Correspondance

INTERNATIONAL COURT OF JUSTICE

PLEADINGÇ. ORALARGUMENTS, DOCUMENTS

CASECONCERNING THE LAND, ISLAND
AND MARITIME FRONTIER DISPUTE

(EL SALVADORIHONDURAS NICARAGUA intervening}

VOLUME VI1
Conclusion of Oral Arg;Correspondence

COUR INTERNATIONALE DE JUSTICE

M~MOIRES,PLAGDOIRIESETDOCUMENTS

AFFAIREDU DIFFEREND FRONTALIER

TERRESTRE, INSULAIRE ET MARITIME

(ELSALVADORIHONDURAS; NICARAGUA (intervenanr))

Vol-UME VTT

Suitetfin dlaproceduorale; correspondanceCORRESPONDENCE

CORRESPONDANCE 1.TI-IEREGISTRAR TO THE AGENTOF EL SALVADO 'R

14December 1989.

1 have the honour to refer tu rny letter of 17 November 1989, with which 1
transmitted toYourExcellencya certified copy of an Application for permission
to intemene, under Article 62 of the Statute of the Courin the caseconcerning
the Land, Islaiiund Maritime Kontier Diqpliure(El Solvudor/Hotidurras)f,iled in
the Registry on that date by the Kepublicof Nicaragua. Inthat Application, the
Government of Nicaragua expresses the opinion that its request for permission
to intervene is a matter exclusivelywithiri the procedural mandate of the full
Court.
The Court has decidedto afford the twoParties to the case the opportunity to
express their viewsatthis stage on the preliminary question thus raised (and on

thüt question only),i.e..whtther the Applicatiorifor permissionto intervene falls
within the jurisdictionof the Chaiilber seised of the case, or that of the full
Court. Any observations which Your Excellency'sGovernment may wish to
make on ~hisqucstion should reach the Registry by 15January 1990.
The procedurc for wrilten observations on the Application itseif,conteinplated
by Article 83, paragraph 1,of the Rules of Court. remains reserved pending
settlement by the Court of this preliminary question.
A copy of the present letter is being sentto the Agentof Nicarügua.

(Signed) Eduardo VAI~ENLIA-OSPINA.

2, THE AGENT OF EL SALVADOR TO Tl-IERETrlS'l'KhR

T have the honour to referto your leiter of 14Deceinber 1989,informing the
Parties to the case concerning the Lnnd, Islaiidund Maritime Fronfier Dispupurr
(E/ SalvadorlF-Tondur~z ts)t the Court has decided to affordthe two Parties the
opportunity to express their views, at this stage, on the preliminary question
whether the application for permission to intervene filed by Nicaragua falls
within the jurisdiction of the Chamberseised of the case, or that of the full
Court.
The Government of El Salvador intends to oppose the Nicaraguan application
to intervene, includingthe request for reformation of the Chamberon ground it
will develop when asked to file its observatrons in accordance with Article 83,
paragraph 1, of the Kules of Court.

Believing that the reasons for opposing the appl~cation are equaliy valid
before the full Court or before the Chamber, the Government of El Salvadur
has no observations IO make on the preliminary question of whether the

' A lettein thcsame termswassent to theAgentof Honduras492 DISPUTE (ELSALVADOR/FIONDURAS)

Nicaraguan application falls within the jurisdiction of the Charnber or that of
the full Court.

(Signedl Alfredo MARTINEZ MORENO.

3. THE ACTING REGISTKARTO THE AGENT OF NICARAGUA

12Jünuüry 1990.

1 have the honour to refer to the Registrar'sletter of 14December 1989,with
which was transmitted toYour Excellencya copy of a letter sent that day to the
Parties to the case concerning the Lrand,Islundand Maritime FronbierDispufe
(Ei SaliiudorlNonduras).By that letter the Parties were informed that the Court
had decided to aKord them the opportunity to express their views on a pre-
liminary question raised in the Application for permissito intervene, under

Article 62 of the Statute of the Court, filed in the Registry by the Republic
of Nicaragua, namely, whether that Application for permission to intervene
falls within thc jurisdiction of the Chamber seised of the case, or that of the
full Court.
T now have the honour to transmit to you herewithcopy of the observations
on this question submitted by the Government of El Salvador,and of those sub-
milied by the Governrnent of Honduras Should Your Excellency'sGovernment
wish to make any further observationson the question in thc light of the views
expressed by the two Parties, such observations should reach the Registry by
1 February 1990.
As observed in the Registrar'sletter of 14 December 1989,~hcprocedure for
written observationson the Application itself,contemplüted by Arti83,para-
graph 1,of the Rules oc Court, remains rcserved pei~dingscttlement bythe
Court of this prelirninary question.

Copies of the present letttr are being sent to the Agents of the two Parties.

4.THE AGEhT OF HONDURAS TO THE REGISTRAR

15January 1990 [sic;received 12 January 19901.

1 have the honour to refer to your letter dated 14 Dccember 1989,rcquesting
the viewsof my Government on the prelirninaryquestion of whether the request
bg Nicaragua to intervene in the present case between Honduras and El Sal-
vador falls within the competence of the Chamber already conçtitutcd for that
case or the fullCourt.

It is clear that jurisdiction in this case arisea from the Special Agreement of
24 May 1486,and Article 2 of that Agreement Isa request to the Chamberof
the Court. The full Court kas no jurisdiction over the case bctween Honduras
and El Salvador, and equally could have no jurisdiction over Nicaragon the
one hand and either Honduras or ElSalvador on the other in thicase.Under
the Court's Statute the powers of the FullCourt in relation to a case submitted
to a Chamber are confined to inatters affecting composaion of the Charnber,494 DISPUTE (EL SALVADOR~I-IO~DURAS)

The preliminary question involvcs the interpretation alid application of the
provisions of the Statute of the Court. The provisions of the Statute have
a certain structure and econorny within which Chambers are constituted and
within which they hear and determine cascs. Cansequently, Chambers do

not form cornpletely autonomous units in relation ta the Statute and the full
Court.
Thc matter presenklyin issuecan be approached, first of al], by asking what
would be the position if the correct answer to the preliminary question is that
the Chamber should hear the Application for permission to intervene. Such a
result would evidentlybe incompatible with the principle of equality of the par-
ties, giventhat the Chamber includes ad hocjudges appointed at tlie request of
El Salvador and Honduras. It wauld also be in brcach of elementary principles
of procedural fairness.
One of the main changes introduced in the 1972Rules of Court was In rela-
tion to the composition of uclhocChambers. As rormer Registrar Hambro said,
the changes in the Rules ". . . mmeans that the parties are fret to müke known
eractly which individualjudges they desire on the Bench for lhat case" l.

111effect, ArticleSB,paragraph 1, of these Rulesindicates chatthe President of
the Court "shall çonsult rhe agents of the partics regarding the composition of
the Chamber".
The role of the parties in organizing the urfhoc Chamber is furthcr cmpha-
sized by the fàct of the continuarion of a member of an ad IiocChamber beyond
his term of office.
To consider that a challenge to the formation of the Chamber, made because
of the extent nf the cornpetencc ratione muterine with which irwas anoiilted,
should be üired before thesame Chamber, would certainlybe a cornpletesurren-
der of the sovereignwill of rhc intervening Party, to the wiIlof the original par-
tiesas reflected in the formation of the Chamber.
It should be reçalledthat the principle of the equality of Statesisparamount
in internationalrelaticins.Allother principles derive from this,in a sense,parent
principle: the principles of consent and of reciprocity,apposite in cüsesof inter-
vention, can only be iinderstood tlirough the principle of the sovereignequality

of States.
This principle which demands rcspect of the sovereignequalily of Nicaragua
woiild be inevitablyaffected ifit weredecided that the only intervention possible
was before the ud hoc Chamber. Hence, Nicaragua can only appear before the
full Court if this principlis to be respected.
In so deterrnining, no violence will be done to the principle of consent
bccaiise it,woulJ be open to the full Court tu determine rhc application of this
principle to the caseat hand.
When the fullCourt reccivesa request for theformation of a Chamber, the
first consideration is to determine the consent of the parties, because it can only
be constituted "wlth the approval of the parties",in the wording of Article 26 of
the Statute. Article 17 of the Rules only emphasizes this obvious preliminary
determination of the consent of the parties if one of the parties questions its
own consent to the ud hoc dctermination, it would become a matter for the full
Court to decide and not for the Chamber.

'Edvard I-lambro,-'Wilthe Revised Rulesof Court Lead toGreater Willingnesson
the Part ofProspectivClients?", in The Futureofthe InfernutiaCourr ofJusfire, p. 368
(ed. LeoCross), 1976. CORRESPONDENCE 495

Ttis then clear that the consent of the parties is always,in any casea matter
for the full Court ta determiiie. Ilence, no damage to this principle will be
caused if the request for intervention is heard by the full Court.
Another wüy of approaching this problemis by suggestingthat, in facc of the
difficulties 11involves,the procedure of intervention does not, in consequence,
apply to proceedings involving Chambers. This result flies in the face of

common sense. it is impossible to suppose that, when the Rules of Court wcre
redesigned in order to cnhance the Charnber procedure, a major modification of
the Statute of the Court would be brought about indirectly and on the basis of
silence or implication. Indeed, the presumption must be that the Statute and
Rules operate in accordance with the normal standards of procedural normality
and fainiess.
The ohject of introducing the Chambcr procedure in a form which allows to
States parties to the Statute a signifïcant role in determining the composition of
the Court is assumed on al1hands to have ben to increase the attractiveness of
resort to the Court. This considerable concessionto the principle of choice did
not extend to permitting States to exclude the possihility of intervention by the
simpleexpedient of employing the Charnber procedure.
By parity of reasoning the enhancement of the Chamber procedure brought
about in 1972 could nut have been intended to have the result that a State
requesting permission to iniervene should be faced with a judicial setting wh~ch
would be inherently unacceptable, siniplybecause the case involveda Chamber.

There are additional indications tliat the full Court is the appropriate instance
in respect of the request for perinissionto intervene. In the first place,the ques-
tion of replacingan cidhocjudgc, forexample,on the death of the rncumbent, is
a mütter that has been considered within the cotnpetence of the full Court. 111
relation to the Chamber constituted by the Order of 8 May 1987,the full Court
decided on a replacement of Judge ad hoc Virally by means of thc Order dated
of 13 Deçember 1989. rf a question of this type is within the competence of
the full Court, the issues relating to the important institution of intervention
ujorriori must fa11within that competence.
Whilst the relevant provisions of the Statute falt within the rubric of "Chap-
ter 111:Procedure", the institution of intervention notoriously involves major
issues of substanceand kasthe evident purpose: of alluwing justiceto be.donc
when a third State "lias an interest of a legal nature whiçh may he affectcd by
the decision in the case". 1t would be asionishing if the full Court were to be
involvcd in the replacement of ud IrricJudges in Chamber cases urhilst bcing
excluded frornthe application of the provisionsof Article 62.
The same consideration üppiies, mufutz.~n?utandisztu the ordering of written

pleadings. Article 92 of the Rules of Court make it clear that thc full Court
orders the first round of written pleüdingsin a Chamber cüse.In the proceedings
involving El Salvador and Honduras, the first procedural order (dated 27 May
1987)was made by the full Court.
A further consideration appears within this context.A request for permission
to intervene rnay be presented at any time up to the close of the written plead-
ings (Rules, Article 81 (1)), and, when suçh a request is made, the question of
intervention becornessupervenient, raising issues which are logicallyanterior to
the rnerits.Itmust follow that the charactermation of intervention as an "inci-
dental proceeding"involvesa technicalclassificalionwhich in no way reflecls the
essence of the intervention proceedings thernsetves.
The category of "incidental proceedings"also includes interim protection, pre-
liminary objections, and counfer-claims,and in the Honduran observations it is
argued that al1such matters should be decided by the Tribunal "with competence496 DISPUTE (EL SALVA~R~HQNDURAS)

over the merits of the case". This statement may be acceptable in many situa-
tions but, as the Honduran observations state, "such decision has to be taken in
the lightd the actual issues of substance raised in thecase".
Thus what is involvedis the application of the Statute and Kules in the par-
ticular context. More especially in the application of the Rules as such, the
Court (in this context, the full Court) must ix presumed to have the power to
apply the Rules in such a way as to ensure compatib~litywith normal standards
of common scnseand procedural fairness.
Even though the Statute or the Rules of Court do not have a clcar cut answer

on whether it is the Chamber or the full Court that can adjudicatc on requests
of inlervcntion in matters that are submltted by means of an special agreement,
it is certain that the fullCourt is the repository of al1the powersand duties that
have not been conferred to the Chambers expresslyor by necessary implication.
That is how the institutional conception of the Court as a judicial organ- arid
not one of arbitration - is best reflected, and the principles of consent and
equality - whichdo not exist only for the parties to the case to the detriment of
the State requesting the intervention - are best respected.The rule is the full
Court (Article 25 of the Statute); the exception is the Chamber.
Parties do not have the "right" to demand the formation of an ad IiocCham-
ber. This is a privilege of the Court that "may'" forrn Chambers according to
Article 26 of the Statute, which is as clear as Article 65 in the rnatter of advisory
jurisdiction. Exceptions and privilcgeshave to be interpreted restrictively.
It is interesting to pondeon the reason why Article 92' paragraph 1, of the
Rules indicates that the full Court shall fix the time lirnits for the pleadingsin
cases befort:al1type of Chambers. What is more, if the Court is not sitting-
even if the Chamber has already been constiiutcd - it is the President of the
full Court that does the fixing.It is interesting to recallthat when Honduras and
El Salvador requested a postponement for filing their Memorials, the full Court
fixed the time-limits, even though the Chamber had been in place for quite a
while.
This article, prior to thc 1972 change in the Rules, referred only to the
Chambers of' summary procedure envisioned in Article 29 of the Stütute and
Pçftthe fixin g the Chamber or its President. Upon being made applicable to

al1chambers, the Court found it necessary to takc this façulty away from the
Chamber. Hence, it was no? a left-over from some rnutilated article but was an
ad ikocaddition.
Furthermore. when these Rules were revised thcre was very strong opposition
to the whole question of ud hoc Chambers. One of the main questions then
under discussion waspreciselythe amount of control the full Court should have
over the ad hoc Chamber proceedings.Al1this tends to make it more dificult to
simplybrush off this question as an inadvertence or as being supererogatory.
Arttcle 92 (originaily Articl72 of the 1945 Rules), as indicated previously,
referred exclusivelyto Chambers of surninary procedure. That is why, among
other things, it limited the written pleadings to one for eacparty. When it was
made applicable to al1Chambers, undoubtedly one of the intentions was that
these casesbe handled in the rnostexpeditious manner. This limitation to one set
of written pleadings, coupledto the fact that it was left to the full Court to fix
the tirne table for these pleadings, holds one of the keys to the solution of the
apparent lacuna on intervention.
Another key lies in Article 17of the Rules,which - with the changes brought
about in 1472 - lirnits thlime in rvhichthe parties may request the formation
of a chambcr until the closure of the written proceedings. This sort of auto-
limitation made by the Court of the ample mandate il kas in Article 26,paragraph 2, of the Statute, to form a chamber for dealing with a pürticular

case at any linle,is particularly interesting because, as is well known, what
was uppermost ln the mind of rhe reforming Court was precisely the ad hoc
chambers.
The final keythat explains awaythe apparent puzzleis contained in Article 81
of the present Rules.This article - also reborn in this new fashion in 1972 -
advanced the time-limit for introducing an application to intervene to not later
than the closure of the written proceedings.Previously ir had been possible to do
so until the date of the commencement of the oral proceedings.
The fairly obvious conclusion we can reach is that since the full Court
intended to maintain the hold on the reinsuniil the presumed end of the written

pleadings thisnew limitation to the time period forintervening is explained. Any
such request forintervention would be made when the full Court still had plenty
of overtjurisdiction on the case.
The right of intervention authorized by Ariicle 62 of the Statute was not cus-
tomüry in prcvious forms of international adjudication 2.
The reason for this absenccis fairly simple.An arbitralion procedure could be
süfclyignored. Not so a decision ihat will eventually become a decision of the
Court as a whole (Article27 of the Statute).
If it werea case of dealing with an opinion or decision to be delivered by a

tribunal integrated by ad hoc judges of the parties (arbitrators), Nicaragua eould
safelyignore itand the tribunal. Ncvertheless,by law itwillbe considered a deci-
sion delivered bythe Court as a whole evenif it is an adhocChamber integrated
of necessityand by definition in iis iotality by ut/c(~ojcudges seiected with the
üpproval of the parties and obviously withno participation by Nicaragua.
As former Registrar Hambro pointed out in an article commenting upan the
revised Rulcs of Court (the 1972revision), thereis a great differencebetweeti a
judgment rendercd by an arbitration court and one given by a Chamber of the
ICJ. i-iiscomment centred on the then ongoing:

". . . Beagle Channel Arbitration Court [which]çonsists of five members
individuallyappointed. Thcy happen al1to be members of the International

Court of Jiistice, but the judgment they render will not be a judgment of
the Court, as a ludgment of a Chamber would have been. And this is much
more than a diference of mere form. 1imeans arnong other things that the
possibility of enfnrcement measures organized by the Security Council
under Article 94 of the Charter does noi exist incases like the Bt.ugIeChnn-
ne1 case, as would be the case if the tribunal had been a Chamber under
Article 26 of the Statute . . . The differsncewill also mean thai the actsand
documents will be published as Court publications in the one case but iiot
in the ~ther."~

Finally,it cannot be süid thütthe eKecton the defenceof the rights of ltaly in
the Continental Silelf case were negligible evenif its request to intervene was
denied. It was not nccessary to await the eventual decision on the merits to

One of theexceptions to Ibiwas the VenezuelanPri$erenrC iarinsof 1804since in
that instançethe rompromiAprovided that otherStateswith claimscould "join as a party
in thearbiiration"This privilegewasexcrciscdbyseveralStates.5eeHudson,Internationl~l
Triburiuls.PustandFufure,67, 98(1944)
Edvard t-lambro,"Willthe RevisedRulesof Court Lead toGreatcr Willingncssoii
thc Partof ProspoctivcClients?"in TheFutureof the Iiiternutionl ourroJJu~~rripe.368
[ed. Leo Gross), 2976.arrive at this conclusion. The Court was careful to reassure ïtaly that its legal
interests would be taken into account.
TfNicaragua's request for intervention on an cqual footing with the Parties is
opposed - as El Salvador has anticipated - and the necessary consent relating
to the mode in which the Chamber could proceed isnot reached, then at the
very least, Nicaragua has the right that the full Cour- and not a Chamber -
should say sornething about Nicaragua's rights in the same way that the full
Court referred to the Italian rights and guaranteed their respectItis undeniable
that the final judgment in the case concerning the Çontinerrral SheIf (Lyhian
ArubJamuh~riyulMulta) in which Itüly did not participatewas "more lirnited in

scope betweenthe partics themselves,and SU~J~C~ to more cavrats and resesva-
tions in favour of khirdStates, than it might otherwise hairebeen had Itüly been
present". IfNicaragua is not allowedto intervene on an equal footing, this is the
result it seeks,andiican only be obtained by adecision from Lhefull Cuurt on
the limits of the competence ratiorie~nat~rheof the ad hoc Chamber.
The i-Ionduran repIy reflects a misconception of the essence of the Interna-
tional Court of Justice,ü misconception thal isbom with the cotnpromi~itself.
The cv~nprornisdocs not petition the ICJ but addresses itself directly to
a non-existent "Sala" (Chamber). Paragraph 1 of Article 1 studiously üvoids
addressing the full Court.
Perhaps what gives the game awüy even more clearly is paragraph i of
Article 3of the cunlpromts. InScction (a) the parties agree to request the "Sala"
to fixthe tirne-table fortheir respective Memorials.Obviously,the drafters didn't
ignore the existence of Article 92 of the Rules of Court, what they wcrc very
clearly trying to do was to ignore the full Court.

And so with the Honduraii reply.This is careful to pain ; ut - in case we
had missed the point - that the Speciül Agreement ". .. is a requesEto the
Chamher, of the Court. The full Cuurt lias no jurisdiction over Ihe case between
Honduras and El Salvador . . .".
Essentially, what the Court kas to decide in this case is whether it retains
iesponsibility over the Chambers ilçreates or if it can be by-passed by parues
who want their very own Chamber, and if possible, that it bc brought to life in
a virgin birth.
In the context of the preliminary question now in issue, in the respectful sub-
mission of niy Government, the full Court hais the competence to dccidethe
issue raised by the Application for permission to intervene and, in the circum-
stances of this case should decide in favour of exercisingthat competence.

(Signed) Cürlos AIIGUELLO G~MBZ.

6. THE AGENT 01' EL SALVADORTO THE REGISTKAR

9 April 1991.

1wish tu respectfrillyinform you that in additioii to the persons tiiat compose
the Delegation of the Republic of El Salvador in the caseconccrning the La~ld,
IsIand und Murztimc Fmnfi~rDisp~ii~(El S~bi~udorlHondumsN . icaragua inter-
vening),hefore the Chambcr of the International Court of Justice, my Delega-
tion wllEintroduce a witness during the oral proceedings that arc to take place,
as of April 15: 1991.rights in the Gulf of Fonseca", should bemade inasmuch as the points to which
Sr. AviIés'svidenccwill be directed are the peaceful exerciseof sovereigntyand
control in the islands of Meanguera and Meanguerira and the realities of life
and the human occupation of these islands, on the basis of his personal know-
ledge and experience.
In his testimony, Sr.Avilés willmake reference to certain documents substan-
tiating his appointments to the aforementioned positions and related matters. In
accordance with Article 56 of the Rules of the Court, certified copiesof those
documents will be presented to the Rcgistrar, t~gether with Ihe required number

of copies, beforethe appearance of Sr. Avilésas witness.
In the course of the examination of Sr. Avilksand in argument of Counsel for
El Salvador, referencewill be made for the information of the Chamber to aset
of colour photographs of Meanguera and its inhabitants taken by Sr. Avilésor
in his presence in March and April of this year, and to a set of aerial photo-
graphs showing thegeneral geography and layout of the islands in the Gulf of
Fonseca taken by El Salvador authorities in 1988 (with particular focus on
Meanguera and Meanguerita). These photographs should beçonsidered as illus-
trative elements of pleading in support of the arguments and testimony to be
pre~nted next week,and not as "documents" within the meaning of Article 56.
Albums of these photographs will be filed as soon as possible withthe Regislrar,
together with the requisitenumber of copies

9. THE AGENT OF EL SALVADORTO THE KEGISTRAR

22 May 1991.

In accordance with Article 57 of the Rules of the Court, 1 have the honour to
transmit herewith a certificate of marriagc of Joaquin Avilésanhula de Jesus
Dominguez, thc parents of Heriberto AvilisDominguez, who has been indicated
in these proceedingsas beinga witness to be calIedby EI Salvador, and to which
he wiH refer in his testimony, together with a certified translation thereof into
the English language,and a photocopy of the Birth Entry into the Birth Rccord
Book of the Civil Registryof the Municipality of La Unibn. Republic of ElSal-
vador, of Joaquin Avilés,father of the aforesaid witness, also with a translation
thereof into the English language. The marriage took place in the Townshipof
Choluteca, and was performed by thc Municipal Mayor and Secretary thcreof, at
that tirne, the 23rd of August of 1930,and the birth took place in Meanguera
del Golfo, Department of La Union, Republic of El Salvador, the 31st of
August of 1903. The first ccrtificate was issued by the Mayor and Municipal

Secretary of the municipality of Choluteca, Republic of Honduras on January
23, 1980,and the second one is contained in the original Birth Records Book of
the Civil Register of the Municipality ofLa Unibn, Department of La Union,
Republic of El Salvador. Both certificates' have ben certified by the under-
signed.

Not reproduced CORRESPONDENCE 501

10. THE AGENT OF HONDURAS TO THE REGISTRAR

7 June 1991.

1 kindly request to transmit to the President of the Chümber, the text of the
followingnote of protest:

The Delegation of the Republic of Honduras reiterates irs express reservations
against all arguments developed by the Agent of the Republic of Nicaragua in
relation withdelimitation problems.
It then considers asirreceivable al1the comments müde during more than an
hour this morning on the so-called vlrtual sea delimitation between Honduras
and El Salvador.
In order not to make the task of the Chamber more dificult, rhe Repubiic of

Honduras only rejectsthose irreceivablearguments by way of this written note,
but it reserves its rightto ask the floor for an oral protest ifthe attitude of
Nicaragua should persist.

11. THE DEPUTY-REGISTRARTO THE AGENT OF HONDURAS

12 September 1991.

I have the honour to transmit to Your Excellency herewith copies of two
letters receivedin the Registryon 5 September 1991 from, respectively,the Co-
Agent' and the Agent of El Salvador in the case concerning thc Land, Island

and Maritime Fron~ierDispu~e(El SaliradorlHondtiras: Nicaragua intervening),
concerning the submission of documents to the Chamber forrned to deal with
that case Two sets of rhese documents were received inthe Registry with these
letters.
The President of the Chamber, while noting that the submission of
further documents to the Co~irtafter the close of the written proceedings is
not a normal part of the procedure, takes the view that in the present case,
in view of the Façtthat the Agent and ~ounsclfor El Salvador repeatedly indà-
cated during the oral proceedings that in certain circumstances El Salvador
might seek to submit these documents. it isappropriate to apply to them, by
extension and murirti.i mutundisthe provisions of Article 56 of the Rules of
Court.
Iam accordingly transmittiiig to you herewith a set of copies of the docu-
ments, and should be gratefulif you would inform me as soon as possible
whcther the Government of Honduras hiis any objection to their production,

and if it does not so abject, whetheritdesires to exercisethe right conferred by
paragraph 3 of Article 56 of the Rules of Court to comment on the documents
produced.
1 am writing in similar terms to the Agent of El Salvador.

(Signedl BernardNOBLE.

' Not reproduwd. THE ACFNT OF EL SALVADOR TO THE KELiIÇTRAR

30 September [.%icreceivedon 5 September] 1991.

1have the honour to refer to my statemeiit made to the Honourable ludges of
the Chamber in the case concerning the Land, IsIandand Murilime FrontierDis-
pure (El SalvadorlHondurcrs: Nicuraguuintervening] at the public Sittingheld on

Friday, 18June 1991.at 10a.m. at the Peacc Palace, Judg Sette-Camara, Presi-
dent of the Chamber, presiding, by which, amongst other matters therein con-
taincd, 1declared that El Salvador would have to prepare complete copies of a11
the additional documents referred to in the Meanguera Dossier fïled by rny
Covcrnment before the Regil;tryof the Court, inasmuçh lionduras is apparently
not prepared to agree that the said certifications are correct and that those
documents do in fact ~X~SE.
In that respect 1 am subinitting to the Chamber a complete set of certified
copies of al1 the additional documents referred to, as 1 said beforc, in the
Meanguera Dossier, subjectIo Articlc 56 of the Rules of Court, solely for the
purposc of completing the recordand setiing things straight.

12. L'AGENT DU 1-IONDURASAU GREFFIER ADJOINT

24 septembre 1991.

J'ai l'honneur d'accuser réception devotre aimablc Note 85386 en date du
12 septembre 1991 rilaquelle vous avez bien voulu joindre les copies de deux
lettresdu Co-Agent et Agent d'El Salvador, port:tntdatedu 5 et 30 (sic)sep-
tcnihrc E991, dans I'affaire du DiSJr:rJdrontaEicrterrc.Ttre,itisulerrntaririme
('ES iuivridorlHoriclirras)r,elatives la présentationpar El Salvador de nouveaux
documents devünt la Chambre de la Cour.
A ce sujet, etsurlabasedes articles 43di1Statut et 56 et 51 du Reglement,la
Rkpiibliquedu Honduras s'opposeh I'adrnissibilitide la preuve prksentéepar El

Salvador et, bien que naturellement elle n'a pas l'intention de présenterdes
observations au sujet des 2702 documents distribuésen sept volumes, elletient
toutefois .isouligner que le volume 1,spécialement,contieiit, outre des docu-
ments, des comnientaires,des exposéset,des arguments qui, de l'avisdu Hondu-
ras, auraient dûêtre alléguélsors de la procédureécriteou orale.
La présentationde ces documents aujourd'hui, trois mois aprèsla clbture.de
la procédure orale,bien qu'annoncée parl'Agent d'El Salvador le 14juin et non
pas le 18comme il est dit dans sa lettre, est contraire au Statut et Reglement de
la Cou- surtout si l'on considèreque tous les documents originaux de ces éle-
ments dc preuve se trouvent dans les archivesd'El Salvador et par conséquent
auraient pu ktre présentéseii temps utile au cours dces quatre dernières années
de procédure.
En outre et contrairementiice qui est stipulàl'article51,paragraphes 1et 3,

on n'accompagne pasla traduction certifiéeconforme a l'une desdeux langues
officielles dela Cour des textes aujourd'hui déposédsevant la Chambre.
Le Honduras ne fait que seratifier dans sa déclarationdu 12juin (CR 9U47)
lorsque l'Agent qui souscrit deçlara s'opposer à l'admissibilitédu dossier
Meanguera. CORRESPONDENCE 503

13.THE DEPüTY-REG1STRARTO TI-IEAGENT OF HONDURAS

25 September 1991.

1 have the honour to acknowledge receipt of Your Excellency'sleiter of
24 September 1991concerning the documents which the Government of El Sal-
vador wishes to submit to the Chamber formed to deal with the case concerning
the Land, Island and Marifim~ hntier Dispute (El Saivador/fIonduras:
Nrcaruguu~n~ervcning]a,nd to inform you that the President of Ihe Çhamber
will Iay the question whether these documents should be admitted before the
Chamber for decisian.

14. THE REGISTRARTO THE AGENT OF EL SALVADOR '

1 have the honour to refer to the Deputy-Registrar'sletterof 25 September
1991,by which Your Excellencywas informed that the President of the Cham-
ber formed to deal with thecüseconcerning tlie Land,Islclnand Muririt~ieFrrin-
tier Dispule (El SulvadorllJonduras. Nicaragila intervenirig) would be laying
before the Chamber the yuestion whether the doçunients submitted by Your
Excellency'sGovernment on 5 September 1491 should be admitted as evidence
in the case.
The Chamber hlisiiowcxümincdthat question in tlie light of the provisions of
Article 56 of theRules of Court which, as indicated in ~hcDcputy-Kegistrar's
letter of12September 1991,the President of the Chamber considcred shuuld be
applied to the documents

Examination of the volumes delivered by El Salvador has shown that thcy
contain, in addition to copies in extensoof exiçting documents, extracts from
memoranda prepared by the Historical Investigator of El Salvador whiçh
arnount to commentary or argument on the documents ihemselves.In the view
of the Chamber, material of this kind çannot be adrnitted under the tcrms of
Article 56 of the Rules of Court.
So far asthe docunients themselvesare concerned, Article 56 providesthat the
Court may authorize the production of a neur document "if it considers the
docuinent iiecessary".The Chainber notes tliatas was explaincd by counsel for
El Salvador, the origirlal "Meanguera Dossier" already before the Chamber
contains a few rcpresentative documents of cach of the types of documents
reliedon by El Salvador, togetber witha certification of the existeofesimilar
documentation, given by theChief Archivist of' El Salvador (CR91/35, p. 29);
that the subinission of further documents was ünnounced if Honduras did not
formally admit the existence of the additional documents, as it was urged by
El Salvador to do; and that the documents now submitted are presented,
according to Your Excellency'sstatement at the final hearing (CRglKO, p.17):

and your letter of 30 August 1991, "solely for the purpose of completing the
record and setting things straight".

' A letler similarlems wiis senl 10tAgent of Honduras.504 DISPUTE (EL SALVADOR/HONDUKAS)

The Chamber takes the view that the fact that Honduras did not formally
admit the existenceof the documents referred to in the Chief Archivist'scertifi-
cate does not, in the çircumstançes, render the production of these documents
"necessary"for the purposes of Article 36, paragraph 2, of the Rules of Court.
The decision of the Chamber istherefore that it does not authorize such pro-
duction.
1 am writing in sirnilar terrns to the Agent of Honduras.