INDIVIDUAL OPINION OF JUDGE REYNALDO GALINDO POHL
I. General comments
At the start of this consideration of the request for revision submitted by Chile with respect to the Award of 21 October 1994, it is first necessary to refer to my opinion dissenting from this Award. The present request is of fairly limited scope and does not therefore allow examination of the whole of the instrument in question. The request does not constitute an appeal, expressly prohibited by agreement between the Parties (article XVII of the Compromis of 31 October 1991) but it seeks an assessment of the extent to which the
Award is affected, wholly or partly, by an error of fact resulting from the hearings or documentation in the case (art. 40 of the Treaty of Peace and Friendship of 29 November 1984).
In these explanations I am refering to an objective and very specific situation constituted by the 1994 Award and the questioning of its content as to possible errors of fact, within the limits previously agreed by the Parties.
I agree with some parts of the Decision on revision and interpretation, without prejudice to the reservations and even the outright disagreement prompted by other parts. The points of greatest divergence include the passages on the consideration of the facts subsequent to the 1902 Award and in particular the analysis of the maps submitted during the arbitral proceedings. I also make a reservation with respect to the opinions stated with regard to water-parting, continental water-parting and local water-parting, and the use of these concepts.
On each of the points submitted to the Court for consideration I offer my own opinions, which to some extent distance me implicitly from some of the explanations and grounds included in the Decision on the applications for revision and for a subsidiary interpretation.
The application for revision on the ground of error of fact allows the examination of only two specific points, to be assessed in terms of their effect on the operative part of the Award. The application is not an appeal, which is expressly prohibited by agreement between the Parties.
II. The admissibility of the application
The Decision does not pronounce expressly on the admissibility of the application for revision of the 1994 Award.
From the procedural standpoint it would have been preferable, before entering into the substance, to admit or reject the application, preferably by means of a separate resolution. The resolution which the Court adopted on 22 February 1995 states: "Without implying a ruling by the Court on the admissibility of the Chilean document, to instruct the Secretary to transmit to the agents of the Argentine Republic...". This language does not rule out the need for a decision on admissibility: it is kept in mind and implicitly deferred until after the Parties have submitted their arguments. Thus, the question of admissibility was left for subsequent resolution.
It is not sufficient merely to give the reader to understand that the application has been admitted by virtue of the fact that the Decision pronounces on the substance. Sometimes the form supports the substance and invests it with its whole meaning.
III. Dismissal of the errors of law
There is no need to examine in detail the errors of law which the first Chilean submission attributes to the 1994 Award, for they are excluded ipso jure from the present revision, the frame of reference of which is fairly re-
stricted. It would thus be pointless to examine, for the purposes of revision, each of the errors which the applicant Party recognizes to be errors of law (Chilean "Presentation", para. 11).
IV. The local water-parting
1. Chile s plea with respect to the local water-parting
In its first document Chile submitted a list of errors of fact, including an error of fact relating to the local water-parting. It mentioned "a supposed local water-parting which is in reality a combination of three water-partings of different kinds: 12 km. of Pacific local water-parting, 50 kilometres of continental water-parting and 17 km. of Atlantic local water-parting". ("Presentation", para. 12, p. 11)
"By not applying correctly the concept of local water-parting in accordance with the 1902 Award, [the Court] was forced to decide with respect to one stretch that the line defined by the 1902 Arbitrator as following a local water-parting should follow the continental water-parting instead, which the 1902 Arbitrator clearly disregarded until after the boundary reached Mount Fitzroy". ("Presentation", para. 20, p. 21)
Chile continued: "The Court committed an error of fact by not taking the position that in all the cases in which the 1902 Award defined its line by using the concept of local water-parting... such line is a water-parting which separates waters running to one single ocean: the Pacific" ("Presentation", para. 21, p. 22)
In its second document Chile does not attribute an error of fact to the use of the concepts denoting water-partings. This document states: "The first condition contained in article 40 is that there should be an error of fact. The Court has decided in law that the frontier between boundary post 62 and Mount Fitzroy should follow the water-parting as the said Court interprets this notion. This decision in law is not questioned by the application for revision submitted by Chile". ("Replication", para. 65, p. 29)
Immediately following this submission it adds: "The Court has decided in law that the water-parting, as the Court conceives it, is a fact of nature...". "This is the identification which the Court requested its expert to make and which the Court endorsed in paragraphs 5 and 7. This decision in law is not questioned by the Chilean application either" ("Replication", para. 66, pp. 29-30)
"What Chile is questioning in its application for revision is, amongst other things, the factual accuracy of the identification made by the expert and endorsed by the Court." "The statement of fact implied by this "identification" is factually inaccurate in the section between the Gorra Blanca glacier and Marconi Pass...". "It is factually false: therefore, this passage of the Award contains a flagrant, evident and manifest error of fact ("Replication", para. 67, p. 30).
"It is deduced from the documents and hearings in the case that, between Gorra Blanca and Marconi Pass, the water-parting (in the same sense in which the Court interprets this notion in law) is not found in fact at the place where the Court, following its expert, places it, and thus it cannot be regarded as the same as the one which existed in 1902. What Chile is requesting is correction of this error, i.e., this discrepancy between what the Court asserts to exist and what exists in the actual geographical situation" ("Replication", para. 67, pp. 30-31).
These statements show that Chile is not objecting, on the basis of the concept of local water-parting, to the line drawn by the Court between boundary post 62 and Mount Fitzroy. On this point the Chilean statement begins by stating that "the first condition contained in article 40 is that there should be an error of fact". It immediately mentions "the water-parting, as the Court interprets this notion" and adds that "this decision in law is not questioned by the application for revision submitted by Chile" ("Replication", para. 65, p. 29).
Thus, in the same paragraph this submission points out that the revision concerns only the error of fact and it goes on to state that the frontier should follow the water-parting "as the Court interprets this notion". Attention is drawn to the distinction between the error of fact which is a ground for revision and the "decision in law" and the "interpretation in law" adopted in the domain of law and therefore beyond the scope of article 40.
Furthermore, the Chilean submission states that "the Court has decided in law that the water-parting, as the Court conceives it, is a fact of nature". And it adds: "This decision in law is not questioned by the Chilean application either" (para. 66, p. 29).
The submission then rounds off the Chilean position: "What Chile is questioning in its application for revision is, amongst other things, the factual accuracy of the identification made by the expert and endorsed by the Court" (para. 67, p. 30). Thus, it is clearly stated that Chile is not impugning the application of the concept of water-parting as an error of fact, because it states that the line adopted was the result of a "decision in law". It is impugning the accuracy, in terms of the facts, of the identification of the line made by the expert and adopted by the Court.
Chile requests correction of this error, i.e., of the apparent discrepancy between what the Court states and what actually exists in the geographical situation. It is thus objecting to the lack of consistency between the expert’s line and the geographical reality.
Chile states that the boundary line in the disputed sector has been adopted in law, within the domain of law. The questions of the local water-parting and the line adopted by the Award thus pass from the domain of facts, where they were located according to the first submission, to the domain of law. The case is reduced to the circumstance that the line decided upon between Cerro Gorra Blanca and Marconi Pass is not in fact to be found where the Court places it ("Replication", para. 67, pp. 30-31).
In corroboration of this understanding, in the section entitled "Chile’s pleas" ("Replication", pp. 103-105) nothing is said either about the local water-parting or about the line decided upon by the Court on the basis of that concept. Nor is this topic referred to again in other parts of the second submission. Accordingly, the error of fact relating to the concept of local water-parting which Chile cited in its first submission has been left out of consideration. The Parties in a case are masters of their pleas and may therefore modify or discard them.
V. Identification of the 1902 line with the present line
1. The point at issue
"The Court maintains that its line and the line of the 1902 Arbitrator are the same." "The land remains unchanged, and therefore the local water-parting between boundary post 62 and Mount Fitzroy existing in 1902 is the same as the one which can be traced at the time of the present arbitration" (see para. 71).
2. Chile’s reasons
"... in reality, the land does not remain unchanged because...the glaciers of Cerro Gorra Blanca and Marconi Pass are—and always have been—in constant motion ("Replication", para. 107, p. 49).
"Given these circumstances the Court has made an error of fact, because it is obvious that between Cerro Gorra Blanca and Marconi Pass the present water-parting—attaching to this notion the same interpretation which, in law, the Court attaches to it—is not in fact that same 1902 water-parting". Then Chile states that the use of the map of the Mixed Boundary Commission contributes to this error ("Replication", paras. 108-113, pp. 50-53).
Chile applies the error to the whole of the Award line, although it emphasizes the glacier zones. "The Court based its decision on its understanding that the 1902 local water-parting and the water-parting now identified by the expert are the same. The Court stated: "[It] is the same as the one which can be traced [today]...". So much so that the Court concludes that "the line described in paragraph 151 is consistent with what is prescribed in the three instruments which make up the 1902 Award" and that the Award "does not revise but rather faithfully carries out the provisions of the 1902 Award" ("Replication", para. 123, p.55).
Hence the following conclusion: "Given the circumstances the Award is the result of the error of fact of accepting that the local water-parting between boundary post 62 and Mount Fitzroy is currently the same as the 1902 waterparting, which, in the light of the examination of the facts, is incorrect" ("Replication", para. 134, p. 55).
3. The map of the Mixed Boundary Commission
In this and in other respects the map of the Mixed Boundary Commission plays a leading role. "At the end of 1992 the Court expressed the wish for both Parties to produce and submit to it a 1:50,000 map depicting the lines claimed in the case". "On 14 January 1993 Chile submitted the map of the Mixed Boundary Commission..." ("Replication", paras. Ill and 112, pp. 50-51)
Chile then points out that in its memorial (p. 191) it describes the map of the Mixed Boundary Commission as a work of indisputable technical quality which is available to the Court "as the basis for the studies which it may see fit to carry out". "It does not state that the map is sufficient for other more complicated purposes such as determination of water-partings on glaciers" ("Replication", para. 113, 5, p. 52).
The form in which this map was presented—"as the basis for the studies which it may see fit to carry out"—prompted the Court to use it for the studies which it thought appropriate and of course, in the absence of any objection or reservation, for the depiction of the line representing its decision.
Furthermore, Chile used the Mixed Commission’s map on several occasions and even drew attention to it in the oral hearings as the authentic expression of the cartography of the zone in dispute. Thus, it would be wrong to make changes to this map on the basis of earlier or subsequent maps. The Court needed a reliable map which was accepted by the Parties. Only the Mixed Commission’s map met and meets these requirements.
4. The movement of the glaciers
Another argument concerns the movement of the glaciers. "As can be seen, it is demonstrated that the surface of the glaciers in the zone is undergoing constant and considerable change. With all the more reason it should be concluded that the alteration of the glacier relief between 1902 and the present has been very considerable, rendering the physical identification of the expert’s line with the line of the 1902 British Arbitrator impossible" ("Replication", para. 84, p. 38).
The movement of the glaciers is a fact. It is not known exactly what the glaciers were like over 90 years ago, nor can any conclusion be reached about the exact degree of their alteration, but since it has been verified that they are moving, it must be assumed that they have changed since 1902.
Since in 1902 the geography of the zone was not known with any accuracy, there is no way of establishing that the 1994 line is the same as the 1902 line. There can be no certainty that the assertion that the current well-known line is the same as the 1902 line is correct to some undefined extent, so that this assertion is now a matter for an interpretation by the present Court. If two things are to be declared identical, they must both be known in all their details.
Given this margin of uncertainty, such an assertion could be regarded as an unverifiable assumption. If it was treated as an error of fact, its vital role in the operative part of the Award would not attract attention. It could be understood as an item of supporting evidence which would not play a decisive role in the delineation of the frontier because it does not have a direct effect on the decision.
5. The present frontier considered to be the same as the 1902 frontier
On this subject too the statement in the Award (para. 158) that "the boundary line decided upon is the same as the one which has always existed between the two States Parties to the present arbitration" has also been described as an error ("Presentation", paras. 7 and 8, pp. 18 and 20).
The Court states that "its decision is declaratory of the content and meaning of the 1902 Award which, in turn, was also declaratory of the 1881 Boundary Treaty and the 1893 Protocol. Accordingly, the Award of this Court, by its very nature, has ex tunc effects and the frontier line decided upon is the one which has always existed between the two States Parties to the present arbitration" (Award, para. 158).
We are dealing here with a legal principle which provides that the interpretation is held to be incorporated in the principal rule. In this case the interpretative decision contained in the Award is understood to be incorporated in the 1902 arbitral rule, and hence it may be said that the precise identification of the frontier which is now made has been a subject of agreement between the two States since 1902. A general principle of law is thus applied to the temporal effects of the interpretation.
VI. Identification of the Award line with the current geographical situation
1. Description of the case
"The Court made a second error of fact by concluding that the line identified by its expert and described in paragraph 151 of the 1994 Award is consistent with the current geographical situation. That is not the case, at least for the section in which the line runs on and across glaciers" ("Replication", para. 127, p. 57).
The Court’s expert identified the water-parting in the sector in question as a water-parting which from Cerro Gorra Blanca "... continues on the surface of the glacier to Marconi Pass, following a south-south-west course determined by the contour lines of the 1:50,000 map of the Argentina-Chile Mixed Boundary Commission" ("Replication", para. 128, p. 57).
The reason for this statement is that "instead of making a direct geographical identification susceptible of being compared with the actual situation, a description is given of the local water-parting in the sector, stating that it is the one "determined by the contour lines of the 1:50,000 map of the Argentina-Chile Mixed Boundary Commission" ("Replication", para. 132, pp. 58-59).
Another reason is that "the failure in paragraph 151 of the 1994 Award to specify the hydrographic basins which this line separates is a strong indication of the problems of delineating the frontier by following a water-parting in the glacier-covered zone" ("Replication", para. 133, p. 59).
The argument next states that the available cartographic materials "show the variations which have occurred over a short time in the contour lines in the area of the Cerro Gorra Blanca and Marconi Pass glaciers" and that in these circumstances "the application of the 1902 Award which the Court envisages effecting in accordance with the real and current geography of the sector, is rendered an impossibility by this error of fact" ("Replication", paras. 136 and 137, p. 60).
The Chilean document concludes that "of course, the water-parting identified with the frontier must be consistent with the geographical reality on the ground and not with the situation as represented on an obsolete map: a situation which existed in 1966 but exists no more" ("Replication", para. 140, p. 61).
The line identified by the Court’s expert on the basis of the map of the Mixed Boundary Commission is consistent with the geographical situation described by the Parties during the arbitration proceedings. The expert went into the field to establish the Award line on the ground and he submitted his report to the Court.
Of course, variations could have occurred owing to natural changes in the period between production of that map and execution of the Award. The Court has not ordered any corrective measures and, moreover, the restricted framework within which the present application is being heard precludes the use of documents other than the documents in the case.
If such variations were found, we would not be dealing, properly speaking, with an error of fact in the indication of the line but with problems of execution.
VI. The Court’s line as a single, continuous and uninterrupted waterparting
1. Framing of the question
"The Court made a third error of fact by considering that the water-parting identified by its expert and which corresponds to the line of the frontier decided upon by the Award, is a single, continuous and uninterrupted waterparting between two termini and, as such, divides waters at all its points. According to the true geographical situation that is not the case, at least in the part between Cerro Gorra Blanca and Cerro Marconi Norte" ("Replication", para. 156, p. 68).
The reason for submitting this ground is stated as follows: "The reality of the facts indicates: "first, that the topographic line cannot link Cerro Gorra Blanca to Marconi Pass and Cerro Marconi Norte since it follows a path, determined by the contour lines of the map of the Chile-Argentina Mixed Boundary Commission, which crosses temporary or interrupted watercourses, so that it does not have the character of water-parting"; and "second, this line also crosses glacier flows, with the same result" ("Replication", para. 157, pp. 68-69).
"These circumstances stem from the incompleteness of the information on the 1:50,000 map of the Mixed Boundary Commission used by the Court’s expert to identify the frontier line in the part between Cerro Gorra Blanca and Marconi Pass" ("Replication", para. 138, p. 69).
The line "does not have the property attributed to it by the Court of separating waters at all its points" because it is interrupted and because it crosses glacier flows ("Replication", paras. 161 and 169, pp. 70 and 73).
2. The 1966 photograms and the 1995 aero-photogrammetric survey
In order to demonstrate this point Chile refers to the "1966 photograms used on the 1989 map of the Mixed Commission" and to an aero-photogrammetric survey carried out in January 1995. The photograms were used for the Mixed Commission’s map. The 1995 survey is subsequent to the Award and is not a document in the case. The fact is that the adopted line, which is identified by a small number of reference points, could be delineated by following a genuine water-parting, in the opinion of the expert.
A divortium glaciarum has its own peculiar features, and of course it is not easy to delineate a water-parting on ice-covered ground. The technical opinion thinks it possible to do so, provided that the water-parting follows the slopes of the ground at any given moment. It must be pointed out that the task is to identify the water-parting on glaciers and that this line may differ from the line of the divortium glaciarum.
3. The stability of frontiers
Once a frontier line has been identified in accordance with the situation on the ground at the time of the actual demarcation, it must remain even if the ice moves. A line adopted by treaty or by award is by definition stable, unless it is expressly agreed or decided otherwise.
All natural features can change, but this possibility does not render them unsuitable as boundaries. All geographical features serving as frontiers, including rivers and mountains, are subject to change caused by natural forces. When such changes occur, unless an exception to the rule has been made, the frontier remains in its original position.
The frontier is marked at a given moment, without prejudice to any prior or subsequent natural changes, and from that moment it remains, regardless of any changes in the geographical features in question. Otherwise the result would
be moveable frontiers—a source of new disputes. When nature alters the geographical features adopted as a boundary, the principle of the stability of frontiers, adapted to the circumstances of each case, protects the earlier agreements or awards.
VIII. The Courts line according to the line of the Arbitrator's map
1. Framing of the question
"The line described in paragraph 151 is consistent with the provisions of the three instruments which make up the 1902 Award. In fact, this line coincides with the actual decision of Edward VII for the area of which the sector subject to the present arbitration is a part...and also satisfies the requirement stated in the Tribunal’s report." "Furthermore, this line is consistent with the Award map." (1994 Award, para. 160, pp. 107-108)
Chile comments on this argument: "A comparison of the line of the 1994 Award with the line on the map of the 1902 Award shows that, except for the short section in which there was no disagreement between the Parties, the two lines differed substantially". ("Replication", para. 209, p. 90)
Chile points out that the Award recognizes that the 1902 line indicates a direction. The Award says that "the line indicates only a direction in which the boundary line heads (in this case towards Mount Fitzroy), and it cannot be claimed that it follows the twists and turns of the water-parting, precisely because the water-parting was located in an unexplored area and its course was therefore unknown" (para. 160). Chile continues: "In fact, the "direction" not only indicates the terminal point of the line but also its course or path, with respect to which, quite clearly, the frontier decided upon in the 1994 Award is not in conformity with the Award map" ("Replication", para. 213, p. 90).
2. Considerations concerning this point
The pecked line on the Award map, in addition to identifying the terminal points, indicates the more or less direct path between these points. Mere observation shows that this path is very far from the Court’s line. In fact, while the pecked line on the Arbitrator’s map runs in a slight curve towards Cerro Gorra Blanca, following a south-west direction, the Court’s line runs west, then north, west again, and finally south, until it reaches Cerro Gorra Blanca.
The language of the 1994 Award gives the idea of a degree of identification when it states that the line decided upon "coincides" with the line of the 1902 Award. "Coincides" means that one thing agrees or is consistent with another. According to the descriptions given above, these lines are not consistent with each other.
The Award also indicates that there is "agreement" between the two lines. This term is very broad and can refer both to coincidence and to a conceptual agreement or even an agreement on justification. The agreement between the two lines is very debatable, from whatever standpoint it is considered.
In fact, the underlying justifications of the two lines are different, for while the Award takes the position that the "direction" of the line on the Arbitrator’s map indicates only two terminal points, it is possible to take the position that the 1902 Award indicated on its map both the terminal points and the path along which the compromise line was to be drawn. The Arbitrator indicated the terminal points and also marked on his map the approximate position which the adopted line should occupy, i.e., the space through which it should run.
The 1966 Award, the relevant passage of which is reproduced in the 1994 Award (para. 134), says that a pecked line is the normal indication for a feature which is known to exist, but whose position has not been accurately located. Thus, it speaks of position. Position is location or situation. The English word "position" used in the 1966 Award is more expressive or explanatory that the corresponding Spanish word, for it means "the way in which something is placed in relation with its surroundings". The 1966 Award ruled on the interpretation of the same Award which has today been the subject of another interpretation.
Furthermore, if the 1902 Arbitrator adopted only the local water-parting, he thereby set aside the continental water-parting, which according to the geographical knowledge of the time ran much further to the east, over a relatively low mountain chain. The line on the Arbitrator’s map did not run over glaciers but along local water-partings clearly differentiated from the continental divide. This is in conformity with the geography known at the time, the only geography which the 1902 Arbitrator knew and the only geography which should serve as the basis for reconstructing and clarifying the intention of his Award.
There is no coincidence or agreement between the line on the Arbitrator’s map, based exclusively on the local water-parting and clearly separate from the continental divide, and the line of the 1994 Award, which occupies a very different position and follows a very different path along a line combining local and continental water-partings.
Since it is alleged that the coincidence or agreement attributed to the two lines in question involve errors of fact, it is necessary to determine whether the operative part of the Award could be altered in the light of these circumstances, but not whether any error of fact provides grounds for such alteration. The error must be one which has a direct impact on the decision and without which the arbitration might reasonably have produced a different decision.
In this case the error of fact does not satisfy the practical requirements necessary for revision. The decisive ground for the arbitral decision lies in the concept of local water-parting identified with the concepts of continental water-parting and water-parting. The quality of a "decision in law" which Chile accorded to this line is not affected by the debatable coincidence or agreement of the line of the 1994 Award with the line on the Arbitrator’s map. The essence of the present arbitration has been the interpretation of the rule of the 1902 Award which directs that the frontier line should follow the local waterparting between the south shore of Lake San Martin and Mount Fitzroy. The statement commented on above supports the decision but is not its effective cause. Hence, this error of fact must be rejected as a ground for revision.
IX. Passage of the line through the Portezuelo de la Divisoria
In its first submission Chile indicates as an error of fact the passage of the boundary line through the Portezuelo de la Divisoria. In this connection it points out that in the season of rains or thaw, owing to the poor run-off of the water, there is an increase in marshy areas in this zone. "For this reason, the mud of the marshes tends to form a very flat topography on which the waterparting shifts its course easily and suddenly." "In a very changeable area a boundary has been established which does not constitute, in any way, a stable line easy to recognize on the ground." ("Presentation", para. 23, pp. 24-25)
"Furthermore, it is absolutely certain that in 1902 the local water-parting, in an area of such unstable morphology, must have followed a path substantially different from its present path. The 1994 Court was ignorant of this fact and, according to the doctrine, such ignorance is included in the error." ("Presentation", para. 23, pp. 24-25)
The fact that the path of the adopted line is difficult to identify in the Portezuelo de la Divisoria does not mean that it cannot be identified. It was discovered by means of aero-photogrammetric studies that the continental water-parting passes through this area. There still exists a mound marking the place of the continental water-parting. During the demarcation it would be possible to erect a boundary marker visible from a distance and standing out above the marsh in the exact place in the Portezuelo.
The Portezuelo de la Divisoria does not seem to introduce an insuperable element of doubt about the adopted line. The problem of the Portezuelo de la Divisoria is that it is part of the continental water-parting and is not located on an authentic local water-parting.
X. Application concerning interpretation and manner of execution
With regard to this application, subsidiary to the application for revision, Chile states that "the doubt stems from the fact that in [para. 151 of the Award] the Court’s expert identifies the local water-parting between boundary post 62 and Mount Fitzroy as he [the expert] understands it, and from the fact that the Award itself states that "the local water-parting between boundary post 62 and Mount Fitzroy existing in 1902 is the same as the one which can be traced at the time of the present arbitration" and that "the line of the frontier decided upon is the one which has always existed between the two States Parties to the present arbitration" ("Presentation", para. 30, p. 30).
Chile perceives a contradiction between the paragraphs of the Award referred to above, because they do not specify clearly which of the lines the Demarcator should follow in order to comply with operative paragraph II. In other words, "it is not made clear whether the Demarcator should confine himself to depicting on the map which he is to prepare the identification which he has already made or whether he must identify on the ground itself the real path of the water-parting. Nor does the Award indicate what the Demarcator must do in the event of discrepancy between what is stated in its paragraph 151 and the actual situation." "Presentation", para. 30, p. 30).
"Chile requests the Court to interpret its Award in such a way that the geographical reality on the ground prevails over the identification made by the expert... and, in the cases where this is not possible, [to] draw a straight line linking the point to which the water-parting extends from the north to the next point located to the south." ("Presentation", para. 31, p. 31).
The question immediately arises of the factual assumptions of the rule which provides for the possibility of submitting a request concerning interpretation and manner of execution: "Unless the Parties have agreed otherwise, the disagreements which may arise between the Parties about the interpretation or the manner of execution of the arbitral decision may be brought by any Party before the Tribunal which rendered the decision" (chapter II, article 39, annex No. 1 of the Treaty of Peace and Friendship of 29 November 1984).
This rule makes an application concerning interpretation and manner of execution dependent on "the disagreements which may arise between the Parties". No information has been received about disagreements between the Parties with respect to these two types of problem—interpretation and manner of execution. It is more a question of possible problems stemming from the interpretation of the Award itself.
The points raised do not fall within the scope of the provisions of this rule and they would therefore have to be resolved, if they came up in the course of the demarcation, on the basis of the provisions of the Award, including the rule which prescribes that the expert shall work "with the support of the Mixed Boundary Commission" (1994 Award, X, II). It could of course be the case that there was some discrepancy between the line drawn on paper and the situation on the ground. Cases of this kind have already arisen and have been resolved by the Mixed Boundary Commission by giving precedence to the ground. This well-established practice could be continued by common accord.
The views stated in this individual opinion relate to the Award considered objectively, as an instrument resulting from the exercise of judicial power.
In accordance with the limitations agreed by the Parties with respect to applications for revision, none of the points raised affects directly the operative part of the Award pronounced on 21 October 1994 and therefore, although they may be considered errors of fact, they do not qualify as grounds for revision.
Other points raised and discussed do not constitute errors of fact, for example the use of the map of the Mixed Boundary Commission, the delineation of the water-parting over ice, and the retroactive effect attributed to the interpretation.
Therefore, since it would be wrong to modify the operative part of the Award of 21 October 1994 by reason of errors of fact, there is no possibility of a new line, either the one proposed by Chile ("Replication", para. 234) or any other line which might be regarded as more appropriate than the line already decided upon.