Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening)(El Salvador v. Hondura

INTERNATIONAL COURT OF WSTICE

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Press Release

Unofficial

No. 2003/43
18 December 2003

Application for Revision of the Judgment of 11 September 1992 in the Case concerning the
Land, Island and Maritime Frontier Dispute Œl Salvador/Honduras: Nicaragua intervening)
Œl Salvador v. Honduras)

The Chamber rejects the Application for revision submitted by El Salvador

THE HAGUE, 18 December 2003. Today the Chamber of the International Court of
Justice (ICJ) formed to deal with the case conceming the Application for Revision of the Judgment
of 11 September 1992 in the Case conceming the Land, Island and Maritime Frontier Dispute

(El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras) delivered its decision
on the admissibilityf the Application submitted by El Salvador on 10 September 2002.

In its Judgment, which is final, without appeal and binding on the Parties, the Chamber finds
first, by four votes to one, that "the Application submitted by the Republic of El Salvador for

revision, under Article1 of the Statute of the Court, of the Judgment given on 11 September 1992,
by the Chamber of the Court formed to deal with the case conceming the Land. Island and
Maritime Frontier Dispute (El Salvador/Honduras), isnadmissible".

Reasoning of the Court

The Chamber begins by recalling that the Application for revision concems the sixth sector
of the land boundary between El Salvador and Honduras, lying between Los Amates and the Gulf
of Fonseca, the course ofwhich had been determined in 1992 by the Chamber hearing the original
case. At the proceedings which resulted in the 1992 Judgment, it was the contention Honduras
that in that sector the boundary followed the present course of the river Goascorân. El Salvador,

however, claimed that the boundary was defined by a previous course followed by the river, which
it had abandoned as a resultof avulsion, this is to say an abrupt change in the river bed. In that
Judgment, revision of which is sought here, the Chamber unanimously upheld the submissions of
Honduras.

The Chamber points out that, pursuant to Article 61, at this stagehe proceedings it has to
examine the admissibilityof the Application for revision by ascertaining that it satisfies a number
of conditions. The Application should "be based upon the 'discovery' of a 'fact"'; this fact must
be"of such a nature asto be a decisive factor" and "should have been 'unknown' to the Court and
to the party claiming revision when the judgment was given"; "ignorance of this fact must

[moreover] not be 'due to negligence'; and"the Application for revision must be 'made at latest
within six monthsof the discovery of the new fact' and before ten years have elapsed from the date
of the judgment." The Chamber further observes that an application for revision is admissible only
if each of the conditions is satisfied. If any one of them is not met, the application must be

dismissed.

The Chamber then addresses the arguments submitted by El Salvador in support of its
Application for revision. El Salvador claims in the first place to possess scientific, technical and -2-

historical evidence showing the existence of a previous bed of the Goascoran, as well as the
avulsion of the river in the mid-eighteenth century. According to El Salvador, these elements
constitute"new facts" for purposes of Article 61. Itclaims, moreover, that they are decisive, since
the 1992 Judgment stated that such an avulsion had not been proved and that, for this reason, the
boundary should follow the course of the Goascoran as it was in 1821 and not the course prior to
the avulsion.

In considering this line of argument, the Chamber first summarizes the considerations of
principle on which the 1992 Judgment had based itself in order to determine the boundary.
According to the Judgment, the latter was to be determined by the application of the principle of
uti possidetis juris, under which the boundaries of States resulting from decolonization in Spanish
Americawere to follow the colonial administrativeboundaries. However, the 1992Judgment went
on to say that the situation resulting from uti possidetis was susceptible of modification as a result

of the conduct of the Parties after independence in 1821.

The Chamber analyses the way the 1992 Judgment applied those principles to the case
before it. It finds that, in that Judgment, El Salvador'sclaims were rejected because ofthat State's
conductafter 1821,and in particular during negotiations held in 1880and 1884. It adds that, under
these circumstances, it does not matter whether or not there was an avulsion of the Goascoran.
According to the Chamber, "even if avulsion were now proved ... findings to that effect would
provide no basis for calling into question the decision taken by the Chamber in 1992 on wholly

different grounds. The facts asserted in this connection by El Salvador are not 'decisivefactors' in
respect of the Judgment which it seeks to have revised."

The Chamber then cornes to the second "new fact" on which El Salvador relies, that is, the
discoveryin the Newberry Library in Chicago offurther copies of the "Carta Esférica"(a maritime
chart of the Gulf of Fonseca prepared by the captain and navigators of the brigantine El Activo
around 1796)and of the report ofthat vessel's expedition, documentsproduced by Honduras in the

original proceedings in versions held in the Madrid Naval Museum. According to El Salvador,
"the fact that there are several versions of the 'Carta Esférica'and the Report of the Gulf of
Fonseca from the El Activo expedition, that there are differences among them and the
anachronisms they share, compromises the evidentiary value that the Chamber attached to the
documents that Honduras presented, essential in the Judgment [of 1992]". On this point, the
Chamber asks itself whether the 1992 Chamber might have reached different conclusions had it
also had before it the new versions of those documents produced by El Salvador. After

examination, the Chamber concludes that they do not overtum the conclusions arrived at by the
Chamber in 1992; on the contrary, they bear them out. The new versions of the above-mentioned
documentsare th us not "decisive factors" in respect of the Judgmentwhose revision is sought.

The Chamber finally states that, having reached the conclusion that the new facts alleged by
El Salvador are not "decisive factors" in respect of the Judgment of 11September 1992, it is not
necessary for it to ascertain whether the other conditions laid down in Article61 of the Statute are

satisfied inthe present case.

Compositionof the Chamber

The Chamber was composed as follows: Judge Guillaume, President of the Chamber;
JudgesRezek, Buergenthal; Judges ad hoc TorresBemardez and Paolillo; Registrar Couvreur.

Judge ad hoc Paolillo appends a dissenting opinion to the Judgment of the Chamber. -3-

A summary of the Judgment is published in the document entitled "Summary No. 2003/3",

including a summary of the appended dissenting opinion. This Press Release, the summary and the
full text of the Judgment also appear on the Court's website under the headings "Docket" and
"Decisions" (www.icj-cij.org).

Information Department:

Mr. Arthur Witteveen, First Secretary of the Court (tel: +31 70 302 2336)
Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers (tel: +31 70 302 2337)
E-mail address: [email protected]