text and in the light of its object and purpose. Those same rules give
primacy to the intention of the parties at the time the treaty was con-
cluded, and in particular the meaning attached by them to the words and
phrases at the time. According to Jennings and Watts :
         “A treaty is to be interpreted in the light of general rules of inter-
      national law in force at the time of its conclusion — the so-called
      inter-temporal law. This follows from the general principle that a
      juridical fact must be appreciated in the light of the law contempo-
      rary with it. Similarly, a treaty’s terms are normally to be interpreted
      on the basis of their meaning at the time the treaty was concluded,
      and in the light of circumstances then prevailing.
         Nevertheless, in some respects the interpretation of a treaty’s pro-
      visions cannot be divorced from developments in the law subsequent
      to its adoption. Thus, even though a treaty when concluded did not
      conflict with any rule of jus cogens, it will become void if there sub-
      sequently emerges a new rule of jus cogens with which it is in con-
      flict. Similarly, the concepts embodied in a treaty may be not static
      but evolutionary, in which case their ‘interpretation cannot remain
      unaffected by the subsequent development of law . . . Moreover, an
      international instrument has to be interpreted and applied within the
      framework of the entire legal system prevailing at the time of the
      interpretation.’
         While these considerations may in certain circumstances go some
      way towards negating the application of the inter-temporal law, that
      law will still, even in such circumstances, provide at least the start-
      ing-point for arriving at the proper interpretation of the treaty.”
      (Oppenheim’s International Law, Vol. I, 1992, pp. 1281-1282 ; foot-
      notes omitted.)
   3. The object and purpose of the Genocide Convention is to prevent
and to punish the crime of genocide, and, reflecting the Nuremberg prin-
ciples, the Convention is directed against individuals and not the State.
The Convention binds States parties to punish persons responsible for
committing genocide and genocidal acts. Article II of the Convention
defines the crime of genocide, while Article III sets out the punishable
offences in relation to the crime. Article IV provides for the punishment
of persons committing any of the acts enumerated in Article III, be they
constitutionally responsible rulers, public officials or private individuals.
The Convention thus contemplates the prosecution and punishment of

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281         APPLICATION OF GENOCIDE CONVENTION (JOINT DECL.)

individuals, rather than the State. States parties’ responsibilities are
spelled out in different terms, regarding which Article V requires the
parties to enact the necessary legislation to give effect to the provisions of
the Convention and, in particular, to provide effective penalties for per-
sons guilty of genocide or other acts set out in Article III. Article VI
requires that persons charged with genocide or any other such punishable
acts shall be tried by competent national or international tribunals. Arti-
cle VII states that genocide is not to be considered a political crime and
requires parties to extradite the accused, while Article VIII provides that :
         “Any Contracting Party may call upon the competent organs of
      the United Nations to take such action under the Charter of the
      United Nations as they consider appropriate for the prevention and
      suppression of acts of genocide or any of the other acts enumerated
      in Article III.”
   4. It is with respect to these specific provisions concerning legislation,
extradition, trial, and punishment of individuals alleged to have com-
mitted the crime of genocide that the State party may be held to be in
breach of the Convention. States parties’ obligations, as well as the
object and purpose of the Convention, thus are aimed at preventing and
punishing individuals who commit the crime of genocide and there was
no intention that a State party should punish itself for the crime of geno-
cide. According to Hersch Lauterpacht :
         “The Convention on the Prevention and Punishment of the Crime
      of Genocide approved by the General Assembly in 1948 lays down
      that genocide, whether committed in time of peace or war, is a crime
      under international law which the Parties undertake to prevent and
      to punish and that the persons responsible for that crime shall be
      punished ‘whether they are constitutionally responsible rulers, public
      officials or private individuals’. The Convention thus subjected indi-
      viduals to the direct obligation and sanction of international law.”
      (International Law and Human Rights, 1950, p. 44 ; emphasis added ;
      footnote omitted.)
Hence, Article I of the Convention has to be interpreted in the light of
Article VI and the attempt in the Judgment to sever Article I of the Con-
vention from Articles IV, V, VI, VII and VIII, in order to reach the out-
come stated in the Judgment, is to us legally unsustainable and contrary
to the object and purpose of the Convention, the meaning of the text of the
Convention and the real intention of the parties. It is contrary to the inten-
tion of the Contracting Parties when the Judgment interprets Article I
of the Convention to mean by implication or logic (paragraph 166 of
the Judgment) that the Convention imposes upon a State the obligation
not to commit genocide. If a State can commit the crime of genocide,
then surely it would have to be viewed as being able to commit other
crimes, including murder. But such a situation is neither acceptable nor
recognized as part of present-day international law. As stated earlier,

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282        APPLICATION OF GENOCIDE CONVENTION (JOINT DECL.)

“interpretation” by implication or logic cannot replace the overriding
rule that primary regard must be given to the intention of the parties at
the time the treaty was concluded. Moreover, in our view, if the Conven-
tion was intended to establish an obligation of such grave import as one
that could entail some form of criminal responsibility or punishment of a
State by an international tribunal such as this Court for genocide, this
would have been expressly stipulated in the Convention, but the Conven-
tion did not do so. We take the view that it is in order to avoid attri-
buting genocide to the State itself that the Convention provides in
Article IV, “[p]ersons committing genocide or any of the other acts enu-
merated in Article III shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals”, thus putting
the responsibility for the crime on the individual. A proposed amendment
to the effect that such acts committed by individuals acting on behalf of
the State would be considered a breach of the Convention, and that such
cases should be submitted to the International Court of Justice, which
would order the cessation of the acts and payment of reparation to the
victims, was rejected during the drafting negotiations on the basis of the
view that the purpose of the Convention was to punish genocide, and any
other responsibility than criminal would be out of place in such a conven-
tion. The Court is not vested with penal jurisdiction, nor is it equipped to
exercise such jurisdiction in this case. In other words, the Convention
does not entitle the Court to hold a criminal trial, nor impose on the
State an obligation to pay damages (punitive or otherwise) or to provide
for them in its domestic legislation. Hence, an earlier attempt — like that
made in the present Judgment — to transform the essentially individual
criminal concept of genocide, as was conceived in the Convention, into
one whereunder a State may be held responsible for committing genocide
was rejected during the negotiation of the Convention (see United
Nations, Official Records of the General Assembly, Third Session, Part I,
Sixth Committee, Annex, doc. A/C.6/236 and Corr.1). Such an important
obligation, in our view, would have been expressly stated in the Conven-
tion if such had been the intention of the Contracting Parties.

                                   *   *
   5. Notwithstanding our disagreement with the interpretation reached
“by implication” that Article I of the Convention imposes an obligation
on the State not to commit genocide, we have voted in favour of the find-
ings regarding the prevention of genocide in Srebrenica in July 1995, as
we believe in the intrinsic humanitarian value of the conclusion reached
by the Court and recognize the overriding legal imperative established by
Article I of the Convention, namely : the duty of a State to do what it
properly can, within its means and the law, to try to prevent genocide
when there is a serious danger of its occurrence of which the State is or
should be aware. (See also Reservations to the Convention on the Preven-
tion and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J.

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283        APPLICATION OF GENOCIDE CONVENTION (JOINT DECL.)

Reports 1951, p. 23 : “[t]he principles underlying the Convention are prin-
ciples which are recognized by civilized nations as binding on States, even
without any conventional obligation”.)
   6. We believe that the conclusion reached in the Judgment in connec-
tion with the prevention obligation would have been legally secure if
anchored on the relevant Security Council resolutions, instead of the
various hypotheses put forward in the Judgment. The present formula-
tions do not clearly specify what opportunities the Respondent had to
prevent the genocide, while the Security Council had in fact very clearly
warned of the imminent and serious humanitarian risk posed by any
advance of Bosnian Serb paramilitary units on Srebrenica and its sur-
roundings. That finding a breach of the obligation to prevent requires the
identification of a clear missed moment of opportunity to act has been
underscored by the European Court of Human Rights in its interpreta-
tion of the positive obligation to protect human life contained in Article 2,
paragraph 1, of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (see Osman v. United Kingdom,
Judgment of 28 October 1998, Reports 1998-VIII, p. 3159). With regard
to the relevant Security Council resolutions, we would recall that the
Security Council, in resolution 819 (16 April 1993), noted the provisional
measures ordered by the Court in 1993, stating, inter alia, that the FRY
should take all measures within its power to prevent the commission of
the crime of genocide. Resolution 819 went on to condemn “ethnic
cleansing” and to express specific concern over the “pattern of hostilities”
by Bosnian Serb paramilitary units that by “direct consequence” had led
to an ongoing “tragic humanitarian emergency” in Srebrenica. Acting
under Chapter VII, the Council then demanded that “Srebrenica and its
surroundings” be treated as a safe area free from any attack and that the
besieged population be permitted to receive appropriate humanitarian
relief. The Council’s decision with respect to “Srebrenica and its sur-
roundings”, together with its specific concern about war crimes and the
deteriorating humanitarian situation in Srebrenica, certainly suggests
some real opportunities for the Bosnian Serb leadership to have acted to
try to prevent the genocide. Awareness of a specific risk may have been
raised as early as 2 July 1995 (the date of the plan to reduce “the enclave
to the urban area”), or on 6 July when the attack on Srebrenica’s sur-
roundings actually began. A specific risk undeniably existed by 12 July
when Srebrenica had fallen but the mass killings had not yet begun and
the Security Council, acting under Chapter VII, passed resolution 1004
(1995) demanding that the Bosnian Serb forces cease their offensive and
withdraw from the Srebrenica safe area immediately and that all parties
respect the Agreement of 18 April 1993 (essentially implementing resolu-
tion 819) (1993).

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284       APPLICATION OF GENOCIDE CONVENTION (JOINT DECL.)

   7. Mr. Milošević, even though it has not been proved that he had
effective control over the Bosnian Serb leadership, could and should have
exerted whatever pressure he had at his disposal, given the humanitarian
directives concerning Srebrenica that were the focus of Chapter VII Secu-
rity Council decisions in resolutions 819 (16 April 1993) and 1004 (12 July
1995).

                                            (Signed) SHI Jiuyong.
                                         (Signed) Abdul G. KOROMA.

245