C 4/CR 91/9
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
YEAR 1991
Public sitting of the Chamber
held on Thursday 25 April 1991, at 10 a.m., at the Peace Palace,
Judge Sette-Camara, President of the Chamber, presiding
in the case concerning the Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening)
VERBATIM RECORD
ANNEE l991
Audience publique de la Chambre
tenue le jeudi 27 avril 1991, à 10 heures, au Palais de la Paix,
sous la présidence de M. Sette-Camara, président de la Chambre
en l'affaire du Différend frontalier terrestre, insulaire et maritime
(El Salvador/Honduras; Nicaragua (intervenant))
COMPTE RENDU
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Present:
Judge Sette-Camara, President of the Chamber
Judges Sir Robert Jennings, President of the Court
Oda, Vice-President of the Court
Judges ad hoc Valticos
Torres Bernárdez
Registrar Valencia-Ospina
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Présents :
M. Sette-Camara, président de la Chambre
Sir Robert Jennings, Président de la Cour
M. Oda, Vice-Président de la Cour, juges
M. Valticos
M. Torres Bernárdez, juges ad hoc
M. Valencia-Ospina, Greffier
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The Government of El Salvador is represented by:
Dr. Alfredo Martínez Moreno,
as Agent and Counsel;
H. E. Mr. Roberto Arturo Castrillo, Ambassador,
as Co-Agent;
and
H. E. Dr. José Manuel Pacas Castro, Minister for Foreign Relations,
as Counsel and Advocate.
Lic. Berta Celina Quinteros, Director General of the Boundaries'
Office,
as Counsel;
Assisted by
Prof. Dr. Eduardo Jiménez de Aréchaga, Professor of Public
International Law at the University of Uruguay, former Judge and
President of the International Court of Justice; former President
and Member of the International Law Commission,
Mr. Keith Highet, Adjunct Professor of International Law at The
Fletcher School of Law and Diplomacy and Member of the Bars of
New York and the District of Columbia,
Mr. Elihu Lauterpacht C.B.E., Q.C., Director of the Research Centre
for International Law, University of Cambridge, Fellow of Trinity
College, Cambridge,
Prof. Prosper Weil, Professor Emeritus at the Université de droit,
d'économie et de sciences sociales de Paris,
Dr. Francisco Roberto Lima, Professor of Constitutional and
Administrative Law; former Vice-President of the Republic and
former Ambassador to the United States of America.
Dr. David Escobar Galindo, Professor of Law, Vice-Rector of the
University "Dr. José Matías Delgado" (El Salvador)
as Counsel and Advocates;
and
Dr. Francisco José Chavarría,
Lic. Santiago Elías Castro,
Lic. Solange Langer,
Lic. Ana María de Martínez,
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Le Gouvernement d'El Salavador est représenté par :
S. Exc. M. Alfredo Martínez Moreno
comme agent et conseil;
S. Exc. M. Roberto Arturo Castrillo, Ambassadeur,
comme coagent;
S. Exc. M. José Manuel Pacas Castro, ministre des affaires
étrangères,
comme conseil et avocat;
Mme Berta Celina Quinteros, directeur général du Bureau des
frontières,
comme conseil;
assistés de :
M. Eduardo Jiménez de Aréchaga, professeur de droit international
public à l'Université de l'Uruguay, ancien juge et ancien
Président de la Cour internationale de Justice; ancien président
et ancien membre de la Commission du droit international,
M. Keith Highet, professeur adjoint de droit international à la
Fletcher School de droit et diplomatie et membre des barreaux de
New York et du District de Columbia,
M. Elihu Lauterpacht, C.B.E., Q.C., directeur du centre de recherche
en droit international, Université de Cambridge, Fellow de Trinity
College, Cambridge,
M. Prosper Weil, professeur émérite à l'Université de droit,
d'économie et de sciences sociales de Paris,
M. Francisco Roberto Lima, professeur de droit constitutionnel et
administratif; ancien vice-président de la République et ancien
ambassadeur aux Etats-Unis d'Amérique,
M. David Escobar Galindo, professeur de droit, vice-recteur de
l'Université "Dr. José Matías Delgado" (El Salvador),
comme conseils et avocats;
ainsi que :
M. Francisco José Chavarría,
M. Santiago Elías Castro,
Mme Solange Langer,
Mme Ana María de Martínez,
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Mr. Anthony J. Oakley,
Lic. Ana Elizabeth Villata,
as Counsellors.
The Government of Honduras is represented by:
H.E. Mr. R. Valladares Soto, Ambassador of Honduras to the
Netherlands,
as Agent;
H.E. Mr. Pedro Pineda Madrid, Chairman of the Sovereignty and
Frontier Commission,
as Co-Agent;
Mr. Daniel Bardonnet, Professor at the Université de droit,
d'économie et de sciences sociales de Paris,
Mr. Derek W. Bowett, Whewell Professor of International Law,
University of Cambridge,
Mr. René-Jean Dupuy, Professor at the Collège de France,
Mr. Pierre-Marie Dupuy, Professor at the Université de droit,
d'économie et de sciences sociales de Paris,
Mr. Julio González Campos, Professor of International Law,
Universidad Autónoma de Madrid,
Mr. Luis Ignacio Sánchez Rodriguez, Professor of International Law,
Universidad Complutense de Madrid,
Mr. Alejandro Nieto, Professor of Public Law, Universidad
Complutense de Madrid,
Mr. Paul De Visscher, Professor Emeritus at the Université de
Louvain,
as Advocates and Counsel;
H.E. Mr. Max Velásquez, Ambassador of Honduras to the United Kingdom,
Mr. Arnulfo Pineda López, Secretary-General of the Sovereignty and
Frontier Commission,
Mr. Arias de Saavedra y Muguelar, Minister, Embassy of Honduras to
the Netherlands,
Mr. Gerardo Martínez Blanco, Director of Documentation, Sovereignty
and Frontier Commission,
Mrs. Salomé Castellanos, Minister-Counsellor, Embassy of Honduras to
the Netherlands,
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M. Anthony J. Oakley,
Mme Ana Elizabeth Villata,
comme conseillers.
Le Gouvernement du Honduras est représenté par :
S. Exc. M. R. Valladares Soto, ambassadeur du Honduras à La Haye,
comme agent;
S. Exc. M. Pedro Pineda Madrid, président de la Commission de
Souveraineté et des frontières,
comme coagent;
M. Daniel Bardonnet, professeur à l'Université de droit, d'économie
et de sciences sociales de Paris,
M. Derek W. Bowett, professeur de droit international à l'Université
de Cambridge, Chaire Whewell,
M. René-Jean Dupuy, professeur au Collège de France,
M. Pierre-Marie Dupuy, professeur à l'Université de droit,
d'économie et de sciences sociales de Paris,
M. Julio González Campos, professeur de droit international à
l'Université autonome de Madrid,
M. Luis Ignacio Sánchez Rodríguez, professeur de droit international
à l'Université Complutense de Madrid,
M. Alejandro Nieto, professeur de droit public à l'Université
Complutense de Madrid,
M. Paul de Visscher, professeur émérite à l'Université catholique de
Louvain,
comme avocats-conseils;
S. Exc. M. Max Velásquez, ambassadeur du Honduras à Londres,
M. Arnulfo Pineda López, secrétaire général de la Commission de
Souveraineté et de frontières,
M. Arias de Saavedra y Muguelar, ministre de l'ambassade du Honduras
à La Haye,
M. Gerardo Martínez Blanco, directeur de documentation de la
Commission de Souveraineté et de frontières,
Mme Salomé Castellanos, ministre-conseiller de l'ambassade du
Honduras à La Haye,
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Mr. Richard Meese, Legal Advisor, Partner in Frère Cholmeley, Paris,
as Counsel;
Mr. Guillermo Bustillo Lacayo,
Mrs. Olmeda Rivera,
Mr. Raul Andino,
Mr. Miguel Tosta Appel
Mr. Mario Felipe Martínez,
Mrs. Lourdes Corrales,
as Members of the Sovereignty and Frontier Commission.
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M. Richard Meese, conseil juridique, associé du cabinet Frère
Cholmeley, Paris,
comme conseils;
M. Guillermo Bustillo Lacayo,
Mme Olmeda Rivera,
M. Raul Andino,
M. Miguel Tosta Appel,
M. Mario Felipe Martínez,
Mme Lourdes Corrales,
comme membres de la Commission de Souveraineté et des frontières.
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The PRESIDENT: Please be seated. This sitting is open. We continue the hearings on the
disputed areas of the land frontier and I give the floor to President de Aréchaga who is going to deal
with the Tepanguisir Mountain zone.
Dr. JIMENEZ DE ARECHAGA: Mr. President, Members of the Chamber, thank you for
giving me the floor.
TEPANGUISIR MOUNTAIN
As you will see, we are presenting here a map which corresponds to the maps submitted with
the Memorial but which have been prepared following the suggestions as we understood coming
from you Mr. President. This is a map not a "croquis" in a bigger scale indicating the scales and
having co-ordinates. The only other difference is that it is in two colours in order to distinguish the
area El Salvador invokes on the basis of title and the marginal area not covered by the title in yellow
which we rely upon on the basis of effectivités. This map will be presented to you today with the
assistance of my colleague Engineer Cartographer for the Government of El Salvador,
Mr. Santiago Elías.
But first I have to deal with certain matters of a legal nature.
The Reply of Honduras recognizes (in para. 4, pp. 96-97) that "the 1776 titulo ejidal
adjudicated lands in the Tepanguisir Mountain to the Indian community of Citalá, undoubtedly
located in the Province which was then the Alcaldia Mayor de San Salvador".
Honduras equally admits that this Formal Title-Deed to Commons of 1776 is the determining
title in this sector (RH, para. 5, p. 97) and Honduras has never questioned the validity of this
document.
In the light of these admissions, it seems appropriate to ask how any dispute can possibly still
be pending in respect of Tepanguisir Mountain.
I. The Disputed Point of Law
The basic argument relied on by Honduras in support of its claim to Tepanguisir Mountain in
spite of the adjudication of this land to the inhabitants of Citalá is that the Formal Title-Deed of
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1776 "has not modified the limits of the jurisdiction between El Salvador and Honduras" (RH,
para. 24, p. 111). Honduras contends that since these lands, before being adjudicated to Citalá, were
located in the Spanish colonial Province of Gracias a Dios, they continued to remain in that
jurisdiction despite their adjudication in a Formal Title-Deed to Commons.
This discrepancy raises a point of law which goes to the core of the fundamental divergence
between the Parties as to the legal effect of Formal Title-Deeds to Commons.
The basic argument adduced by Honduras in order to deny legal effect to the adjudication
made in favour of the Indian community of Citalá is that "this adjudication may be analysed as a
simple fragmentary and specialized assignation of these lands, in order that they may be exploited by
the inhabitants of Citalá" (RH, p. 116). The reason advanced by Honduras in support of this
argument is "Because the ejidos are the object of a patrimonial relationship of private property in
order to benefit collectively a community of inhabitants" (ibid.)
In other words, Honduras is presenting the legal situation produced by the adjudication of
these lands to the Indian community of Citalá as nothing more than a grant of private proprietary
rights to them so that in effect they became nothing more than absentee landlords of the lands in
question subject to the jurisdiction and administrative control of the authorities of Gracias a Dios.
Needless to say, there is no trace in the contemporaneous records of any such arrangement;
indeed, on the contrary, there is ample evidence that the Indian community of Citalá, including its
Commons in Tepanguisir Mountain, continued to be under the jurisdiction and administrative control
of its "Alcalde de Indios" or its "Cabildo" and, through them, was subject to the supervisory control
of the "Alcaldia Mayor" of San Salvador.
This argument of Honduras, describing the legal situation produced by the adjudication as
nothing more than a grant of private proprietary rights, that is to say of "droit foncier", ignores the
distinction established by the experts on Spanish law whose opinions have been presented by the
Parties in these proceedings, namely the distinction between, and I apologize for insisting on this
point, on the one hand, "ejidos de reducción" and, on the other hand, "ejidos de composición" or sale.
According to these experts the "ejidos de reducción" constituted municipal territories which
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belonged to the authorities of each settlement, the "Cabildos"; their declaration as Commons made
them lands of "public utility" for the favoured settlement, which were intended to be utilized in
common, and they were consequently subject to the administrative and financial control of the
respective "Cabildo" and of the superior authorities of the colonial province of which the settlement
formed part for the purpose of preserving their inalienable character and of ensuring the collection of
the appropriate taxes.
El Salvador submits that, what matters for the purpose of determining the uti possidetis juris
in this case is by whom and from where administrative and judicial control was exercised over the
territory in question as from the date of its measurement and adjudication, not in which former
colonial province the lands in question were situated prior to that date. There is no doubt whatsoever
that such judicial and administrative control was, from the date of the measurement and adjudication
of these lands on Tepanguisir Mountain, exercised from the settlement of Citalá.
El Salvador is not really contending that, in the words used yesterday by
Professor Sánchez Rodríguez to describe its thesis, the Formal Title-Deed to the Commons of Citalá
of 1776 "aurait pour effet de modifier les limites provinciales". The effect of this Formal Title-Deed
of 1776 was not to bring about an automatic modification of the provincial boundaries. Its real
effect was to place the mountain of Tepanguisir under the jurisdiction of Citalá. Once the Formal
Title-Deed was duly approved, the mountain of Tepanguisir became an area which was to be
exploited exclusively by the Indian community of Citalá; it also became subject to the authority of
the "Cabildo" and of the "Alcalde de Indios" of Citalá, thus becoming part of the municipality of
Citalá.
From then on, it was the "Alcalde de Indios" of Citalá, and not the "Alcalde de Indios" of
Ocotepeque, who exercised policing and taxation functions on the mountain. Consequently, as the
formal title-deed expressly states, the Indians of Ocotepeque withdrew from the mountain and went
back to their own distant lands (I refer to the reproduction in extenso of the formal title-deed,
page 1805 of the Annexes to the Memorial of Honduras, Annex IX 1-2, at pp. 1795 et seq.).
Professor Sánchez Rodríguez, like Professor Bardonnet before him, insisted on the fact that
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the authority granted by the "Juez Privativo de Tierras" to the delegate judge Jiménez Rubio was
wholly exceptional, "pour une seul fois", adding that this authorization, "s'est éteinte avec la fin des
opérations en question". Both counsel for Honduras thus tried to suggest that the measurement
which that judge carried out constituted no more than a transitory arrangement. But in no sense was
this arrangement in any way transitory. The effects of the adjudication of the mountain of
Tepanguisir to the inhabitants of Citalá lasted for a considerable number of years, at the very least
up until 1821, the year in which, as Professor Sánchez Rodríguez reminded us so many times
yesterday, the clock stopped running.
Professor Sánchez Rodríguez also contended that the "ejido" granted to the inhabitants of
Citalá in 1776 was an "ejido de composición". He argued that, although in their petition to the "Juez
Privativo de Tierras" the Indian community of Citalá asked for the "ejido de reducción" to which
they were clearly entitled, they added that "s'il restait encore une parcelle, nous sommes disposés à
suivre la procédure d'octroi par Sa Majesté". All this shows is that the inhabitants of Citalá were in
such desperate straits that, in the event that the "ejido" which was to be measured turned out to be
larger than the area which they were entitled to receive gratuitously, they were prepared to pay for
the excess or the "demasia", but in fact, as the formal title-deed clearly shows, they were never asked
for any payment since they were awarded the entire area gratuitously.
Thus, in this formal title-deed, no "composición" or payment is shown to have been made by
the Indian community other, of course, than the payment of moderate judicial expenses.
Consequently, this formal title-deed necessarily granted an "ejido de reduccion" and therefore had the
legal consequences and the legal characteristics explained by Professor Nieto García and
Professor López Rodó which were considered early in the oral argument of El Salvador as to the law
applicable.
El Salvador is not, I repeat, contending that this formal title-deed of 1776 brought about an
automatic modification of the provincial boundaries. What El Salvador is contending is that the
discovery and resurrection of ancient colonial provincial boundaries is not the objective nor the
purpose which was intended by the first sentence of Article 26 of the General Peace Treaty of 1980.
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What are supposed to be established under this provision are the boundaries between territories and
"poblaciones"; and this means, in relation to the present sector, the boundary between Ocotopeque
and Citalá.
In refusing to give legal effect to the formal title-deed of 1776, Honduras is thus failing
properly to apply Article 26 of the General Treaty of Peace of 1980, at least in two respects.
First, because what is relevant under Article 26 are the boundaries established between
"poblaciones", for present purposes those between the Indian communities of Citalá and Ocotopeque
and not the unknown boundaries between ancient Spanish Colonial Provinces, such as
Gracias a Dios and Chalatenango. I refer to the Memorial of Honduras in paragraph 11 at
page 324, where Honduras recognizes that between Chalatenango and Gracias a Dios there is an
absence of indication of any precise geographical points for that alleged boundary.
Secondly, because it is equally clear from the text of Article 26 that the relevant clauses in a
formal title-deed to Commons are those which "señalan", that is to say, fix or mark definite
geographical features or boundary markers rather than those containing vague and incidental
references to ancient jurisdictions; such vague references would not allow the Chamber to fix the
boundary, as it is specifically asked to do in the Special Agreement.
Professor Nieto García, as counsel for Honduras, contended earlier that, according to a law in
the Recopilación de Indias, the limits of Colonial Provinces could not be altered or disregarded,
except by means of a Royal Decree ("Real Cédula").
There are two answers to this objection. The first one is that there is such a Royal Decree,
granted at El Pardo, in which the Spanish Crown empowered the "Real Audencia" of Guatemala to
grant Commons to the Indian communities (see, in the Annexes to the Counter-Memorial of
Honduras, at pp. 70-71, F. de Solano: Cedulario de Tierras, at pp. 274-275). This delegated
authority was not restricted or qualified by any requirement to respect the divisions or limits of
provinces or districts within the territory governed by the "Real Audiencia" of Guatemala. The
Order of the "Juez Privativo de Tierras" Arredondo authorizing the sub-delegate Judge Jiménez
Rubio of Chalatenango is the best answer to the contention advanced by Honduras; this Order
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shows eloquently that such an authorization disregarding existing provincial boundaries could indeed
be validly granted by the "Real Audiencia" in Guatemala. Honduras has never challenged the
validity of this authorization.
The second answer to the contention advanced by Honduras as to the need for a Royal Decree
is that Honduras itself, in its litigation with Nicaragua, has given a much less strict interpretation to
the provision from the Recopilación de Indias on which it is now relying. In those proceedings
Honduras admitted that there were four exceptional situations in which previous provincial
boundaries could be disregarded, one of them being "the enactments of the Supreme Government of
the Province". In this respect, it should be recalled that the adjudication of the mountain of
Tepanguisir to Citalá was finally approved by the "Real Audiencia" of Guatemala. This supreme
judicial authority possessed jurisdiction over the whole of the territory of the modern Republics of
Guatemala, El Salvador and Honduras, and was empowered by Royal Decrees, such as that of
El Pardo, to award Commons in all the territories under its government, totally disregarding for this
purpose existing provincial jurisdictions.
As was mentioned in the Reply of El Salvador (p. 38, para. 3.4), this power has been recognized by
Professor Nieto García in the Opinion which has been presented by Honduras.
Professor Sánchez Rodríguez invoked yesterday a law from the "Recopilación" which
provides that "les Vice-Rois et Présidents ne pourront accroître ou réduire les villages, et territoires
des Gouvernements ou Corregimientos qui relèvent de notre compétence". This law is not relevant to
the question at present under discussion. It indeed prohibited the "Reales Audiencias" from
increasing or diminishing their territorial jurisdictions. But the "Real Audiencia" of Guatemala, in
granting authority to the delegate Judge Jiménez Rubio, was not increasing or reducing its own area
of competence; it was merely exercising its existing jurisdiction within its own sphere of
competence, which included both San Salvador, Chalatelango and Gracias a Dios.
II. The boundary line proposed by Honduras
The erroneous juridical thesis advanced by Honduras is reflected in the boundary line which it
is proposing to the Chamber. The Reply of Honduras asserts that the boundary line which it submits
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"is based on the correct interpretation of the 1776 title which grants the lands of the Mountain of
Tepanguisir to the Indian community of Citalá ... without that measure having the effect of
transferring the lands to the jurisdiction of El Salvador" (para. 16 at p. 106 thereof).
On the basis of this incorrect point of departure, the boundary line proposed by Honduras
assigns the whole of the mountainous area of Tepanguisir to Honduras as if the award of that
mountain to Citalá had never occurred.
To accomplish this amputation, the boundary line proposed by Honduras starts in a
south-easterly direction and proposes a fluvial frontier based exclusively on certain rivers which
denies any effect to the mountains and "cerros" existing in the area. Honduras seems to forget that
the essential object of the adjudication of 1776 was to award to the inhabitants of Citalá Tepanguisir
Mountain, which as the title said, they had always cultivated.
III. The Ocotepeque Title-Deed of 1818
In an attempt to give a partial answer to the arguments of El Salvador based on the Formal
Title-Deed to the Commons of Citalá of 1776, the Reply of Honduras draws attention to a
Title-Deed of Ocotepeque dated 1818, asserting that according to the title-deed the boundary line
"pénètre en formant un triangle jusqu'au mont de Tepanguisir, au sud des limites des limites tracées
par le titre de Citalá" (p. 133). This area is described in the Reply of Honduras as "the 1818
Triangle".
However, the supporting document referred to by Honduras (set out on page 1719 of the
Annexes to the Memorial of Honduras) does not say that the boundary line "pénètre en formant un
triangle jusqu'au mont de Tepanguisir". I should explain, Mr. President, that there is Tepanguisir
hill which gives its name to the whole area, and this Tepanguisir is located where my colleague will
indicate, there. The document states that "on chercha la direction du mont de Tepanguisir où l'on
arriva a 61 cordes et l'on remit en état l'ancienne borne".
The records thus show that this measurement of 1818, in favour of Ocotopeque, did not
derogate or detract from the Title-Deed to the Commons of Citalá of 1776 and did not insert a
triangle into its boundaries in the manner claimed by Honduras. On the contrary, the Title-Deed of
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Ocotopeque ends by stating that, in the presence of "all the magistrates and principals of the village
of Citalá with their titles", the judge ordered that all the 1776 boundary markers should be respected
(Annexes to the Memorial of Honduras at page 1719). The judge could obviously not do otherwise
than to respect a previous adjudication of municipal territory such as that carried out by the Formal
Title-Deed to the Commons of Citalá of 1776 which had been approved at the time by the "Juez
Privativo de Tierras" of the "Real Audiencia" of Guatemala. The fact that this measurement of 1818
received the assent of the representatives of Citalá re-emphasizes that the rights of the inhabitants of
Citalá were fully preserved thereby.
The final confirmation that the Title-Deed of Ocotepeque of 1818 neither affected nor
modified the Formal Title-Deed to the Commons of Citalá nor penetrated into the Commons of
Citalá to the extent of a triangle in the manner claimed by Honduras emerges from a Title-Deed of
Ocotepeque of 1914 issued by the authorities of Honduras. We have given to the Chamber and to
our adversaries a reproduction of a map produced by Honduras which indicates the Republican titles
and you will notice that this map which illustrates this Title-Deed of 1914 - it is a small map -
includes among others the 1914 Title-Deed issued by the authorities of Honduras in favour of
Ocotopeque. This map which illustrates this Title-Deed of 1914 does not make the alleged
penetration into Tepanguisir Mountain. On the contrary, the authorities of Honduras who conducted
the survey stated explicitly that "nous avons fait abstraction de la borne de Tepanguisir car elle se
trouve aujourd'hui sur le territoire salvadorien" (Reply of Honduras at p. 166). Consequently, they
admit that there was no such penetration of a triangle into the Title of Citalá.
IV. The Proper Criteria for the Geographical Interpretation of the
Formal Title-Deed to Commons of 1776
Honduras not only denies all legal effect to the Formal Title-Deed to the Commons of Citalá
but also contests the interpretation and geographical application of that Title-Deed which has been
presented by El Salvador. Honduras does so by attempting to place a key geographical feature
utilized in the course of the measurement, namely the headwaters of the Pomola River, in a position
some distance to the south and to the east of its true location. (It does so in Honduran Map 2.1
which was annexed to the Counter-Memorial of Honduras immediately after page 132 thereof, where
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Honduras places the headwaters of the Pomola River next to Peñasco Blanco.)
The disagreement concerns mainly, mostly, the boundary on your right, Mr. President, from
Cerro Menuda. Here is where El Salvador places the headwaters of the Pomola River, while
Honduras places them here - on the basis of a mistake relating to the river. I will explain this more
carefully with the assistance of the cartographer.
The measurement started and also finished at a small hill Cerro Piedra Menuda. That is
where the measurement started and the title says that it was in a place "au vu de la montagne de
Tepangüisir" (au vu of the Tepanguisir hill). That means that the Tepangüisir hill which gives the
name to the whole area was always in Citala. This is sufficient to dispose of the alleged 1818
triangle. So this starting point appears on the map with the name "a little hill of broken stones Cerro
de Piedra Menuda".
At that place the Indians of Ocotepeque appeared with their own formal title-deed but when
the measurement reached the first boundary marker they withdrew, declaring that the lands being
measured were a very considerable distance from the boundaries of their own lands.
The measurement continued in the direction west-north-west and duly arrived "au bas du
torrent appelé Pomola" where a second boundary marker was placed, the boundary marker of
Talquezalar on the Pomola River.
At this point, the judge stated and the title says "changing direction and going towards the
west upstream along the Pomola River", in French "en remontant le torrent du Pomola à travers une
gorge profonde et des précipices", the measurement duly reached the headwaters of the Pomola
River, the French title says "jusqu'à la source de Pomola".
Now Honduras, takes a direction towards the west-south-west at Talquezalar rather than of
the Pomola River and consequently locates the headwaters, the alleged headwaters, at this point on
the map.
What happens is that Honduras follows the line of a totally different river, the river called
Cipresales, Quebrada Cipresales, on the basis that the title says the survey went towards the west -
"changé de direction" - went towards the west.
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Now here you notice that it is not towards the west but towards the south-west. The position
is at this point. Honduras takes this direction towards the west-south-west, that is, following the line
of the Cipresales Quebrada rather than of the Pomola River and consequently locates the headwaters
of the Pomola River in a place where the Pomola River does not exist.
Honduras follows the line of this totally different river on the basis of some extremely weak
arguments, such as the number of cords utilized for the measurement and the fact that the initial
direction - this is the main argument - the initial direction taken by the judge and the other persons
accompanying him was towards the west rather than towards the north.
El Salvador has asserted in its Reply and still maintains that these secondary aspects, the
number of cords utilized, the direction taken by the survey, cannot be the controlling factors for the
proper interpretation and geographical application of the Formal Title-Deed of 1776.
It is not a convincing argument to place reliance on the precise number of cords utilized for
the measurement. The surveyors of that time and in that part of the world lacked modern equipment
and their measurements, particularly in a mountainous area such as that of Tepangüisir, could not
possibly have been expected to have had absolute precision, constituting in reality estimates made "à
vue d'oeil", as the crow flies. And as to the fact that the judge and the other persons accompanying
him set off towards the west, this was indeed the initial direction taken by the measurement from
Talquezalar on the Pomola, the initial direction was towards the west as you can see, but the
title-deed then adds that it then immediately continued "en remontant le torrent de Pomola" (MH,
Annexes, pp. 1805-1806). The course of the measurement obviously had to follow the sinuosities of
the course of the river.
The proper criteria for a correct interpretation and application of the Formal Title-Deed of
1776 are of a more substantial geographical character. The title-deed itself contains two
fundamental indications of a geographical nature which determine how far north the Commons
adjudicated to Citalá extended.
In the first place, account must be taken of the basic object and purpose of the whole exercise,
which was to adjudicate Tepangüisir Mountain to Citalá. This basic objective would be defeated if
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the title-deed were to be interpreted in the manner advocated by Honduras, for this would eliminate
from the mountain its highest peaks such as the Cerro Oscuro and the Plan de los Martínez. To
adjudicate the mountain without including its most important mountainous area would be like
performing Hamlet without the Prince of Denmark.
After all, the mountain as such was awarded to Citalá and not to Ocotepeque, which already
possessed extensive flat lands, as the title-deed itself indicates at page 1811 of the Annexes of the
Memorial of Honduras.
Further, this projection towards the north is confirmed by a second geographical factor of
great importance.
The title-deed relates that the measurement was continued "en remontant le torrent de
Pomola à travers une gorge profonde et des précipices", thus arriving at the headwaters of the
Pomola River ("jusqu'à la source du torrent de Pomola" (MH, Annexes, pp. 1805-1806)).
The fact that the judge and the other persons accompanying him thus arrived at the headwaters
of the Pomola river indicates eloquently that the measurement which they were carrying out reached
the highest peaks in the area; this is simply because it is at such peaks that "torrents" have their
source or headwaters.
In any event, Mr. President, it would not be difficult for a Commission of Demarcation to
determine the exact location of the headwaters of the Pomola River.
There is unimpeachable testimony constituting direct evidence that the measurement, and
consequently, the boundary of the land adjudicated to Citalá reached the highest peaks in this area
and, in particular, the mountainous area dominated by the Cerro Oscuro which has, the whole area
has an average altitude of 2,500 metres as you can see by descriptions which indicate the orography
of this area.
This testimony I am invoking emerges from the Arbitration Award made by the Tribunal presided by
Chief Justice Hughes and is found in the following two passages concerning the tripartite boundary
marker between Guatemala, Honduras, and El Salvador (UNRIAA, Vol. II, pp. 1345 and 1354).
The Award of the Tribunal presided by Hughes says:
"In 1908, the representatives of Guatemala, Honduras and El Salvador agreed upon
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Cerro Brujo as the common boundary of the three Republics. In the course of the aerial
survey ordered by the present Tribunal, information was received by the engineer in charge
indicating the possibility that a claim might be made by El Salvador that Cerro Brujo was
entirely within her territory."
"In view of the report of the aerial survey as to the location of Cerro Brujo, ... the
definitive boundary should start at Cerro Montecristo."
We are not of course invoking this as res judicata in our favour - El Salvador was not a party;
but as an indication, a testimony that the rights of El Salvador, the territory of El Salvador reached
that mountainous area including Cerro Brujo, Cerro Montecristo, Cerro Oscuro.
A third consideration in support of the interpretation of the Title-Deed advocated by
El Salvador is of course the acceptance, subsequent to the Arbitration Award just referred to, that
the Cerro de Montecristo was indeed the tripartite boundary marker between Guatemala, Honduras,
and El Salvador. Honduras thus recognized that the territorial rights of El Salvador reached the high
mountainous area which it intends now to deprive.
This reference I think is sufficient to prove how relevant this Arbitration Award of 1933 is to
the present proceedings. Rather than rely on African delimitation such as the Burkian Faso/Mali
dispute, where other problems arose between the component parts of these Republics, El Salvador
has preferred to rely on relevant precedents contained in awards involving Central American
countries, in particular those which have involved Honduras and its other two neighbours,
Guatemala and Nicaragua. In the case between Honduras and Nicaragua, the King of Spain,
Alfonso XIII, had occasion to be guided by what he chose to call a demarcation, which was in fact
nothing other than a measurement similar to those being relied on in the present proceedings. What
is more, the International Court of Justice endorsed the Award of the King of Spain and repeated its
terms when concluding that this Award was both clear and valid. In these proceedings of the King of
Spain case, Honduras chose to rely on this demarcation, it did not abstain from so doing, despite the
opinion of its present advocates who now assert that such documents refer only to "limites de terres".
V. The "Effectivités" and the Western Triangle
The final point, Mr. President is the question of "effectivités" on what they call the Western
Triangle, which is in yellow there.
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El Salvador has admitted in its Reply (para. 3.9, p. 42) that the small triangle which runs from
the tripartite boundary marker on the Cerro de Montecristo to the Cabecera de Pomola and the
Quebrada de la Chicotera, the triangle formed by these three points is not included within the
boundaries of the Commons adjudicated to Citalá in 1776.
However, this triangular area is inhabited entirely by citizens of El Salvador, as is indeed
recognized by Honduras in its Counter-Memorial (CMH, Annexes, p. 295). The document in
question, presented in these proceedings by Honduras, is signed by the Honduran Ambassador,
Max Velásquez Días, who I understand is part of the delegation of Honduras. Max Velásquez
recognizes in this document filed in the proceedings that,
"les terrains de la zone en litige de Tepanguisir se trouvent faire partie de la propriété des
habitants de la municipalité de San Francisco de Citalá du Salvador, mais le droit sur ceux-ci
appartient à la République du Honduras".
This recognition, in an official document presented by Honduras in this case, is the most
complete and categorical answer to what Professor Sánchez Rodriguez said yesterday on the subject
of "effectivités". It also explains why El Salvador did not consider that it was necessary to file any
additional evidence in respect of "effectivités" in relation to this sector.
Further, in this small yellow triangle the Government of El Salvador has established a forestry
reserve which constitutes the only wet forest within the territory of El Salvador. Laws have been
promulgated prohibiting the cutting of trees such as oaks and pines and protecting the original fauna
and flora, especially rare birds in the course of extinction such as the quetzal as well as a most
important family of orchids. It was precisely with a view to the setting up of this forestry reserve
that the largest part of this triangle, the Hacienda de Montecristo, was donated by the former owners
to the Government of El Salvador, which now runs it through its Ministry of Agriculture.
It is in relation to this small area that El Salvador is relying on the human arguments, by
virtue of the second sentence of Article 26 of the General Treaty of Peace of 1980, in support of its
claim that the citizens of El Salvador who inhabit this small triangle should not be separated from
their co-nationals and from their present administration by the municipality of Citalá.
Finally, Mr. President, I should make it clear that I have not referred to two futher questions
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discussed by Professor Sánchez Rodriguez yesterday because I do not think that they are relevant for
present purposes. The law applicable to this case is that contained in Article 5 of the Special
Agreement and Article 26 of the General Treaty of Peace of 1980 and not that contained in ancient
Treaties dating from the last century whose provisions have been superseded or are obsolete. Nor
have I dealt with the question of royal landholdings or "tierras realengas" because in this sector
El Salvador is not basing its claims on any such lands. This question of "tierras realengas" will be
dealt with in due course in relation to the sector of Nahuaterique, which is where the question of
royal landholdings actually arises.
This puts an end to my statement Mr. President, thank you very much for your attention.
Mr. PRESIDENT: I thank President Jiménez de Aréchaga. The Chamber takes a break now
and I wonder if the delegation of Honduras would decide to reply this morning or would prefer to
wait until tomorrow.
H.E. Mr. VALLADARES SOTO: Mr. President, the Reply of Honduras we will leave until
tomorrow morning.
Mr. PRESIDENT: So I adjourn the sitting until tomorrow morning at 10 o'clock.
The Chamber rose at 10.55 a.m.
___________
Audience publique de la Chambre tenue le jeudi 25 avril 1991, à 10 heures, au Palais de la Paix, sous la présidence de M. Sette-Camara, président de la Chambre