444

SEPARATE OPINION OF JUDGE NAGENDRA SINGH

While I have voted for the jurisdiction of the Court on both counts,
namely under the Optional Clause of Article 36, paragraphs 2 and 5, of the
Statute of the Court, as well as under Article 36, paragraph 1, of the Statute
on the basis of Article XXIV, paragraph 2, of the Treaty of Friendship,
Commerce and Navigation of 21 January 1956, I have felt all along in those
proceedings that the jurisdiction of the Court resting upon the latter,
namely the Treaty, provides a clearer and a firmer ground than the juris-
diction based on the former, that is, the Optional Clause. The reasons are
obvious, ‘since the acceptance of the Court’s jurisdiction by both the
Applicant, Nicaragua, and the Respondent, the United States, presents
several legal difficulties to be resolved and in respect of which there is room
for differing views. For example, there are the problems of the “imperfect”
acceptance of thejurisdiction by Nicaragua ; and of the certainly unwilling
response from the United States as revealed by its Declaration of 6 April
1984 intended to bar the Court’s jurisdiction in relation to any dispute with
any Central American State for a period of two years. Furthermore, there is
also the plea of multilateral treaty reservation of the United States, as well
as the question of reciprocity in relation to six months’ notice of termi-
nation stipulated in the United States Declaration of 14 August 1946. The
Court’s consideration of all these legal obstacles to its own jurisdiction
under the Optional Clause has been both thorough and careful, and I do
agree with the Court’s finding, but it does represent one way of looking at
the picture and of interpreting the legal situation. There could, therefore,
also be the rival way of looking at it, and hence my preference for basing
the Court’s jurisdiction on Article XXIV, paragraph 2, of the Treaty of
Friendship, Commerce and Navigation of 1956. This, for me, takes priority
on an overall consideration of the case at this stage, when the Court is
solely concerned about its own jurisdiction in the matter. Though there are
certain objections raised by the United States to the application of Article
XXIV of that Treaty, they are not of such gravity as to bar the jurisdiction
of the Court on any clear or categorical basis. The Court has effectively and
adequately dealt with the United States objections of basing the Court’s
jurisdiction on that Treaty and hence it is not necessary for me to repeat
them here. I would, however, like to draw attention to the following aspects
which appear to merit mention, and provide the raison d’étre of this
opinion.

(i) The United States has asserted that under clause 1 of Article XXIV it
was necessary for Nicaragua to enter into negotiations and to make efforts
to adjust the dispute by diplomacy. The Respondent maintains that no

56
445 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. NAGENDRA SINGH)

such efforts were ever made, and even though there were negotiations with
Nicaragua this dispute was never raised. It is therefore argued by the
United States that the mandatory provision of clause 1 of Article XXIV
has not been fulfilled and hence Nicaragua could not invoke the jurisdic-
tion of the Court under the Treaty. However, if the wording of the com-
promissory clause of the Treaty is examined, it would appear that nego-
tiations or representations affecting the operation of the present Treaty are
not prescribed as a condition precedent to invoking the jurisdiction of the
Court. The Treaty clearly states that if a party does choose to make
representations affecting the operation of the Treaty the other party is
obliged to “accord sympathetic consideration” and “afford adequate
opportunity for consultation”. However, it does not make it obligatory
that such representations must be made and negotiations on the matter
affecting the operation of the Treaty must take place before proceeding to
the Court. It would appear to be the intention that due weight should be
given to “sympathetic consideration” and “opportunity for consultation”
if a party were to make representations on a matter affecting the operation
of the Treaty. There is, however, no binding obligation to negotiate. The
above conclusion would appear to be clearly justified from the wording of
clause 1 of Article XXIV, which is reproduced below :

“Each Party shall accord sympathetic consideration to, and shall
afford adequate opportunity for consultation regarding, such repre-
sentations as the other Party may make with respect to any matter
affecting the operation of the present Treaty.” (Emphasis added.)

The second objection of the United States is that, in accordance with
subclause 2 of Article XXI, it is essential that the dispute must not have
been satisfactorily adjusted by diplomacy. In other words, resort to a
diplomatic move to settle the dispute would appear to be a condition
essential before submitting the case to the International Court of Justice.
Similarly, parties must not have agreed to settlement by some other pacific
means. Both these conditions appear to be satisfied because every effort
has been made to settle the dispute by diplomacy inasmuch as Nicaragua
has referred it to the Security Council. Furthermore, the dispute is before
the Contadora Group, which is essentially a diplomatic process to resolve
the problems of the area. In short, therefore, it could not be asserted that
the dispute has not been referred to diplomatic methods for settlement.
The United Nations Security Council is an organ which is essentially
engaged in diplomatic methods for settling disputes. It is also true that
neither the Contadora process nor the Security Council have been able to
resolve the dispute by diplomacy. Again, the Parties have not resorted to
any other pacific means for the settlement of the dispute. In the circum-
stances, the allegation made by the United States that Nicaragua in its
negotiations has never raised the application or interpretation of the
Treaty would appear to have no relevance to the jurisdiction of the Court

57
446 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. NAGENDRA SINGH)

because negotiations have not been specifically prescribed as a sine qua non
for the Parties to proceed to the Court. There are several treaties which do
categorically specify negotiations as a condition precedent to resorting to
the International Court of Justice. For example, the Convention on the
Prevention and Punishment of Crimes against Internationally Protected
Persons of 1973 has the following jurisdictional clause. Article 13, para-
graph 1, of the Treaty is reproduced below :

“Any dispute between two or more States Parties concerning the
interpretation or application of this Convention which is not settled by
negotiation shali, at the request of one of them, be submitted to
arbitration. If within six months from the date of request for arbi-
tration the parties are unable to agree on the organization of the
arbitration, any one of those parties may refer the dispute to the
International Court of Justice by request in conformity with the
Statute of the Court.” (Emphasis added.)

In the aforesaid Treaty, which was cited by the United States in the United
States Diplomatic and Consular Staff in Tehran case (I.C.J. Reports 1980), it
would appear that the jurisdictional clause made negotiations an essential
condition before proceeding to arbitration ; and a lapse of six months from
the date of the request for arbitration a condition precedent to referring the
dispute to the International Court of Justice. The words “which is not
settled by negotiation” have the same importance as the words “not
satisfactorily adjusted by diplomacy” which occur in the 1956 Treaty of
Friendship, Commerce and Navigation. There is no reference to negotia-
tion in the Treaty under consideration. In the circumstances the conditions
necessary under Article XXIV for the case to be brought to the Interna-
tional Court of Justice have been fulfilled.

(ii) It is of course true that the field of the jurisdiction of the Court
conferred by the Treaty is restricted to and limited by the words “dispute
as to the interpretation or application of the present Treaty”. Thus Nica-
ragua would have to cite the specific articles and provisions of the Treaty of
1956 and demonstrate the point of dispute in order that the Court may
exercise jurisdiction in the matter. The Court has listed in the Judgment
(para. 82) the various articles of the Treaty which, according to Nicaragua,
have been violated by the military and paramilitary activities of the United
States. These articles need not be repeated here. However, it appears
essential to point out that there is in addition a specific provision, namely
Article XXI, which deals with items like the maintenance or restoration of
international peace and security or measures necessary to protect the
essential security interests of the Parties. The Court may well have to
consider at some stage whether Article XXI of the Treaty falls within the
purview of the Treaty or is excluded from it. Clause 1 of the said Article
reads as follows :

58
447 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. NAGENDRA SINGH)

“The present Treaty shall not preclude the application of mea-
sures...

(c) regulating the production of or traffic in arms, ammunition and
implements of war, or traffic in other materials carried on directly
or indirectly for the purpose of supplying a military establish-
ment ;

(d) necessary to fulfil the obligation of a Party for the maintenance or
restoration of international peace and security, or necessary to
protect its essential security interests.”

It does appear necessary to ascertain the intention of the Parties to the
Treaty as to whether the application of measures under Article XXI of the
Treaty are excluded from or fall within the purview of the Treaty. As far as
Nicaragua is concerned, it is difficult to discern the intention because in
the Memorial it has not referred to Article XXI, and in the oral hearings
this Treaty has been invoked summarily in one line and not fully dealt with.
However, as far as the United States is concerned, it would appear that the
provisions of Article XXI, paragraph 1 (c) and (d), are excluded from the
purview of the Treaty. This would appear to be a legitimate conclusion to
draw from the Counter-Memorial of the Respondent (para. 179). How-
ever, in the oral hearings this Treaty was not mentioned at all by the United
States. It would appear that clause 1 of Article XXI of the Treaty is worded
rather ambiguously. It states “the present Treaty shall not preclude the
application of measures”, which in relation to subclauses (c) and (d) would
apply to obligations for the maintenance of international peace and secu-
rity or protection of essential security interests. The words “shall not
preclude the application of measures” would stand to mean that the
present Treaty shall permit the application of “necessary measures” and
therefore such measures would be within the purview of the Treaty ; at
least to the extent that there may obviously be a question whether or not
certain measures are, for example, truly “necessary” within the meaning of
paragraph (d). And what, furthermore, is intended by the qualifying term,
the “application” of measures? If the intention was to exclude these
matters from the purview of the Treaty, the word “preclude” alone should
have been used, and not preceded by the word “not”. To say that “the
present Treaty shall not preclude the application of measures” would
amount to saying that the present Treaty expressly sanctions the applica-
tion of measures such as those mentioned in subclauses (c) and (d). This
ambiguity in clause 1 of Article XXI of the Treaty has to be read with the
Counter-Memorial of the United States to get the intention of the Party,
which is that such measures as specified in subclauses (c) and (d) are
altogether excluded from the purview of the Treaty. However, this infer-
ence does not appear to be borne out by the use of the words “not preclude
the application of measures”. The question therefore arises whether the
Court has jurisdiction in relation to the interpretation and application of
Article XXI, which is an integral part of the Treaty ; or whether it has no

59
448 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. NAGENDRA SINGH)

jurisdiction because the intention of one of the Parties was to exclude from
the purview of the Treaty items (c) and (d) of clause 1 of the said Article. In
this context it is indeed significant that the jurisdictional clause of Article
XXIV of the Treaty, does not specify the exclusion of Article XXI from the
Court’s jurisdiction. If the intention of both Parties was to exclude from
the Court’s purview that aspect of the Treaty which relates to clause 1 of
Article XXI, a provision to that effect would have been helpful even if it is
not regarded as strictly necessary for implementing that purpose. How-
ever, as stated before, it will be for the Court to decide on this aspect when
it proceeds to the next phase of the case.

(iii) A noteworthy feature of the jurisdiction based on the 1956 Treaty,
established under Article 36, paragraph 1, of the Statute, is that it is not
subject to the multilateral treaty reservation of the United States which is
applicable to the Court’s jurisdiction under the Optional Clause of Article
36, paragraph 2, of the Statute. Thus under the Treaty basis the Court
would be free to apply for purposes of interpretation and application of the
Treaty the whole sphere of international law, as defined in Article 38 of the
Statute, namely both customary and conventional law as well as the gen-
eral principles of international law (vide Art. 38, paras. (a), (b} and (c) of the
Statute). On the other hand, the multilateral treaty reservation operating in
relation to the Court’s jurisdiction based on the Optional Clause under
Article 36, paragraph 2, of the Statute would confine the applicable law for
purposes of adjudication of the dispute to customary law as well as the
general principles of international law (Art. 38, para. 1 (b) and (c)) and not
to conventional treaty law (Art. 38, para. 1 (aj), unless State Parties
affected by the decision of the Court were also present in the proceed-
ings. |

However, I do fully endorse the conclusion reached by the Court that the
multilateral treaty reservation of the Respondent does not possess “an
exclusively preliminary character” and remains inapplicable at this juris-
dictional stage of the case, and hence under Article 79, paragraph 7, of the
Rules, the Court has affirmed its own jurisdiction under Article 36, para-
graph 2, of the Statute and proceeded to fix time-limits for the further
proceedings on the merits of the case. In short, the Court has held that the
multilateral treaty reservation of the United States has not barred its
jurisdiction for the simple reason that at this stage it is not possible to name
with any precision or firmness the States whose presence is necessary to
enable the Court to proceed further with the case. In this connection it is
worth pointing out that there are several States which have made reser-
vations of the “Vandenberg” type which is described by the Court as the
multilateral treaty reservation of the United States added to its Declara-
tion of 1946 under Article 36, paragraph 2, of the Statute. Proviso “(c)” of
the United States Declaration which embodies the multilateral treaty
reservation provides that the United States acceptance of the Court’s
compulsory jurisdiction shall not extend to:

“disputes arising under a multilateral treaty, unless (1) all parties to

60
449 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. NAGENDRA SINGH)

the treaty affected by the decision are also parties to the case before the
Court, or (2) the United States of America specially agreed to juris-
diction...” (emphasis added).

The key words of the aforesaid reservation are “affected by the deci-
sion”, which deprive the reservation of its preliminary character because at
the present jurisdictional stage it is not possible to come to any conclusion
as to which, if any, of the States parties to a multilateral treaty would be
affected by the decision of the Court. It is indeed significant to observe
here that the same observation could not be made in relation to the other
Vandenberg-type reservations such as those made by India and the Phi-
lippines. The reservation made by India on 18 September 1974 is to the
effect that the Government of India accepts the jurisdiction of the Court
over all disputes other than :

“(7) disputes concerning the interpretation or application of a mul-
tilateral treaty unless all the parties to the treaty are also parties
to the case before the Court or Government of India specially
agree to jurisdiction”.

The reservation of the Philippines, made on 18 January 1972, is similarly
worded, stating that the Court’s jurisdiction would not extend to any legal
dispute

“(d) arising under a multilateral treaty, unless (1) all parties to the
treaty are also parties to the case before the Court, or (2) the
Republic of the Philippines specially agrees to jurisdiction”.

It will appear from the wording of the reservations of India and the
Philippines that they both clearly maintain their essentially preliminary
character and would therefore unambiguously act as a bar to the jurisdic-
tion of the Court at the very start. This would be so because their meaning
is clear and the application is simple and straightforward, as opposed to the
Vandenberg reservation of the United States type which poses several
problems concerning the determination of “States affected by the decision
of the Court”. The first question that arises relates to who is to judge which
States are affected by the decision of the Court ? Is it to be the decision of
the Respondent — the United States — which made the reservation, in
which event if would appear to take the objections of the Connally reser-
vation, or is it to be left to the States concerned who regard themselves as
affected by the decision of the Court, or is it for the Court itself to decide ?
The reservations of India and the Philippines do not pose such problems
and cannot be described as “not exclusively preliminary” so as to be caught
by the provisions of Article 79, paragraph 7, of the Rules of Court, which
are found applicable here in relation to the United States reservation to
render it ineffective.

61
450 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. NAGENDRA SINGH)

It may be observed that the words used by a State in making a reser-
vation under Article 36, paragraph 2, of the Statute must be such as clearly
and unequivocally to spell out the application of the reservation in a
straight and simple manner and not raise questions which are ambiguous
and therefore create confusion as to the intention of the State making the
reservation. The Vandenberg reservation of the United States, by the use of
the words “States parties to a treaty affected by the decision”, has intro-
duced an element which spells ambiguity in the application of the reser-
vation inasmuch as the Court is left with no option but to conclude that the
said reservation cannot act as a bar to the jurisdiction of the Court at this
stage of the case. It is quite clear that the decision of the Court at the
present stage is not even in sight. The merits of the case have to be argued
first by the Parties and at this stage it is not even known which multilateral
treaties will have to be invoked by the Court’s decision, and hence the
inherent difficulty in applying the said United States reservation at the
present phase of the case. The Court has therefore been indeed correct in
coming to the conclusion that the Vandenberg reservation of the Respon-
dent is “not exclusively preliminary” and hence cannot debar the Court
today as it proceeds to pronounce its jurisdiction in the case.

(iv) Another helpful feature of the 1956 Treaty-based jurisdiction of the
Court under Article 36, paragraph 1, of the Statute is that it compels the
Parties to come to the Court, invoking legal principles and adopting legal
procedures which would helpfully place legal limits to the presentation of
this sprawling dispute, which could otherwise easily take a non-legal
character by including political issues and thus raising the problem of
sorting out what is justiciable as opposed to non-justiciable matters being
brought before the Court. Invoking the Treaty base would indeed help to
specify and legally channelize the issues of the dispute. For example, the
Applicant will have to present specific violations of the provisions of the
Treaty, thus involving their interpretation and application in the adjudi-
cation of the dispute. Thus, while the Treaty would help the judicial
process to run on the right legal lines, the jurisdiction of the Court under
the Optional Clause could possibly open the door to limitless considera-
tions, presenting problems in adjudication.

(v) There is also the objection raised by the United States which relates
to the pleadings of Nicaragua inasmuch as the oral hearings before the
Court do not bring out the jurisdiction of the Court based on the Treaty of
1956, except by way of a single line in which Nicaragua’s Agent mentions
this Treaty in very bald terms. The result has been that the United States,
too, in the oral hearings has totally ignored the Treaty because it had not
been gone into by Nicaragua. Furthermore, Nicaragua has not mentioned
the Treaty of 1956 in its Application but has inserted a clause reserving the
right to supplement the Application of 9 April 1984 or to amend it at a later
stage. Nicaragua has relied on this clause, and in its written Memorial
dated 30 June 1984 has stated that it “respectfully requests the Court to

62
451 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. NAGENDRA SINGH)

consider that Nicaragua is exercising the right to invoke the Treaty of
Friendship, Commerce and Navigation of 1956 between Nicaragua and
the United States” (Nicaragua’s Memorial, para. 164, note 3). On that
basis Nicaragua has in its Memorial devoted Chapter II, paragraphs
163-175, to the aforesaid Treaty, attempting to establish the jurisdiction of
the Court under Article 36, paragraph 1, of the Statute. As a result the
United States Counter-Memorial deals with this Treaty at length and
answers the points that have been raised by Nicaragua (Chap. II, paras.
167-183, of the United States Counter-Memorial). In short, while the oral
hearings have almost totally neglected the Treaty as a base of jurisdiction,
the Parties have properly dealt with this aspect in the Memorial and the
Counter-Memorial. It is felt that Nicaragua, having reserved the right in its
Application to supplement or amend it, was in a legal position to invoke
the Treaty in its Memorial. Again, as both the Applicant and the Respon-
dent have dealt with the jurisdiction of the Court as based on the Treaty in
the written pleadings, it was not possible for the Court to ignore that base
in its calculations in search of its own jurisdiction. No tribunal can afford
to ignore the written pleadings and to pay sole attention to the oral
hearings. In fact, both the written pleadings and the oral hearings consti-
tute the right and left foot in the presentation of the case and the Court
would therefore be justified in relying on the Treaty-basis of the jurisdic-
tion since it has been pleaded by both the Parties at length in the written
proceedings. It could perhaps be argued that the neglect of the Treaty in
the oral hearings should have provoked a question from the Court so that
the Parties were not taken by surprise as to the Court’s reliance on the legal
validity of the base of its jurisdiction provided by the Treaty. However,
these can hardly be said to be valid reasons preventing the Court from
relying on the Treaty, which, as stated earlier, has been fully discussed by
both the Parties in their written pleadings.

It is in view of the aforesaid reasons that I have come to the conclusion
that the jurisdiction of the Court as based on the Treaty of 1956 is clear,
convincing and reliable.

(Signed) NAGENDRA SINGH.

63


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
| AVIS CONSULTATIFS ET ORDONNANCES

DEMANDE EN REVISION
DE L’ARRET DU 11 SEPTEMBRE 1992
EN L’AFFAIRE DU DIFFEREND FRONTALIER
TERRESTRE, INSULAIRE ET MARITIME
(EL SALVADORIHONDURAS; NICARAGUA
(intervenant) )

(EL SALVADOR c. HONDURAS)

ARRET DU 18 DÉCEMBRE 2003

2003

INTERNATIONAL COURF OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPLICATION FOR REVISION OF THE
JUDGMENT OF 11 SEPTEMBER 1992
IN THE CASE CONCERNING THE
LAND, ISLAND AND MARITIME FRONTIER
DISPUTE (EL SALVADORIHONDURAS:
NICARAGUA intervening }

(EL SALVADOR v. HONDURAS}

JUDGMENT OF 18 DECEMBER 2003

Mode officiel de citation:

Demande en revision de l'arrêt du 1] septembre 1992 en l'affaire du Différend
frontalier terrestre, insulaire et maritime (El Salvador/Honduras; Nicaragua
(intervenant)) (£7 Salvador c. Honduras), arrêt,

CET. Recueil 2003, P. 392

Official citation:

Application for Revision of the Judgment of 11 September 1992 in the Case

concerning the Land, Island and Maritime Frontier Dispute (Ei Salvador/

Honduras: Nicaragua intervening) (ET Salvador v. Honduras), Judgment,
ECT. Reports 2003, p. 392

N° de vente:
ISSN 0074-4441 Sales number 877

ISBN 92-1-070985-3

18 DECEMBRE 2003

ARRET

DEMANDE EN REVISION DE L’ARRET
DU 11 SEPTEMBRE 1992 EN L’AFFAIRE
DU DIFFEREND FRONTALIER TERRESTRE INSULAIRE
ET MARITIME (EL SALVADORIHONDURAS;
NICARAGUA (intervenant) }

(EL SALVADOR c. HONDURAS)

APPLICATION FOR REVISION
OF THE JUDGMENT OF 11 SEPTEMBER 1992 IN THE CASE
CONCERNING THE LAND, ISLAND AND MARITIME
FRONTIER DISPUTE (EL SALVADORIHONDURAS:
NICARAGUA intervening)

(EL SALVADOR v. HONDURAS)

18 DECEMBER 2003

JUDGMENT

392

INTERNATIONAL COURT OF JUSTICE

YEAR 2003 2003
18 December

General List
18 December 2003 No. 127

APPLICATION FOR REVISION OF THE
JUDGMENT OF 11 SEPTEMBER 1992
IN THE CASE CONCERNING THE
LAND, ISLAND AND MARITIME FRONTIER
DISPUTE (EL SALVADORIHONDURAS:
NICARAGUA intervening }

(EL SALVADOR yv. HONDURAS)

Article 61 of the Statute — Application for revision — Possibility for the
Court at any time tu require previous compliance with the terms of the judgment
whose revision is sought, before it admits proceedings in revision — No rele
played by the consent of the parties as to admissibility of an application for
revision.

New facts alleged by ET Salvador in respect af the sixth sector af the land
boundary between ET Salvador and Honduras established in the Chamber's
Judgment of 11 September 1992: avulsion of the river Goascordn; discovery of
a further copy of the “Carta Esférica” and af the report of the El Activo expedi-
tion in 1794 — Legal basis of the Chamber's decision in the original case —
Alleged new facts not decisive factors in respect of the 1992 Judgement — No
need to ascertain whether the other conditions laid down in Article 61 of the
Statute are satisfied — Inadmissibility of the Application.

JUDGMENT

Present: Judge GUNLAUME, President af the Chamber; Judges REZEK,
BUERGENTHAL; Judges ad hoc Torres BrrnArpez, PaAo.iLio;
Registrar COUVREUR.

APPLICATION FOR REVISION (JUDGMENT) 393

In the case concerning the Application for revision of the Judgment of
11 September 1992,

helwéen

the Republic of El Salvador,
represented by
Mr. Gabriel Mauricio Gutiérrez Castro,
as Agent: :
H.E. Ms Maria Eugenia Brizuela de Avila, Minister for Foreign Affairs,

H.E. Mr. Rafael Zaldivar Brizuela, Ambassador of El Salvador to the Inter-
national Organizations in The Hague,

as Co-Agents;

Mr. Agustin Vasquez Gomez,

as Deputy Agent;

Mr, Antonio Remiro Brotôns, Professor of International Law, Universidad
Autonoma de Madrid,

Mr. Maurice Mendelson, Q.C., Professor Emeritus of International Law,
University of London, |

as Counsel and Advocates;

Mr. Mauricio Alfredo Clara,
Mr. Domingo E. Acevedo,

as Counsel;

Ms Beatriz Borja de Miguel,
Ms Patricia Kennedy,
Ms Ana Mogorrén Huerta,

as Advisers:

Mr. César Martinez,

Ms Lilian Overdick,

Ms Cecilia Montoya de Guardado,
as Assistants,

and

the Republic of Honduras,

represented by
H.E. Mr. Carlos Lopez Contreras, former Minister for Foreign Affairs,
as Agent:

H.E. Mr. Julio Rendén Barnica, Ambassador of Honduras to the Nether-
lands,

as Co-Agent;

Mr, Pierre-Marie Dupuy, Professor of International Law, Université de
Paris IT (Panthéon-Assas) and Institut universitaire européen de Florence,

Mr. Luis [gnacio Sanchez Rodriguez, Professor of International Law, Uni-
versidad Complutense de Madrid,

Mr. Philtppe Sands, Q.C., Professor of Law, University College Landon,

APPLICATION FOR REVISION (JUDGMENT} 394

Mr. Carlos Jiménez Piernas, Professor of International Law, Universidad de
Aleala, Madrid,

Mr. Richard Meese, avocat à la cour d’appel de Paris,

as Counsel and Advocates;

HE. Mr. Anibal Quifiénez Abarca, Deputy Minister for Foreign Affairs,

H.E. Mr. Policarpo Callejas, Ambassador, Adviser to the Ministry of
Foreign Affairs,

Mr. Miguel Tosta Appel, Chairman of the Honduran National Section of
the El Salvador-Honduras Demarcation Commission,

as Counsel,

THE CHAMBER OF THE INTERNATIONAL COURT oF Jusrice 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 Sal-
vador”) 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 Fron-
tier Dispute (Ei Salvador! Honduras: Nicaragua intervening) (LCI. Reports
1992, p. 351).

2. Pursuant to Article 40, paragraph 2, of the Statute, the Registrar commu-
nicated a certified copy of the Application to the Republic of Honduras (here-
inafter “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 inter-
vene 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 Novem-
ber 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 Novem-
ber 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,

6

| | |

APPLICATION FOR REVISION (JUDGMENT) 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, para-
graph 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 admissi-
bility 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 Appli-
cation,

8. Ina letter of 8 April 2003 the Agent of El Salvador, referring to the Writ-
ten 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 let-
ter of 24 April 2003 the Co-Agent of Honduras opposed that request. Follow-
ing 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 plead-
ings 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 fetter of 10 July 2003 Hon-
duras informed the Chamber that it objected to the production of those docu-
ments. El Salvador and Honduras were authorized to submit further observa-
tions 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 ils productian. By
letters of 29 July 2003, the Deputy-Registrar informed the Parties of these deci-
sions, 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 te 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

7

APPLICATION FOR REVISION (JUDGMENT) 396

public, with effect from the opening of the oral proceedings, copies of Hondu-
ras’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 authori-
zation.

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 Ef Saivador: HE. Ms Maria Eugenia Brizuela de Avila,
Mr. Maurice Mendelson,
Mr. Antonio Remiro Bretons,
Mr. Gabriel Mauricio Gutiérrez Castro.

For Honduras: HE. Mr. Carlos Lépez Contreras,
Mr. Pierre-Marie Dupuy,
Mr, Carlos Jiménez Piernas,
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;

(6) Te 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

fe) Once the application is admitted, to proceed to the revision of the
Judgment of 11 September 1992, so that a new Judgment will deter-
mine the boundary line in the sixth disputed sector of the land fron-
tier between El Salvador and Honduras to be us follows:

‘Starting from the old mouth of the Goascoran river in the inlet
known as the La Cutu Estuary situated at latitude 13°22’00”N
and longitude 87°41’ 25” W, the frontier follows the old course of
the Goascoran river for a distance of 17,300 metres as far as the
place known as the Rompicién de los Amates situated at latitude
13°26'29"N and longitude 87°43°25"° W, which’ is where the
Goascorän 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 Sal-
vader.” -

APPLICATION FOR REVISION (JUDGMENT) 397

14. At the oral proceedings, the following final submissions were presented
by the Parties:

On behalf of the Government of the Republic af El Salvador,

“The Republic of El Salvador respectfully requests the Chamber, reject-
ing 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 Judg-
ment of 11 September 1992, so that a new judgment fixes the boundary
line in the sixth disputed sector of the land boundary between El Sal-
vador and Honduras as follows:

‘Starting at the old mouth of the Goascorän River at the entry
point known as the Estero de la Cutd, 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 Gavernment of the Republic of Honduras,

“In view of the facts and arguments presented above, the Govern-
ment 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.”

4 * x

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 Goascoränl, flow-
ing into the Gulf north-west of the Islas Ramaditas in the Bay of
La Unién”. 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 Cutü” (Judgment, para. 306). In the Judgment revision of which is

9

APPLICATION FOR REVISION (JUDGMENT) 398

now sought, the Chamber unanimously upheld the submissions of Hon-
duras (Judgment, 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:

“|. 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, recog-
nizing that it has such a character as to Jay 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 of ten
years from the date of the judgment.”

18, Article 61 provides for revision proceedings to open with a judg-
ment 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 pro-
cedure”. 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 Judg-
ment of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) { Tunisia v. Libyan Arab Jamahiriva),
Judement, LCF. Reports 1985, p. 197, paras. 8 and 10; Application far
Revision of the Judgment of 11 July 1996 in the Case concerning Applica-
tion of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objec-
tions ( Yugoslavia v, Bosnia and Herzegovina), Judgment, C.J. Reports
2003, p. 11, 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”;

fe) the fact should have been “unknown” to the Court and to the party
claiming revision when the judgment was given;

10

APPLICATION FOR REVISION (JUDGMENT) 399

(@) 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 satis-
fied. 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 Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina ¥, Yugoslavia),
Preliminary Objections ( Yugoslavia v. Bosnia and Herzegovina), Judg-
ment, L CJ. Reports 2003, p. 12, 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 Salva-
dor’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 pre-
vious 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 fof 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 condi-
tional 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 accept-
ance 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; accord-
ingly, even if Honduras had submitted a request to the Court to require
previous compliance without awaiting the Chamber’s decision on the

Ii

APPLICATION FOR REVISION (JUDGMENT) 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 scised 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 cen-
tury, emptying into the Estero La Cutt (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 Cham-
ber’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 Cham-
ber observed, however, that: “There is no scientific evidence that the pre-
vious course of the Goascorän was such that it debouched in the Estero
La Cuti” 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

12

APPLICATION FOR REVISION (IUDGMENT) 401

before 1821 must be rejected. It is a new claim and inconsistent with the
previous history of the dispute.” (Para. 312.) Ta 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 provin-
cial boundary by a provision of colonial law” (para. 312).

The Chamber then considered “the evidence made available to it con-
cerning the course of the river Goascoran in 1821” {para. 313). It exam-
ined in particular a “chart (described as a ‘Carta Esférica’) of the Gulf of
Fonseca prepared by the captain and navigators of the brig or brigantine
ET Active, 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
Goascorän 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 Esférica’ 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},

x

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 avul-
sion of the river Goascoran and, on the other, to the “Carta Esférica”
and the report of the 1794 ET Active expedition.

+  *

26. El Salvador first claims to possess scientific, technical and histori-
cal evidence showing, contrary to what it understands the decision of the
Chamber to have been, that the Goascorän 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 mforma-
tion about its hydrographic behaviour”. Finally, it refers to various pub-

13

APPLICATION FOR REVISION (JUDGMENT) 402

lications, including in particular Geografia de Honduras by Ulises Meza
Cälix, published in 1916, and Monografia del Departamento de Valle,
prepared under the direction of Bernardo Galindo y Galindo and pub-
lished 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 préparatoires 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 24 Sep-
tember 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”.

E] Salvador further contends that the evidence it is now offering estab-
lishes the existence of an old bed of the Goascoran debouching in the
Estero La Cutt, and the avulsion of the river in the mid-eighteenth cen-
tury 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 un-
changed, 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 circurnstances of
the case, in particular the “bitter civil war [which] was raging in El Sal-
vador” “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
Goascoran 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 para-
graph 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-

14

APPLICATION FOR REVISION (IUDGMENT) 403

ditions laid down by Article 61 of the Statute are satisfied, the Applica-
tion for revision founded on the avulsion of the river Goascorän 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 con-
cerning the question of the Monastery af Saint-Naoum. According to
Honduras, a “fact” cannot “include evidentiary materia] 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 Cut 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 Salva-
dor, 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 con-
ditions laid down by Article 61 of the Statute have not been satisfied, the
Application for revision founded on the avulsion of the river Goascorän
is not admissible.

{5

APPLICATION FOR REVISION (JUDGMENT) 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 pro-
vided for in paragraph 5 of that Article, specifically, one day before the
expiry of that time-limit. Honduras maintains nevertheless that, by pro-
ceeding 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 Goascorän, the Chamber recalls that an application
for revision is admissible only if each of the conditions laid down in Ar-
ticle 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 ascer-
taining 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 colo-
nial administrative boundaries” (para. 28). The Chamber did however
note that “the wri possidetis juris position can be qualified by adjudica-
tion 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 wti 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 colo-
nial administrative boundaries, “the conduct cf 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

16

APPLICATION FOR REVISION (JUDGMENT) 405

object of the dispute in this sector in paragraph 306, the Chamber first
observed

“that during the colonial period a river called the Goascorân con-
stituted 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 bound-
ary.” In this respect, it observed that:

“(this contention] depends, as a question of fact, on the assertion
that the Gouscoran 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 Cutt... .
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 Jaw of El Salvador’s proposi-
tion 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 inter-
national 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

17

APPLICATION FOR REVISION (JUDGMENT) 406

as to the avulsion of the Goascoran, the Chamber did not take any posi-
tion on the existence of an earlier course of the Goascoran which might
have debouched into the Estero La Cutt, 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 sup-
porting 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 recog-
nize” 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 considera-
tions 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 seg.), 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 con-
duct during the nineteenth century. In other words, applying the general
rule which it had enunciated in paragraph 67 of the Judgment, the Cham-
ber 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 posi-
tion.

In short, it does not matter whether or not there was an avulsion of the

18

APPLICATION FOR REVISION (JUDGMENT) 407

Goascoran. Even if avulsion were now proved, and even if its legal con-
sequences 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 Esférica”
and of à 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 pro-
duced 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 Esférica”
and the Report of the Gulf of Fonseca from the &/ Activo expedi-
tion, 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 con-
sidered once the application for revision is admitted”.

42. El Salvador adds that “[t]he discovery of hitherto unknown docu-
ments 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
“[e]vidence which rebuts a fact established by a judgment of which revi-
sion 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-

19

APPLICATION FOR REVISION (JUDGMENT) 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 1s 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 indis-
pensable reference source” and that the E/ 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 Septem-
ber 1992”. Accordingly, it argues, “El Salvador’s ignorance until 2002 of
the existence of copies of the £/ Activo documents in collections situated

CEE]

in out-of-the-way places cannot be characterized as ‘negligent’”.

44, El Salvador concludes from the foregoing that, as the various con-
ditions laid down by Article 61 of the Statute are satisfied, the Applica-
tion 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 docu-
ments found in Chicago can be characterized as a new fact. This is simply
“another copy of one and the same document already submitted by Hon-
duras 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 con-
cludes from this that El Salvador could easily have learned of those docu-
ments, 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 con-
ditions laid down by Article 61 of the Statute are not satisfied, the Appli-
cation 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

20

APPLICATION FOR REVISION (JUDGMENT) 409

those they made in respect of the avulsion of the Goascoran (see para-
graph 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 concern-
ing the “Carta Esférica” and the report of the £/ 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 E? Activa
around 1796, described as a “Carta Esférica”, 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 topo-
graphy as shown on modern maps. It shows the ‘Estero Cut’ in
the same position as modern maps; and it also shows a river mouth,
marked ‘R® Goascoran’, at the point where the river Goascorän
today flows into the Gulf. Since the chart is one of the Gulf, pre-
sumably for navigational purposes, no features inland are shown
except the‘... best known volcanoes and peaks... f‘... veleanes
y cerros mas conacidos .. .'), 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 alieged 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 Esférica’ leave little room for doubt that
the river Goascoran in 1821 was already flowing in its present-day
course” (para. 316).

Si. The Judgment rendered by the Chamber in 1992 is thus based
upon certain information conveyed by the “Carta Esférica” and the

21

APPLICATION FOR REVISION (JUDGMENT) 410

report of the El Active 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 Esférica” 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 Cutd 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 E/ Active expedition
found in Chicago, it differs from the Madrid version only in terms of cer-
tain 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 docu-
ment produced by El Salvador bears out the conclusions reached by the
Chamber in 1992.

58. The Chamber concludes from the foregoing that the new facts
alleged by El Salvador in respect of the “Carta Esférica” and the report
of the E Active 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 mew facts”. More-
over, 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 #ew facts or to better understand
them”.

It cites the great eruption of Cosigüina volcano and the appearance of
the Farallones del Cosigüina, 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 Cham-
ber’s consideration “evidence additional to the alleged new facts”, is act-
ing “as though the Court had to ignore its previous reasoning, on the

22

APPLICATION FOR REVISION (JUDGMENT) 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 Esférica” and the report of the E/ Active expedi-
tion 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, revi-
sion of a judgment can be opened only by

“the discovery of some fact of such a nature as to be a decisive fac-
tor, 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.

+ Ok

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
(ET 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 Paclillo.

Done in French and in English, the French text being authoritative,
at the Peace Palace, The Hague, this eighteenth day of December, two

23

APPLICATION FOR REVISION (JUDGMENT) 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 the Government of the Republic of
Honduras, respectively.

(Signed) Gilbert GUILLAUME,
President of the Chamber.

(Signed) Philippe COUVREUR,
Registrar.

Judge ad hoc PaouiLto appends a dissenting opinion to the Judgment
of the Chamber.

(Tnitialled) G.G.
(Jnitialled) Ph.C.

24


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPLICATION FOR REVISION OF THE
JUDGMENT OF 11 SEPTEMBER 1992
IN THE CASE CONCERNING THE
LAND, ISLAND AND MARITIME FRONTIER
DISPUTE (EL SALVADOR/HONDURAS:
NICARAGUA intervening )

(EL SALVADOR v. HONDURAS)

ORDER OF 27 NOVEMBER 2002

FORMATION OF CHAMBER

2002

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DEMANDE EN REVISION
DE L’ARRET DU 11 SEPTEMBRE 1992
EN L’AFFAIRE DU DIFFÉREND FRONTALIER
TERRESTRE, INSULAIRE ET MARITIME
(EL SALVADORIHONDURAS; NICARAGUA
(intervenant) )

(EL SALVADOR c. HONDURAS)

ORDONNANCE DU 27 NOVEMBRE 2002

CONSTITUTION DE CHAMBRE
Official citation:

Application for Revision of the Judgment of 11 September 1992 in the Case

concerning the Land, Island and Maritime Frontier Dispute (El Salvador/

Honduras: Nicaragua intervening) {El Salvador v. Honduras), Formation
of Chamber, Order of 27 November 2002, I. C.J. Reports 2002, p. 618

Mode officiel de citation:

Demande en revision de l'arrêt du 11 septembre 1992 en l'affaire du Différend
frontalier terrestre, insulaire et maritime (El Salvador/Honduras; Nicaragua
(intervenant)) (£7 Salvador c. Honduras), constitution de chambre,
ordonnance du 27 novembre 2002, C.I.J. Recueil 2002, p. 618

Sales number :
ISSN 0074-4441 N° de vente 857
ISBN 92-1-070963-2

27 NOVEMBER 2002

ORDER

APPLICATION FOR REVISION
OF THE JUDGMENT OF 11 SEPTEMBER 1992 IN THE CASE
CONCERNING THE LAND, ISLAND AND MARITIME
FRONTIER DISPUTE (EL SALVADOR/HONDURAS:
NICARAGUA intervening)

(EL SALVADOR vy. HONDURAS)

FORMATION OF CHAMBER

DEMANDE EN REVISION DE L’ARRET
DU 11 SEPTEMBRE 1992 EN L’AFFAIRE
DU DIFFEREND FRONTALIER TERRESTRE, INSULAIRE
ET MARITIME (EL SALVADORIHONDURAS;
NICARAGUA (intervenant) )

(EL SALVADOR c. HONDURAS)

CONSTITUTION DE CHAMBRE

27 NOVEMBRE 2002

ORDONNANCE
618

INTERNATIONAL COURT OF JUSTICE

2002 YEAR 2002
27 November
General List
No. 127 27 November 2002

APPLICATION FOR REVISION OF THE
JUDGMENT OF 11 SEPTEMBER 1992
IN THE CASE CONCERNING THE
LAND, ISLAND AND MARITIME FRONTIER
DISPUTE (EL SALVADORIHONDURAS:
NICARAGUA intervening)

(EL SALVADOR v. HONDURAS)

ORDER

FORMATION OF CHAMBER
FIXING OF TIME-LIMITS

Present: President GUILLAUME; Vice-President Sui; Judges Oba,
RANJEVA, HERCZEGH, FLEISCHHAUER, KOROMA, VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN, KOOUMANS, REZEK, AL-
KHASAWNEH, BUERGENTHAL, ELARABY; Registrar COUVREUR.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 26, paragraphs 2 and 3, Article 31, Article 48
and Article 61 of the Statute of the Court, and to Articles 17, 18, 31, 35,
44, paragraph 1, 90, 99, paragraph 2, and 100, paragraph 1, of the Rules
of Court,

4
619 APPLICATION FOR REVISION (ORDER 27 XI 02)
Makes the following Order:

1. Whereas, by an Application filed in the Registry of the Court on
10 September 2002, the Republic of El Salvador, citing Article 61 of the
Statute, submitted a request to the Court for revision of the Judgment
delivered on 11 September 1992 by the Chamber of the Court formed to
deal with the case concerning the Land, Island and Maritime Frontier
Dispute (El Salvador! Honduras: Nicaragua intervening) U.C.J. Reports
1992, p. 351); and whereas, in that Application, El Salvador, citing
Article 100, paragraph 1, of the Rules of Court, requested the Court
“to proceed to form the Chamber that will hear the Application for
revision of the Judgment, bearing in mind the terms that El Salvador and
Honduras agreed upon in the Special Agreement of 24 May 1986”;

2. Whereas on 10 September 2002 a certified copy of the Application
was transmitted to the Republic of Honduras;

3. Whereas the Republic of El Salvador has appointed Mr. Gabriel
Mauricio Gutiérrez Castro as Agent and H.E. Mrs. Maria Eugenia Bri-
zuela de Avila, H.E. Mr. Héctor Gonzalez Urrutia and H.E. Mr. Rafael
Zaldivar Brizuela as Co-Agents; and whereas the Republic of Honduras
has appointed H.E. Mr. Carlos Lopez Contreras as Agent and H.E. Mr.
Julio Rendon Barnica as Co-Agent;

4. Whereas, at a meeting on 6 November 2002 between the President
of the Court and the Agents of the Parties, the latter indicated that they
desired the formation of a new Chamber of five members, of whom two
would be the judges ad hoc to be chosen by them; and whereas at the
same meeting the Agent of Honduras stated that his Government wished
to be granted a period of three months from the date of the Order con-
stituting the Chamber for the filing of its Written Observations on the
admissibility of the request for revision; and whereas the Republic of
El Salvador made no objection to the fixing of that time-limit;

5. Whereas, by a letter of 20 November 2002, the Agent of Honduras
stated that his Government proposed that the date for the filing of its
Written Observations on the admissibility of the request for revision
should be fixed at 15 April 2003; and whereas by a letter of 22 November
2002 the Agent of El Salvador replied that his Government wished to
adhere to what had been proposed at the meeting with the President;

6. Whereas by a letter of 7 November 2002 the Agent of the Republic
of El Salvador informed the Court that his Government had chosen H.E.
Mr. Felipe H. Paolillo to sit as judge ad hoc; and whereas by a letter of
18 November 2002 the Agent of Honduras informed the Court that his
Government had chosen Mr. Santiago Torres Bernardez to sit as judge
ad hoc; and whereas no objection has been raised by either Party to the
other’s choice of judge ad hoc, and no objection to such choice has
appeared to the Court itself;
620 APPLICATION FOR REVISION (ORDER 27 XI 02)

THE COURT,
Unanimously,

1. Decides to accede to the request of the Governments of the
Republic of El Salvador and the Republic of Honduras that it should
form a special Chamber of five judges to deal with the present case;

2. Declares that at an election held on 26 November 2002, President
Guillaume and Judges Rezek and Buergenthal were elected to form,
together with the above-named judges ad hoc, a Chamber to deal with
this case and that, accordingly, such a Chamber is duly constituted by the
present Order, with the following composition:

President Guillaume;
Judges Rezek,
Buergenthal;
Judges ad hoc Torres Bernardez,
Paolillo;

3. Fixes 1 April 2003 as the time-limit for the filing of Written
Observations by the Republic of Honduras on the admissibility of the
Application; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-seventh day of November, two
thousand and two, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the Republic of El Salvador and the Government of the Republic of
Honduras, respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.

Judge ODA appends a declaration to the Order of the Court.

(Initialled) G.G.
(Initialled} Ph.C.