C 4/CR 91/30
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
YEAR 1991
Public sitting of the Chamber
held on Monday 27 May 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 lundi 27 mai 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 Rodríguez, 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
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the Netherlands,
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
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Honduras à La Haye,
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. The sitting is open. The delegation of El Salvador is
going to speak on the problem of effectivités and I give the floor to Professor Anthony Oakley.
Mr. A. J. OAKLEY:
ARGUMENTS OF A HUMAN NATURE AND THE "EFFECTIVITES"
Mr. President, distinguished Members of the Chamber, it is for me a wholly unexpected
honour to have the opportunity of addressing the Chamber on behalf of the Republic of El Salvador
on the subject of arguments of a human nature and the "effectivités" in so far as these affect the
claims of El Salvador to the six disputed sectors of the land frontier. In the first place,
Mr. President, I must express my gratitude to the Agent of El Salvador,
Dr. Alfredo Martínez Moreno, and to the other members of the delegation of El Salvador for the
confidence which they have placed in me. And in the second place, I must express my very great
pleasure that on this, the first occasion upon which I have appeared before the International Court of
Justice, I am able to see among the distinguished Members of the Chamber the person in whose
classes I first made acquaintance with the principles of public international law, namely of course,
President Sir Robert Jennings.
El Salvador has sought, Mr. President, to make this additional short statement to the Chamber
on the subject of arguments of a human nature and the "effectivités" and I should say at this stage
that I am using the expression "effectivités" in the sense in which it has been used throughout the
hearings on the disputed sectors of the land frontier. El Salvador has sought to make this statement
for three basic reasons: first, in order to try to synthesize the various observations on these questions
which have already been made by the counsel who have already addressed the Chamber on behalf of
El Salvador; secondly, in order to emphasize the very limited extent to which El Salvador is in fact
relying on such arguments in its claims to the six disputed sectors of the land frontier; and, thirdly,
to make a proposal to the Chamber which, in the event that it is acceptable to you, Mr. President,
and to the other distinguished Members of the Chamber, may possibly assist you in dealing with the
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massive quantity of legal arguments, factual arguments, evidence and maps which have been
presented to you in the course of the last four weeks.
The justification for the introduction of arguments of this kind into these proceedings is to be
found in Article 5 of the Special Agreement and Article 26 of the General Treaty of Peace of 1980.
Article 5 of the Special Agreement, which is entitled "Applicable Law" is as follows and I am going
to read this text in English using the translation which El Salvador presented to the Chamber at the
commencement of these hearings:
"In accordance with the provisions of the first paragraph of Article 38 of the Statute of
the International Court of Justice, the Chamber, in reaching its judgment, will take into
account the rules of international law applicable between the Parties, including, where
pertinent, the provisions of the General Treaty of Peace."
Now, that reference to the provisions of the General Treaty of Peace is, of course, a reference
to Article 26. And for present purposes, the relevant part of this Article is its second sentence, which
is as follows and this time I am going to use the English translation to be found in the
Counter-Memorial of El Salvador (para. 4.1, p. 129):
"Account shall equally be taken of other methods of proof and arguments and reasons
of a juridical, historical or human nature or of any other kind which may be adduced by the
Parties and which are admissible under international law."
In opening these proceedings before the Chamber on behalf of El Salvador in the session held
on 18 April (C 4/CR 91/5, p. 28 et seq.), the Agent of El Salvador, Dr. Martínez Moreno, stated
that the recourse by El Salvador to arguments of a human nature and the "effectivités" was in no
sense a backing away from the doctrine of uti possidetis juris but was based on the decision of the
Chamber of the International Court of Justice in the Burkina Faso/Mali case, in which three
eventualities were contemplated and I now quote from the pleading of Dr. Martínez Moreno the three
possibilities (p. 34):
" (i) that historical title and effective possession might both support a given result;
(ii) that historical title might go one way and effective possession might go another way; and
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(iii) that effective possession comes to bear when there is no demonstrable historical title on
either side".
Dr. Martínez Moreno then went on to say that the position of El Salvador is that in this case
effective possession, and once again I use his own words (ibid.):
"only comes into play in this case in the first and third instances just mentioned: where
effectivités are confirmatory of historic legal title, or where effectivités can be introduced
where there is no clear historic title - but never in the second instance, where there is an
apparent conflict between historic title and effectivités".
These points were re-emphasized by President Jiménez de Aréchaga in his statement to the
Chamber in the session held on 19 April last (C 4/CR 91/5, p. 62). He said, and I am going to quote
quite a long passage from his pleading because he expresses it far better than I possibly could:
"El Salvador relies on the second sentence of Article 26 of the General Treaty of Peace
and the human arguments contained therein in two ways. First, in general, in support of its
claims based on the títulos ejidales. In this respect, El Salvador relies on the first eventuality
indicated by the Chamber in the Burkina Faso/Mali case. ... But in respect of certain well
defined and marginal areas where there is no title, El Salvador relies on the third eventuality
indicated by the Chamber where it said [and President Aréchaga quoted then from the
Judgment of the Chamber]:
'In the event that the effectivité does not co-exist with any legal title, it must
invariably be taken into consideration (I.C.J. Reports 1986, p. 587.)'
...
The claim is based on the grounds that these small areas which round up the Commons have
continuously been occupied by Salvadoreans and have been continously administered and
serviced by Salvadorean authorities and public services, so that to segregate these areas from
the basic settlement within the original Commons, after centuries of integration, would cause
unnecessary human hardship and distress."
Now, Mr. President, in this further statement to the Chamber, El Salvador will concentrate its
attention exclusively on what President Jiménez de Aréchaga described as those "well defined and
marginal areas where there is no title", in other words on those areas where the third eventuality
contemplated by the Chamber in the Burkina Faso/Mali case comes into play.
The areas in question are of course shown on the maps which El Salvador has presented to the
Chamber in the course of these proceedings. I do not propose to examine these Maps yet again
during this session but I do hope, Mr. President, that the references which I have included in my text
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will enable the Maps to be taken into account at the appropriate time.
Before I actually embark on my individual consideration of the six disputed sectors of the land
frontier, I must, however, make one further observation of a general nature which applies,
Mr. President, to a greater or lesser extent to all the disputed sectors of the land frontier other than
the sixth one, the Estuary of the Goascorán River.
During the oral phase of this case, El Salvador has concentrated its arguments on the scope
and effect of the Formal Title-Deeds to Commons which it has presented and has relied on
arguments of a human nature and the "effectivités" to a much lesser extent than in its written
pleadings. As President Jiménez de Aréchaga said in the course of the session held on 14 May last
(C 4/CR 91/22 at p. 22),
"El Salvador has adjusted its arguments based on the 'effectivités' and has chosen to
rely on such arguments only in respect of certain marginal areas."
In the same pleading (at p. 27), President Jiménez de Aréchaga gave a brief explanation of the
serious difficulties which the Government of the Republic of El Salvador has experienced in
furnishing to the Chamber that full evidence of its "effectivités" which it would ideally have liked to
be able to present and without which it is obviously extremely difficult, if not actually impossible,
for the Chamber to reach a full understanding of the true situation. Again, I would like to read some
words from the pleading of President Jiménez de Aréchaga (ibid.):
"These difficulties have arisen as a consequence of sporadic acts of violence which have
been occurring in some of the disputed areas. These have not only produced a certain amount
of interference with some of the governmental activities normally carried out by the
Government of El Salvador in these areas, but have also brought about a significant exodus on
the part of the normal population thereof; these features have particularly occurred in certain
mountainous areas."
Professor González Campos responded to these remarks in the course of the session held on
16 May (C 4/CR 91/25 at pp. 39-40). He first of all stated that both the Government of Honduras
and he himself as a Spaniard sincerely regretted these circumstances, and I should say,
Mr. President, that that is a remark for which the Government of El Salvador is extremely obliged.
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After that he said, and I am going to quote his original words in French, and I ask your indulgence,
Mr. President, if my accent in French is less good than it should be:
"Mais ceci dit, le compromis arrêté pour soumettre à la Chambre de la Cour le
différend terrestre, insulaire et maritime, a été signé en 1986, lorsque ces circonstances
existaient déjà."
Pausing there momentarily, Mr. President, I could answer that observation by saying that,
although these unfortunate circumstances did indeed exist at the time of the Special Agreement in
1986, the Government of El Salvador could perhaps have been excused if they had hoped that this
would not still be the case at the time of the oral hearings, which are, after all, taking place no less
than five years later. But, I am the first to admit that this would not be an appropriate response.
Professor González Campos then continued:
"Et vu qu'il s'agit de la preuve des actes relatifs à des communautés humaines et à
l'exercice de fonctions étatiques, même en admettant la difficulté d'accès à certaines régions et
en tenant compte de l'exode des populations, il est indéniable, d'une part que ces preuves, loin
d'être seulement présentes dans des zones litigieuses affectées par ces événements douloureux,
le sont également dans d'autres registres et archives centrales d'El Salvador."
No one, Mr. President, would be more delighted than the Government of El Salvador if that
was really the case, if duplicate records were indeed available in Central Registries and Archives in
El Salvador. However implausible this may sound, this is simply not the case for all sorts of reasons
that it is not feasible for me to go into now. The fact remains, Mr. President, that because of the
difficulties to which I have already referred, El Salvador has simply not been able to present to the
Chamber full evidence of its "effectivités".
Now, El Salvador is obviously aware, Mr. President, that observations of the kind which I am
at present making do not constitute a satisfactory substitute for the missing evidence and, of course,
the claims of Honduras to the disputed sectors of the land frontier cannot be dismissed or prejudiced
just because sporadic acts of violence in El Salvador have prevented the necessary evidence from
being collected. And it is in fact precisely for this reason, Mr. President, that at the end of this
statement the Government of El Salvador will be making the proposal to which I have already
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alluded.
That concludes my observations of a general nature, Mr. President. I will now turn my
attention to each of the six disputed sectors of the land frontier and first, to Tepangüisir.
(A) Tepangüisir
In this disputed sector, El Salvador has based its claims primarily on the Formal Title-Deed to
the Commons of Citalá of 1776. Having listened to the arguments of Honduras, El Salvador
submitted to the Chamber that none of the Title-Deeds nor the alleged "effectivités" presented by
Honduras cast the slightest doubt on either the validity of this Formal Title-Deed to Commons, or of
the boundaries established therein. But, El Salvador admitted in its Reply (in para. 3.9 at p. 42)
that a small triangle in the extreme north-west of this disputed sector is not included within the
boundaries of the Commons which were adjudicated to the inhabitants of Citalá in 1776. The
boundaries of this small triangle run from the tripartite boundary marker between El Salvador,
Guatemala and Honduras on the Cerro de Montecristo and the two lines of the triangle run one to the
Cabecera de Pomola and the Quebrada de la Chicotera, both those latter two places being boundary
markers of the Commons of Citalá. And this triangle is very clearly identifiable on the maps which
were presented to the Chamber by both Parties during the hearings on the sector of Tepangüisir.
Honduras has recognized in its Counter-Memorial (in the Annexes thereto at p. 295) that this
area is inhabited entirely by citizens of El Salvador. This recognition is to be found in a document
signed by the Honduran Ambassador in London, Max Velásquez Díaz, which has been presented to
the Chamber as one of the Annexes to the Counter-Memorial of Honduras. Ambassador Velásquez
Díaz recognizes in this document that:
"les terrains de la zone en litige de Tepangüisir se trouvent faire partie de la propriété des
habitants de la municipalité de San Francisco de Citalá du Salvaador, mais le droit sur ceux-ci
appartient à la République du Honduras".
This document amounts to the clearest possible evidence of the "effectivités" of El Salvador in
this very small part of this first disputed sector. In the light of the existence of this document,
El Salvador did not consider that it was necessary to file any additional evidence in respect of
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"effectivités" in relation to this sector. Thus in this sector at least the acts of sporadic violence to
which I have already referred have made no difference whatsoever.
It should also be noted that in this triangular area 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; the reserve in fact contains a number of especially rare
birds in the course of extinction, such as the quetzal, and a particularly important family of orchids.
The land which forms the largest part of this triangle, the Hacienda de Montecristo, was indeed
donated to the Government of El Salvador by its former owners precisely with a view to the setting
up of this forestry reserve.
Those points I have just made were indeed made by Professor Jiménez de Aréchaga in the
course of the session held on 25 April (C 4/CR 21/9, pp. 27-28). In his reply, in the session held on
the following day (C 4/CR 21/10, pp. 20-23), Professor Sánchez Rodríguez stated that it did not
necessarily follow that just because these lands were owned by inhabitants of Citalá they were within
the territory of El Salvador. In other words, they could just as easily be citizens of El Salvador who
happened to own land in Honduras.
In his rejoinder during the same session (ibid., pp. 33-34), however, President Jiménez de
Aréchaga pointed out that the Constitution of Honduras forbids foreign nationals from owning
property within 40 kilometres of any of its frontiers. If this triangular area really forms part of the
territory of Honduras, why have the authorities of Honduras not taken advantage of this provision in
their Constitution which makes any legal transaction or contract relating to such land null and void.
Why have they not evicted these foreign landowners? Now, they could not, admittedly, have done so
since 1980, because of the provision in the General Treaty of Peace of that year (Art. 37), which
obliges both sides to respect the status quo pending the resolution of this dispute. But they could
certainly have done so at any time prior to 1980: provisions of this type have been found in at least
the last two Constitutions of Honduras, those of 1957 and 1965. The only possible answer to this
question is that Honduras has never had sufficient administrative control over this area to enable this
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to be done.
The existence of this provision in the existing 1982 Constitution of Honduras (it is, in fact,
Article 107, the Spanish and English versions of which can be found in the pleading of
President Jiménez de Aréchaga to which I have already referred), the existence of this provision,
Mr. President, puts into an entirely new light the claims of Honduras to these disputed sectors of the
land frontier. The consequences of the adjudication to Honduras of any land which is at present
owned by citizens of El Salvador will bring about their immediate eviction. This actually happened
to citizens of Nicaragua following the delimitation of the boundary between Nicaragua and
Honduras as a result of the Laudo of the King of Spain. So the existence of even a few Salvadorian
landowners in a disputed sector claimed by Honduras produces a strong argument of a human nature
for not delimiting the boundary in such a way that that land becomes part of the Republic of
Honduras. On the other hand, there is no similar provision in the Constitution of El Salvador.
Consequently the presence of any number of Honduran landowners in a disputed sector claimed by
El Salvador does not produce any similar arguments for not delimiting the boundary in such a way
that that land becomes part of the Republic of El Salvador.
That concludes, Mr. President, my discussion of the first disputed sector of Tepangüisir, in
which I have to say that the "effectivités" of El Salvador are overwhelming. I now turn to the second
disputed sector of Las Pilas, or Cayaguanca.
(B) Las Pilas or Cayaguanca
In this disputed sector, El Salvador has once again based its claims primarily on a formal
title-deed to commons, this time the Formal Title-Deed to the Commons of La Palma of 1829.
Equally once again, having listened to the arguments of Honduras, El Salvador submitted to the
Chamber that none of the title-deeds nor the alleged "effectivités" presented by Honduras cast any
doubts at all on the validity of the formal title-deed to commons or the boundaries established
therein.
The only part of this disputed sector which is not included within the boundaries of the
Commons of La Palma is a narrow strip to the north-west. One side of this strip is formed by the
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boundary of the Commons of La Palma running from the boundary marker placed in the vicinity of
the Peak of Cayaguanca towards the east as far as the confluence of the Sumpul River with the
Copantillo Gorge. The other side of the strip is formed by a straight line from the same boundary
marker placed in the vicinity of the Peak of Cayaguanca to the headwaters of the Sumpul River, and
from there downstream along the Sumpul River to its confluence with the Copantillo Gorge. This
area can be seen clearly on Map 3.1, which was in fact the map utilized by both Parties in the
earlier discussion of this disputed sector.
This marginal area is totally occupied by citizens of El Salvador, and is administered and run
by the authorities and the public services of El Salvador. As President Jiménez de Aréchaga said in
the session held on 2 May (C 4/CR 91/12, pp. 28-29), the existence of Salvadorian "effectivités" in
this area has been admitted in the Reply of Honduras, in the following passage, which again I will
read in the original French:
"Postérieurement à la date critique de 1821, la pratique en vigueur dans ce secteur
s'avère, en elle-même, incomplète et peut-être insuffisante pour revendiquer, de façon
autonome et indubitable, la souveraineté du Honduras sur le secteur de la montagne de
Cayaguanca. Mais là n'est pas, en l'occurrence, le propos du Honduras. Il s'agit, au
contraire, de présenter à la Chambre de la Court des arguments complémentaires a posteriori
pour confirmer - et non pas pour remplacer - l'uti possidetis juris ." (RH, p. 238, para. 54).)
This is clearly sufficient to prove the existence of the "effectivités" of El Salvador in this part -
again a very small part - of the disputed sector which is not included within the boundaries of the
Commons of La Palma. I now turn, Mr. President, to the third sector, Arcatao.
(C) Arcatao or Zazalapa
Now, once again in this disputed sector, El Salvador has based its claims primarily on a
Formal Title-Deed to Commons, that of Arcatao of 1724. And once again, having listened to the
arguments of Honduras, El Salvador submitted to the Chamber that nothing in those arguments cast
the slightest doubt on the validity of, or the boundaries established by, this Formal Title-Deed to
Commons.
However, there are two areas of this disputed sector which are not included within the
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boundaries of the Commons of Arcatao.
The first of these is the area to the north and west of that part of the boundary of the
Commons of Arcatao which runs from the Colomariguan Gorge to the Cerro del Fraile (I should
perhaps point out that that is a very indented part of the boundary of the Commons of Arcatao.
There are a considerable number of boundary markers between these two points and that accounts
for the many changes in the direction of this section of the boundary of the Commons of Arcatao).
So far as concerns maps, there is a sketch-map of the disputed sector among the group of
sketch-maps which immediately follows Chapter 7 of the Memorial of El Salvador and the
boundaries of the Formal Title-Deed to Commons are shown on map 6.III in the Book of Maps also
annexed to the Memorial of El Salvador.
Now, it is in this area, the north-west of the disputed sector of Arcatao, Mr. President, that the
Government of El Salvador has experienced the greatest difficulties of all in collecting the evidence
of its "effectivités" which it would ideally have liked to be able to present to the Chamber. The only
document which El Salvador has been able to present which clearly relates to this area, as distinct
from the rest of this disputed sector, are some registrations of births and deaths in the Canton of
Zazalapa. And these can be found in the Annexes to Chapter 7 of the Memorial of El Salvador.
That is the first area not included within the boundaries of the Commons of Arcatao.
The second one is the part of the disputed sector to the south and east of that part of the
boundary of the Commons of Arcatao which runs from the point where the disagreement between the
Parties as to the frontier commences, that is, just to the south of the boundary marker of the
Talpetates Blancos, to the point on the Pochota Stream where the disagreement between the Parties
as to the frontier ends. And this area can be seen on the same two maps which I have already
mentioned.
Now in this area, Mr. President, El Salvador does not need to rely on any "effectivités" since,
as President Jiménez de Aréchaga stated in the session held on 7 May (C 4/CR 91/16, pp. 28-30),
the documents presented by Honduras to the Chamber relating to the three measurements of San
Juan de Lacatao demonstrate that the Gualcuquín River was at least at this point the traditional
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boundary between the Spanish colonial Provinces of Gracias a Dios and San Salvador and that this
river consequently constitutes the line of the uti possidetis juris of 1821.
That is all I want to say about this third sector. I now turn to the fourth one, that of
Nahuaterique.
(D) Nahuaterique
In this disputed sector, as in the previous three, El Salvador has based its claims primarily on
the Formal Title-Deeds to the Commons of Torola of 1743 and of Arambala and Perquín of 1815
and also on its rights to an area of royal landholdings ("tierras realengas") referred to in the Formal
Title-Deed to the Commons of Arambala and Perquín. Having listened to the arguments of
Honduras, El Salvador saw nothing that cast doubt on those primary claims, nothing that cast the
slightest doubt on either the validity or the boundaries established by the Formal Title-Deeds to
Commons or on the rights of El Salvador to these royal landholdings.
But there are two small strips of land in this disputed sector which are not included within the
land area I have just mentioned, not included within the boundaries of the Commons of Torola and of
Arambala and Perquín or within the boundaries of the royal landholdings.
The first of these strips is situated in the extreme south-western corner of the sector. One side
of the strip is formed by a line which runs from the starting-point of this sector, which is the source
of the La Orilla Stream, to El Volcancillo and the Cajón de Champate, then along the course of the
de las Cañas or Yuquina River as far as the point where that river starts to constitute the boundary
of the Commons of Torola, and then from north to south along the boundary of these Commons in
the direction of the Portillo de San Diego. That is one side of the strip. The other side of the strip is
formed by a line running from the same starting-point, the starting-point of the sector at the source of
the La Orilla Stream, to the Colina del Jobo, the Cueva Hedionda, Champate, Portillo Blanco,
Obrajito and Laguna Seco, and from there the line goes in the direction of Amatillo until the point
where it intersects with the other line, the last part of the other line, the boundary of the Commons of
Torola. There is a sketch-map of the disputed sector among the group of sketch-maps immediately
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following Chapter 7 of the Memorial of El Salvador and the boundaries of the Formal Title-Deeds to
Commons are shown on map 6.IV in the Book of Maps annexed to the Memorial of El Salvador.
The principal basis of the claim of El Salvador to this small strip is the fact, as President
Jiménez de Aréchaga stated in the course of the sessions held on 10 and 14 May (C 4/CR 91/20,
pp. 33-35; C 4/CR 91/22, pp. 14-16), that the formal Title-Deed to the Commons of Torola stated
that the de las Cañas or Yuquina River was the traditional boundary between the Spanish colonial
Provinces of San Miguel and Comayagua. Now, in the event that this claim is acceptable to the
Chamber, El Salvador does not need to rely on any "effectivités" in respect of this small strip. That
is the first strip of this disputed sector not within the Commons or the royal landholdings.
The second of these strips is situated in the extreme north-eastern corner of the sector. One
side of this strip is formed by a line running from one of the boundary markers of the Commons of
Arambala and Perquín, the Montaña de la Isla, and that line goes to the old boundary marker of La
Loma, then to the Malpaso de Similatón, and the Malpaso, and then by a straight line from the
Malpaso towards Las Pilas. The other side of the strip is formed by the boundary of the Commons
of Arambala and Perquín running from north to south from the same boundary marker, the Montaña
de la Isla, as far as the point where it intersects with the last part of the other side, the line running
from the Malpaso towards Las Pilas. Once again this area can be seen on the same two maps. El
Salvador has presented in the Annexes to Chapter VII of its Memorial 19 Registered Title-Deeds to
Land in the whole of this disputed sector. Of those 19, 7, those which are numbered 3, 5, 6, 7, 8, 9
and 10, relate to land situated in the strip which I am at present discussing. These landowners,
Mr. President, are those who will lose their properties under Article 107 of the 1982 Constitution of
Honduras in the event that the boundary is delimited in such a way that this strip becomes part of the
territory of Honduras. Thus, Mr. President, El Salvador has shown both its "effectivités" and a
substantial argument of a human nature in respect of this second strip in the sector of Nahuaterique.
I now turn to the fifth disputed sector, Polorós.
(E) Polorós
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In this disputed sector, El Salvador has based its claims primarily once again on the Formal
Title-Deed to Commons, the Formal Tittle-Deed to the Commons of Polorós of 1760. And once
again, El Salvador has not found in the arguments of Honduras anything to cast doubt on that title
either on its validity or on the boundaries established therein.
The only part of this disputed sector which is not included within the boundaries of the
Commons of Polorós is a very small strip in comparison with the whole area of the Commons, a very
small strip in the extreme north-western corner of the sector. One side of this strip is formed by the
boundary of the Commons of Polorós from the Cerro de López in the south-westly direction as far as
the confluence of the Torola River with the Manzupucagua Gorge. The other side is formed by a
line also running from the Cerro de López to the boundary marker Alto de la Loza and then
following the course of the Manzupucagua Gorge as far as its confluence with the Torola River.
There is again a sketch-map of this sector among the group of sketch-maps immediately following
Chapter 7 of the Memorial of El Salvador and the boundaries of the Formal Title-Deed to Commons
are shown on Map 6.V in the Book of Maps annexed to the Memorial of El Salvador.
This small strip contains two farms called the Sitio de las Ventas and the Sitio de San Juan,
and their proprietors will similarly lose their lands in the event that the boundary is delimited in such
a way that this strip becomes part of the territory of Honduras. The strip forms part of the Canton
of Lajitas, which in its turn is part of the Municipality of Polorós. In respect of this Canton, the
Canton of Lajitas, El Salvador has presented in the Annexes to Chapter VII of its Memorial two
Mortgage Deeds relating to the canton. It is obviously unfortunate, Mr. President, that El Salvador
has not been able to present any more documents in relation to this area but it is at least possible to
combine the effect of the two documents which have been presented with the substantial argument of
a human nature arising out of Article 107 of the 1982 Constitution of Honduras.
I now turn, last of all to the sixth disputed sector, the Estuary of the Goascorán River.
(F) The Estuary of the Goascorán River
I mentioned when I began to talk about the sectors that the situation of this sector is quite
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distinct from that of the other five. And that was extremely obvious, Mr. President, from the
arguments which were presented by the two Parties in relation to this sector last week.
In the first place, only in this sector is El Salvador not relying on a Formal Title-Deed to
Commons. As the Agent of El Salvador, Dr. Martínez Moreno, said in his pleading on 23 May
(C 4/CR 91/29 at p. 29), El Salvador has no Formal Title-Deeds to Commons in respect of this
sector. He then went on to demonstrate that Honduras does not have any either.
Dr. Martínez Moreno also stated (ibid., at p. 20) that, because a large part of the disputed
area is uninhabited, being populated only by a few hundred persons, mainly fishermen, occasional
farmers and smugglers, it did not seem to him that either side is able in this sector to adduce
convincing arguments of a human nature.
The position of El Salvador in this sector, Mr. President, is therefore that neither side has
either any Formal Title-Deeds to Commons or any arguments of a human nature in this sector.
Consequently, the delimitation of this sector must therefore be established in accordance with those
Spanish Colonial Documents which establish territorial limits. And so it is not necessary for me to
say anything further about this sector on this occasion.
That concludes my discussion of the six individual disputed sectors of the land frontier. I
now, Mr. President, will make the proposal to the Chamber to which I have already alluded on two
occasions.
The examination of the six disputed sectors of the land frontier which I have just carried out
shows very clearly, Mr. President, the limited extent to which El Salvador has actually relied on
arguments of a human nature and the "effectivités" in the oral phase of this case relating to the six
disputed sectors of the land frontier. Even so, even with that limited reliance, during the course of
these oral arguments, the delegation of El Salvador has become more and more conscious of the
extent to which the difficulties to which I have already referred have restricted the ability of
El Salvador to present full evidence of its "effectivités". Throughout these hearings, both Parties
have repeatedly stated that they are exercising authority over these disputed sectors and both Parties
have maintained that these sectors are populated by inhabitants of their respective nationality and
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origin. How then is the Chamber to decide on these conflicting claims when one of the Parties,
through no fault whatsoever of the other Party, has been unable to present full evidence of its
"effectivités"?
For these reasons, the delegation of El Salvador has therefore carried out consultations with
its Government at the highest possible level with a view to asking the Chamber to exercise the power
which it has under Article 66 of the Rules of Court to engage in a descente sur les lieux, that is to
say, in the actual words of Article 66, the power "to exercise its functions with regard to the
obtaining of evidence at a place or locality to which the case relates". The Government of
El Salvador, in the person of the President of the Republic, Alfredo Cristiani, has authorized the
making of such a request.
Consequently, Mr. President, the Government of El Salvador hereby requests that the
Chamber consider exercising its functions pursuant to Article 66 of the Rules of Court with regard
to the obtaining of evidence in situ in the dipusted areas of the land frontier. The objective would be
to establish the true situation of these disputed territories, over which both Parties to this litigation
have alleged that they maintain authority and control.
In addition, the Government of El Salvador would welcome any order by the Chamber
pursuant to Article 67 of the Rules of Court, arranging for an enquiry or an expert opinion on these
matters and to the same ends. It is evident, Mr. President, from my earlier comments relating to
the sporadic acts of violence which have been occurring in some of the disputed sectors of the land
frontier, that the Members of the Chamber or its experts would, by visiting these areas, be placing
themselves in a situation of some personal risk. The Government of El Salvador is however of the
opinion is that this risk is in fact minimal. Observers of the organ of the United Nations known by
the acronym ONUCA (which actually stands for "Observadores de las Naciones Unidas en Central
América") and representatives of the International Committee of the Red Cross are continuously
passing through these areas. What is more, on 20 May, last Monday, the Security Council of the
United Nations, taking into account the progress of the negotiations for peace in El Salvador, ordered
the creation of a Human Rights Division for El Salvador. This body, which will be commencing its
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operations at the beginning of the forthcoming month of June - that is, of course, next week - will
undoubtedly carry out some of its functions in these same areas with a view to avoiding further
violence and preserving the human rights of the inhabitants of these areas.
Mr. President, the Government of El Salvador is conscious that the International Court of
Justice has never yet exercised its powers under Article 66. The Permanent Court of course did so in
the case concerning the Diversion of Water from the Meuse (P.C.I.J., Series A/B, 1937, No. 70), but
the International Court has not yet done so. The matter has been considered by the Court on at least
two occasions. In the Second Phase of the South West Africa cases (South West Africa, Ethiopia v.
South Africa, Liberia v. South Africa) (I.C.J. Reports 1966, p. 6), the South African Government
invited the Court (or what it described as "a committee thereof") to undertake a visit in the form of
what it described also as an "inspection" to the then Mandated Territory of South West Africa - but
not just there: also to the territories of the Applicant States, Ethiopia and Liberia, and to several
other independent African States as well. This proposal was made before the existence of any Rule
of Court similar to the present Article 66, and it was in fact in the end rejected by a majority of eight
to six. The matter also seems to have been discussed in the case concerning Military and
Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America, Merits,
I.C.J. Reports 1986 (Judgment of 27 June), p. 14, para. 61), when the Court was considering the
possibility of appointing an individual or body to conduct an enquiry. And the Court indicated that
"such a body could be a group of judges selected from among those sitting in the case". Nothing
actually came of that particular possibility either, Mr. President. Both those "descentes sur les lieux"
to which I have referred - or those possible "descentes sur les lieux" - would have required visits to
several different countries, and would therefore have been quite different from the "descente sur les
lieux" which the Government of El Salvador is now requesting. Consequently the Government of
El Salvador therefore hopes, Mr. President, that you and the other distinguished Members of the
Chamber will be able to take a different, and therefore favourable, view of the request which is now
being made.
With the making of that request, Mr. President, I have concluded my statement to the
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Chamber. It therefore only remains for me to thank you, and the other distinguished Members of the
Chamber, for the courtesy and the attention with which you have followed my exposition. Thank
you very much.
The PRESIDENT: I thank Professor Oakley, and I would like to know whether the delegation
of Honduras intends to reply to him; and if so, when.
Mr. VALLADARES SOTO: Mr. President, the delegation of Honduras will answer the
statement of El Salvador of this morning tomorrow morning. But I want to make a reservation in
regard to the proposal of El Salvador in connection with possible inspections in situ of the sectors of
the land frontiers, which we will answer on a later occasion. Thank you very much.
The PRESIDENT: I thank the Agent of Honduras for his explanation. I would now like to
enquire of both delegations whether we could start our work on the problem of islands so that we do
not lose much time. If the two delegations are in agreement, when could we do it, if you are
prepared in that way to tackle this next problem in our programme of work - this very morning, or
this afternoon? Tomorrow we would interrupt to hear Honduras's reply to the statement just made
by Professor Oakley.
Mr. VALLADARES SOTO: Mr. President, in connection with the islands, we could start
tomorrow, in the afternoon.
Mr. MARTINEZ MORENO: Mr. President, El Salvador will be ready to answer
immediately. We would be delighted if Honduras found the possibility of speaking on the islands
this afternoon since they have already prepared their intervention, so that we will be able to gain
time.
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The PRESIDENT: Thank you.
Mr. VALLADARES SOTO: Mr. President, the problem is that the person who is going to
answer this morning's statement by El Salvador on "effectivités" is going to be Professor Sánchez
Rodriguez and he will need time to prepare his answer for tomorrow morning. So, for this reason, it
will not be possible for us to deal with the islands this afternoon. We therefore maintain our
proposal to speak tomorrow morning on "effectivités", and in the afternoon to begin on the islands.
THe PRESIDENT: I thank the Agent of Honduras. So we will adjourn now until tomorrow
morning at 10 o'clock.
The Chamber rose at 11 a.m.
___________
Audience publique de la Chambre tenue le lundi 27 mai 1991, à 10 heures, au Palais de la Paix, sous la présidence de M. Sette-Camara, président de la Chambre