C 4/CR 91/12
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
YEAR 1991
Public sitting of the Chamber
held on Thursday 2 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 jeudi 2 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
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: The sitting is open. We continue the hearings on the second dispute to
settle the land frontier. It is for the delegation of El Salvador to speak this morning and I give the
floor to President Jiménez de Aréchaga.
Dr. JIMENEZ DE ARECHAGA:
CAYAGUANCA AND LAS PILAS
I. Cayaguanca or Las Pilas?
Mr. President, Members of the Chamber, I can begin this statement on behalf of El Salvador
by indicating a few points of agreement with what was said yesterday by my distinguished adversary
Professor Sánchez Rodriguez.
Professor Sánchez Rodriguez put very well and in a few words what is the fundamental issue
in this area, namely, to determine which is "le cadre physique", the physical frame of the sector in
dispute.
He stated that, in a geographical description, the area has the rough shape of a triangle. We
agree with that; the geographical description coincides. However, we observe that it is the "ejido" of
La Palma which has the shape of a triangle with its apex in the confluence of the Sumpul River with
the Quebrada del Copantillo. I will ask my colleague, Mr. Elias, to show this triangle in the first
map on display that we have placed here, which is the official Honduran map 2359 Nuevo
Ocotepeque. This is a Honduran map: will you please indicate the triangle? This is the Quebrada
del Copantillo junction with the Sumpul River, La Peña de Cayaguanca, and from this point on the
frontier has been agreed.
Professor Sanchez Rodrigues has said that this triangular area is crowned by the Cerro El
Pital, with an altitude of 2,730 metres.
We also agree with this, but that is where our agreement ends.
Professor Sanchez Rodriguez made an identification which is the source of the problem that
we have in this sector, and the essence of the dispute we have concerning this sector.
He identified the Cerro El Pital with the mountain of Cayaguanca, asserting that the Cerro El
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Pital is known under the name of "mountain of Cayaguanca". However, the recognized toponymy
does not allow this identification and confusion.
The Cerro El Pital is the Cerro El Pital, and has always been recognized under that name, and,
consequently, it is not to be identified with the Cayaguanca mountainous area.
The Parties disagree as to the name to be given to the area in dispute in this sector, Honduras
designating it as Cayaguanca and El Salvador referring to it as Las Pilas.
But this dispute is not just a question of names. The fundamental issue in this sector, I repeat,
is the identification and location of the area described as the mountain of Cayaguanca.
Honduras contends that a Formal Title-Deed issued in 1742 in favour of the inhabitants of
Citalá also granted, as a sort of compensation, the whole of the mountain of Cayaguanca to the
inhabitants of Ocotepeque. Honduras further contends that the mountain of Cayaguanca thus
granted to the inhabitants of Ocotepeque is the land which is in dispute in this sector of the frontier.
According to Honduras, as a result of the grant of the mountain of Cayaguanca to the inhabitants of
Ocotepeque, this indigenous community acquired a vast mountainous area, virtually a chain of
mountains extending as far as the Sumpul River. The whole triangle would belong to Honduras,
according to their thesis.
El Salvador for its part contends that this Formal Title-Deed of 1742, issued in the dispute
between Citalá and Ocotepeque, does not apply to the land which is in dispute in this sector, but
instead refers to land within an area whose delimitation has already been agreed between the Parties,
namely the second sector of the frontier line from the mountain of Zapotal to the peak of
Cayaguanca, delimited by virtue of Article 16 of the General Treaty of Peace of 1980.
Thus the crucial point here consists in identifying and locating the area described as the
"mountain of Cayaguanca" in order to determine whether the Formal Title-Deed of 1742 relied on by
Honduras is relevant to this sector or instead, as contended by El Salvador, is completely irrelevant.
El Salvador submits that there are three main considerations which demonstrate the lack of
foundation of the thesis of Honduras. The first is of a cartographical nature. The second results
from a comparison between the Formal Title-Deed relied on by Honduras and the Formal Title
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Deeds to Commons of Ocotepeque of 1818. The third consideration is of a legal nature, based on
detailed consideration of the Formal Title-Deed relied on by Honduras.
(A) Considerations of a cartographical nature
These considerations emerge as a result of the merest glance at the Official Honduran Map
entitled "Nuevo Ocotepeque 2359 II". The peak (or "Peña)" of Cayaguanca appears on that map as
the terminal point of the second sector of the boundary line agreed in 1980, namely the sector
between El Zapotal and La Peña de Cayaguanca. This part has been agreed. This official Honduran
Map denotes by the name of Cayaguanca the mountainous area surrounding the peak of the same
name. This peak is a geodesic point, and I will now ask the cartographer to point out its exact
location, that is to say the exact location of the Peak of Cayaguanca. As may be seen, the
Cayaguance area lies on both sides of the agreed boundary line, to the west of the Peak on the
Honduran side of the boundary and towards the south of the Peak on the Salvadorean side of the
boundary.
What is significant, however, is that the mountainous area both to the west and to the south so
described by the name of Cayaguanca fall clearly within the area whose boundary line has already
been agreed. Moreover, the official Honduran map there shows that on both sides of the agreed
boundary line there are two "caseríos", poblados was the word used by Professor Sánchez
Rodríguez, named Cayaguanca. It is in the view of El Salvador very important that these
conclusions emerge from an official Honduran map.
Further, the Reply of Honduras expressly recognizes, at page 223, that at least "une partie de
la montagne de Cayaguanca se situe au nord du Rocher de Cayaguanca ..." (emphasis added) does
not mention the east.
(B) The comparison between the various formal title-deeds
If the thesis advanced by Honduras were the correct one, then the land awarded to the
inhabitants of Ocotepeque, according to their claim, by way of compensation in 1742 would
necessarily have appeared in the global and definitive formal title-deed to the Commons of
Ocotepeque which was issued in 1818. This formal title-deed was delivered to the Indian community
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at its own request - of Ocotepeque - in order to be able to proceed to a re-establishment of the
relevant boundary markers: this was necessary because the ancient title-deeds were in such a state
that they could only be read with great difficulty (see MH, Ann., pp. 1691 et seq.).
The judge, accompanied by the surveyor and by the authorities of the town of Ocotepeque,
commenced the measurement by starting from the top of the peak of Cayaguanca (op. cit., p. 1718)
and going in the direction of the Cerro San Antonio, namely towards the north-east. At the Cerro
San Antonio, according to the formal title-deed of Ocotepeque, "se trouve une autre borne ancienne
que j'ai ordonné de remettre en état": he referred to another marker which was there and which was
re-established. At this boundary marker of the Cerro San Antonio, the direction of the measurement
was changed so as to go towards the north-northeast (op. cit., p. 1718).
The result of this measurement is reflected clearly in the official Honduran map we have on
show. If a line is drawn between the peak of Cayaguanca and the Cerro San Antonio, as I will now
ask the cartographer to do, such a line marks the furthest projection towards the east of the
Commons of Ocotepeque.
The merest glance at this map shows that the area in dispute in this sector clearly lies beyond
the straight line between the peak of Cayaguanca and the Cerro San Antonio. This line in red, which
has been drawn, thus constitutes the closing line, that is to say the furthest extension towards the
east, of the alleged concession of an undetermined area of the mountain of Cayaguanca to the
inhabitants of Ocotepeque. This obviously confirms the previous conclusion already drawn from
this official Honduran map, namely that the formal title-deed issued in favour of the inhabitants of
Ocotepeque in 1742 is completely irrelevant to the determination of the boundary line in this disputed
sector, since the area that El Salvador calls "Las Pilas", which is the triangle, never belonged to
Ocotepeque.
This fact also explains why, when the area in dispute in this sector was subsequently awarded
as Commons to the Indian community of La Palma, the inhabitants of Ocotepeque, who were duly
notified that the measurement of these Commons was being carried out, did not make any objection
to the adjudication of the relevant area to the inhabitants of La Palma.
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That means, Mr. President, that Honduras has already received the mountainous area in
dispute surrounding the peak of Cayaguanca; it cannot claim that area twice over. That area, which
Honduras has already received, is clearly situated within the zone limited by the red line which the
cartographer has drawn on Map 2359 II.
(C) Considerations of a legal nature
I come now to considerations of a legal nature which lead to the same conclusion. They
confirm the conclusions reached above as to the location and identification of the area described as
the mountain of Cayaguanca.
In this sector, as has already been mentioned, Honduras, in support of its claim, has relied on
the formal title-deed issued in 1742 in favour of the inhabitants of Citalá. However, Honduras
presented only a single page of this formal title-deed. It is easy to understand why Honduras did not
choose to present the full text of this formal title-deed once that document has been studied as a
whole. This whole document was presented by El Salvador among the Annexes of its
Counter-Memorial (CMES, Vol. I, Ann. II.3, pp. 130 et seq.).
This formal title-deed was the result of a measurement which was carried out jointly by two
judges, one from San Salvador, the other from Gracias a Dios. They had been entrusted by the "Juez
Privativo de Tierras" of the "Real Audiencia" in Guatemala with the task of resolving the dispute
between the inhabitants of Citalá and the inhabitants of Ocotepeque over an area known as the
Jupula lands (see RH, para. 14, p. 211).
The Jupula lands are described in the Memorial of Honduras (para. 14, p. 348) as a triangle
"dont le côté nord serait la ligne qui va, depuis le mont du Zapotal au rocher de Cayaguanca". This
is this line representing the north of the Jupula lands which were in dispute. It is clear then that the
lands of Jupula fall entirely within the second sector of the frontier line, which runs precisely
between those two points, the mountain of Zapotal and the peak of Cayaguanca. This is one of the
sectors whose delimitation was agreed between the Parties by virtue of the 1980 Treaty.
The two judges awarded the lands of Jupula to the inhabitants of Citalá, having found that the
inhabitants of Ocotepeque "have more than enough land" (CMES, Anns., Vol. I, Ann. II.3,
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pp. 130-131), while the inhabitants of Citalá had "rough and sterile land where there is no place for
ploughing cornfields" (ibid., p. 131). The inhabitants of Ocotepeque agreed with this decision, but
"merely beg to be left free for them a mountain called Cayaguanca which is above the Jupula river
(ibid., p. 132).
The communication addressed by the two judges to the "Juez Privativo de Tierras" of the
"Real Audiencia" of Guatemala reads as follows, and every word in that communication is important
(ibid., at p. 134):
"it was found (said the two judges) that the Ocotepeque town had between useful plain fields
and irrigable land something more than fifty cabellerías, without those they have of
mountain ... and that those of Citalá did not have of it, which is why, accomplishing with the
commands of Your Excellency, we protected the last ones (those of Citalá) in the possession
of their Title-Deed of common lands ... and those of Ocotepeque were informed of the lack of
justice with which they have pretended to disturb those of Citalá".
Nothing whatever is said in this final communication in relation to any land awarded by way
of compensation to the inhabitants of Ocotepeque either in the mountain of Cayaguanca or anywhere
else.
Further, the operative part of this Formal Title-Deed, which is the part thereof adopted by the
"Juez Privativo de Tierras" of the "Real Audiencia" in Guatemala, makes reference only to the
adjudication to the inhabitants of Citalá of the lands of Jupula and the withdrawal of any title to
those lands which had previously been vested in the inhabitants of Ocotepeque; there is no mention
at all of any land being vested to the inhabitants of Ocotepeque, never mind any adjudication of any
land in their favour. The decision of the "Juez Privativo de Tierras" reads (ibid., p. 135):
"It is confirmed the possession of the contentious lands, given to the Indians of the town
of Citalá in presence of those of Ocotepeque ... considering the poverty which they at present
suffer and let the inhabitants of Ocotepeque return the title-deed issued to them."
The original in Spanish says "recojase", in other terms they withdrew the title which had been
invoked by those of Ocotepeque.
Not a word is said in this operative part of the Formal Title-Deed to the Commons of 1742
invoked by Honduras as a basis of their claim, but nothing is said about any award to the inhabitants
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of Ocotepeque of the mountain of Cayagaunca. No titles whatever were either adjudicated or
attributed to the inhabitants of Ocotepeque; on the contrary, they were ordered to return the
Title-Deed which they had maliciously obtained.
The absence of any such consideration or adjudication by either the two delegate judges or the
"Juez Privativo de Tierras" is easy to understand. If the lands described as lying to the east of the
peak of Cayaguanca were to be understood as extending as far as the Sumpul river (which is what
Honduras is contending), then any award of such lands would have been ultra vires the jurisdiction
which had been attributed by the "Juez Privativo de Tierras" to the two delegate judges. They had
been given jurisdiction only to resolve the dispute between the inhabitants of Citalá and those of
Ocotepeque over the lands of Jupula, as described in the Memorial of Honduras and as we had
pointed out earlier (p. 351).
The delegate judges were therefore not competent to exercise any jurisdiction in respect of
land lying further to the east as far as the Sumpul river for the very simple reason that no such land
had ever been in dispute between the inhabitants of Citalá and Ocotepeque.
The land which, according to Honduras, was adjudicated to the inhabitants of Ocotepeque lies
beyond the line between the peak of Cayaguanca and the Cerro San Antonio, the real line. That area
was never claimed or occupied by the Indians of Citalá and so was never in dispute between the two
communities. I repeat, if the area adjudicated to the inhabitants of Ocotepeque in the Formal
Title-Deed of 1742 were to be located in the position claimed by Honduras, then that adjudication by
the two delegate judges would have been null and void for lack of jurisdiction.
Moreover, the alleged adjudication of what is to all intents and purposes an entire chain of
mountains would not have satisfied the strict requirements established and the safeguards demanded
by the relevant Spanish legislation for the valid attribution of an "ejido". The delegate judges did not
have the power to adjudicate communal lands in such a manner, without having carried out any
measurement, without having summoned any of the adjoining landowners, and without having
erected or even indicated any boundary markers which would make it possible today to establish the
boundaries of this alleged expanse of land extending to the east of the mountain of Cayaguanca.
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Finally, how is it possible, in the context of the considerations expressed by the three judges - the
two delegate and the "Juez principal" - as to the existing availability of land to the two Indian
communities in question, for Honduras to contend that these same judges awarded, in this casual
"off-the-cuff" manner, to the inhabitants of Ocotepeque a mere 108 "cabellerías" in compensation for
the award to the inhabitants of Citalá of the 16 "caballerías" which comprised the lands of Jupula?
It simply defies common sense, in the light of the context of the Formal Title-Deed, to contend that
the inhabitants of Ocotepeque were awarded in such a cavalier fashion what the Reply of Honduras
describes (at p. 210) as "un ensemble montagneux avec des monts et plusieurs autres accidents", or
what the Counter-Memorial of Honduras describes (at p. 233) as "tout le massif". Consequently, it
also defies common sense to adduce, as Honduras does in its Reply (para. 47 at pp. 233-234), that
"les références à la montagne de Cayaguanca ne se rapportaient pas à une hauteur ou un mont
précis, mais identifiaient, au sens large, un secteur ou massif".
It is to be remarked, between brackets, that Professor Sánchez Rodríguez repeatedly relied on
this passage of the "título ejidal", in that part which he claims is in favour of Ocotepeque, in order to
contend that this document attributed the whole mountain of Cayaguanca lato sensu, to the Indians
of Ocotepeque. Thus, he contends that such an attribution should be taken as the basis for
establishing, by the Chamber, the international boundary line.
I may ask, is Professor Sánchez Rodríguez, abandoning the Honduran fundamental legal
contention, namely, that the "títulos ejidales" merely confer a "droit foncier", and provide only for
"des limites de terres" which should never be transformed into international boundaries? I leave the
question open.
II. The Formal Title-Deed to the Commons of La Palma
Now I come, Mr. President, to the Formal Title-Deed to the Commons of La Palma. In the
absence of any valid title which may be relied on by Honduras as covering the area in dispute in this
sector, the Formal Title-Deed to the Commons of La Palma of 1829, relied on by El Salvador,
consequently gains in strength, despite the fact that it was issued a few years after independence
from Spain had been obtained.
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But I say it is better to have a Formal Title-Deed to Commons, even if it does date from the
time of the Central American Federal Republic, than, as in the case of Honduras, to have no relevant
Title-Deed at all.
Yesterday, Professor Sánchez Rodriguez said that our argument dissolved like sugar in coffee.
Sugar may melt, but it sweetens the cup and makes it less bitter to have to accept a title so
significant as that of Dulce Nombre de La Palma.
The significance of the Formal Title-Deed to the Commons of La Palma results from certain
characteristics which differentiate this title-deed from others which are mentioned in the Reply of
Honduras.
These characteristics are as follows. First, it is the only Formal Title-Deed to Commons filed
in these proceedings which concerns the area in dispute in this sector. Secondly, the representatives
of Ocotepeque were duly summoned to observe the course taken by the measurement (Annexes to the
Counter-Memorial of El Salvador, Vol. II, at p. 7) and made no objection thereto. Thirdly, it is the
only title-deed with the above characteristics which was issued during the period of the Central
American Federal Republic; this latter fact gives it a special importance.
Honduras is on record as having stated, in connection with its dispute with Guatemala, that
title-deeds issued during the period of the Central American Federal Republic have a special value
because "in the event that one State had, by virtue of its measurements, prejudiced the rights of
another State member, there was a common authority able to re-establish justice" (see the Reply of
El Salvador at para. 3.30). This admission, or this contention, is independent of the fact that it was
formulated before a court or in the course of a mediation.
The measurement recorded in the Formal Title-Deed to the Commons of La Palma of 1829 did
not provoke the slightest reaction from Honduras. The Arbitration Award handed down in 1933 by
the Tribunal presided over by Chief Justice Hughes contains a statement which is fully applicable to
the case at present under discussion (UNRIAA, at pp. 1325 and 1327). "The government acts of
each State, specially when unopposed, or when initial opposition was not continued, are of special
importance." The Formal Title-Deed granted in favour of the inhabitants of La Palma shortly after
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the independence of Central America was "a formal act showing clearly the understanding" of
El Salvador "that this was her territory. These assertions invited opposition on the part" of
Honduras "if they were believed to be unwarranted".
Professor Sánchez Rodriguez repeatedly described the La Palma title as "un titre républicain".
There is nothing wrong with this adjective, but it should have been specified that it is also a "federal
title", issued during the existence of the Central American Federation, a fact which, as I said, confers
on this document additional strength.
It constituted an assertion of rights by a State member of the Federation which did not meet
opposition from other interested parties, such as the Ocotepeque community and the authorities in
Honduras governing this community. There were at that time common superior authorities
competent to settle an eventual dispute if there had been an usurpation of the boundaries of
territories or poblaciones.
For these reasons, the La Palma title is as good as any title we have invoked and if, in an
excess of purism, it is considered, because of its date, as incapable to prove uti possidetis juris, then,
in any event, the title of La Palma constitutes a conclusive proof of Salvadorian effectiveness in the
area.
Turning now to the geographical characteristics which emerge from this Formal Title-Deed,
these include a number of features which should clearly be taken into account in fixing the boundary
in this disputed sector.
The Formal Title-Deed establishes the Sumpul River as the boundary between Honduras and
the Commons of La Palma, which were granted to that indigenous community by the authorities of
El Salvador.
This fact signifies that El Salvador asserted its jurisdiction over the territory up to the right
bank of the river - in its superior course, curso superior del Sumpul. The Title-Deed states that the
judge and the other persons accompanying him reached the place known as Laguna Seca, which is
on the bank of the Sumpul River and is situated in a sector whose frontier has already been
delimited - the Sumpul River is already a boundary in an agreed sector - (see Annexes to the
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Counter-Memorial of El Salvador, Vol. II, Ann. III, at p. 9).
The Formal Title-Deed indicates that the measurement was not stopped at the bank of the
Sumpul River but was continued along the river upstream. It has been agreed that the Sumpul River
constitutes the boundary line in the sector between the Quebrada Oscura and the confluence of the
Sumpul River and the Pascacio River - this is another sector which has been agreed. The disputed
sector at present under consideration begins at the confluence of the Quebrada Chiquita or Oscura
and the Sumpul River, as the President stated in opening the proceedings concerning this sector.
The Formal Title-Deed clearly indicates how far to the north upstream along the Sumpul
River the measurement was continued. The most important passage in this Formal Title Deed to
Commons is the statement that the judge and the other persons accompanying him continued
upstream towards the north as far as the confluence of the Copantillo Gorge with the Sumpul River.
This is the confluence, this is the Sumpul, this is the Copantillo Gorge.
Finally, at this extreme northern point of the measurement, its direction was changed towards
the south-west and the measurement was continued upstream along the Copantillo Gorge as far as
the place known as El Pital. I would suggest Mr. President, with your permission, that we can
follow what comes now on the map which was distributed yesterday by counsel for Honduras, Map
C.1, which I think you have in your possession - it is small, but you can still follow it. The
measurement, once it reached the confluence, took the Copantillo Gorge as far as the place known as
El Pital. Here there is a geodesic point named Pital recognized as such by both Parties. From there,
they went, according to the title, to a point described as being in the vicinity of the Peak of
Cayaguanca ("la cercanía del Copo de Cayaguanca").
The disputed area granted as Commons to the indigenous community of La Palma by the
authorities of El Salvador has a roughly triangular shape with the apex of the triangle at the point of
the confluence of the Sumpul River and the Copantillo Gorge.
Honduras ignores the fact that the survey continued upstream of the Copantillo Gorge - I refer
you to Honduran Map 3.1 presented yesterday by Honduras and by us today. Honduras, in
Map 3.1, draws a straight line in red colour, instead of the line of the title which follows the
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ondulations of the Copantillo Gorge. So, in respect of the ondulations of the Gorge, the Salvadorian
interpretation of the title is in violet. I will ask the cartographer to point out again the different lines,
the one of Honduras arbitrary and the other corresponding to the title.
You will notice that the right side of the triangle is the Sumpul River and the left side the line
linking the confluence of the Sumpul River and the Copantillo Gorge with the Cerro El Pital and a
point in the vicinity of the peak of Cayaguanca. Given that the Cerro El Pital is thus part of the
boundary, it is therefore possible to be on that Cerro and nevertheless to be on the Honduran side of
the frontier.
And this explains the meaning of the correspondence from the Foreign Ministry of El Salvador
which has been relied on by Honduras, in which the local commanding officer based at La Palma
reported that certain generals engaged in revolutionary activities were on the Cerro El Pital, in the
jurisdiction of Ocotepeque in Honduras. He was simply reporting that these generals were not on the
Salvadorian side of this mountainous area, but rather on the Honduran side thereof.
This correspondence relied on by Honduras (HR, pp. 245 et seq.) shows only that the Cerro
El Pital was a frontier area, where incidents of this type are accustomed to occur.
This map 3.1 presented by both Parties compares the Honduran and El Salvadorian
interpretations of the formal title-deed to the Commons of La Palma. There does not appear to be
any substantial difference of opinion as to the boundary of these Commons on their right side, which
is the Sumpul River.
There is, however, a difference of opinion as to the boundary of these Commons on their left
side, namely - I repeat - the line linking the confluence of the Sumpul and the Copantillo Gorge with
the Cerro El Pital and the point in the vicinity of the peak of Cayaguanca.
We have pointed out in our Reply the inconsistencies of the interpretation of Honduras, and
we have shown how this map 3.1 has been doctored in order to appear to support the incorrect
interpretation of the title made by Honduras.
You will notice, Mr. President, Members of the Chamber, that you have there in capital letters
the location assigned by Honduras to certain features, markers, described in the title, and also, in
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smaller letters, the Salvadorian interpretation.
As I said, a straight line between the confluence and the Cerro El Pital is postulated by
Honduras when the fact is that the survey continued upstream along the Copantillo Gorge, with the
judge and the other persons accompanying him naturally following the undulations of the line of the
gorge. A "paraje El Pital", in capital letters, is invented in the Honduran map and is located some
2 kilometres distant from the peak of the Cerro El Pital. (Can all of you see, because it is very
small. This is the Pital - there. And here is the paraje El Pital which is in red on that map by
Honduras.) Finally, the place described in the title as in the vicinity of the peak of Cayaguanca, "en
la cercanía del pico de Cayacuanca", which did not appear on the big map (Map 2359 II), is located
some 4 kilometres away from the Cerro El Pital. What is the distance between this "cercanía del
pico y el pico". Four kilometres away. So it is quite a strange way to interpret the word "nearby" or
"cercanía".
But all this exercise which Professor Sánchez Rodríguez does as to the interpretation of the
measurement of La Palma, going into the minutiae of the measurement; we will not follow him
because both interpretations of the title are absolutely incompatible with the frontier line claimed by
Honduras in its final submissions. What you must note is the line claimed by Honduras - they ask
you to establish this line. The difference for the relevance of this discussion is whether 80 per cent
of the area belongs to El Salvador or the 100 per cent.
The issue, therefore, is not whether the measurement reached the Marrano mark or not, but
whether or not the title of La Palma as such constitutes the best evidence of uti possidetis juris or, in
its defect, of real effectiveness by Salvadorian authorities and populations.
It should finally be observed that El Salvador bases its claims to the marginal area - [it is a
marginal area] not covered by the title on effectiveness. You will notice in yellow that marginal
area. It is a region which is not covered either by the title of Ocotepeque. El Salvador bases its
claim to the marginal area shown on the map in yellow on the effectivités and the human argument,
in accordance with the dictum of the Court in the Burkina Faso/Mali case.
This marginal area is totally occupied by citizens of El Salvador and is administered and run
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by the authorities and the public services of El Salvador.
I will not go into the details of effectiveness, answering Professor Sánchez Rodríguez on this
question, for three reasons.
Firstly, because we only claim effectiveness and the human argument with respect to the
marginal area in yellow on this map.
Secondly, because the evidence of effectiveness in those marginal areas will be presented as a
global subject by another member of our legal team.
Thirdly, the main reason is that Salvadorian effectiveness in this area has been admitted by
Honduras in its Reply. I refer to paragraph 54 at page 238 of the Reply. I will read to you this
paragraph in French; it constitutes an implicit admission that there is Salvadorian effectiveness and
not Honduran. Honduras's Reply states:
"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 de Honduras. Il s'agit, au contraire,
de présenter à la Chambre de la Cour des arguments complémentaires a posteriori pour
confirmer - et non pas pour remplacer - l'uti possidetis juris".
Professor Sánchez Rodríguez yesterday (at C 4/CR 91/11, p. 46) invoked also as evidence of
Honduran effectiveness "la cartographie du secteur", mentioning certain private maps.
But it is clear that those maps have no evidentiary force when compared with a title such as
that of La Palma.
In the Burkina Faso/Mali case, so largely mentioned by our adversaries, the Chamber of the
Court dismissed the claim of one of the Parties, which described maps as "cartographic titles". The
Chamber said:
"Maps merely constitute information which varies in accuracy from case to case; of
themselves and by virtue solely of their existence, they cannot constitute a territorial title."
(I.C.J. Reports 1986, p. 82.)
Last of all, Mr. President, it should be mentioned that the title-deeds invoked at the last minute
in the Reply of Honduras concerning the Volcán of Cayaguanca and Las Nubes are not Formal
Title-Deeds to Commons conferring "ejidos de reducción" but are instead title-deeds conferring
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"ejidos de composición", that is to say private proprietary rights in exchange for a monetary
payment.
In any event, these title-deeds do not extend as far as, or interfere in any way, with the
Commons of La Palma. The identification postulated in the Reply of Honduras (at p. 242) between
El Volcán and the Cerro El Pital is shown to be incorrect by the official Honduran Map 2359 II
where El Volcán and the Cerro El Pital are shown as two distinct places a considerable distance
apart. I will now ask the cartographer to indicate both these places: that is to say, El Volcán and the
Cerro El Pital. It will be better to follow this on your small map. This is El Volcán and this is the
Cerro El Pital.
As to the Title-Deed of Las Nubes of 1883, the promoter of the measurement declared that
"après s'être mieux informé, il sait que le terrain demandé n'est pas limitrophe avec les terrains
des villages de San Ignacio et de la Palma; qu'il ne réclame rien de plus que ce qui se trouve
sur la cime du coteau de Cayaguanca" (Annexes to the Reply of Honduras, at p. 94).
Finally, Mr. President, I want to make a short comment as to the insistence of our adversaries
in bringing up the Burkina Faso case and reproaching us for not paying enough attention to this case.
The uti possidetis juris principle in the final analysis consists in determining how and through
which legal means the colonial authorities organized and governed the populations under their care.
In Africa, as the Burkina Faso/Mali case showed, the main difficulty in the original dispute
consisted in determining the territorial title in the case of nomadic populations. In Central America,
on the contrary, it consists in determining how and by which legal means the King and the colonial
authorities transform nomadic populations into stable settlements. This was accomplished through
the ejidos de reducción, that is to say, through the granting of land for communal agricultural
exploitation. These grants were made gratituitously in recognition of a pre-existing right. This
explains the difference between the two situations and the importance in the present case of the
ejidos de reducción and of the territorial disputes as to their limits between the Indian populations.
Thank you, Mr. President.
The PRESIDENT: I thank President Jiménez de Aréchaga. I would like to know whether the
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Honduran delegation would be prepared to reply tomorrow morning at 10 o'clock, or whether they
will require more time and would prefer to speak in the afternoon.
Mr. VALLADARES SOTO: Mr. President, we shall be able to reply tomorrow morning at
10 o'clock.
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The PRESIDENT: The sitting is adjourned until tomorrow morning at 10 o'clock.
The Chamber rose at 11 a.m.
___________
Audience publique de la Chambre tenue le jeudi 2 mai 1991, à 10 heures, au Palais de la Paix, sous la présidence de M. Sette-Camara, président de la Chambre