Translation

C6/ESH
C6/CR 2003/3 (traduction)
C6/CR 2003/3 (translation)
Mardi 9 septembre 2003 à 10 heures
Tuesday 9 September 2003 at 10 a.m.
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The PRESIDENT: Please be seated. The Court is open. We are meeting this morning to
hear the first round of oral argument of the Republic of Honduras, and I shall immediately give the
floor to His Excellency Mr. Carlos López Contreras, Agent of the Republic of Honduras.
M. LÓPEZ CONTRERAS : Monsieur le président, Messieurs les juges,
1.1. c’est un grand honneur pour moi que de me présenter devant cette Chambre spéciale en
ma qualité d’agent de la République du Honduras pour ouvrir notre premier tour de plaidoirie en
l’affaire de la Demande en revision de l’arrêt du 11 septembre 1992 en l’affaire du Différend
frontalier terrestre, insulaire et maritime introduite par El Salvador.
1.2. Je voudrais tout d’abord indiquer que la délégation du Honduras compte en son sein
aujourd’hui M. Aníbal Quiñónez, ministre des affaires étrangères, accompagné de
M. Policarpo Callejas, son conseiller principal, et de M. Marlon Pascua, membre de la commission
des affaires étrangères du Congrès.
Bref commentaire sur les plaidoiries d’El Salvador
1.3. Je commencerai par commenter brièvement les plaidoiries d’El Salvador. J’ai écouté
avec une grande attention l’exposé liminaire fait hier matin par l’éminente ministre des affaires
étrangères d’El Salvador. J’ai été frappé par le ton manifestement défensif qu’elle a adopté, tout
comme ses deux non moins éminents collègues. Rappelons que c’est El Salvador qui est le
demandeur, non le Honduras. Rappelons également que c’est le Honduras qui n’a cessé de
soulever des questions quant à la non-exécution, par El Salvador, de l’arrêt de 1992. Peu importe
que l’on sorte telle ou telle observation de son contexte, il n’en demeure pas moins que le Honduras
a constamment cherché à rappeler à son voisin ¾ et au Conseil de sécurité ¾ que ses «mots et
obligations n’[avaient] pas été suivis d’actes» et que notre voisin «n’a pas respecté l’arrêt». Voilà
le contexte dans lequel il convient d’apprécier le dépôt tardif de la présente demande en revision.
1.4. Permettez-moi aussi d’assurer à la ministre des affaires étrangères ainsi qu’à la Chambre
que le Honduras ne nie pas le droit qu’a El Salvador de former une demande en revision.
L’exercice de ce droit est toutefois subordonné au respect de conditions rigoureuses qui sont
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établies par l’article 61 du Statut de la Cour. Vu que ces conditions n’ont pas été respectées, la
demande est à notre avis irrecevable.
1.5. J’ai écouté avec beaucoup d’intérêt M. Mendelson s’évertuant à rappeler à la Chambre
la «violente guerre civile» qui faisait rage en El Salvador de 1980 à 1992. Peut-être n’avait-il pas à
l’esprit le paragraphe 63 de l’arrêt de 1992, qui cite le conseil d’El Salvador déclarant que le
gouvernement salvadorien avait «connu de graves difficultés pour fournir à la Chambre toutes les
preuves qu’il aurait souhaité présenter de ces «effectivités»… Ces difficultés sont liées à des actes
sporadiques de violence qui se sont produits dans certaines des zones en litige.» (Les italiques
sont de nous.) Monsieur le président, la Chambre était pleinement consciente des circonstances qui
prévalaient alors et elle savait parfaitement comment celles-ci devaient être appréciées.
1.6. Si vous le permettez, le premier tour du Honduras sera organisé de la manière suivante :
¾ en tant qu’agent, je présenterai les arguments du Honduras dans le cadre d’un exposé général;
¾ M. Pierre-Marie Dupuy traitera ensuite la question du droit applicable;
¾ puis MM. Carlos Jiménez Piernas et Richard Meese réfuteront ¾ tour à tour ¾ les arguments
sur lesquels El Salvador prétend fonder sa demande; et
¾ M. Luis Ignacio Sánchez Rodríguez réagira, pour les réfuter, à un certain nombre d’autres
allégations formulées par El Salvador;
¾ lors du deuxième tour M. Philippe Sands et d’autres membres de l’équipe hondurienne
interviendront selon les exigences du débat et, enfin, je présenterai nos observations finales
ainsi que nos conclusions.
Je voudrais signaler, par ailleurs, que les conseils du Honduras ne citeront aucune source ni aucune
référence dans leurs exposés mais que celles-ci seront indiquées dans les textes écrits.
Considérations générales
1.7. Monsieur le président, Messieurs les membres de la Chambre, en guise d’observation
générale, je tiens à dire que la République du Honduras est un Etat pacifique, respectueux de la
légalité et fermement attaché à la primauté du droit à l’échelle internationale. En effet, l’article 15
de la Constitution du Honduras dispose expressément que les décisions de la présente Cour et des
autres juridictions internationales compétentes doivent être respectées. La Constitution garantit
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également la primauté du droit international (article 18) et elle définit les frontières internationales
du Honduras en s’appuyant sur des décisions de justice, des sentences et des traités internationaux
(article 9, no
1, 2 et 3).
1.8. C’est ce qui explique que le Honduras ait accordé le plus grand respect à l’arrêt rendu
en 1992 par la Chambre de la Cour. Agir autrement consisterait à saper la primauté du droit, les
relations bilatérales et constituerait une menace à la paix, à la stabilité et à la sécurité
internationales.
La demande en revision d’El Salvador implique la reconnaissance de l’existence d’un arrêt
définitif et obligatoire
1.9. Monsieur le président, Messieurs les Membres de la Chambre, le Honduras a été
extrêmement déçu de voir El Salvador instituer la présente procédure, car nous considérions que
l’arrêt de 1992 avait réglé de manière définitive les questions juridiques sur lesquelles il porte.
Néanmoins, en analysant l’attitude d’El Salvador sous un autre angle, on pourrait également dire
que ce pays a enfin et juridiquement reconnu l’arrêt de 1992 comme une décision définitive et
obligatoire.
1.10. Il ne saurait en être autrement, car seules les décisions définitives en droit peuvent faire
l’objet de la procédure de revision prévue par le Statut de la Cour. Comme nous le savons tous, la
présente Cour ne peut pas être saisie de procédures d’appel (article 60).
1.11. Le Honduras se félicite donc qu’El Salvador ait à présent, par sa demande, reconnu la
nécessité de se conformer à l’arrêt de 1992 dans son intégralité. Pourtant le demandeur a
systématiquement refusé de s’acquitter des obligations que lui imposait l’arrêt, concernant
notamment la démarcation territoriale, le respect du statut juridique des eaux du golfe de Fonseca et
la délimitation des espaces maritimes qui se trouvent au-delà de la ligne de clôture du golfe. A tous
ces égards, El Salvador n’a toujours pas honoré ses obligations.
1.12. Il est frappant de noter que, sur les six secteurs de la frontière terrestre déterminés par
la Chambre en 1992, El Salvador ait attendu la veille de la date d’expiration du délai décennal
imparti pour demander la revision de la décision portant sur le secteur de la rivière Goascorán. Je
dois à ce propos exprimer la position du Honduras, qui juge totalement inacceptable que le
demandeur reconnaisse ouvertement que l’annexe IV à sa requête en revision a été produite en
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violation de l’intégrité territoriale du Honduras, de la Charte des Nations Unies, et au mépris de
l’autorité de la chose jugée dont est revêtu l’arrêt rendu en 1992.
El Salvador ne s’est pas conformé à l’arrêt de 1992
1.13. Examinons les raisons pour lesquelles El Salvador ne s’est pas conformé à l’arrêt
de 1992. Pendant les six premières années qui ont suivi le prononcé de l’arrêt, El Salvador a
subordonné la démarcation terrestre à la signature d’un traité sur la nationalité et la reconnaissance
des droits acquis dans les zones délimitées, bien que l’arrêt de 1992 ne contînt aucune obligation de
ce genre.
1.14. Le Honduras a néanmoins cherché à tenir compte des vues que la Chambre avait
exprimées par obiter dictum au paragraphe 66 (de son arrêt de 1992). En conséquence, en
janvier 1998, les deux Etats sont enfin parvenus à un accord et ont signé un traité sur la question à
Tegucigalpa.
1.15. Malgré la bonne volonté du Honduras, El Salvador a continué à refuser de donner effet
à l’arrêt. Et cela nonobstant les engagements qui avaient été pris par les chefs d’Etat du Honduras
et d’El Salvador en 1992, 1994, 1995, 1998 et 1999, y compris dans un accord signé le
19 janvier 1998 par le président salvadorien, M. Armando Calderón Sol, et son homologue
hondurien, M. Carlos Roberto Reina, pour démarquer, dans un délai de douze mois, l’ensemble de
la frontière terrestre telle que fixée par l’arrêt de 1992.
1.16. Cette situation délicate a contraint le Honduras à invoquer le 18 janvier 2002
l’application du paragraphe 2 de l’article 94 de la Charte des Nations Unies et à demander au
Conseil de sécurité son intervention et son aide aux fins d’assurer l’exécution de l’arrêt de 1992.
Caractère artificiel de la demande en revision d’El Salvador
1.17. Monsieur le président, Messieurs les Membres de la Chambre, El Salvador ne s’est pas
acquitté, au cours des onze dernières années, de l’obligation qui lui incombait de donner effet à
l’arrêt de 1992. Plutôt que de s’acquitter de cette obligation, il a choisi d’introduire une demande
en revision artificielle et, pour employer un euphémisme, extrêmement tardive.
1.18. C’est dans ce contexte que la Chambre est appelée à examiner la demande en revision
formée par El Salvador au sujet du secteur de la rivière Goascorán, demande curieusement fondée
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sur de prétendus «faits nouveaux», opportunément «découverts» dans les six mois qui ont précédé
son introduction.
1.19. La Chambre relèvera que, dans sa requête, El Salvador fait valoir les mêmes
arguments, précisément, que ceux qu’il avait déjà invoqués dans ses écritures et plaidoiries
de 1992. De fait, il invite la Chambre à réexaminer la thèse qu’il défendait alors, celle d’une
prétendue avulsion de la rivière Goascorán, thèse pourtant rejetée dans sa totalité en 1992 par un
vote à l’unanimité de la Chambre. Comme nous l’avons montré dans nos pièces, El Salvador n’a
pas présenté de fait nouveau. Ce qu’il souhaite, en réalité, c’est voir rouvrir l’affaire, remettre en
question la ratio decidendi de l’arrêt de 1992 et contester, comme il n’a cessé de le faire
depuis 1992, l’autorité de la chose jugée dont est revêtue cette décision.
1.20. Les motifs de l’arrêt de 1992 posaient en prémisse l’accord des Parties ¾ exprimé, du
reste, au cours de la procédure ¾ sur le fait que le «principe de l’uti possidetis juris» était
applicable au différend en général, et au règlement de la question du sixième secteur, celui de la
rivière Goascorán, en particulier, (par. 40, 45, 48, 56, 67, 307 et 308 de l’arrêt de 1992). Au
paragraphe 34, l’arrêt de 1992 évoquait également les négociations entre El Salvador et le
Honduras qui s’étaient déroulées en novembre 1888 à La Unión et à Guanacastillo, et avaient
«about[i] à un accord faisant de la rivière Guascorán la frontière reconnue, «incontestée et
incontestable»».
1.21. Au vu de ces éléments, il apparaît clairement que le véritable objet de la présente
requête est de remettre en cause le fondement essentiel de l’arrêt de la Chambre. A notre humble
avis, ce n’est pas là la fonction de l’article 61 du Statut de la Cour.
1.22. Dans son argumentation, El Salvador affirme de nouveau avoir été empêché de
recueillir certains éléments de preuve étayant ses conclusions en raison des troubles que connaissait
le pays. Cette question avait été exhaustivement débattue dans le cadre de la procédure qui a abouti
à l’arrêt de 1992. Au paragraphe 63 de celui-ci, la Chambre prenait acte, comme je l’ai déjà
indiqué, des difficultés qu’avait pu connaître El Salvador; elle précisait toutefois qu’elle ne pouvait
présumer l’existence d’un élément de preuve qu’El Salvador n’avait pas produit, pas davantage
qu’elle ne pouvait présumer qu’un élément de preuve qui n’était pas disponible aurait, s’il avait été
produit, plaidé en faveur de sa cause.
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1.23. Compte tenu de ce qui précède, je tiens à souligner que l’arrêt de 1992 concernait non
pas une rivière fictive ou mythique, mais une rivière qui existe bel et bien dans le secteur de
Goascorán. Toutefois, dans sa requête, El Salvador passe sous silence un certain nombre de faits
qui étaient connus de la Chambre, et que celle-ci avait discutés et tranchés dans son arrêt de 1992.
Si vous le permettez, sur ce point, j’illustrerai mon propos par quelques exemples.
1.24. Premièrement, lors de la procédure qui a abouti à l’arrêt de 1992, les Parties soumirent
à la Chambre des prétentions divergentes quant au secteur de Goascorán. La Chambre releva (au
paragraphe 306 de son arrêt) que le Honduras affirmait qu’en 1821 le Goascorán «constituait la
limite entre les divisions coloniales auxquelles les deux Etats [avaient] succédé, qu’il n’y a[vait]
pas eu de modification importante du cours de la rivière depuis 1821 et qu’en conséquence la
frontière sui[vait] le cours actuel de la rivière». De son côté, El Salvador affirmait que «ce qui
défini[ssait] la frontière, c’[était] un cours antérieur suivi par la rivière et que cet ancien cours,
abandonné ensuite par la rivière [pouvait] être reconstitué» et aboutissait dans le golfe à un endroit
différent. Ainsi la Chambre avait-elle connaissance de l’actuelle thèse d’El Salvador, et ce, bien
avant 1992.
1.25. Deuxièmement, la Chambre, au paragraphe 307 de l’arrêt, notait que les Parties étaient
d’accord pour dire «qu’au cours de la période coloniale une rivière appelée Goascorán constituait la
limite entre deux divisions administratives de la capitainerie générale de Guatemala : la province de
San Miguel et l’Alcadía Mayor de Minas de Tegucigalpa».
1.26. Troisièmement, au paragraphe 308 de son arrêt, la Chambre indiquait également que la
prétention d’El Salvador selon laquelle la frontière de l’uti possidetis juris était constituée par un lit
antérieur du Goascorán était subordonnée «du point de vue des faits, à l’affirmation suivante :
anciennement, le Goascorán coulait à cet endroit et, à partir d’un certain moment, il a brusquement
changé de cours pour couler à l’endroit où se situe son cours actuel». La Chambre précisait en
outre que l’argument de droit d’El Salvador revenait à affirmer ceci : «lorsqu’une frontière est
constituée par le cours d’une rivière et que le cours de celle-ci quitte soudainement l’ancien lit pour
un autre, ce phénomène d’«avulsion» ne modifie pas le tracé de la frontière, qui continue de suivre
l’ancien cours».
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1.27. Quatrièmement, au paragraphe 312 de son arrêt de 1992, la Chambre considéra «qu’il
[fallait] rejeter toute affirmation d’El Salvador selon laquelle la frontière sui[vait] un ancien cours
que la rivière aurait quitté à un moment quelconque avant 1821. Il s’agi[ssait] là d’une prétention
nouvelle et incompatible avec l’historique du différend.»
El Salvador n’a présenté aucun argument à l’appui de sa demande en revision
1.28. Monsieur le président, Messieurs les Membres de la Chambre, j’ai été amené à rappeler
ses paragraphes de l’arrêt de la Chambre, et je sollicite, pour cela, votre indulgence. Mais j’ai la
certitude que vous en avez déjà mesuré la pertinence et l’importance, puisque ces paragraphes
portent précisément sur la prétention qu’El Salvador cherche à faire aboutir aujourd’hui.
1.29. Le Honduras conteste vigoureusement la recevabilité de la demande d’El Salvador. El
Salvador n’a manifestement pas rempli les conditions posées par l’article 61 du Statut, telles que
récemment précisées par la Cour dans sa décision du 3 février 2003 en l’affaire de la Demande en
revision de l’arrêt du 11 juillet 1996.
1.30. Mais le Honduras conteste également la recevabilité de cette requête à un autre titre,
qui est que, sous le couvert d’une revision, c’est en réalité un appel que tente d’introduire
El Salvador. Comme le montreront les conseils du Honduras, la requête d’El Salvador ne se fonde
pas sur la découverte d’un fait nouveau; il s’agit, plutôt, d’une remise en cause de la
ratio decidendi de l’arrêt de 1992.
1.31. Monsieur le président, Messieurs les membres de la Chambre, je voudrais, en guise de
conclusion, formuler les observations suivantes :
¾ la demande en revision formée par El Salvador suppose la reconnaissance de l’existence d’un
arrêt définitif et obligatoire;
¾ El Salvador a mis en oeuvre une politique officielle d’obstruction pour empêcher l’exécution
de l’arrêt de 1992;
¾ la demande en revision qu’il a introduite est artificielle;
¾ elle n’est pas fondée sur la découverte d’un fait nouveau;
¾ El Salvador n’a présenté aucun argument à l’appui de sa demande, au mépris des conditions
strictes et cumulatives énoncées par le Statut et le Règlement de la Cour;
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¾ en conséquence, la demande en revision d’El Salvador doit être déclarée irrecevable.
1.32. Monsieur le président, je vous remercie infiniment de m’avoir donné cette occasion de
prendre la parole devant la Chambre de la Cour. Je voudrais à présent vous prier d’appeler à la
barre M. Pierre-Marie Dupuy, qui a pour tâche de traiter de la question du droit applicable.
Le PRESIDENT : Je vous remercie Monsieur l’agent et je donne maintenant la parole au
professeur Pierre-Marie Dupuy.
Mr. DUPUY:
Applicable law: legal conditions for the revision of a judgment of the Court
1. Mr. President, Members of the Court, it is always a pleasure for me to appear before the
International Court of Justice. Mr. President, yesterday we rather curiously heard an Applicant
present a case in its defence! An Applicant which tended to reverse the burden of proof; an
Applicant which constantly felt the need to justify itself ¾ admittedly with a certain eloquence on
occasion ¾ reiterating that it was claiming the exercise of a right, whereas it has never been denied
that exercise, especially not by Honduras, provided of course that it meets the relevant statutory
requirements.
2. After listening to the oral arguments of the three distinguished speakers who appeared
before you yesterday, the basic conclusion is that they are inviting the Chamber, and even beyond
the Chamber, the International Court of Justice as a whole, to revise its jurisprudence on a
fundamental element of its Statute. In the future, the Court would thus have to accept that its
judgments could be revised on the sole basis of allegations pointing to the possibility, but not
certainty, that a new interpretation of previously known facts was conceivable. And that purported
new evidence would quite simply be provided by subsequent developments in science and
technology, expediently called upon in order to challenge the merits of an international judicial
decision.
3. Yesterday, Members of the Chamber, the Republic of El Salvador invited you to accept
that, after the close of a case, a party, without even taking the precaution of executing the judgment
in the meantime ¾ which, we should not forget, is the case here ¾ should have the possibility, for
a further nine years and 364 days, to make up for its previous negligence in the search for evidence
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of its legal title or of any other alleged right; for such purpose it would simply have to use that
time to continue its investigations in archives, libraries or laboratories, wherever they might be
found.
4. By its audacity and novelty, the argument of the Republic of El Salvador, if it were to be
upheld by the Chamber of the Court, would certainly open interesting prospects for international
litigation. In particular, since El Salvador’s view is that one should accept as “new facts”
allegations of a presumptive nature and, above all, the new interpretations ¾ by definition
subjective ¾ that a party claims to derive from them, it would thus be necessary to review a
significant part of the rules of evidence in international litigation. This is especially true of
cases ¾ which are proving increasingly frequent ¾ in which counsel are assisted in the courtroom
by historians, technicians and scientists. Thus, one would just need to wait a little while after the
judgment had been delivered, or rather spend that time continuing the investigations that one was
unable to do or incapable of doing at the appropriate time . . . and it would always be possible to
come back before the Court to seek revision of the res judicata.
That, Mr. President ¾ lest we might tend to forget it ¾ that is the crux of this case! Res
judicata and the authority attaching thereto.
5. Any judgment rendered by the International Court of Justice is “final and without appeal”.
That is what Article 60 of its Statute states. It lays down a rule whose scope El Salvador seems to
have some difficulty in comprehending, because ten years after the Judgment of
11 September 1992, it has still not implemented it. Those statutory provisions just referred to
enshrine a fundamental principle of international litigation: the authority of res judicata, as
reiterated by the International Court of Justice since its very first judgment rendered in 1949 in the
Corfu Channel case1
.
As Charles de Visscher would observe some 20 years later, “the authority of res judicata is a
specific characteristic of a judicial act. It attaches to the judgments of the Court in The Hague and,

1
I.C.J. Reports 1949, p. 248.
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generally, to all judgments that are binding and not susceptible of appeal rendered by international
courts or tribunals”2
.
It may even be said that such authority represents the very essence of the Court’s judgments,
since it can only render judgments which possess binding force. That is something which this
Court has had occasion to recall a number of times since its beginnings, whether it be the
Permanent Court in the Free Zones case3
, or the present Court in the Northern Cameroons case4
.
The Advisory Committee of Jurists formed to draft the Court’s Statute had stated this from the
outset of their work: the authority of res judicata is a general principle of law5
.
6. Hence, it is in relation to this fundamental rule that the exceptional nature of the procedure
for revision of the Court’s judgments must be understood. Moreover, Article 61 of the Statute
takes full account of the quite distinctive and exceptional nature ¾ and hence of the need for it to
be interpreted restrictively ¾ of the revision procedure. It demonstrates this right from the first
paragraph, which is drafted in negative terms: “An application for revision of a judgment may be
made only when . . .”.
7. There are three important statutory consequences: the first is a procedural one. It thus
follows from paragraph 2 of Article 61 of the Statute and paragraphs 3 and 4 of Article 99 of the
Rules of Court that the procedure in question is divided into two phases. The first concerns the
admissibility of the application for revision, enabling the Court to verify whether the application
can be considered; the second can clearly commence only if the outcome of the first has been
favourable to the position of the Applicant. This second phase relates to the merits of the case
already decided, with a view to establishing whether the fact alleged is capable of resulting in
modification of the impugned judgment and, if so, to what extent. However, contrary to what my
eminent colleague Professor Mendelson claimed yesterday, these two phases cannot be
distinguished by two different sets of rules of evidence, one less stringent than the other. There is
certainly a difference between the two phases in the Court’s law, but it pertains to the

2Ch. de Visscher, Aspects récents du droit procédural de la Cour internationale de justice, Paris, Pedone, 1966,
p. 177.
3Free Zones of Upper Savoy and the District of Gex, P.C.I.J., Series A, No. 24, p. 14.
4Northern Cameroons, Preliminary Objections, Judgment, I.C.J. Reports 1963, pp. 33-34.
5Quoted by Judge Jessup in his dissenting opinion in the Court’s Judgment of 18 July 1966 in the South West
Africa cases, I.C.J. Reports 1966, p. 333.
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subject-matter of the evidence to be adduced by the Applicant and not to its probative force. Right
from the first of the two phases, the Applicant is required to adduce decisive evidence of a new fact
and not simply allegations or pre-emptive assertions. But it is only required to adduce such
evidence in respect of the admissibility of its application.
8. The Court itself recalled this in its Judgment of 10 December 1985 on the Application for
Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya)6
. In the
present case, it can be said at the outset that one may express a certain surprise at the haste with
which El Salvador, even in its submissions to the Chamber at this stage, sets out a very precise
description of the course of the boundary line that it seeks to obtain, including exact latitudes and
longitudes7
. The Chamber can read this on page 71 of El Salvador’s Application. This, if one may
use such language, is quite simply to put the cart before the horse.
9. The second consequence attaching to the exceptional nature of an application for revision
lies in the restricted possibilities available to the Court in the event of its finding that the
application is admissible. It is this which distinguishes revision ¾ permissible, albeit strictly
circumscribed ¾ from appeal, which is excluded by the very terms of Article 60.
10. Finally, the third consequence has to do with an element which ¾ I have to say ¾ I was
not particularly surprised that Professor Mendelson failed to address in his arguments; he was
careful not to mention it. I refer to the cumulative, rather than alternative, nature of the conditions
which must be met in order for the alleged fact to create a right to revision of the judgment. All of
the conditions required by Article 61 of the Court’s Statute have to be met. Conversely and in
consequence, as the Court noted in 1985: “Once it is established that the request for revision fails
to meet one of the conditions for admissibility, the Court is not required to go further and
investigate whether the other conditions are fulfilled.”8

6
I.C.J. Reports 1985, p. 197, para. 9.
7
“Starting form the old mouth of the Goascoràn river in the inlet as the La Cutù Estuary situated at latitude
13° 22' 00" N and longitude 97° 41' 25" W, the frontier follows the old course of the Goascoràn river for a distance of
17,300 meters as far as the place known as the Rompicion de los Amates situated at latitude 13° 26' 29" N and longitude
87° 43' 25" W, which is where the Goascoràn river changed its course.” Application for revision, p. 71.
8Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the
Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 207, para. 29.
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As Judge Suzanne Bastid dutifully acknowledged herself, notwithstanding her position as
judge ad hoc for the Applicant for revision, Tunisia: “If one reaches the conclusion that the
Application for revision does not directly invoke any new fact which is clearly relevant as such,
there is no need to go any farther and the Application must be dismissed. Any further
considerations would lead to an examination of the merits of the Application for revision.”9
11. Given the nature of the arguments advanced yesterday before the Chamber, it is now
necessary to reconsider in more detail the second and, especially, third consequences that have just
been mentioned. As will be shown later in my observations, under the guise of an application for
revision, the Salvadoran Application is in reality effectively seeking to have the Judgment of
11 September 1992 varied, as if it were appealing against that decision; furthermore, none of the
allegations put forward by El Salvador in support of its Application corresponds to the
requirements laid down by Article 61.
I. THE STATUTE OF THE COURT PROHIBITS ANY APPEAL AGAINST ITS JUDGMENTS
12. In its written response to El Salvador’s Application, Honduras recalls the Orinoco
Steamship Co. case of 1910, in which the Permanent Court of Arbitration prudently took the view
that “the appreciation of the facts of the case and the interpretation of the documents were within
the competence of the umpire” and that
“his decisions, when based on such interpretation, are not subject to revision by this
tribunal, whose duty it is not to say if the case has been well or ill judged, but whether
the award must be annulled; that, if an arbitral decision could be disputed on a ground
of erroneous appreciation, appeal and revision, which the Conventions of The Hague
of 1899 and 1907 made it their object to avert, would be the general rule”10
.
It is precisely that same rule ¾ the prohibition of appeal ¾ that can be found in Article 60
of the Court’s Statute.

9
I.C.J. Reports 1985, p. 248, para. 5.
10The Hague Court Reports, ed. J. B. Scott, 1916, p. 231. This Award, rendered on 25 October 1910 (American
Journal of International Law V, p. 230) is quoted by Judge Shahabuddeen in his separate opinion appended to the
Judgment in the case concerning the Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal), Judgment, I.C.J.
Reports 1991, p. 61.
Later, international jurisprudence would state further: “A mere error in law is no sufficient ground for a petition
lending to revision . . . the proper criteria lies in a distinction, not between ‘essential’ errors in law and other such errors,
but between ‘manifest’ errors . . . and other errors in law.” Trail Smelter case, Award of 11 March 1941, RIAA, Vol. III,
op. 1957.
19
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14
13. However, under the guise of an application for revision, the Applicant is really calling
for the Judgment to be reversed and has not hesitated, on a number of occasions, to criticize in
veiled terms the approach followed by the Chamber in order to reach its decision of
11 September 1992, as if it were reproaching the Chamber with an error of judgment, whereas the
facts now produced are certainly not “new” within the meaning of the Statute. When, for example,
my colleague Professor Remiro Brotóns basically stated, yesterday morning, that what counts is not
the course of the Goascorán in 1821 but where the boundary between the two provinces ran at that
time, he was contradicting the 1992 Judgment, implicitly regarding it as erroneous in law and not
simply in fact. Similar assertions can be found in paragraphs 71 and 123 of the Application.
Without giving an exhaustive list, I would also mention paragraphs 130, 145 and 164. What
we find there is that it is the very authority of the 1992 res judicata which is being impugned
through a challenge to the Chamber’s reasoning on the basis of the elements of law and fact
provided by each of the Parties: “The Chamber was inconsistent with its own observation when it
held that the present day course and the 1821 course were practically the same”, we are told for
example in paragraph 145.
Here, as later in paragraph 164, it is not an error of law with which El Salvador is
reproaching the Court, but quite simply the structural incoherence of its Judgment. The 2003
Chamber is basically being invited to correct the errors or inconsistencies of its predecessor in
1992. But that is not revision, Members of the Chamber, it is reversal on appeal. On the basis of
what provision in the Statute? I must confess that I would be curious to know!
II. The conditions for the admissibility of the Application for revision
are both restrictive and cumulative
14. I shall cite here the language used by the Court itself, quoting its own Statute, in its
Judgment of 3 February 2003 on the Application for Revision of the Judgment of 11 July 1996:
“Therefore, at this stage the Court’s decision is limited to the question whether
the request satisfies the conditions contemplated by the Statute. Under Article 61 of
the Statute, these conditions are as follows:
(a) the application should be based upon the ‘discovery’ of a ‘fact’;
(b) the fact, the discovery of which is relied on, must be ‘of such a nature as to be a
decisive factor’;
20
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15
(c) the fact should have been ‘unknown’ to the Court and to the party claiming
revision when the judgment was given;
(d) ignorance of this fact must not be ‘due to negligence’; and
(e) the application for revision must be ‘made at latest within six months of the
discovery of the new fact’ and before ten years have elapsed from the date of the
judgment.”11
15. As can be seen, over and above the requirement of the occurrence of a genuine fact, and
not mere allegations, or simply purported new, more or less well-documented “evidence”, there are
certain conditions relating to the nature of the fact and others to the conduct of the party in
question. Thus, after examining what is meant by a fact, we will then consider in turn these two
categories of conditions, all of which must be satisfied before the Court may declare the
Application for revision admissible.
A. The Application must be based on the “discovery” of a “fact”
16. What is a fact within the meaning of Article 61 of the Statute? There is no doubt,
Members of the Chamber ¾ as I have already stressed since the beginning of my presentation ¾
that this is a key issue in the law governing the revision of your judgments.
The practice of requesting revision is rare, because the Parties know that it is not an easy
path. But it is also recent, since Members of this very Bench rendered a decision only seven
months ago in this regard.
It is therefore helpful to look at what you stated in the 2003 Judgment and, in particular, the
comments of Bosnia Herzegovina’s Judge ad hoc Mahiou, who ¾ it must be emphasized ¾
subscribed fully to the conclusions of the 3 February 2003 Judgment, observing as follows:
“simply proceeding from the basic definition given in all dictionaries, notably those of
public international law, I note that a fact is an event which occurred, which took
place at a given point in time. From this basic, common-sense definition a crucial
element stands out: the existence or objective reality of the fact, and hence the Court’s
ascertainment or finding that it did indeed happen, or that it occurred at an appropriate
time such as to enable it to be invoked.”12

11Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, para. 16.
12Ibid., separate opinion of Judge ad hoc Mahiou appended to the Judgment, para. 2.
21
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16
17. Thus Judge Mahiou emphasizes quite correctly that the objective reality of a fact must be
distinguished from the interpretation which the applicant party seeks to place upon it, and from the
inferences or other new “intellectual constructs”13 which it seeks to draw in regard to what it has
itself decided to regard as a fact14
.
18. However, in the present case there is no new fact at all, whether from before or after the
date of the 1992 Judgment: either El Salvador seeks to rely on arguments already put forward in
the course of the pleadings prior to the Judgment (that relating to the “avulsion” of the Goascorán
River); or it seeks to produce documents already known to the Chamber, since they had been
published by Honduras; or it relies on purported “evidence” produced with a view to revision of
the 1992 Judgment, notwithstanding that such evidence had been accessible at all times to any
reasonably diligent researcher, and in no way contradicts the documents produced by Honduras.
Where, in all of this, do we see any new fact within the meaning of Article 61 of the Court’s
Statute?
19. In particular, new “scientific” and “technical” studies relied on as evidence of the
“avulsion” of the lower course of the Goascorán River cannot be regarded as facts of an objective
nature. They are the highly debatable product of a late initiative by El Salvador itself, undertaken
only on the eve of the expiry of the deadline for an application for revision. And as to the
discovery of the “Carta Esférica”, also submitted in the Salvadoran Application, this cannot
constitute a new fact either, since it is simply, as we shall show later, a further copy of maps
already produced in the principal proceedings which resulted in the Judgment of
11 September 199215. All the copies, moreover, are consistent in where they place the river’s
mouth.
20. Without further developing that point here, as it will be addressed by others16, I would
simply at this stage place on record the sense of perplexity raised by El Salvador’s Application as

13Ibid., para. 3.
14In his dissenting opinion, Judge Vereshchetin applies similar considerations when he states that the word fact
falls under “something that actually exists” or under “circumstances, as distinguished from its legal effect, consequence,
or interpretation”, definitions which he takes from Black’s Law Dictionary, 7th Ed., p. 610. Dissenting opinion of
Judge Vereshchetin appended to the Judgment of 3 February 2003, para. 10.
15See below, Chap. III.
16Ibid.
22
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17
regards the requirement of the existence of a fact. Essentially, the fact on which El Salvador
sought to base the boundary in the sixth sector in 1992 consisted in the alleged existence of a
former course of the Goascorán flowing into the Gulf of Fonseca at Estero La Cutú. El Salvador
contended that this former course had been suddenly changed as a result of the phenomenon known
as “avulsion”. Yet, it is precisely on this same fact that the Applicant seeks to rely today. The
Court was aware of the phenomenon in question during the principal proceedings. Avulsion,
Mr. President, is certainly no revolution! Unless we are talking in terms of astronomy, where
“revolution” means to go round in a full circle, bringing you back to the point of departure!
21. In reality, the Republic of El Salvador indicates that what is new is not the discovery of a
fact but simply that of new evidence, based in particular on new documents: Professor Mendelson
stated this explicitly yesterday. However, according to settled case law, there is a distinction in
kind between the facts alleged and the evidence relied upon to prove their reality and only the
discovery of the former opens a right to revision. The Permanent Court of International Justice
stated this as far back as 4 August 1924, in its Advisory Opinion on the delimitation of the
boundary between Serbia and Albania at the Monastery of Saint-Naoum: “In the opinion of the
Court, fresh documents do not in themselves amount to fresh facts.”17
22. Moreover, in a passage in paragraphs 38 and 39 of its Application, whose hesitant
language reflects its embarrassment, El Salvador appears to have a very broad conception not only
of the “facts” but also of their novelty, and that conception was confirmed yesterday by
Mr. Mendelson. Thus it extends this quality of novelty to matters already perfectly well known to
the Chamber, but whose interpretation it claims would have been different if the Chamber had been
aware of the so-called new evidence which El Salvador is now submitting.
In reality, what the Applicant is thereby addressing is the decisive nature of the alleged fact.
B. Meaning and scope of the “novelty” of the fact alleged
23. It is generally said that the opening of proceedings for revision is dependent on the
production of a “new” fact by the applicant. Article 61 of the Statute itself uses the expression

17Monastery of Saint-Naoum, Advisory Opinion, P.C.I.J., Series B, No. 22, p. 22. See the discussion of this case
in the dissenting opinion of Judge Jessup in the Judgment of 18 July 1966, South West Africa, Second Phase, I.C.J.
Reports 1966, p. 339.
23
- 18 -
18
“new fact”; not in its first paragraph, but in paragraph 2: “the proceedings for revision shall be
opened by a judgment of the Court expressly recording the existence of the new fact . . .”.
However, the same provision itself defines what is meant by this: a new fact is a fact which
the Court can recognize as having “such a character as to lay the case open to revision”.
Paragraph 2 of Article 61 thus uses the adjective “new” to describe a fact which has been
“discovered” by the party claiming revision.
What is effectively “new” is not the fact but the knowledge of it. The fact itself already
existed previously. It existed both before and after the Judgment on the merits, but had been
unknown to the Court and to the Parties. To cite the language used by Judge Mahiou “it is not the
fact itself which is inherently or objectively new; it is the knowledge of that fact which must be
new to the party relying upon it or to the Court which handed down the Judgment”.
However, the Chamber was already aware in 1992 of El Salvador’s claim that the Goascorán
River flowed into the sea at Estero La Cutú. That claim is not new but simply emphasized ¾
though in no way strengthened ¾ by the speculations set out in the Application and in yesterday’s
oral presentations. To use Professor Mendelson’s rather perilous metaphor, we are still awaiting
the results of the DNA test showing that the Rio Goascorán ran where El Salvador claims that it did
at the relevant time. . . !
24. The International Court of Justice itself clearly stated in its Judgment of
10 December 1985 concerning the Application for Revision and Interpretation of the Judgment of
24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)
(Tunisia v. Libyan Arab Jamahiriya): that the “new fact” is “the fact the discovery of which is
relied on to support the Application for revision . . .”18. Furthermore, the fact thus discovered must
be decisive.
C. The “decisive” nature of the fact alleged
25. The Court itself had occasion to restate this in substance in its Judgment of 1985:
“What is required for the admissibility of an application for revision is not that a
new fact relied on might, had it been known, have made it possible for the Court to be

18I.C.J. Reports 1985, p. 203, para. 21; emphasis added.
24
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19
more specific in its decision; it must also have been a ‘fact of such a nature as to be a
decisive factor’.”19
Would the Court have reasoned otherwise than as it did if it had been aware, prior to its
judgment, of facts (and not merely intellectual constructs or purported evidence) of which it only
became aware subsequently? That was the approach followed by the Court in the 198520 Judgment
just cited. In so doing the Court observed inter alia that “[a]ny ‘new fact’ discovered . . . is . . . not
necessarily to be regarded as a decisive factor . . . ”21
.
26. In the present case, I shall return later to the reasoning followed by the Chamber in
reaching its 1992 Judgment. At this stage, however, two points may be noted. First, there is no
new fact but, at best, the production of elements to which probative value is attributed by the
Applicant. However, my colleagues will show you again later that those elements of information
were already accessible to the Applicant at the time of its pleadings on the merits; secondly,
El Salvador is no more able today than it was in the past to demonstrate that the course of the
Goascorán River in fact ran where it claims that it did in 1821, the critical date in the case that was
quite rightly adopted, in law, by the Chamber in its 1992 Judgment. It is one thing to say that
everyone, both the Court and the Parties, knew that in this region watercourses sometimes tend to
change direction and that this was probably the case for the Rio Goascorán at a still undetermined
time. But it is something else to prove that the river flowed where El Salvador claims that it did
specifically in 1821, the date of the end of the colonial period and hence the only admissible critical
date in international law.
27. I will pass very quickly over the reference to the uti possidetis applicable to this dispute
and my colleague Professor Sánchez Rodríguez will return to that later. But once again, as I have
just said, there are two important consequences attaching to the application of that principle:
(a) first, what counts is the manifestation of the legal title possessed by either of the Parties;
(b) secondly, as I have already stressed, it is to the critical date of 1821 that reference must be
made. However, El Salvador has not adduced any new evidence of legal title to the portion of

19I.C.J. Reports 1985, p. 213-214, para. 39.
20 Ibid., interalia paras 30-35.
21Ibid., p. 23, para. 25.
25
- 20 -
20
territory that it now covets and as for its dating of the supposed avulsion, it remains speculative,
arbitrary, hypothetical, brief and uncertain.
D. Previous ignorance of the fact alleged must not be due to the applicant’s negligence
28. This is a most fundamental condition that the Advisory Committee of Jurists added to
those previously established by the two Hague Conferences in the 1899 and 1907 Conventions.
29. In 1920, the Advisory Committee of Jurists found that those first conditions were not
sufficient and added a further condition. The two previous ones allowed cases: “on the ground of
the discovery of some new fact calculated to exercise a decisive influence upon the Award and
which was unknown to the Tribunal and party which demanded the revision”. An additional
condition was added by the Advisory Committee:
“An improvement was introduced whereby the Committee, not content as in
Art. 55 of 1899 (Art. 83 of 1907), with ignorance of the fact on the part of the party
requesting revision, stipulates that such ignorance must not be due to a failure on the
part of the Party to use due diligence in the conduct of the case.”22
30. This explains why the production of new, purportedly probative documents is not
regarded as a “new” fact according to the meaning already explained. A fortiori, a claimant cannot
use documents already used previously, or indeed mere information not produced in the pleadings
but readily accessible to any diligent party. Yet this is what El Salvador has done a number of
times both in its Application and in oral argument. At this stage I will confine myself, to take but
one example, to pointing out its use of a document produced in the annexes to the Honduran
Counter-Memorial, a document in fact published by the Honduras Geographical and Historical
Society23, and thus readily accessible to any diligent researcher.
31. The Court’s jurisprudence is particularly clear in regard to the requirement of absence of
negligence on the part of the Applicant. In its 1985 Judgment rejecting Tunisia’s Application
for revision, the Court carefully considered whether the Applicant could have been aware, even
indirectly, of the facts on the basis of which it sought to secure revision of the Judgment of
24 February 1982. In particular, the Court considered whether a resolution of the Libyan Council
of Ministers dated 28 March 1968, although not produced by either of the Parties in the

22Procès-verbaux of the Committee, 16 June-24 July 1920, p. 744.
23Application for revision, pp. 24-25, paras. 56-60.
26
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21
proceedings resulting in the 1982 Judgment, could have been known to Tunisia. The Court found
that the Libyan resolution had been published in the Libyan Official Gazette of 4 May 1968 as well
as in the Middle East Economic Survey of 9 August 196824. Following this finding, and in light of
Tunisia’s failure to act, the Court observed that “the reasonable and appropriate course of action to
be taken by Tunisia, in 1976 at the latest, would have been to seek to know the co-ordinates of the
Concession so as to establish the precise extent of the encroachment on what it regarded as
Tunisian continental shelf”25
.
32. Similarly, when the Court considered Yugoslavia’s arguments in regard to the
consequences which it claimed should be drawn from its admission to membership of the United
Nations on 1 November 2000, Judge Mahiou particularly emphasized in his separate opinion that
the uncertainties surrounding Yugoslavia’s situation vis-à-vis the United Nations between 1992 and
1996 were in no way unknown to the Applicant. Indeed, as he points out:
“In any event, there were enough substantial, troublesome indices to alert
Yugoslavia and to prompt it to reflect upon its position vis-à-vis the United Nations.
Under other circumstances, more favourable indeed to the Applicant in some respects,
the Court has not hesitated to reject the contention that the fact relied upon was
unknown and to draw inferences from the lack, or insufficiency, of diligence in
becoming aware of the fact.”26
33. Applying the facts just illustrated to the present case, it is, to say the least, surprising in
the case of a State the essence of whose titles is based on the application of the principle of uti
possidetis, that it should have such imperfect knowledge of the administrative practices, and in
particular the cartographic practices, current in the colonies of the Spanish Crown. It is this
ignorance which underlies the totally erroneous conclusions that it draws in particular from the
“discovery” of a log and chart long available in the Chicago Newberry Library, just as the
corresponding documents have always been available to it or to any other researcher in the Madrid
Naval Museum.

24I.C.J. Reports 1985, p. 205, para. 24.
25Ibid.
26Separate opinion of Judge ad hoc Mahiou, op. cit., p. 3, para. 9.
27
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22
34. It is in any event clear that the Court, in practice, interprets in a strict and rigorous
manner the requirement that ignorance of a fact cannot be the result of the Applicant’s own
negligence.
It follows that an application for revision cannot confine itself to producing new documents,
which is in any case not the same thing as the discovery of facts hitherto unknown. Furthermore, a
State submitting to the Court facts previously unknown must also provide at least one piece of
evidence: that its ignorance of those facts was not the result of its own lack of diligence.
35. I shall conclude by recalling that there is one fundamental principle which we
consistently find among the “rules generally laid down in statutes or law issued for courts of
justice”, as the Court noted, following the Permanent Court of International Justice27, in its
Advisory Opinion concerning the Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal28, namely the principle that the burden of proof is on the applicant. This is
true of all legal proceedings and it is particularly essential in the case of an application seeking to
reverse a decision having the authority of res judicata. On this point too, the Judgment rejecting
the Tunisian Application in 1985 is particularly clear.
36. However, as subsequent speakers will tell you, in the present case the Republic of
El Salvador continues for the most part to make mere assertions without providing any of the
evidence required by proceedings as exceptional as an application for a revision of a judgment of
the Court. At this point, I will confine myself to posing a number of questions that still remained
unanswered yesterday:
¾ Mr. President, Members of the Chamber, where are the evidence and explanations as to why
El Salvador waited until the very end of the ten-year deadline for revision claims for filing its
application?
¾ Where are the evidence and explanations as to why El Salvador did not proceed earlier than in
the last six months prior to expiry of the deadline to consult the documents which it produces
today in support of its Application for revision?

27Certain German Interests in Polish Upper Silesia., PCIJ series A, No. 7
28Advisory Opinion, I.C.J. Reports 1954, p. 55.
28
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23
¾ Where are the evidence and explanations as to why El Salvador did not act earlier to
commission the scientific and technical studies which it now seeks to use in order to establish
the phenomenon of avulsion which it claims to have affected the lower course of the River
Goascorán?
¾ Where are the evidence and explanations as to why El Salvador was unable to gain access
earlier than in the last six months prior to expiration of the ten-year deadline to the series of
documents produced in its Annexes II, IV, XIV, XV and XVI?
Where, in other words, are the evidence and explanations capable of convincing the Court
that El Salvador exercised all due diligence before, during and after the proceedings culminating in
the Judgment of 11 September 1992 in order to demonstrate the correctness and relevance of its
argument? They were not presented yesterday, any more than they were in El Salvador’s written
pleadings.
37. It should be noted in particular that the only semblance of an argument put forward by
El Salvador to justify its inability to gather the relevant documentation and information is quite
unacceptable. This is the contention that the endemic domestic turbulence and disturbances which
characterized the political and social life of El Salvador at that time prevented it from deploying all
the necessary means to secure such information. Yet, Mr. President, unless I am mistaken,
El Salvador did not hesitate to adopt a freely negotiated special agreement with Honduras to submit
their dispute to a chamber of the Court. El Salvador has proved itself to be perfectly capable of
filling hundreds and hundreds of pages of written pleadings, and of diligently supplying the
Chamber of the Court with cartographic, historical, technical and scientific annexes. That is to say
that it considered itself able to undertake lengthy, difficult and costly international litigation with
all the necessary resources. It is difficult to see how it can now rely on its own negligence in order
to justify its waiting until the final day of the final year in which it could seek revision of the
Judgment in order to submit to the Chamber documents or information in respect of which it has
been unable to demonstrate either their “novelty” or their decisive nature. With its apparent
propensity for criminal law analogies, El Salvador is seemingly seeking to plead mitigating
circumstances for its failure to produce probative documents within the required time-limit. This is
another claim that is certainly not provided for in your Statute or by your case law.
29
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24
38. No, Mr. President and Members of the Chamber, a fact does not become new because a
party belatedly attempts to bring its knowledge of the subject approximately up to date, thereby
hoping to delay the deadline by which it will finally have to decide to implement a judicial decision
that it regards as erroneous because the Court refused to uphold arguments of whose correctness
that party had failed to convince it ten years earlier.
It must be said, Members of the Chamber, that this case does not relate merely to a portion of
territory to the west of La Unión Bay. It challenges the very legal security which must attach to the
decisions of the International Court of Justice.
Thank you, Mr. President, and I would now ask you to call upon my colleague and friend,
Professor Carlos Jiménez Piernas.
Le PRESIDENT : Je vous remercie Monsieur le professeur. Je donne maintenant la parole à
Monsieur le professeur Carlos Jiménez Piernas.
Mr. JIMÉNEZ PIERNAS: Mr. President, Members of the Chamber.
1. Allow me to begin, Members of the Chamber, by saying what a great honour it is for me
to appear for the first time before the Court, in order to defend the legitimate interests of the
Republic of Honduras.
2. My colleague, Professor Pierre-Marie Dupuy, has examined the law applicable to this
case, namely, the various legal conditions on which the Statute and Rules of Court make the
revision of a judgment of the Court conditional, and the role of uti possidetis juris.
3. His Excellency Carlos López Contreras has entrusted me with the task of applying the
requirements of the Statute and Rules to the arguments presented by El Salvador to justify its
Application for revision. Specifically, I shall analyse those arguments, which seek to attain an
objective that is by definition unattainable: namely, to discredit and render worthless as evidence
the Spherical Chart and logbook of the expedition of the brigantine El Activo, documents on which
the Chamber relied in 1992 to assess a geographical fact, namely, the location of the mouth of the
Goascorán River in 1821, the critical date in the colonial succession. My remarks will focus
specifically on these two documents.
30
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25
4. El Salvador’s purpose is none other than to cast doubt on the authenticity of the evidence
submitted at the time by Honduras, evidence accepted and evaluated by the Chamber in its
1992 Judgment. To that end, El Salvador is relying before the Chamber on the alleged discovery in
the Newberry Library in Chicago of other copies of the Spherical Chart and logbook. Thereafter, it
compares them with the copies preserved in the Madrid Naval Museum. That comparison leads it
to the illusory conclusion that neither set of copies can be regarded as reliable, that the
documentation as a whole lacks credibility, on the grounds of a series of alleged ¾ albeit purely
imaginary ¾ differences between the copies. Yesterday El Salvador confirmed its position, but did
so while modifying its arguments. The seriousness and temerity of such affirmations call into
question, quite without basis, the value of the documentary and cartographic resources of two
institutions highly respected in this field, the Madrid Naval Museum and the Newberry Library in
Chicago, thereby bringing unjustifiable and gratuitous discredit upon them.
5. It should be pointed out that the documents submitted by El Salvador in no way meet the
conditions referred to in paragraph 1 of Article 61 of the Statute of the Court. Those conditions ¾
those I shall be discussing with you ¾ include the absence of any negligence in the submission of
new facts, and the possibility of describing them as genuinely new facts decisive for the decision in
the case. Those conditions are very difficult to satisfy, as the Court’s jurisprudence confirms. I
shall deal with these two points separately. First I shall show that El Salvador fails to satisfy the
condition of absence of negligence in the submission of the new facts. Secondly, I shall
demonstrate the impossibility of describing the documents submitted by El Salvador as new and
decisive facts.
Failure by El Salvador to satisfy the condition of absence of negligence in the submission of
allegedly new facts
6. El Salvador claims to satisfy the first condition, namely the absence of negligence, by
invoking as an excuse the internal conflict that that country was undergoing throughout the course
of the proceedings on which the Chamber ruled in 1992. Yet El Salvador has offered no credible
evidence that that conflict constituted an insurmountable obstacle to obtaining the documents that it
is now submitting. They come from a very well known United States library ¾ the Newberry
Library in Chicago ¾ whose cartographic resources and collection of Spanish maps and charts are
31
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26
frequently consulted; and also from the National Archives of Mexico. I fail to see how that
internal conflict could have impeded the conducting of such research outside the territory of
El Salvador, and specifically in the United States of America and the United Mexican States.
Furthermore, the Chamber took into consideration, and in its 1992 Judgment pronounced on, the
effects of the internal conflict during the proceedings. I cite paragraph 63 of the Judgment29:
“The Chamber fully appreciates the difficulties experienced by El Salvador in
collecting its evidence, caused by the interference with governmental action resulting
from acts of violence. It cannot however apply a presumption that evidence which is
unavailable would, if produced, have supported a particular party’s case; still less a
presumption of the existence of evidence which has not been produced.”
7. The Chamber already knows that the copies of the Spherical Chart and of the logbook that
El Salvador is now producing have been listed in the Newberry Library catalogue since 1927 at the
latest, and were made available to the public in a publication of the same date which itemizes the
resources of one of the most prestigious collections, the Edward E. Ayer collection. You will also
recall that in its Counter-Memorial Honduras submitted to the Chamber for consideration, during
the written stage of the proceedings, an extract from the logbook accompanied by two copies of the
Spherical Chart drawn up on the occasion of that cartographic expedition30, without eliciting any
reaction in the Reply of El Salvador. During the oral pleadings Honduras recalled that it had
provided those documents; El Salvador did not respond by seeking to rebut them or countering the
Honduran arguments. We are thus dealing here with facts already known and taken into account
by the Chamber in its 1992 Judgment. We are dealing with facts on which El Salvador had the
opportunity to pronounce at the appropriate time, during both the written and oral stages of the case
decided in 1992.
8. At the time, El Salvador failed to discharge its duty of diligence by submitting to the
Chamber the third copy preserved in the Newberry Library in Chicago which it is now proposing as
one of the two grounds for its Application for revision. That Application is based merely on the
discovery of another copy of the logbook and another copy of the Spherical Chart, no less than

29I.C.J. Reports 1992, p. 399, para. 63.
30Memorial of the Government of the Republic of Honduras, Anns., Vol. 5, Ann. XIII.1.1, pp. 2209-2218; and
Vol. VI, Cartographic Annex, pp. 5-6 and map A.2. See also the Counter-Memorial, Vol. II, pp. 579-580, para. 90.
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75 years after the publicization of the cartographic resources of the Newberry Library in a
publication which mentions the documents that El Salvador is now submitting.
9. Furthermore, at the time, El Salvador neither legally evaluated nor drew to the attention of
the Chamber the few small ¾ but not pertinent ¾ differences between the Madrid Naval Museum
copies of the Spherical Chart submitted to the Chamber by Honduras. El Salvador now alleges
insignificant differences between those copies, to which it did not draw attention at the opportune
time in the proceedings. Only now, ten years later, does it see fit to enumerate them with a view to
challenging their authenticity.
10. In these circumstances, it is clear that El Salvador was manifestly and unjustifiably
negligent in failing to mention these documents and study them with due attention at the opportune
time in the proceedings. El Salvador cannot now, in light of the terms of the Court’s Judgment
dismissing the Application for revision by Tunisia, escape the consequences of that negligence, that
Judgment having established a presumption iuris et de jure in that regard. I cite paragraph 19 of
the Court’s 1985 Judgment31:
“Article 61 of the Statute provides that an application for revision of a judgment
may be made only when it is based upon the discovery of a fact ‘which was, when the
judgment was given, unknown to the Court and also to the party claiming revision’.
So far as knowledge of the fact in question could be derived from the pleadings and
material submitted to the Court in the proceedings leading up to the original judgment,
anything which was known to the Court must equally have been known to the party
claiming revision. The Court must be taken to be aware of every fact established by
the material before it, whether or not it expressly refers to such fact in its judgment;
similarly, a party cannot argue that it was unaware of a fact which was set forth in the
pleadings of its opponent, or in a document annexed to those pleadings or otherwise
regularly brought before the Court.”
11. El Salvador, aware now of its grave and irremediable negligence at the time, produced
new documents on 23 June 2003 with the surprising intention of justifying the very late submission
of allegedly new facts introduced into its Application for revision of 10 September 2002. That
objective quite clearly results from El Salvador’s intention to change, de facto, the revision
procedure into an appeal or disguised cassation procedure, attempting to introduce a sort of second
round of written proceedings through this written submission or pseudo-Reply. The argument is

31I.C.J. Reports 1985, para. 19.
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still the same one: the internal conflict. But in its decision of 29 July 2003 the Chamber did not
authorize the production of these new documents, and accordingly I shall not respond to them.
12. In sum, the Salvadoran Application for revision of the 1992 Judgment constitutes the
best possible evidence of El Salvador’s habitual negligence in its extremely late submission of
certain documents in the case that were or should have been known to it, and which should have
been divulged and utilized by it at the opportune time in the proceedings, which is patently not the
present moment in time.
Before I comment on the second point, Mr. President, if you so wish, perhaps this would be
an appropriate moment to break for coffee?
Le PRESIDENT : Je vous remercie de votre suggestion, Monsieur le professeur. La Cour
suspend son audience pour une dizaine de minutes.
Mr. JIMÉNEZ PIERNAS: Merci, Monsieur le président.
The Court adjourned from 11.25 a.m. to 11.35 a.m.
Le PRESIDENT : Veuillez vous asseoir. La séance est reprise et je donne immédiatement la
parole au professeur Carlos Jiménez Piernas.
Mr. JIMÉNEZ PIERNAS: Merci, Monsieur président.
It is impossible to characterize any of the documents produced by El Salvador as a new and
decisive fact
13. With your permission, I now turn to the blatant failure by El Salvador to meet the other,
equally crucial, condition, namely the possibility of characterizing any of the new documents it has
produced as a new fact, as is claimed, and, furthermore, as a fact having a decisive or determining
influence on the substance of the case.
14. El Salvador maintains that the alleged differences between the copies, not the discovery
of the new copies, truly constitute the new fact. Furthermore, according to our opponent, these
differences are sufficient to establish a new and decisive fact that the Chamber should take into
consideration. Accordingly, El Salvador has no hesitation in claiming that the copy of the logbook
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29
preserved in the Madrid Naval Museum is incomplete. In order to put an end to El Salvador’s
gratuitous speculations, Honduras finally submitted a complete copy of the logbook preserved in
Madrid. However, in its Application, El Salvador never questioned the technical content of the two
copies of the logbook (the Madrid Naval Museum copy and the Newberry Library copy), in which
the exact position of the Goascorán River is indicated32. Clearly, our opponent’s attack is reduced
exclusively to what might be called, if I may be permitted to put it that way, a “half-fact”. That is,
El Salvador is attempting to question the reliability of the cartography of the hydrographic survey
derived from the logbook, but not the content of the logbook itself.
15. Furthermore, the two technical reports submitted by Honduras ¾ the archival report and
the cartographic report on the logbook and the Spherical Chart ¾ amply demonstrate the high
technical quality of the hydrographic survey carried out by the El Activo expedition. Moreover, the
identical content of all the existing copies ¾ those in the Madrid Naval Museum and those in the
Newberry Library ¾ fully confirms the ratio decidendi of the 1992 Judgment. But then, in order
to implement its intentions, El Salvador can only fall back on the presentational and calligraphic
differences between these copies, which in any case have no legal relevance.
16. Moreover, Honduras has explained the presentational and calligraphic differences
between the copies in considerable detail in its Written Observations. From that study of the
documentation, one conclusion can be drawn: there is no decisive difference between the versions.
All the differences are minor and such as are to be expected in documents of this type and period.
17. I shall now reply to a number of arguments put forward by El Salvador:
(a) With regard to the imagined contradiction between the dates of the letter from Commander
Meléndez Bruna to the Marquis de Branciforte and the date of his signature at the end of the
logbook, which El Salvador has attempted to turn into irrefutable evidence of the fraudulent
nature of the manuscript of the logbook preserved at the Madrid Naval Museum, Honduras has
replied by demonstrating that the difference between the dates was simply the result of a delay
in the preparation of the copies of the results of the expedition, a delay attributable to the fact
that its Commander had been seriously ill. Commander Meléndez Bruna himself expressly

32Application for Revision of the Judgment of 11 September 1992, Vol. II (Documental Annexes), pp. 656-657
(the Newberry Library copy), pp. 683-684 and 706 (the Madrid Naval Museum copy).
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30
refers in his letter to the duplicates or copies being prepared. There could be no better proof of
the authenticity of these copies ¾ copies which El Salvador appears to find so surprising.
(b) With regard to the incomprehensible doubts that El Salvador has sought to sow by means of
the mysterious revelation of three copies of the Spherical Chart and two copies of the logbook
of the El Activo expedition, Honduras has replied by demonstrating that these constituted one
and the same cartographic exercise, derived from one and the same source, and that several
copies existed for historical and archival reasons that it has justified and that were common
practice in such cases.
(c) With regard to El Salvador’s erroneous and incomprehensible assertion that the harbour charts
(portolans) that appear on the Chicago copy do not appear on the Madrid Naval Museum
copies, Honduras has responded by demonstrating that they were duly catalogued and that as
many as three copies showing each anchorage have been preserved.
(d) With regard to the imagined and irrelevant difference El Salvador alleges to exist in the
position of the Farallones Blancos in one of the copies of the Spherical Chart (the Naval
Museum copy numbered 12-E-5), Honduras has replied by demonstrating that that imagined
difference is due simply to an eastward shift of two arc minutes in the course of the line of the
meridian of longitude, shown on the map as meridian 32' instead of 30'. Evidently, the
Farallones Blancos (today known as the Farallones de Cosigüina) have always been situated at
the same co-ordinates. The difference affects only the drawing of the meridian and is obvious
on the copy itself. Lastly, the Farallones Blancos are situated at the same distance from Punta
Rosario and Meanguera Island on all three copies33
.
(e) Lastly, with regard to the insignificant differences in the presentation, calligraphy and symbols
of the copies of the Spherical Chart, of which El Salvador seeks to make so much, Honduras
has replied by demonstrating that they were entirely to be expected, given that the
Commander, the navigator and his assistants worked as a team to produce the copies.
Furthermore, the file in the Newberry Library describing the Spherical Chart states (I cite

33Written Observations of the Government of Honduras, 1 April 2003, Vol. I, para. 3.45.
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31
page 162 of the second volume of the Written Observations of Honduras)34: “Survey carried
out by the commander and navigators [in the plural] of Brigantine El Activo”.
I would note, for information, that Don Juan Pantoja, the expedition’s navigator, officially
“qualified to draw up maps and charts” with the assistance of two “naval gunners seconded to the
navigator”35, had become the person responsible for cartography when his hierarchical superior,
Commander Mélendez Bruna, fell seriously ill. In fact, it was Don Juan Pantoja, the navigator,
who took responsibility for ensuring that the purpose of the expedition was fulfilled36. Don Juan
Pantoja was a prominent seaman, renowned for having charted much of the Pacific coast of North
America in the service of the Spanish Crown37
.
In the case with which we are concerned, two assistants were appointed to assist the
navigator in his navigational tasks and in the physical preparation of the cartography, if need be
with the assistance of scribes. This accounts for the existence of different calligraphies in the
copies of the Spherical Chart and the logbook. Needless to say, the intellectual authority of a map
or chart is established by the competence of the person who compiles and prepares the scientific
and mathematical data that have made it possible, and not necessarily by his calligraphy. One
cannot call into question the intellectual authorship of a scientific work on the grounds that the
handwriting is not that of its author. Its authorship cannot be attributed to the scribe. Thus, the
document concerning Juan Pantoja’s handwriting, produced yesterday by El Salvador, is factitious
and without value.
In any case, we are looking at slight variations in calligraphy which affect neither the
accuracy nor the veracity of the cartography, which are vital for the safety of navigation and
guarantee that all the copies are skilled originals, drawn by hand and not traced. To dispel any
doubt in that regard, Honduras has compared the copies of the Spherical Chart with two
contemporary maps ¾ one British and the other from the United States ¾ drawn up two centuries

34Written Observations of the Government of Honduras, Vol. II, Ann. 4, p. 162.
35Application for Revision of the Judgment of 11 September 1992, Vol. II (Documental Annexes), Ann. XIV,
p. 558. The Spanish text of the two quotations is: “avilitado para el establecimiento” and “artilleros de mar agregados
al pilotage”. This document is also produced by El Salvador in the final document of the judges’ folder of
9 September 2003.
36Written Observations of the Government of Honduras, Vol. II, Ann. 4, p. 151 (paras. 9-10).
37Written Observations of the Government of Honduras, Vol. I, para. 3.43.
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32
later. The conclusion is clear: the general configuration of the coasts is very similar, as is the
relative position of a number of key geographical features in the Gulf of Amapala. I refer in
particular ¾ lest this be forgotten ¾ to the mouth of the Goascorán River, which was situated at
the time, as it still is today, opposite Perico Island and Punta de Perico38
.
18. Clearly, given the force of the arguments submitted by Honduras in its Written
Observations and the annexes thereto, El Salvador attempted to conceal its grave negligence and a
lack of solid legal arguments by producing new documents on 23 June 2003. Honduras promptly
objected to their production for obvious reasons indicated in detail in its Observations dated 10 and
24 July 2003 and accepted by the Chamber in its decision of 29 July.
19. It should be stressed, ad abundantia, that none of the so-called differences ¾ artificially
alleged by El Salvador in the various stages of the procedure ¾ between the copies of these
documents in any way affects the position of the mouth of the Goascorán River and the information
regarding it that can be found in the logbook and on the Spherical Chart. In that regard there is no
difference between the three copies of the Spherical Chart, or between them and the logbook.
20. In sum, Honduras has indisputably proved in its Written Observations:
(a) that there are no discrepancies between the three copies of the Spherical Chart, only anecdotal
differences with no cartographical value;
(b) that these insignificant differences in no way contradict the content of the logbook on which
the entire cartography of the expedition is based;
(c) that, furthermore, they do not affect the legal issues underpinning the Chamber’s ratio
decidendi in its 1992 Judgment regarding the course of the Goascorán River as the boundary
between the two countries;
(d) that, furthermore, these minuscule differences explicitly demonstrate the authenticity of the
manuscript copies that were prepared on the basis of that cartographic survey. What might
give grounds for suspicion would be precisely the opposite scenario, namely, the enormous
and incredible coincidence that all the manuscript copies of these documents (which,
furthermore, were prepared by several hands) should be identical;

38Written Observations of the Government of Honduras, Vol. I, paras. 3.44 and 3.46.
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33
(e) lastly, that these are absolutely reliable documents that coincide as to the substance.
In conclusion, the Chamber has before it not a new and decisive document, but another copy
of one and the same document already submitted by Honduras during the written stage of the case
decided in 1992, and already evaluated by the Chamber in its Judgment.
21. The arguments put forward yesterday by counsel for El Salvador, on the occasion of its
presentation to the Chamber, partake of the same artificiality and clumsiness as the theses put
forward by El Salvador in the written proceedings. Honduras has never claimed to discuss whether
the Spherical Chart was an original document (it has always spoken of the copies) or an official
document. That is an entirely new, but also a contrived, debate. The real debate turns on whether
there are pertinent differences between the three copies of this same cartographical study, such as
to establish the decisive new fact alleged by El Salvador in its written pleadings. In the view of
Honduras, there are not.
22. I cannot conclude this presentation without pointing out that the burden of proof of the
alleged new facts that would permit a revision of the case decided in 1992 rests with the Party
alleging them. But El Salvador has been unable to prove, in its arguments, the presence of any new
and decisive fact to justify reconsidering the merits of the case, as required by Article 61,
paragraph 1, of the Statute and Article 99 of the Rules of Court. Nor has El Salvador proved that
its ignorance of alleged new facts was not due to manifest and unjustified negligence on its part.
Yesterday, El Salvador did not offer that evidence. Accordingly, the Application for revision
should now be dismissed.
23. Allow me, distinguished Members of the Chamber, to express my gratitude to you for
your attention throughout this presentation. Thank you, Mr. President.
Le PRESIDENT : Je vous remercie Monsieur le professeur, et je donne maintenant la parole
à Maître Richard Meese.
Mr. MEESE: Mr. President, Members of the Court,
1. It is an honour to represent Honduras before this Chamber formed in order to determine
the admissibility of a request for revision of a judgment clothed with the authority of res judicata
and rendered in a dispute between Honduras and El Salvador more than ten years ago; and, it is my
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34
intention that, in so doing, I shall contribute to ensuring that judgments of the Court are final,
binding and without appeal.
2. It is my task, following on from Professor Carlos Jiménez Piernas, to continue with the
presentation whereby Honduras is seeking to show that El Salvador’s claims do not satisfy the
conditions laid down by Article 61 of the Statute of the Court. Mr. Carlos López Contreras has
kindly asked me to address three points: (1) the great eruption of Cosigüina volcano and the
emergence of the Farallones de Cosigüina; (2) the Saco negotiations; (3) the alleged evidence
regarding the so-called Goascorán delta and its purported various mouths. These three points relate
to the same issue, namely whether, at the date closest to 1821, the River Goascorán, which formed
the administrative boundary between the two Spanish provinces, flowed into the sea at the Estero
La Cutú or at Estero Ramaditas.
3. May I begin by making a point of order. Over ten years ago, El Salvador did not succeed
in proving to the Chamber that the River Goascorán flowed into the sea anywhere else than at the
Estero Ramaditas. At the time, it attempted, unsuccessfully, to show that the Goascorán took a
course debouching into the Estero La Cutú and that this constituted the administrative boundary
between the two Spanish provinces during the colonial period. El Salvador relied on an alleged
abrupt change in the mouth of the River Goascorán some decades before the colonial succession of
1821 in order to contend that the course of that river did not represent the administrative boundary
and international frontier in 1821. Your Chamber is aware of what the then Chamber decided after
hearing and evaluating the arguments and evidence, both of Honduras and of El Salvador. This is
perfectly well illustrated by the very terms of the 1992 Judgment. The Chamber decided,
unanimously, that the River Goascorán flowing into the sea at the Estero Ramaditas constituted the
boundary in 1821. Not a single judge appended any declaration or separate opinion in respect of
that sector.
4. But that outcome, or rather that dispositif, of the 1992 Judgment is unacceptable to
El Salvador. It has therefore instituted appeal or cassation proceedings in respect thereof ¾
procedures excluded by your Statute ¾ in the guise of a request for revision, which is itself
governed by cumulative and restrictive conditions that I propose to examine here in relation to
El Salvador’s claim (now resubmitted by it on the occasion of its request for revision) that the
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35
boundary constituted by the River Goascorán flowed into the sea in 1821 through the Estero La
Cutú. As you know, that claim was rejected by the Chamber in 1992.
5. El Salvador is seeking today to present supplementary evidence and arguments with a
view to persuading the Chamber that the 1821 boundary followed the River Goascorán flowing into
the Estero La Cutú. That attempt must fail. Quite simply, there is no new fact, and the cumulative
and restrictive conditions of the Statute are not fulfilled.
I. The facts today relied on by El Salvador were not unknown to the Court or to the Party
requesting revision, and El Salvador was negligent in being unaware of them.
El Salvador’s lack of diligence in failing to present its evidence and arguments at the
appropriate stage of the proceedings is proven
6. What is clear to me on rereading the written and oral pleadings of the Parties at the time of
the 1992 Judgment is that the facts relied on today by El Salvador were addressed by the Chamber
in 1992 and that hence, in now revisiting those same facts, El Salvador demonstrates its lack of
diligence in failing to present its evidence and arguments at the appropriate stage of the
proceedings.
The great eruption of the Cosigüina volcano and the creation of the Farallones de Cosigüina
7. What the Parties could not agree upon before the then Chamber was the consequence of
the great eruption of the Cosigüina volcano in 1835, which, according to El Salvador today,
resulted in the creation of the Farallones de Cosigüinas. For Honduras, that creation is much older,
as documents prior to the date in question demonstrate. It was the Honduran Counter-Memorial
which provided the Chamber with the “Carta Esférica” and the logbook of the brigantine
El Activo39
. That produced an extremely succinct reply from El Salvador: “this map contains no
line whatever showing the course of the Goascorán River”40. That, you will agree, is no reply to
the evidence produced by Honduras of the existence of this group of rocks as far back as 1794.
That was all El Salvador had to say on the subject at the time. It did not see fit to provide the
necessary rebuttal.

39Counter-Memorial of Honduras, p579, para. 90.
40CR 91/29, p. 20.
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36
8. What divides the Parties appearing today before your Chamber is the issue of the date of
the creation of this group of rocks. El Salvador now produces documents in the public domain all
dating from before 1992. In its “Documental Annexes” appended to the Application for revision,
document XVII is dated 1993, but, as this is a second edition, there is every reason to believe that
the first edition of this document published in Costa Rica was issued prior to 1992;
document XVIII, published in London but also to be found in the library of the Supreme Court of
El Salvador, dates from 1836, while document XIX, probably published in London, dates from
1846 and is also to be found in the library of the Supreme Court; document XX, published in
Honduras in 1934, is also to be found in the archives and library of El Salvador’s
Directorate-General for Sovereignty and Boundaries; document XXI was published in 1857 in
New York and again in Honduras in 1960; Cartographic Annex 11, published in London, dates
from 1707, while maps 12 to 14, published in Madrid, date from 1740, 1750 and 1775 respectively;
map 15, published in London, dates from 1816; map 16 was published in Paris in 1827 and map 17
in London in 1838. You will agree that neither the Supreme Court of El Salvador, nor London, nor
New York, nor Tegucigalpa, nor Madrid ¾ or indeed Paris ¾ were located in the Goascorán
boundary sector at the time of the internal armed conflict which El Salvador invokes as the reason
for its having been unable to submit its purported evidence. That is not a valid excuse, and
El Salvador could have submitted these documents before 1992, as well as the arguments made by
it today on the basis thereof.
The Saco negotiations
9. What divided the Parties before the then Chamber was the issue of whether the documents
from the Saco negotiations (1880-1884) between the Parties indicated the mouth of the River
Goascorán. In its Counter-Memorial, El Salvador contended that “it was not determined which
mouth of the River Goascorán was to be taken into account and, given that no claim was made by
Honduras in this sector, there was recognized as such the old mouth of the River Goascorán”41
.
That was an over-hasty conclusion42. The Honduran Reply then pointed out that “El Salvador is

41Counter-Memorial of El Salvador, pp. 66-67, para. 3.124-3.125.
42Counter-Memorial of Honduras, pp. 596-601 and pp. 790-791, para. 84. For the oral arguments see CR 91/27,
pp. 19 and 42, and CR 91/29, p. 21.
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37
not entitled to claim before the Chamber that the silence of the Honduran and Salvadoran
negotiators at the territorial discussions conducted between 1880 and 1888 on the location of the
mouth of the Goascorán in the Bay of La Union” logically implied “a reference to ‘the old mouth
of the River Goascorán’ . . .”43. You know what the Chamber decided in the operative part of its
Judgment. I am not going to repeat it. I would simply quote two sentences from the reasoning of
the Judgment: “there is no reference to where [the river Goascorán] flows into the Gulf of
Fonseca”, and “it is evident that [the delegates] were not aware of any claim by El Salvador that the
1821 boundary was not the 1821 course of the river, but an older course, preserved as provincial
boundary by a provision of colonial law.”44
10. What still today divides the Parties appearing before the present Chamber is once again
the same issue of whether the location of the mouth of the Goascorán in 1821 was raised in the
course of the Saco negotiations (1880-1884). El Salvador provides no new fact in support of its
claim but merely documents in the public domain, all moreover dating from before 1992.
El Salvador produces in “Documental Annex XXII” minutes of the Saco negotiations of 1880 and
1884 taken from a work published in El Salvador in 1985 ¾ minutes which had already been
produced by Honduras in Annex III.I 24 to its Memorial of 1 June 1988. Then comes a quite
extraordinary statement by El Salvador: “These [Minutes] were also used bona fide by the
Republic of El Salvador itself in its claims. Unfortunately, the Republic of El Salvador noticed
subsequently that the texts submitted by Honduras not always matched their original.”45 This
comment ¾ I have no idea whether it is justified or not ¾ but it comes 14 years too late. The
remainder of the Annex, containing other purported evidence, is only produced now. El Salvador
also presents in Cartographic Annex 20 a map dating from 1904, already produced in June 1988 by
Honduras as a cartographic annex [A.3].
The so-called Goascorán delta and its various mouths
11. When I received El Salvador’s Application for revision, I immediately reread the
1992 Judgment. I was overwhelmed by a sense of déjà vu. I then immersed myself in the written

43 [Reply] of Honduras, p. 793, para. 87.
44I.C.J. Reports 1992, p. 548, para. 312.
45Application, Vol. I, p. 51, footnote 61.
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38
pleadings of Honduras and El Salvador in order to check. It all came rushing back to me, despite
the years that have passed. In particular, the reconnaissance in situ of the Goascorán sector carried
out by Professor Daniel Bardonnet, who argued the dispute on that sixth sector before the
Chamber, as well as his account of it to me on his return from an exhausting trip. Hours in an army
truck bumping along unmade tracks, or in a boat among the mosquitoes of Las Ramaditas. But I
believe he enjoyed this kind of thing. He told me about the measurements he had taken in the
channel at El Rompición de Los Amates, and of his barco trip through the mangroves of the Estero
Las Ramaditas, mouth of the River Goascorán. All done to avoid any negligence on Honduras’s
part in failing to discover and notifying to the Chamber the relevant facts for purposes of its
decision in this sector of the land boundary. All of you here are aware of the precision and rigorous
style of the Professor, for whom I confess my profound admiration. He would not have given his
views on an issue without taking the greatest pains to check, both on the ground and elsewhere, the
facts underpinning his speech to the judges of the Chamber.
12. What divided the Parties before the then Chamber was the issue of whether in 1821 the
mouth of the Goascorán formed a delta. For Honduras, this was not the case. There was only one
mouth, located at the Estero Las Ramaditas since at least 1794. For El Salvador the
River Goascorán had abruptly changed course in 1762, having previously flowed into the
Estero La Cutú. On at least three occasions, Honduras begged El Salvador to produce geographical
or geological evidence in support of its “petitio principii” that the Estero La Cutú could have
corresponded to the former mouth of the Goascorán. It begged El Salvador to demonstrate, on the
basis of documents capable of establishing the fact alleged, the course followed by the River
Goascorán in the latter part of the seventeenth century from Los Amates up to the point where it
flowed into the Gulf of Fonseca.
El Salvador never produced any such evidence. At one point El Salvador referred to the
“Dionysus Flood”, but it failed to give any further particulars or to pursue the matter; nor did it
conduct any documentary researches thereon, even though, as I stated just now, Annexes XVIII
and XIX dealing with the eruption of the Cosigüina volcano were sitting in the library of the
Supreme Court of El Salvador. Since when, El Salvador has not ventured to state. Later it would
contradict itself and abandon the argument of the “Dionysus Flood”. The change in the course of
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39
the river was said to be due to “sudden and violent increases in the volume of water in and the level
of the river which periodically occur”46. There was no longer any question of the “Dionysus
Flood”. In conclusion, what clearly emerges from the documents before the Chamber in 1992 is
that El Salvador and Honduras presented their arguments and evidence on this point and that the
Chamber evaluated them. I note further that “no record of such an abrupt change of course having
occurred has been brought to the Chamber’s attention . . .”47. At no time, was El Salvador willing
to take up the Honduran challenge in the judicial duel over this sector.
13. What still divides the Parties today before the present Chamber is again this same
question of the mouth of the Goascorán at the date closest to 1821. The purported scientific and
technical evidence contained in Annexes II and IV produced by El Salvador could have been so
produced before 1992. Geography, hydrology, geology, aerial photography and satellite imaging
existed and had already been used before the International Court of Justice, for example in the
Continental Shelf case between Libya and Tunisia, decided in 1982. Such studies could have been
carried out before 1992 by El Salvador, which has produced in 2002 satellite images purchased
abroad in order to observe what is going on in its neighbour’s yard. With your permission, I will
read the following passage: “Radar imagery [available from the early 1970], with its ability to
penetrate vegetative cover, could have been used to examine land forms under a thick tropical
rainforest canopy in lieu of topographic changes.”48 Furthermore, the documents on which the
report in Annex II is based were already available before 1992 in El Salvador and elsewhere.
“Materials and supporting technologies germane to the main argument for the
age and character of the feature were available long before 1992 . . . Poor
documentation of sources and little discussion of the source material (the reference
cited lists virtually no indigenous sources). Lastly, an overall lack of strong,
independent evidence for the postulated date of the shifting of the flow of the
Goascorán River, or that changes in the spatial characteristics of principal elements of
the Goascorán River system during the period of historical record have been anything
than minor.”
This quotation is from the Kearney Report produced by Honduras in response to the report by
Coastal Environment, Inc., produced by El Salvador49
.

46CR 91/27, pp. 65 and 66.
471992 Judgment, para. 308.
48WOH, Ann. 14, p. 233, para. 13.
49WHO, Ann. 4, p. 230.
45
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40
The other documents ¾ all moreover in the public domain ¾ were available before 1992, as
for example “Documental Annex 11”, the Geographia de Honduras, published in 1916 in an
edition of 2,000 copies. El Salvador claims to have discovered it only on 17 July 2002 at Managua
in Nicaragua! It does not state how long this book has been in Managua. Another historical
document, the Monograph of the Departamento de Valle by Bernardo Galindo y Galindo,
published in 1933 in Honduras, was produced by the latter in Annex VIII.I to its Counter-Memorial
of 10 February 1989. El Salvador failed at the time to make use of this alleged evidence. Yet it is
the internal conflict that is put forward as its excuse for having failed to make a proper defence
before the Chamber. Who is going to believe that?
14. However, now, by the very fact of El Salvador’s request for revision, the issue which we
currently have to address is that of the evidence and explanations on which El Salvador relies today
in order to persuade the Chamber that it exercised all due diligence before and during the period
leading up to the Judgment of 11 September 1992 in order to demonstrate the correctness and
pertinence of its argument concerning the location of the mouth of the River Goascorán in 1821,
and in order to show that that location constituted the administrative boundary between the two
Spanish provinces during the colonial period.
It is clear from my preceding remarks that El Salvador did not conduct itself before 1992
with the due diligence required of it by the Statute. What we are bound to note in relation to the
admissibility of the Application for revision is that El Salvador is seeking to make good today its
failure to exercise due diligence before 1992 by invoking the existence of alleged new facts, by
means of a variety of artifices:
(1) by citing documents and annexes already produced before 1992; which is unacceptable in
admissibility proceedings on a request for revision;
(2) by citing the same facts that Honduras or El Salvador had produced to the Chamber almost
14 years ago; which is unacceptable in admissibility proceedings on a request for revision;
(3) by having recourse to documents sitting quietly in archives outside El Salvador ¾ and perhaps
even within El Salvador ¾ simply waiting to be visited by it over 14 years ago; which is
unacceptable in admissibility proceedings on a request for revision;
Further, as regards this third point, the so-called Goascorán delta and its various mouths:
46
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(4) in blaming the internal armed conflict” or sporadic acts of violence” in the Estero de la Cutú
sector as alleged justification for its failure to produce before 1992 the two scientific and
technical reports which it produces today in the illegal circumstances already discussed;
which is unacceptable in admissibility proceedings on a request for revision, all the more so in
that the Chamber had already considered this issue in paragraph 63 of the 1992 Judgment;
(5) in producing reports which are not in themselves objective new facts, but alleged additional
evidence created and compiled for purposes of the revision; which is unacceptable in
admissibility proceedings on a request for revision.
II. The documents produced today by El Salvador do not satisfy the requirements for
characterizing their content as a new and decisive fact on the substance of the Judgment.
There is no discovery of a new fact, but merely the presentation of supplementary
evidence or arguments inadmissible in revision proceedings
15. The alleged new facts regarding the great eruption of Cosigüina volcano and the
creation of the Farallones de Cosigüina do not satisfy the conditions of the Statute, for the
existence of this group of rocks was well known before 1835. These facts are mentioned in the
1992 Judgment. El Salvador provides no conclusive evidence that this group of rocks did not exist
before that date. It is possible that the 1835 eruption may have changed the aspect, the size, the
number, and even the name, of this group of rocks. “La erupción de tipo convulsivo . . . dio origen
a las actuales farallones du Golfe. [The convulsive type of eruption . . . gave rise to the present
cliffs of the Gulf].”50 If the author of this work submitted by our opponents uses the word
“present”, that clearly demonstrates that they had previously existed. El Salvador appears
implicitly to admit this when it states: “all [historical records and charts of the Gulf] that predate
1835 . . . records the existence of an isolated island at the approximate site where the Farallones
now stands”51. For Honduras, it is impossible to draw any reliable conclusion from the very
confused and often indirect accounts of a handful of travellers or explorers, combined with a
collection of maps prior and posterior to 1794. There is no new fact regarding the mouth, but
merely supplementary evidence and arguments without legal relevance for purposes of revision
proceedings.

50Application, Documental Annex XXI, Vol. II, p. 790.
51Application, Vol I, para. 105
47
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16. The alleged new facts concerning the Saco negotiations do not satisfy the conditions of
the Statute either. Discussions on the boundary constituted by the course of the River Goascorán,
as it is now and as it already was both in 1880 and in 1821, did indeed take place in 1880 and 1884.
Those facts are mentioned in the 1992 Judgment. El Salvador ventures today to construct an entire
argument derived from a one-sided reading or rereading of the discussions on the draft maritime
delimitation at that time in order to conclude: “the mouth of the Goascorán could not possibly have
been where the Judgment determined it to have been”52. That argument is not persuasive.
Furthermore, it contains no new fact decisive of the location of the mouth, but merely
supplementary evidence and arguments drawn from documents in the public domain dating from
before 1992 and legally irrelevant for purposes of revision proceedings.
17. The alleged new facts concerning the so-called Goascorán Delta and its various mouths
do not demonstrate the existence of a former course of the River Goascorán flowing into the Gulf
of Fonseca at the Estero La Cutú and do not satisfy the conditions of the Statute. These facts were
cited in the 1992 Judgment. There is no new fact decisive of the location of the mouth.
El Salvador merely produces today supplementary evidence or arguments on the avulsion of the
River Goascorán, a fact already known before 1992, and these, too, are without any legal relevance.
The historical sources produced by El Salvador are not decisive in themselves and
El Salvador’s interpretation of them is unpersuasive.
The two reports containing information of a scientific and technical character in support of
an alleged abrupt change in the final course, and hence the mouth, of the River Goascorán some
decades before the colonial succession cannot be regarded as “objective facts”. The reports
emanate from El Salvador in 2002. El Salvador produces no new facts but new documents,
produced and obtained moreover in many cases in violation of international law: observations in
situ on foreign territory in violation of territorial sovereignty; aerial photographs taken in violation
of the airspace of a foreign State.
Moreover, Annex II cannot be regarded as a fact of such a nature as to be a decisive factor
on the settlement of the dispute for purposes of revision. It contains no evidence that the mouth of

52Application, Vol. I, para. 138.
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the River Goascorán was different from that as determined by the 1992 Judgment and that there
existed a different mouth constituting the colonial boundary which, as a result of independence,
became the international boundary with Honduras.
The Kearney report indicates that no firm conclusion can be drawn from the work carried out
by El Salvador in 2002 and that it is irremediably flawed by defects and lacunae. “The crux of the
argument concerning whether the whole of the ‘Goascorán delta’ is actually deltaic is not
addressed.”53 Moreover Annex II fails to answer the question, “when did the Ramaditas Branch
become the dominant distributor over the Cutú Branch?” Kearney poses the question: “if the
Ramaditas Branch has shifted . . . when did it shift, and at what rate?”54 He goes on: “the evidence
presented suggesting that it occurred 50 years prior to 1794 is very inferential and hardly
scientifically conclusive”55. He continues: “The whole argument [of the Dionysus Flood of 1762],
in essence, exists in the nature of the possible, but not in the realm of the highly probably.”56 He
concludes: “the CEI report does not really tie down with any precision the date of the switching (if
it is actually occurred in the last 250 years) of the main flow, or discharge of, the Goascorán River
from the Cutú Branch to the Ramaditas Branch”57
.
By contrast, the Kearney Report, in reply to the report in Annex II seeking to show that the
River Goascorán is constantly changing its bed, recognizes that the river has a number of alluvial
channels at times of flood and emphasizes the stability of the Goascorán river system. In the
absence of any better evidence, since 1821 ¾ or indeed since 1774 ¾ the course of the River
Goascorán has not varied. The last time when it is claimed to have shifted, according to
El Salvador today, though it has provided no proof of this, was as a result of the “Dionysus Flood”,
claimed to have occurred in 1762, namely 241 years ago. The Chamber will note that for at least
two centuries, and indeed still today, the River Goascorán has had its mouth in the Estero Las
Ramaditas.

53Ibid., p. 234, para. 16.
54Ibid., para. 18
55Ibid., p. 235, para. 21.
56Ibid., para. 23.
57Ibid., para. 24.
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18. On the time-scale of modern boundaries, I would call that stability. And it is essential
that not only such stability, but also the inviolability of the 1821 boundary, be preserved. Just as
the res judicata authority of the Court’s judgments must be respected. None of the supplementary
evidence and arguments of El Salvador can have any decisive effect whatever on what led the
Chamber to decide what it decided in 1992. El Salvador’s scientific, technical and historical
reports do not show that in 1821 the River Goascorán followed a course other than that established
and recognized by the Judgment of the Chamber. El Salvador can at most claim to have furnished
additional evidence on facts already known to the Chamber but without relevance to the
admissibility of a request for revision of the Judgment.
19. In overall conclusion, El Salvador has failed to show that the existence of a former
course of the River Goascorán was a determining or decisive factor. It has failed to show that that
course ran and debouched in 1821 where El Salvador claims it to have done in its Application for
revision, and that it also constituted the administrative boundary between the two Spanish
provinces during the colonial period. The request for revision must be declared inadmissible.
20. Allow me, Members of the Chamber, to express my thanks to you for having kindly
listened to this presentation. I would now ask you to be kind enough to give the floor to Professor
Luis Ignacio Sánchez Rodríguez so that he may continue with Honduras’s presentation.
Thank you, Mr. President.
Le PRESIDENT : Je vous remercie Maître et je donne maintenant la parole à
M. le professeur Luis Sànchez Rodríguez
The PRESIDENT: Thank you, Mr. Meese. I shall now give the floor to Professor Luis
Sánchez Rodríguez.
Mr. SÁNCHEZ RODRÍGUEZ:
1. Please allow me, Members of the Chamber, to begin my statement by expressing the
honour which I feel in appearing before the Chamber today for the purpose of representing once
again the interests of Honduras. I shared that honour over ten years ago with my friend
Professor Daniel Bardonnet. What you are hearing today was heard by the Chamber and the result
was the 1992 Judgment, a decision made in full knowledge of the facts.
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2. My friends Professors Pierre-Marie Dupuy and Carlos Jiménez Piernas and
Maître Richard Meese have examined respectively the characteristics of and conditions for a new
fact and applied the requirements of the Statute and the Rules of Court to the copies of the “Carta
Esférica” and log of the brigantine El Activo, as well as addressing the issue of the mouth of the
Goascorán in 1821. The task entrusted to me by the Agent of Honduras is that of analysing the
other alleged facts put forward by El Salvador in its Application for revision, facts which are
claimed to be relevant for purposes of “corroborating” or “contextualizing” other facts ¾ facts
which are no such thing, but which are nevertheless relied on in support of the primary claim58
.
El Salvador’s other facts, allegations and “evidences and proofs”
3. The first statement which I feel compelled to make is that these facts are covered by
neither the letter nor the spirit of the Statute and Rules of Court. They are simply the product of the
fertile imagination which informs the entire Salvadoran Application, an imagination which
ultimately leads to a serious distortion of the requirements for a “new fact”, because those
requirements are strict, cumulative and restrictive. The other Party even goes so far as to
characterize them as “evidences and proofs”, which is the best implicit confession on its part of the
true nature of those facts taken separately and of the Salvadoran Application as a whole: disguised
appeal or cassation proceedings against the 1992 Judgment. That is because these facts are
nothing, either in nature or content, other than an unremitting criticism of the ratio decidendi of the
1992 Judgment in the Goascorán sector, and yet that Judgment is one of the longest, most
painstaking and most detailed in the entire history of the Court. Extraordinary!
4. El Salvador attempts in vain to rewrite history and reinvent geography, knowing that the
historical aspects and geographical considerations were the object of long, intense debate before the
Court ¾ in both written and oral phases ¾ prior to the Judgment of 11 September 1992. Thus, it
is clear ¾ and this must be emphasized ¾ that one must firmly reject as from that date any notion
that “the fact” that one or two books from the last century, or a lecture given several decades ago in
which a senior official made known his views, or various historical documents presented by
Honduras in its Counter-Memorial, could in any sense be strictly characterized as a new fact, or

58Application for revision, Documental Anns., III to XIII, XX to XXIV.
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46
even as an alleged “corroborating”, “explanatory”, or “contextualizing” fact, or as any other kind of
new, non-existent or imaginary “fact”. Article 61 of the Statute of the International Court of
Justice and Article 99 of the Rules of Court should have been afforded greater respect by the other
Party, who cannot manipulate or distort their respective provisions without seriously breaching the
principle of procedural good faith. A book which is already known is not a new fact of decisive
importance, either from a technical or legal perspective or indeed from the common-sense
standpoint of the layman.
5. Not only does such an exaggerated and bizarre characterization raise questions about the
true intentions of the person making it, it also presupposes contempt on the part of the other Party
and an insult to the high-quality work of this Chamber of the Court. But in addition ¾ and most
seriously ¾ such characterization constitutes a direct attack on the res judicata authority of the
judgments of the International Court of Justice or, and this amounts to the same thing, on the entire
international judicial system.
The question of the alleged evidence obtained illegally
6. It is impossible to call by any other name the production of unacceptable “technical
evidence” obtained in July 2002 in grave violation of the sovereignty and territorial integrity of
Honduras and without that country’s consent. How is it possible to submit to the Court with a view
to revision alleged “evidence” obtained by illegal means? How is it possible to flout the
res judicata authority of the Court’s judgments to such an extent? How is it possible moreover to
do so gratuitously, in that such “evidence” proves nothing in respect of revision? Just what is the
limit to the audacity of an opponent which produces such material to a court?
7. In this connection, the Court’s statement in the Corfu Channel case (merits) is clearly
relevant, mutatis mutandis:
“The Court cannot accept such a line of defence. The Court can only regard the
alleged right of intervention as the manifestation of a policy of force, such as has, in
the past, given rise to most serious abuses and such as cannot, whatever be the present
defects in international organization, find a place in international law . . . The Court
cannot accept this defence either. Between independent States, respect for territorial
sovereignty is an essential foundation of international relations . . . But to ensure
respect for international law, of which it is the organ, the Court must declare that the
action of the British Navy constituted a violation of Albanian sovereignty.” (I.C.J.
Reports 1949, p. 35.)
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47
Members of the Chamber, any comment on what this Court affirmed in 1949 as it relates to
El Salvador’s conduct in obtaining alleged evidence by illegal means would be superfluous.
I should add that, while these documents do indeed date from within the six-month period
prescribed by Article 61 of the Statute, that date is unacceptable for purposes of the present
proceedings since the information contained therein was gathered by illegal means. It therefore
cannot have been discovered within the six months preceding the expiry of the ten-year period in
which an application for revision is possible. Moreover, as alleged evidence of the sudden change
in the boundary river, El Salvador offers two reports which it commissioned itself at a date of its
choosing, occurring outside of a high-water period. All it needed to do was to plan them so as to
file its Application within the deadline. Thus it assigned the date which it desired to those reports,
knowing that it would have to file the Application within six months thereafter.
The nature of these “facts” and the requirements for a new fact
8. All these facts, whether singular or multiple in nature, which El Salvador dares to submit
in support of its Application for revision and which in quantitative terms account for the bulk of its
documentary annexes, clearly have one characteristic trait in common: none of these documents
fulfils any of the cumulative, restrictive conditions or ¾ by virtue of the very nature of the
procedure ¾ any of the specific requirements laid down by Article 61 of the Statute of the Court.
According to the rules recently established by the Court in its Judgment of 3 February 2003 on the
Application for Revision of the Judgment of 11 July 1996, those conditions are as follows:
“(a) the application should be based upon the ‘discovery’ of a ‘fact’”.
According to Judge Mahiou’s separate opinion in that case, a fact is an “event which occurred” or,
according to the definition given by Judge Vereshchetin, “something that actually exists”.
Consequently, none of the documentary annexes I am referring to concerns facts falling within this
specific meaning for purposes of revision.
“(b) the fact, the discovery of which is relied on, must be ‘of such a nature as to be a
decisive factor’”.
But every one of the Salvadoran documents is merely indirect, polemical, tangential and peripheral
for purposes of revision. They have no substance. They are nothing.
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48
“(c) the fact should have been ‘unknown’ to the Court and to the party claiming
revision when the judgment was given”.
The Chamber is perfectly familiar with the positions and historical and geographical arguments
presented by the Parties, and they can be found in the documentary annexes to the written
pleadings which El Salvador persists in reciting today. It is self-evident that our opponent was
aware of them also.
“(d) ignorance of this fact must not be ‘due to negligence’”.
It is truly extraordinary and surprising that El Salvador should be ignorant of its own lack of rigour,
its habitual lack of diligence, its completely passive conduct and the deficiencies in its evidence.
For during the written phase preceding the 1992 Judgment our opponent could and should have
produced all the documents which it is now presenting. If all of this is happening today, it is
because of its own want of care. It now seeks to raise that want of care against Honduras as a
ground for revision. How can El Salvador claim that the failure to produce old books, in
widespread, public, free circulation throughout Central America, was due to internal armed
conflict, secrecy allegedly imposed by Honduras or sweeping sequestration in all libraries? How
can El Salvador claim ignorance of documents published in the official journal of Honduras? Its
allegations run afoul of common sense and procedural good faith.
“(e) the application for revision must be ‘made at latest within six months of the
discovery of the new fact’ and ‘before ten years have elapsed from the date of the
judgment’”59
.
Members of the Chamber, I have just explained to you that the documentary annexes concerning
the “contextualizing” or “corroborating” facts do not satisfy any of the conditions set by Article 61
of the Statute of the Court. I must now take back what I said. In fact, the Salvadoran Application
satisfies one and only one of those conditions, namely the ten-year deadline from the date of the
Judgment of the Court, albeit with just a few hours to spare.
9. Clearly, compliance with the second of the deadlines set, that is, the six-month period
from the discovery of the new fact, can in no way, absolutely no way, be determined based on the
documents submitted by El Salvador. Submitting is not proving. All of them could have and

59Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina). Judgment of 3 February 2003, para. 16.
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should have been obtained by the other Party before the critical deadline of 10 March 2002. It is
totally inexplicable and illogical that the reference works, books, historical documents, illegal
surveys, technical reports and legislative texts subject to mandatory official publication should
have been discovered only in the period immediately after 10 March 2002. No court in the world
could accept a Salvadoran argument so extraordinary that it simply defies common sense. In
March 2002 was the internal conflict in El Salvador ongoing? Did March 2002 see the lifting of
the official secrecy imposed by the Honduran authorities on all books on the isthmus? In
March 2002 was the confiscation and sequestering of all official Honduran documents continuing?
In March 2002 did it become possible to conduct illegal surveys? Was satellite imagery
technology invented in March 2002? Were the prophetic claims of fluvial avulsions advanced in
March 2002? Was the fertile imagination of a fortune-teller first applied to the forensic arts in
March 2002? The answer to all these questions is the same: “no”.
10. The task undertaken by El Salvador since the oral phase of these proceedings concerning
the admissibility of the Application for revision is every bit as illusory as it is frustrating, and for
two fundamental reasons. The first is that, as is well known, the conditions laid down by the
Statute are cumulative. If any one of them is lacking, the Application must be rejected. The truth
is that only one condition has been fulfilled, and even then with bare hours to spare.
11. The second reason, just as fundamental, concerns an aspect which the other Party has
totally ignored: the essential problem of the burden of proof. El Salvador persists in disregarding
the fact that it must prove everything it asserts. Please excuse me once again, Members of the
Chamber, for I am going to repeat in summary form the elements to be proved by the other Party.
First, that these are facts, in other words, events which occurred or something which actually exists;
second, that these facts have a decisive, substantial or fundamental influence; third, that they were
not known to the Court or to the Party invoking them before the Judgment was given; fourth, that
there has been no error, negligence or absence of due diligence; fifth, that the alleged facts were
not known to El Salvador before 10 March 2002. El Salvador should have proved, cumulatively,
fulfilment of the five conditions which I have just mentioned. El Salvador has proved nothing,
nothing at all, absolutely nothing. This is another decisive reason for rejecting the Application for
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revision, artificially created by that country, which persists in disregarding all of the conditions
governing it.
12. In my view, Members of the Chamber, the main problem which El Salvador is incapable
of surmounting not only concerns the procedural requirements laid down by Article 61 of the
Statute but also raises a preliminary and decisive issue: the manipulation of the concept of revision
in order to get round the impossibility of instituting appeal or cassation proceedings against the
Judgment of 11 September 1992. None of the “corroborating”, “explanatory” or “contextualizing”
documents now presented by El Salvador represents anything other than sleight of hand intended to
support its old, familiar argument ¾ an argument that was moreover rejected ¾ concerning the
avulsion of the Goascorán River. That is a well-known fact, amply debated and painstakingly
addressed by the Court in 199260. All the documents which El Salvador is now seeking to produce
highlight its old strategy of moving the mouth of the Goascorán River to La Cutú. It all boils down
to an attack on the res judicata authority of the Judgment. It all consists in rejecting the ratio
decidendi. It is all confined, since 1992, to an implicit affirmation of an error in iudicando.
13. The Judgment of 11 September 1992 is based on the application of the uti possidetis juris
as the legal principle applicable to the settlement of the dispute61. Accordingly, any claim of a new
fact of decisive importance must, by definition, relate to proof of that principle. Does any
document put forward by El Salvador prove the existence of an uti possidetis different from that
decided by the Chamber? None. Absolutely none. Neither directly nor remotely.
14. We must not forget that, as indicated in the 1992 Judgment62, El Salvador must prove not
only where the alleged other mouth of the Goascorán River was located in 1821 but that this other
mouth formed the Spanish boundary between the provinces of Honduras and El Salvador at that
date. Yet none of the Salvadoran annexes to which I have just referred proves, or is capable of
proving, these two points.
15. The best proof of El Salvador’s hidden agenda is, as always, provided by El Salvador,
the Applicant, itself. In the “submissions” in the Application (p. 71), El Salvador quite irrationally

60I.C.J. Reports 1992, pp. 543 et seq., paras. 306 et seq.
61I.C.J. Reports 1992, pp. 380 et seq., paras. 27 et seq., pp. 386 et seq., paras. 40 et seq.
62Ibid,. pp. 543 et seq., paras. 306 et seq.
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asks the Chamber, as if the Application for revision had already been accepted by it, to draw a new
boundary line in the Goascorán sector. This request is identical with that made by El Salvador in
the oral proceedings in 199163. Our opponents are asking the Chamber in 2002 to decide as they
had requested over ten years ago ¾ a request denied on properly reasoned grounds. But as
unreasonable as this claim may be in procedural terms, there is something which neither Tunisia
nor Yugoslavia dared request and which very clearly shows, once again, the other Party’s covert
agenda: to flout the res judicata, to reject the ratio decidendi, to claim a non-existent error in
iudicando, to present an artificial request and flagrantly to fail to respect the requirements of the
Statute of the Court. Basically, it is the same old story, the interminable Salvadoran saga, which is
also the key to its failure to execute the 1992 Judgment. That story continues today in the form of
an attempt to appeal, or seek cassation, before this Chamber. I shall now proceed to rebut certain
of El Salvador’s oral arguments.
Rebuttal of El Salvador’s oral arguments
16. Until now I have confined myself in my statement to analysing the extraordinary
arguments and worthless annexes presented by El Salvador in connection with its Application for
revision; I shall now continue by considering the argument made yesterday before this Chamber
by the advocates and counsel for that country.
17. Yesterday I listened with the greatest interest to the other Party’s perception of the uti
possidetis juris in this case. As far as I am concerned, the 1992 Judgment said it all concerning the
application of this principle in Central America. I shall therefore not return to this, but confine
myself to a number of general observations.
First, the Salvadoran argument concerning avulsion as it relates to uti possidetis is
irreparably flawed in two respects. First, El Salvador offers no evidence of such avulsion. Second,
what then is the precise, or at least plausible, date of this alleged avulsion, which remains a purely
conjectural event having occurred at some time in the eighteenth century? We are thus given no
specific date.

63Ibid,. pp. 375.
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Second, these Salvadoran arguments on avulsion and the history of the application of
Spanish colonial law in the present case are known and were addressed in the Chamber’s decision
in 199264. They are accordingly without relevance to the admissibility of an application for
revision.
Third, the critical date in law for the uti possidetis is that of independence. Another
Chamber said so clearly. This principle “applies . . . to the ‘photograph’ of the territorial situation
then existing . . . [It] freezes the territorial title; it stops the clock but does not put back the
hands . . .”65. Contrary to what our opponents contend, the only date which counts is that of 1821,
not any earlier date. Despite its desperate efforts, El Salvador has been unable to demonstrate the
existence of a Spanish decision fixing the boundary along the Rio Goascorán at the mouth of the
Estero La Cutú at a specific earlier date.
Fourth, the 1992 Judgment considered that the Saco negotiations in 1880 recognized the
international frontier as running “from its mouth in the Gulf of Fonseca, Bay of La Unión,
upstream in a north-easterly direction . . .”66, not in a north-south direction.
Thus, you can only share my conclusion that (1) the uti possidetis in 1821 placed the
boundary river at the Las Ramaditas mouth, as the 1992 Judgment rightly decided, and (2) that
none of El Salvador’s efforts yesterday to situate the boundary at the Estero La Cutú has any basis
whatsoever in the uti possidetis in 1821. In reality, El Salvador is once again, under cover of
revision, seeking to appeal or overturn paragraph 430 of the Judgment of the Chamber.
18. Members of the Chamber, I shall conclude this statement of the position of the
Government of Honduras by asking, on the basis of all the facts and arguments which its delegation
has presented, by repeating the request that your Chamber declare inadmissible El Salvador’s
Application for revision.
Members of the Chamber, Mr. President, I shall close this first round of oral argument by
thanking you for your kind attention. Thank you very much.

64Judgment, p. 547, para. 310.
651986 Judgment, I.C.J. Reports 1986, p. 568, para. 30.
66I.C.J. Reports 1992, p. 548, para. 312; emphasis added.
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The PRESIDENT: Thank you, Professor Sánchez Rodríguez. Your statement on behalf of
the Republic of Honduras brings to a close the first round of oral argument. The Court is thankful
to the Parties for their statements before it. It will meet again tomorrow, Wednesday
10 September 2003, at 3 p.m. to hear the second round of oral argument by the Republic of
El Salvador. The sitting is closed.
The Chamber rose at 1 p.m.
___________