For El Salvador: H.E. Ms Maria Eugenia Brizuela de Avila,
Mr. Maurice Mendelson,
Mr. Antonio Remiro Brotons,
Mr. Gabriel Mauricio Gutierrez Castro.
For Honduras: H.E. Mr. Carlos Lopez Contreras,
Mr. Pierre-Marie Dupuy,
Mr. Carlos Jimenez Piernas,
Mr Richard Meese,
Mr. Luis Ignacio Sanchez Rodriguez,
Mr. Philippe Sands.
"For all the foregoing reasons, the Republic of El Salvador requests the Court:
(a) To proceed to form the Chamber that will hear the application for revision of the Judgment, bearing in mind the terms that El Salvador and Honduras agreed upon in the Special Agreement of 24 May 1986;
(b) To declare the application of the Republic of El Salvador admissible on the grounds of the existence of new facts of such a character as to lay the case open to revision under Article 61 of the Statute of the Court; and
(c) Once the application is admitted, to proceed to the revision of the Judgment of 11 September 1992, so that a new Judgment will determine the boundary line in the sixth disputed sector of the land frontier between El Salvador and Honduras to be as follows:
‘Starting from the old mouth of the Goascoran river in the inlet known as the La Cutu Estuary situated at latitude 13°22'00"N and longitude 87’4l'25"W, the frontier follows the old course of the Goascoran river for a distance of 17,300 metres as far as the place known as the Rompici6n de los Amates situated at latitude 13° 26' 29" N and longitude 87° 43'25" W, which is where the Goascoran river changed its course.’ "
On behalf of the Government of the Republic of El Salvador,
"The Republic of El Salvador respectfully 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 11 September 1992, so that a new judgment fixes the boundary line in the sixth disputed sector of the land boundary between El Salvador and Honduras as follows:
‘Starting at the old mouth of the Goascoran River at the entry point known as the Estero de la Cutu, located at latitude 13 degrees 22 minutes 00 seconds north and longitude 87 degrees 41 minutes 25 seconds west, the border follows the old bed of the Goascoran River for a distance of 17,300 metres up to the place known as Rompicion de Los Amates, located at latitude 13 degrees 26 minutes 29 seconds north and longitude 87 degrees 43 minutes 25 seconds west, which is where the Goascoran River changed course."’
On behalf of the Government of the Republic of Honduras,
"In view of the facts and arguments presented 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."
" 1. An application for revision of a judgment may be made only when it is based upon 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.
2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the date of the judgment."
Thus the Statute and the Rules of Court foresee a "two-stage procedure", The first stage of the procedure for a request for revision of the Court’s judgment should be "limited to the question of admissibility of that request" (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), Judgment, I.C.J. Reports 1985, p. 197, paras. 8 and 10; Application for Re vision 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, I.C.J. Reports 2003, p. 11, para. 15).
(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 latest within six months of the discovery of the new fact" and before ten years have elapsed from the date of the judgment.
"Honduras implicitly acknowledged the admissibility of El Salvador’s Application when, by letter dated 29 October 2002, it informed the distinguished President of the Court that, pursuant to Article 61, paragraph 3, of the Statute, it would ask that the Court require previous compliance with the 1992 Judgment as a condition precedent to the admissibility of the Application for revision."
In El Salvador’s view, "The back step that Honduras took with its letter of 24 July 2003", by which it decided not to ask for prior compliance with the judgment, "does nothing to diminish [the] acknowledgment [of the admissibility of the Application], and instead serves to confirm it." The Chamber is consequently requested to "adjudge and decide accordingly".
Further, paragraph 3 of Article 61 of the Statute and paragraph 5 of Article 99 of the Rules of Court afford the Court the possibility at any time to require previous compliance with the terms of the judgment whose revision is sought, before it admits proceedings in revision; accordingly, even if Honduras had submitted a request to the Court to require previous compliance without awaiting the Chamber’s decision on the admissibility of El Salvador’s Application, the request would not have implied recognition of the admissibility of the Application,
Finally, the Chamber notes 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 Article 61 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.
El Salvador admitted before the Chamber hearing the original case that the river Goascoran had been adopted as the provincial boundary during the period of Spanish colonization. It argued, however, that
"at some date [the Goascoran) abruptly changed its course to its present position. On this basis El Salvador’s argument of law [was] 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.)
That was claimed to be the rule under both Spanish colonial law and international law. Thus, according to El Salvador, the boundary between the two States should be established not along the present stream of the river, flowing into the Bay of La Union, but along the "previous course... since abandoned by the stream", probably during the seventeenth century, emptying into the Estero La Cutu (paras. 306 and 311).
The Chamber went on to find that "any claim by El Salvador that the boundary follows an old course of the river abandoned at some time before 1821 must be rejected. It is a new claim and inconsistent with the previous history of the dispute." (Para. 312.) In this regard, the Chamber noted inter alia that on several occasions, including in particular during the Saco negotiations between the two States in 1880, El Salvador had adopted conduct excluding any "claim... 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" (para. 312).
The Chamber then considered "the evidence made available to it concerning the course of the river Goascoran in 1821" (para. 313). It examined in particular a "chart (described as a ‘Carta Esférica’) of the Gulf of Fonseca prepared by the captain and navigators of the brig or brigantine El Activo, who sailed in 1794, on the instructions of the Viceroy of Mexico, to survey the Gulf’ (para. 314). It noted that the mouth of the Goascoran on that chart was "quite inconsistent with the old course of the river alleged by El Salvador, or, indeed, any course other than the present-day one" (para. 314). The Chamber concluded that "the report of the 1794 expedition and the ‘Carta Esférica’ leave little room for doubt that the river Goascoran in 1821 was already flowing in its present-day course" (para. 316).
Finally, after having examined various other arguments by El Salvador which it is not necessary to repeat here, the Chamber "found that the boundary follows the present course of the Goascoran" (para. 319) and defined the boundary line in the mouth of the river (paras. 320-322).
In support of this contention El Salvador submits to the Chamber a report dated 5 August 2002 entitled Geologic, Hydrologic and Historic Aspects of the Goascoran Delta — A Basis for Boundary Determination. It also produces a study it conducted in 2002 "to cheek for the presence of vestiges of the Goascoran’s original riverbed and additional information about its hydrographic behaviour". Finally, it refers to various publications, including in particular Geografia de Honduras by Ulises Meza Calix, published in 1916. and Monografia del Departamento de Valle, prepared under the direction of Bernardo Galindo y Galindo and published in 1934.
El Salvador further contends that the evidence it is now offering establishes the existence of an old bed of the Goascoran debouching in the Estero La Cutu, and the avulsion of the river in the mid-eighteenth century or that, at the very least, it justifies regarding such an avulsion as plausible. These are said to be "new facts" for purposes of Article 61.
In particular, it states that the scientific and technical studies it has produced could not have been carried out previously, given both the state of science and technology in 1992, and the political situation prevailing at the time in the sixth sector of the boundary and, generally, in El Salvador and the region. As for the publications mentioned above (see paragraph 26), El Salvador contends that it could not have "access to the documents in Honduras’s National Archives and, despite all its efforts, could not locate them in the archives of other States to which it did have access".
Honduras adds that El Salvador has not demonstrated the existence of a new fact discovered by El Salvador since 1992 "which establishes that the Goascoran River previously ran in a former bed which debouched at Estero La Cutu or that a process of ‘avulsion occurred, or that it occurred on a particular date". In reality, El Salvador is seeking "a new interpretation of previously known facts" and asking the Chamber for a "genuine reversal" of the 1992 Judgment.
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). The Chamber did however note that "the uti possidetis juris position can be qualified by adjudication and by treaty". It reasoned from this that "the question then arises whether it can be qualified in other ways, for example, 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 interpretation, of the uti possidetis juris position." (Para. 67.)
Applying these principles to the first sector of the land boundary, the Chamber considered that in this sector "The situation was susceptible of modification by acquiescence in the lengthy intervening period" since the early nineteenth century. It added that, whatever may have been the colonial administrative boundaries, "the conduct of Honduras from 1881 until 1972 may be regarded as amounting to such acquiescence" to a part of the boundary claimed by El Salvador in this sector (para. 80),
"that during the colonial period a river called the Goascoran constituted the boundary between two administrative divisions of the Captaincy-General of Guatemala: the province of San Miguel and the Alcaldia Mayor de Minas of Tegucigalpa" (para. 307).
The Parties were in agreement that El Salvador had succeeded in 1821 to the territory of the Province of San Miguel. On the other hand, they disagreed as to whether or not the Alcaldia Mayor of Tegucigalpa had passed to Honduras, The Chamber decided that point in favour of Honduras (ibid).
The Chamber then considered "The contention of El Salvador that a former bed of the river Goascoran 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 Goascoran formerly was running in that bed, and that at some date it abruptly changed its course to its present position. On this basis El Salvador’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.)
The Chamber added that:
"No record of such an abrupt change of course having occurred has been brought to the Chamber’s attention, but were 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 El Salvador’s argument, the Chamber did however note:
"There is no scientific evidence that the previous course of the Goascoran was such that it debouched in the Estero La Cutu... rather than in any of the other neighbouring inlets in the coastline, such as the Estero El Coyol." (Para. 309.)
Turning to consideration as a matter of law of El Salvador’s proposition concerning the avulsion of the Goascoran, the Chamber observed that El Salvador "suggests... that the change in fact took place in the 17th century" (para. 311). 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 mainly one of Spanish colonial law." (Para. 311.)
At the conclusion of its consideration of El Salvador’s line of argument as to the avulsion of the Goascoran, the Chamber did not take any position on the existence of an earlier course of the Goascoran which might have debouched into the Estero La Cutu, or on any avulsion of the river, nor a fortiori, on the date of any such avulsion or its legal consequences. It confined itself to defining the framework in which it could possibly have taken a position on these various points.
The Chamber then noted: "A specific assertion that the boundary should follow an abandoned course of the river Goascoran was first made during the Antigua negotiations in 1972" (para. 312). It also quoted an excerpt from the record of the negotiations between the two States at Saco in 1880, stating that the two delegates had agreed "to recognize" the river Goascoran "as the frontier between the two Republics, from its mouth in the Gulf of Fonseca, Bay of La Union, upstream in a north-easterly direction... "(ibid.). The Chamber observed that to interpret "the words ‘River Goascoran’ [in the text] as meaning a Spanish colonial boundary which in 1821 followed a long-abandoned course of the river, is out of the question" (ibid.). It added that similar considerations applied to the circumstances of further negotiations in 1884 (para. 317).
Having on these grounds arrived at the conclusion that the boundary in 1821 followed the course of the Goascoran at that date, the Chamber turned to consideration of the evidence submitted to it in respect of that course (paras. 313 et seq.), evidence which will be examined in due course (see paragraph 50 below).
In short, it does not matter whether or not there was an avulsion of the Goascoran. Even if avulsion were now proved, and even if its legal consequences were those inferred by El Salvador, 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 "decisive factors" in respect of the Judgment which it seeks to have revised. In light of the 1992 Judgment, the Chamber cannot but reach such a conclusion, independently of the positions taken by the Parties on this point in the course of the present proceedings.
El Salvador states that in 1992, the Chamber had before it only copies of the documents that had been obtained from Madrid, and been produced by Honduras. It contends that it was on the basis of those copies that the Chamber decided the "point at which the Goascoran emptied into the Gulf’ and the course of the boundary.
According to El Salvador, the documents discovered in Chicago differ from those in Madrid on several significant points. It maintains that:
"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]."
Further, the evidentiary value is claimed to be all the more doubtful in that the Madrid documents enjoyed no official status and have not been certified to be originals. Accordingly, maintains El Salvador, there exists "a second new fact, whose implications for the Judgment have to be considered once the application for revision is admitted".
El Salvador asserts that in the present case the fact in question predated the 1992 Judgment but was not "known at the time the Judgment was given". Thus, it is a "new fact" for purposes of Article 61. It is said to be decisive because its discovery has highlighted "the insubstantiality of the Madrid Naval Museum documents" from which the Chamber inferred "such significant" geographical "consequences".
"appears to correspond with considerable accuracy to the topography as shown on modern maps. It shows the ‘Estero Cutu’ in the same position as modern maps; and it also shows a river mouth, marked ‘Ro Goascoran’, at the point where the river Goascoran today flows into the Gulf. Since the chart is one of the Gulf, presumably for navigational purposes, no features inland are shown except the ‘... best known volcanoes and peaks..."("... voIcanes y cerros mas conocidos...") visible to mariners; accordingly, no course of the river upstream of its mouth is indicated. Nevertheless, the position of the mouth is quite inconsistent with the old course of the river alleged by El Salvador, or, indeed, any course other than the present-day one. In two places, the chart indicates the old and new mouths of a river (e.g., ‘Barra vieja del Rio Nacaume’ and ‘Nuevo Rio de Nacaume’); since no ancient mouth is shown for the Goascoran, this suggests that in 1796 it had for some considerable time flowed into the Gulf where indicated on the chart." (Para. 314.)
The Chamber then analysed the report of the expedition and observed that it also places "the mouth of the river Goascoran at its present-day position" (ibid.).
The Chamber concluded from the foregoing "that the report of the 1794 expedition and the ‘Carta Esférica’ leave little room for doubt that the river Goascoran in 1821 was already flowing in its present-day course" (para. 316).
"other evidences and proofs exist that, while not a new fact, were not taken up in the proceedings and are useful, even essential, whether to supplement and confirm the new facts or to better understand them".
It cites the great eruption of Cosiguina volcano and the appearance of the Farallones del Cosiguina, the Saco negotiations between 1880 and 1884, and the characteristics of the lower reaches of the river Goascoran.
"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.
By four votes to one,
Finds that the Application submitted by the Republic of El Salvador for revision, under Article 61 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 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;
against: Judge ad hoc Paolillo.
Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this eighteenth day of December, two thousand and three, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of El Salvador and the Government of the Republic of Honduras, respectively.