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. Honduras)

On 10 September 2002, El Salvador filed a request for revision of the Judgment delivered on 11 September 1992 by a Chamber of the Court in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening). El Salvador indicated that “the sole purpose of the Application [was] to seek revision of the course of the boundary decided by the Court for the sixth disputed sector of the land boundary between El Salvador and Honduras”. It was the first time that an Application had been made seeking a revision of a judgment rendered by one of the Court’s Chambers.

By an Order of 27 November 2002, the Court unanimously decided to accede to the request of the two Parties for it to form a special Chamber of five judges to deal with the case. It formed a Chamber composed as follows : President Guillaume ; Judges Rezek and Buergenthal ; Judges ad hoc Torres Bernárdez (chosen by Honduras) and Paolillo (chosen by El Salvador). In its Order, the Court also fixed 1 April 2003 as the time-limit for the filing of written observations by Honduras on the admissibility of the request for revision. That pleading having been filed within the time-limit so prescribed, the Chamber held public hearings on the admissibility of the Application from 8 to 12 September 2003.

The Chamber rendered its Judgment on 18 December 2003. In the earlier proceedings which had resulted in the 1992 Judgment, Honduras had contended that in the sixth sector the boundary followed the present course of the River Goascorán. El Salvador, however, had claimed that the boundary was defined by a previous course of the river, which it had abandoned as a result of an “avulsion” — an abrupt change in the riverbed. The Chamber began by recalling that at this stage of the proceedings it must determine whether the Application for revision was admissible in that it satisfied the requirements laid down by Article 61 of the Court’s Statute ; that is to say, the application must, inter alia, be based on the “discovery” of a fact “of such a nature as to be a decisive factor” which, “when the judgment was given”, was “unknown to the Court and also to the party claiming revision”.

In support of its Application, El Salvador claimed, inter alia, to possess scientific, technical and historical evidence showing the existence of a previous bed of the Goascorán and of its avulsion in the mid-eighteenth century. El Salvador contended that this evidence constituted “new facts” within the meaning of Article 61, and that these were “decisive”, since in the 1992 Judgment, in the absence of proof of any avulsion, the boundary had been declared to follow the course of the Goascorán as it was in 1821 and not the course prior to avulsion. After examining the reasoning followed by the Chamber in 1992, the present Chamber found that the boundary had been determined by application of the principle of uti possidetis juris, whereby the boundaries of States resulting from decolonization in Spanish America are to follow the colonial administrative boundaries. However, the 1992 Judgment had indicated 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 found that the 1992 Chamber had rejected El Salvador’s claims precisely because of that State’s conduct subsequent to 1821. The Chamber accordingly held that it did not matter whether or not there had been an avulsion of the Goascorán, since, 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 different grounds. The facts asserted by El Salvador were accordingly not “decisive factors” in respect of the Judgment which it sought to have revised.

In regard to the second new fact relied on by El Salvador, namely the discovery of further copies of the “Carta Esférica” (a maritime chart of the Gulf of Fonseca prepared in or about 1796 by officers of the brigantine El Activo) and of the report of that vessel’s expedition, which differed from those produced by Honduras in the original proceedings, El Salvador contended that the fact that these documents existed in a number of versions and contained discrepancies and anachronisms compromised the evidentiary value that the Chamber had attached to them in 1992. The Chamber accordingly considered whether the 1992 Chamber might have reached different conclusions if it had had before it the new versions of these documents produced by El Salvador. It concluded that this was not the case. The new versions in fact confirmed the conclusions reached by the Chamber in 1992 and were thus not “decisive factors”.

Having found that none of the new facts alleged by El Salvador were “decisive factors” in relation to the Judgment of 11 September 1992, the Chamber held that it was unnecessary for it to ascertain whether the other conditions laid down by Article 61 of the Statute were satisfied.