INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
2003/5 Summary
2003 December 18
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)
Summary of the Judgment delivered by the Chamber on Thursday 18 December 2003
History of the proceedings and submissions of the Parties (paras. 1-14)
On 10 September 2002 the Republic of El Salvador (hereinafter “ElSalvador”) submitted a
request to the Court for revision of the Judgme nt delivered on 11 September 1992 by the Chamber
of the Court formed to deal with the case conc
Dispute (El Salvador/Honduras: Nicaragua intervening) (I.C.J. Reports 1992, p. 351).
In its Application, ElSalvador requested th e Court “To proceed to form the Chamber that
will hear the application for revision of the Judgme nt, bearing in mind the terms that ElSalvador
and Honduras agreed upon in the Special Agreement of 24 May 1986.”
The Parties having been duly consulted by the President, the Court, by an Order of
27November2002, decided to grant their request for the formation of a special chamber to deal
with the case; it declared that three Members of the Court had been elected to sit alongside two
ad hoc judges chosen by the Parties: PresidentG.
Judges adhoc S. Torres Bernárdez (chosen by Honduras) and F.H. Paolillo (chosen by
El Salvador).
On 1April2003, within the time-limit fixed by the Court, Honduras filed its Written
Observations on the admissibility of ElSalvador’s Application. Publ ic sittings were held on 8, 9,
10 and 12 September 2003.
At the oral proceedings, the following final submissions were presented by the Parties:
On behalf of the Government of the Republic of El Salvador, - 2 -
“The Republic of ElSalvador respectf ully requests the Chamber, rejecting all
contrary claims and submissions to adjudge and declare that:
1. The application of the Republic of El Salvador is admissible based on the
existence of new facts of such a nature as to leave the case open to revision,
pursuant to Article 61 of the Statute of the Court, and
2. Once the request is admitted that it proceed to a revision of the Judgment of
11September1992, so that a new judgment fixes the boundary line in the sixth
disputed sector of the land boundary between ElSalvador and Honduras as
follows:
‘Starting at the old mouth of the Goascorán River at the entry point
known as the Estero de la Cutú, located at latitude 13 degrees 22 minutes
00seconds north and longitude 87degrees 41minutes 25seconds west,
the border follows the old bed of the Goascorán River for a distance of
17,300metres up to the place known as Rompición de Los Amates,
located at latitude 13degrees 26minutes 29seconds north and longitude
87degrees 43minutes 25seconds west, which is where the Goascorán
River changed course.’.”
On behalf of the Government of the Republic of Honduras,
“In view of the facts and arguments pr esented above, the Government of the
Republic of Honduras requests the Chamber to declare the inadmissibility of the
Application for Revision presented on 10 September 2002 by El Salvador.”
Basis of jurisdiction and circumstances of the case (paras. 15-22)
The Chamber begins by stating that, under Article61 of the Statute, revision proceedings
open with a judgment of the Court declari ng the application admissible on the grounds
contemplated by the Statute, and that Article 99 of the Rules of Court makes express provision for
proceedings on the merits if, in its first judgment, the Court has declared the application admissible.
The Chamber observes that, at this stage, its decision is thus limited to the question whether
El Salvador’s request satisfies the conditions contem plated by the Statute. Under Article 61, 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”;
(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 la test within six months of the discovery of the
new fact” and before ten years have elapsed from the date of the judgment.
The Chamber observes that “an application for revision is admissible only if each of the
conditions laid down in Article 61 is satisfied. If any one of them is not met, the application must
be dismissed.” - 3 -
However, ElSalvador appears to argue in limine that there is no need for the Chamber to
consider whether the conditions of Article61 of the Statute have been satisfied, since, by its
attitude, “Honduras implicitly acknowledged the admissibility of El Salvador’s Application”.
In this respect, the Chamber observes that regardless of the parties’ views on the
admissibility of an application for revision, it is in any event for the Court, when seised of such an
application, to ascertain whether the admissibility requirements laid down in Article61 of the
Statute have been met. Revision is not available simply by consent of the parties, but solely when
the conditions of Article 61 are met.
The new facts alleged by El Salvador concern on the one hand the avulsion of the river
Goascorán and on the other the “Carta Esférica” and the report of the 1794 El Activo expedition.
Avulsion of the river Goascorán (paras. 23-40)
“In order properly to understand ElSalvador’s present contentions”, the Chamber first
recapitulates part of the reasoning in the 1992 J udgment in respect of the sixth sector of the land
boundary.
The Chamber then indicates that in the presen t case, ElSalvador first claims to possess
scientific, technical and historical evidence s howing, contrary to what it understands the 1992
decision to have been, that the Goascorán did in the past change its bed, and that the change was
abrupt, probably as a result of a cyclone in 1762. ElSalvador argues that evidence can constitute
“new facts” for purposes of Article 61 of the Statute.
El Salvador further contends th at the evidence it is now offering establishes the existence of
an old bed of the Goascorán debouching in the Estero La Cutú, and the avulsion of the river in the
mid-eighteenth century or that at the very least, it ju stifies regarding such an avulsion as plausible.
These are said to be “new facts” for purposes of Article61. According to ElSalvador, the facts
thus set out are decisive, because the considerations and conclusions of the 1992Judgment are
founded on the rejection of an avulsion which, in the Chamber’s view, had not been proved.
ElSalvador finally maintains that, given all th e circumstances of the case, in particular the
“bitter civil war [which] was raging in ElSalvad or” “for virtually the whole period between 1980
and the handing down of the Judgment on 11September1992”, its ignorance of the various new
facts which it now advances concerning the course of the Goascorán was not due to negligence.
The Chamber states that Honduras, for its part, argues that with regard to the application of
Article 61 of the Statute, it is “w ell-established case law that there is a distinction in kind between
the facts alleged and the evidence relied upon to prove them and that only the discovery of the
former opens a right to revision”. Accordingly, in the view of Honduras, the evidence submitted
by El Salvador cannot open a right to revision.
Honduras adds that El Salvador has not demonstr ated the existence of a new fact. In reality,
ElSalvador is seeking “a new interpretation of previously known facts” and asking the Chamber
for a “genuine reversal” of the 1992 Judgment.
Honduras further maintains that the facts relied on by ElSalvador, even if assumed to be
new and established, are not of such a nature as to be decisive factors in respect of the
1992 Judgment.
Honduras argues lastly that ElSalvador could have had the scientific and technical studies
and historical research which it is now relying on carried out before 1992. - 4 -
Turning to consideration of ElSalvador’s submissions concerning the avulsion of the
Goascorán, the Chamber recalls that an applicatio n for revision is admissible only if each of the
conditions laid down in Article61 is satisfied, and that if any one of them is not met, the
application must be dismissed; in the present case, the Chamber begins by ascertaining whether the
alleged facts, supposing them to be new facts, are of such a nature as to be decisive factors in
respect of the 1992 Judgment.
In this regard, the Chamber first recalls th e considerations of principle on which the
Chamber hearing the original case relied for its ruling on the disputes between the two States in six
sectors of their land boundary. According to that Chamber, the boundary was to be determined “by
the application of the principle generally accepted in Spanish America of the uti possidetis juris ,
whereby the boundaries were to follow the colonial administrative boundaries” (para.28 of the
1992Judgment). The Chamber did however note that “the uti possidetis juris position can be
qualified by adjudication and by treaty”. It reason ed from this that “the question then arises
whether it can be qualified in other ways, for ex ample, by acquiescence or recognition”. It
concluded that “There seems to be no reason in principle why these factors should not operate,
where there is sufficient evidence to show that the parties have in effect clearly accepted a
variation, or at least an interpre tation, of the uti possidetis juris position” (para.67 of the
1992 Judgment).
The Chamber then considered “The contention of El Salvador that a former bed of the river
Goascorán forms the uti possidetis juris boundary”. In this respect, it observed that:
“[this contention] depends, as a question of fact, on the assertion that the Goascorán
formerly was running in that bed, and that at some date it abruptly changed its course
to its present position. On this basis ElSalvador’s argument of law is that where a
boundary is formed by the course of a river, and the stream suddenly leaves its old bed
and forms a new one, this process of ‘avulsion’ does not bring about a change in the
boundary, which continues to follow the old channel.” (Para.308 of the
1992 Judgment.)
The Chamber added that:
“No record of such an abrupt chan ge of course having occurred has been
brought to the Chamber’s attention, but we re the Chamber satisfied that the river’s
course was earlier so radically different from its present one, then an avulsion might
reasonably be inferred.” (Ibid.)
Pursuing its consideration of ElSalvador’s argument, the Chamber did however note:
“There is no scientific evidence that the prev ious course of the Goascorán was such that it
debouched in the Estero La Cutú... rather than in any of the other neighbouring inlets in the
coastline, such as the Estero El Coyol” (para. 309 of the 1992 Judgment).
Turning to consideration as a matter of law of ElSalvador’s proposition concerning the
avulsion of the Goascorán, the Chamber observed that El Salvador “suggests . . . that the change in
fact took place in the 17thcentury” (para.311 of the 1992 Judgment). It concluded that “On this
basis, what international law may have to say, on the question of the shifting of rivers which form
frontiers, becomes irrelevant: the problem is main ly one of Spanish colonial law.” (Para.311 of
the 1992 Judgment.)
Beginning in paragraph 312 of the 1992 Judgment, the Chamber turned to a consideration of
a different ground. At the outset, it tersely stated the conclusions which it had reached and then set
out the reasoning supporting them. In the view of the Chamber, “any claim by El Salvador that the
boundary follows an old course of the river abandoned at some time before 1821 must be rejected. - 5 -
It is a new claim and inconsistent with the previous history of the dispute.” (Para.312 of the
1992 Judgment.)
In the present case, the Ch amber observes that, whilst in 1992 the Chamber rejected
El Salvador’s claims that the 1821 boundary did not follow the course of the river at that date, it did
so on the basis of that State’s conduct during the nineteenth century.
The Chamber concludes that, in short, it does not matter whether or not there was an
avulsion of the Goascorán. Even if avulsion we re now proved, and even if its legal consequences
were those inferred by ElSalvador, 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 ElSalvador are not “decisive factors” in respect of the Judgment
which it seeks to have revised.
Discovery of new copies of the “Carta Esférica” and report of the 1794 ElActivo
expedition (paras. 41-55)
The Chamber then examines the second “new fact” relied upon by El Salvador in support of
its Application for revision, namely, the discovery in the Ayer Collection of the Newberry Library
in Chicago of a further copy of the “Carta Esférica” and of a further copy of the report of the
expedition of the ElActivo , thereby supplementing the copies from the Madrid Naval Museum to
which the 1992 Chamber made reference in paragraphs 314 and 316 of its Judgment.
The Chamber points out that Honduras denies that the production of the documents found in
Chicago can be characterized as a new fact. For Honduras, this is simply “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”. The Chamber proceeds first, as it
did in respect of the avulsion, to determine first whether the alleged facts concerning the “Carta
Esférica” and the report of the El Activo expedition are of such a nature as to be decisive factors in
respect of the 1992 Judgment.
The Chamber recalls in this regard that its predecessor in 1992, after having held
ElSalvador’s claims concerning the old course of the Goascorán to be inconsistent with the
previous history of the dispute, considered “the evidence made available to it concerning the course
of the river Goascorán in 1821” (para.313 of the 1992 Judgment). The 1992 Chamber paid
particular attention to the chart prepared by th e captain and navigators of the vessel ElActivo
around 1796, described as a “Carta Esférica”, which Honduras had found in the archives of the
Madrid Naval Museum. That Chamber concluded from the foregoing “that the report of the 1794
expedition and the ‘Carta Esférica’ leave little room for doubt that the river Goascorán in 1821 was
already flowing in its present-day course” (para. 316 of the 1992 Judgment).
In the present case, the Chamber observes in this connection, that the two copies of the
“Carta Esférica” held in Madrid and the copy from Chicago differ only as to certain details, such as
for example, the placing of titles, the legends, a nd the handwriting. These differences reflect the
conditions under which documents of this type were prepared in the late eighteenth century; they
afford no basis for questioning the reliability of th e charts that were pro duced to the Chamber in
1992. The Chamber notes further that the Estero La Cutú and the mouth of the Rio Goascorán are
shown on the copy from Chicago, just as on the copies from Madrid , at their present-day location.
The new chart produced by ElSalvador thus does not overturn the conclusions arrived at by the
Chamber in 1992; it bears them out.
As for the new version of the report of the El Activo expedition found in Chicago, it differs
from the Madrid version only in terms of certain details, such as the opening and closing
indications, spelling, and placing of accents. The body of the text is the same, in particular in the - 6 -
identification of the mouth of the Goascorán. Here again, the new document produced by
El Salvador bears out the conclusions reached by the Chamber in 1992.
The Chamber concludes from the foregoing that the new facts alleged by ElSalvador in
respect of the “Carta Esférica” and the report of the El Activo expedition are not “decisive factors”
in respect of the Judgment whose revision it seeks.
Final observations(paras. 56-59)
The Chamber takes note of El Salvador’s further contention that proper contextualization of
the alleged new facts “necessitates consideration of other facts that the Chamber weighed and that
are now affected by the new facts.
The Chamber states that it agrees with El Salvador’s view that, in order to determine whether
the alleged “new facts” concerning the avulsion of the Goascorán, the “Carta Esférica” and the
report of the El Activo expedition fall within the provisions of Article 61 of the Statute, they should
be placed in context, which the Chamber has done. However, the Chamber recalls that, under that
Article, revision of a judgment can be opened only by “the discovery of some fact of such a nature
as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and
also to the party claiming revision, always provided that such ignorance was not due to
negligence”. Thus, the Chamber cannot find admissible an application for revision on the basis of
facts which El Salvador itself does not allege to be new facts within the meaning of Article 61.
The full text of the dispositif (para. 60) reads as follows:
“For these reasons,
T HE CHAMBER ,
By four votes to one,
Finds that the Application submitted by the Republic of ElSalvador for revision, under
Article61 of the Statute of the Court, of the Judgment given on 11September 1992, by the
Chamber of the Court formed to deal with the case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), is inadmissible.
IN FAVOUR : Judge Guillaume, President of the Chamber ; Judges Rezek, Buergenthal;
Judge ad hoc Torres Bernárdez;
A GAINST : Judge ad hoc Paolillo.”
*
Judge ad hoc P AOLILLO appends a dissenting opinion to the Judgment of the Chamber.
___________ Annex to Summary 2003/5
Dissenting opinion of Judge ad hoc Paolillo
In Judge Paolillo’s opinion, it is clear that the ratio decidendi of the 1992 Judgment in
respect of the sixth sector of the land boundary between El Salvador and Honduras lies in the fact
that El Salvador was unable to pr ove its allegations concerning an avulsion of the river Goascorán.
In 1992, the Chamber, after having considered El Salvador’s argument from the legal perspective,
stated that no document proving a sudden cha nge in the course of the Goascorán had been
produced by ElSalvador and that there was no scientific evidence provin g that the river in its
earlier course debouched in the Estero La Cutú. In the absence of proof of El Salvador’s claim, the
Chamber therefore upheld Honduras’s submissions. The present Chamber has indicated ⎯
incorrectly, in Judge Paolillo’s view ⎯ that the ratio decidendi of the 1992 Judgment related to the
“novelty” of El Salvador’s claim and to its “inconsistency” with the previous history of the dispute.
JudgePaolillo notes, however, that it was only after considering ElSalvador’s claim and the
evidence produced in support of it that the Chamber in 1992 referred to the previous history of the
dispute, as an argument accessory to the main ground, rather than as a decisive conclusion
concerning the course of the boundary in the sixth sector.
He points out that Honduras’s conduct duri ng the present proceedings shows that, in
Honduras’s view as well, the ratio decidendi of the 1992 Judgment related to the object of the
dispute concerning the sixth sector and not its previous history. In the initial phase of the
proceedings, Honduras opposed El Salvador’s Application for revision on the ground that the new
facts alleged by ElSalvador did not meet the co nditions laid down by Article61 of the Statute of
the Court. It was only during the last public s itting, at which stage ElSalvador no longer had an
opportunity to respond to Honduras’s argument, that Honduras maintained that the historical
considerations set out in paragraph312 of the Judgment rendered in the original proceedings
constituted the ratio decidendi of that decision.
In the present Judgment, the Chamber has concluded that the course of the boundary line in
the sixth sector was decided in 1992 by the Chamber on the basis of reasoning analogous to that
which it adopted in respect of the first sector, i.e., by application of the principle uti possidetis juris,
as qualified by acquiescence or recognition by the partie s. According to JudgePaolillo, there is
however nothing in the 1992 Judgment to suggest that the Chamber adopted that approach; the
Chamber did not say so explicitly, as it did in resp ect of the first sector, nor is there any evidence
that ElSalvador had “clearly accepted”, by ac quiescence or recognition, a modification of the
position resulting from the uti possidetis juris in the sixth sector. The absence of any explicit
reference to the old course of the Goascorán during the negotiations prior to 1972 can in no way be
interpreted as a waiver by El Salvador of its clai m that the boundary should be drawn along the old
course of the river.
The new facts relied upon by El Salvador in su pport of its Application for revision consist of
a group of documents containing scientific, te chnical and historical information produced or
discovered after 1992 and proving the occurrence of an avulsion and the existence of an old bed of
the river Goascorán, which, pursuant to the principle uti possidetis juris , should thus form the
boundary line between the two Parties in the sixt h sector. After considering these new facts,
JudgePaolillo arrived at the conclusion that they satisfy the conditions laid down in Article61 of
the Statute, including the requirement that they must be of such a nature as to be a decisive factor.
Given that a majority of the Members of the Chamber were of the view that the 1992 decision, as
far as the sixth sector was concerned, was based on considerations relating to the previous history
of the dispute and not to the object of the dispute, the Chamber concluded that the new facts relied
upon by El Salvador were not of such a nature as to be a decisive factor in respect of the Judgment
which it sought to have revised. As the requirements of Article61 of the Statute of the Court are
cumulative, the Chamber refrained from consider ing whether or not the new facts alleged by - 2 -
ElSalvador satisfied the other conditions laid do wn. JudgePaolillo believes, however, that if the
Chamber had so considered them, it would have concluded that the new facts met those conditions.
He observes that, as a result of the inadmissibility of the Application for revision, the second
phase of the proceedings, during which the Chamber would have been called upon to rule on the
merits of the request, cannot take place. He finds this unfortunate because a new consideration on
the merits of the dispute would have enabled the Chamber to uphold or revise the 1992 Judgment
in respect of the sixth sector and to do so on th e basis of significantly more extensive and reliable
information than that available to the Chamber in the original proceedings. He believes that the
interests of justice could have been better served by a new decision on the merits than by the
1992 Judgment, since the better informed a court is, the greater the likelihood that it will adopt just
decisions.
In Judge Paolillo’s view, the Chamber has thus missed the opportunity to declare admissible,
for the first time in the history of the Court, an application for revision which met all the conditions
required by Article 61 of the Statute of the Court.
___________
Summary of the Judgment of 18 December 2003