HIGH SEAS

SECTION 1. GENERAL PROVISIONS

Article 86. Application of the provisions of this Part
The provisions of this Part apply to all parts of the sea that are not included in the
exclusive economic zone, in the territorial sea or in the internal waters of a State,
or in the archipelagic waters of an archipelagic State. This article does not entail
any abridgement of the freedoms enjoyed by all States in the exclusive economic
zone in accordance with article 58.
Article 87. Freedom of the high seas
1. The high seas are open to all States, whether coastal or land locked. Freedom of
the high seas is exercised under the conditions laid down by this Convention and by
other rules of international law. It comprises, inter alia, both for coastal and landlocked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under
international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f ) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests
of other States in their exercise of the freedom of the high seas, and also with due
regard for the rights under this Con vention with respect to activities in the Area.
Article 88. Reservation of the high seas for peaceful purposes
The high seas shall be reserved for peaceful purposes.
Article 89. Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its sovereignty.
Article 90. Right of navigation
Every State, whether coastal or land-locked, has the right to sail ships flying its flag
on the high seas.
Article 91. Nationality of ships
1. Every State shall fix the conditions for the grant of its nationality to ships, for
the registration of ships in its territory, and for the right to fly its flag. Ships have
the nationality of the State whose flag they are entitled to fly. There must exist a
genuine link between the State and the ship.

2. Every State shall issue to ships to which it has granted the right to fly its flag
documents to that effect.
Article 92. Status of ships
1. Ships shall sail under the flag of one State only and, save in exceptional cases
expressly provided for in international treaties or in this Convention, shall be
subject to its exclusive jurisdiction on the high seas. A ship may not change its flag
during a voyage or while in a port of call, save in the case of a real transfer of
ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according
to convenience, may not claim any of the nationalities in question with respect to
any other State, and may be assimilated to a ship without nationality.
Article 93. Ships flying the flag of the United Nations, its specialized agencies and
the International Atomic Energy Agency
The preceding articles do not prejudice the question of ships employed on the
official service of the United Nations, its specialized agencies or the International
Atomic Energy Agency, flying the flag of the organization.
Article 94. Duties of the flag State
1. Every State shall effectively exercise its jurisdiction and control
administrative, technical and social matters over ships flying its flag.

in

2. In particular every State shall:

(a) maintain a register of ships containing the names and particulars of ships flying
its flag, except those which are excluded from generally accepted international
regulations on account of their small size; and
(b) assume jurisdiction under its internal law over each ship flying its flag and its
master, officers and crew in respect of adminis trative, technical and social matters
concerning the ship.
3. Every State shall take such measures for ships flying its flag as are necessary to
ensure safety at sea with regard, inter alia, to:
(a) the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of crews, taking into
account the applicable international instruments;
(c) the use of signals, the maintenance of communications and the prevention of
collisions.
4. Such measures shall include those necessary to ensure:

(a) that each ship, before registration and thereafter at appropriate intervals, is
surveyed by a qualified surveyor of ships, and has on board such charts, nautical
publications and navigational equipment and instruments as are appropriate for the
safe navigation of the ship
(b) that each ship is in the charge of a master and officers who possess appropriate
qualifications, in particular in seamanship, navigation, communications and marine
engineering, and that the crew is appropriate in qualification and numbers for the
type, size, machinery and equipment of the ship;
(c) that the master, officers and, to the extent appropriate, the crew are fully
conversant with and required to observe the applicable international regulations
concerning the safety of life at sea, the prevention of collisions, the prevention,
reduction and control of marine pollution, and the maintenance of communications
by radio.
5. In taking the measures called for in paragraphs 3 and 4 each State is required to
conform to generally accepted international regulations, procedures and practices
and to take any steps which may be necessary to secure their observance.
6. A State which has clear grounds to believe that proper jurisdiction and control
with respect to a ship have not been exercised may report the facts to the flag
State. Upon receiving such a report, the flag State shall investigate the matter and,
if appropriate, take any action necessary to remedy the situation.
7. Each State shall cause an inquiry to be held by or before a suitably qualified
person or persons into every marine casualty or incident of navigation on the high
seas involving a ship flying its flag and causing loss of life or serious injury to
nationals of another State or serious damage to ships or installations of another
State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine
casualty or incident of navigation.
Article 95. Immunity of warships on the high seas
Warships on the high seas have complete immunity from the jurisdiction of any
State other than the flag State.
Article 96. Immunity of ships used only on government noncommercial service
Ships owned or operated by a State and used only on government non-commercial
service shall, on the high seas, have complete immunity from the jurisdiction of any
State other than the flag State.
Article 97. Penal jurisdiction in matters of collision or any other incident of
navigation
1. In the event of a collision or any other incident of navigation concerning a ship
on the high seas, involving the penal or disciplinary responsibility of the master or

of any other person in the service of the ship, no penal or disciplinary proceedings
may be instituted against such person except before the judicial or administrative
authorities either of the flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master's certificate or a
certificate of competence or licence shall alone be competent after due legal
process, to pronounce the withdrawal of such certificates, even if the holder is not a
national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investiga tion, shall be
ordered by any authorities other than those of the flag State.
Article 105. Seizure of a pirate ship or aircraft
On the high seas, or in any other place outside the jurisdiction of any State, every
State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and
under the control of pirates, and arrest the persons and seize the property on board.
The courts of the State which carried out the seizure may decide upon the penalties
to be imposed, and may also determine the action to be taken with regard to the
ships, aircraft or property, subject to the rights of third parties acting in good faith.
Article 106. Liability for seizure without ad equate grounds
Where the seizure of a ship or aircraft on suspicion of piracy has been effected
without adequate grounds, the State making the seizure shall be liable to the State
the nationality of which is possessed by the ship or aircraft for any loss or damage
caused by the seizure.
Article 107. Ships and aircraft which are entitled to seize on account of piracy
A seizure on account of piracy may be carried out only by warships or military
aircraft, or other ships or aircraft clearly marked and identifiable as being on
government service and authorized to that effect.
Article 108. Illicit traffic in narcotic drugs or psychotropic substances
1. All States shall co-operate in the suppression of illicit traffic in narcotic drugs
and psychotropic substances engaged in by ships on the high seas contrary to
international conventions.
2. Any State which has reasonable grounds for believing that a ship flying its flag is
engaged in illicit traffic in narcotic drugs or psychotropic substances may request
the co-operation of other States to suppress such traffic.
Article 109. Unauthorized broadcasting from the high seas
1. All States shall co-operate in the suppression of unauthorized broadcasting from
the high seas.

2. For the purposes of this Convention, 'unauthorized broadcasting' means the

transmission of sound radio or television broadcasts from a ship or installation on
the high seas intended-for reception by the general public contrary to international
regulations, but excluding the transmission of distress calls.
3. Any person engaged in unauthorized broadcasting may be prosecuted before
the court of:
(a) the flag State of the ship;
(b) the State of registry of the installation;
(c) the State of which the person is a national;
(d ) any State where the transmissions can be received; or
(e) any State where authorized radio communication is suffering interference.
4. On the high seas, a State having jurisdiction in accordance with paragraph 3
may, in conformity with article 110, arrest any person or ship engaged in
unauthorized broadcasting and seize the broadcasting apparatus.
Article 110. Right of visit
1. Except where acts of
warship which encounters
to complete immunity in
boarding it unless there is

interference derive from powers conferred by treaty, a

on the high seas a foreign ship, other than a ship entitled
accordance with articles 95 and 96, is not justified in
reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag
State of the warship has jurisdiction under article 109;
(d ) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of
the same nationality as the warship.
2. In the cases provided for in paragraph 1, the warship may proceed to verify the
ship's right to fly its flag. To this end, it may send a boat under the command of an
officer to the suspected ship. If suspicion remains after the documents have been
checked, it may proceed to a further examination on board the ship, which must be
carried out with all possible consideration.
3. If the suspicions prove to be unfounded, and provided that the ship boarded has
not committed any act justifying them, it shall be compensated for any loss or
damage that may have been sustained.
4. These provisions apply mutatis mutandis to military aircraft.
5. These provisions also apply to any other duly authorized ships or aircraft clearly
marked and identifiable as being on government service.
Article 111. Right of hot pursuit

1. The hot pursuit of a foreign ship may be undertaken when the competent
authorities of the coastal State have good reason to believe that the ship has
violated the laws and regulations of that State. Such pursuit must be commenced
when the foreign ship or one of its boats is within the internal waters, the
archipelagic waters, the territorial sea or the contiguous zone of the pursuing State,
and may only be continued ouside the territorial sea or the contiguous zone if the
pursuit has not been interrupted. It is not necessary that, at the time when the
foreign ship within the territorial sea or the contiguous zone receives the order to
stop, the ship giving the order should likewise be within the territorial sea or the
contiguous zone. If the foreign ship is within a contiguous zone, as defined in article
33, the pursuit may only be undertaken if there has been a violation of the rights
for the protection of which the zone was established.
2. The right of hot pursuit shall apply mutatis mutandis to violations in the
exclusive economic zone or on the continental shelf, including safety zones around
continental shelf installations, of the laws and regulations of the coastal State
applicable in accordance with this Convention to the exclusive economic zone or
the continental shelf, including such safety zones.
3. The right of hot pursuit ceases as soon as the ship pursued enters the territorial
sea of its own State or of a third State.
4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied
itself by such practicable means as may be available that the ship pursued or one
of its boats or other craft working as a team and using the ship pursued as a
mother ship is within the limits of the territorial sea, or, as the case may be, within
the contiguous zone or the exclusive economic zone or above the continental shelf.
The pursuit may only be commenced after a visual or auditory signal to stop has
been given at a distance which enables it to be seen or heard by the foreign ship.
5. The right of hot pursuit may be exercised only by warships or military aircraft, or
other ships or aircraft clearly marked and identifiable as being on government
service and authorized to that effect.
6. Where hot pursuit is effected by an aircraft:
(a) the provisions of paragraphs 1 to 4 shall apply mutatis mutandis;
(b) the aircraft giving the order to stop must itself actively pursue the ship until a
ship or another aircraft of the coastal State, summoned by the aircraft, arrives to
take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not
suffice to justify an arrest outside the territorial sea that the ship was merely
sighted by the aircraft as an offender or suspected offender, if it was not both
ordered to stop and pursued by the aircraft itself or other aircraft or ships which
continue the pursuit without interruption.
7. The release of a ship arrested within the jurisdiction of a State and escorted to a
port of that State for the purposes of an inquiry before the competent authorities
may not be claimed solely on the ground that the ship, in the course of its voyage,

was escorted across a portion of the exclusive economic zone or the high seas, if
the circumstances rendered this necessary.
8. Where a ship has been stopped or arrested outside the territorial sea in
circumstances which do not justify the exercise of the right of hot pursuit, it shall be
compensated for any loss or damage that may have been thereby sustained.

Case Digest: KHOSROW MINUCHER vs. HON. COURT OF APPEALS and ARTHUR
SCALZO (G.R. No. 142396 February 11, 2003)
Facts
Violation of the Dangerous Drugs Act of 1972, was filed against Minucher following
a buy-bust operation conducted by Philippine police narcotic agents accompanied
by Scalzo in the house of Minucher, an Iranian national, where heroin was said to
have been seized. Minucher was later acquitted by the court.
Minucher later on filed for damages due to trumped-up charges of drug trafficking
made by Arthur Scalzo.
Scalzo on his counterclaims that he had acted in the discharge of his official duties
as being merely an agent of the Drug Enforcement Administration of the United
States Department of Justice.
Scalzo subsequently filed a motion to dismiss the complaint on the ground that,
being a special agent of the United States Drug Enforcement Administration, he was
entitled to diplomatic immunity. He attached to his motion Diplomatic Note of the
United States Embassy addressed to DOJ of the Philippines and a Certification of
Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of
its original. Trial court denied the motion to dismiss.
ISSUE
Whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.
RULLING
YES.

A foreign agent, operating within a territory, can be cloaked with immunity from suit
as long as it can be established that he is acting within the directives of the sending
state.
The consent or imprimatur of the Philippine government to the activities of the
United States Drug Enforcement Agency, however, can be gleaned from the
undisputed facts in the case.
The official exchanges of communication between agencies of the government of
the two countries
Certifications from officials of both the Philippine Department of Foreign Affairs and
the United States Embassy
Participation of members of the Philippine Narcotics Command in the buy-bust
operation conducted at the residence of Minucher at the behest of Scalzo
These may be inadequate to support the diplomatic status of the latter but they
give enough indication that the Philippine government has given its imprimatur, if
not consent, to the activities within Philippine territory of agent Scalzo of the United
States Drug Enforcement Agency.
The job description of Scalzo has tasked him to conduct surveillance on suspected
drug suppliers and, after having ascertained the target, to inform local law enforcers
who would then be expected to make the arrest.
In conducting surveillance activities on Minucher, later acting as the poseur-buyer
during the buy-bust operation, and then becoming a principal witness in the
criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official function or
duties.

Neer Claim (L.F.H. Neer and Pauline Neer [USA] v. United Mexican States) (Oct. 15,
1926)
Proceeding before the American-Mexican Claims Commission, constituted under the
terms of the General Claims Convention, signed September 8, 1923, in Washington
D.C. by the United States and the Mexico.
FACTS

Paul Neer lived with his wife (private claimant Fay Neer) near the village of
Guanacevi, Durango State, Mexico, where he worked as a mine superintendent.

Nov. 16, 1924, about 8:00 PM While Paul and Fay were travelling home on
horseback, they were stopped by some armed men, who talked to Paul in a
language that Fay did not understand, after which bullets were fired and Paul was
killed.

Mexican authorities examined Paul's corpse shortly after the incident and
found 3 bullets which penetrated his body. The next day, the Guanacevi district
judge examined some witnesses, including Fay.

The investigation proceeded; arrests were made, but no one was prosecuted
or punished for the death of Paul. The United States of America, representing Fay
and her daughter Pauline, now come before the American-Mexican Claims
Commission claiming $100,000 in damages for the death of Paul.
ARGUMENTS/EVIDENCE (from Commissioner Nielsens separate opinion)

UNITED STATES
o
Among the evidence submitted by the United States were affidavits executed
by Fay, a resident of Guanacevi, and an employee of a mining company located in
the area.

o
Their statements allege that the Mexican authorities made no special effort or
did not exert great care in investigating the incident, and had the Mexican
authorities done so, the culprits could have been found.
o
USA argues that there was an unwarranted delay in steps taken to
apprehend the persons who killed Neer; that the proceedings of investigation were
of such a public character as to put persons implicated in the crime on guard and to
enable them to escape; [and] that detectives might have been employed to
apprehend the offenders.
o
Mexican authorities showed an unwarrantable lack of diligence or intelligent
investigation, which amounted to a denial of justice.

MEXICO
o
The Mexican government submitted, together with their Answer, a record of
proceedings carried on before the Judge of the First Instance of Guanacevi. This
record shows: that on November 17, 1924, the Judge ordered an investigation into
the incident; that on the same day members of the Court inspected the crime scene
and the corpse; that the examination of witnesses (including Fay) were conducted
over several days; and that arrests were made but such arrested persons were
subsequently released for lack of evidence.
o
Mexico argues that the investigation was conducted in compliance with the
forms of Mexican law, and that the efficacy of the law had been proven in the light
of experience.
ISSUES & RULING
1) The nationality of the claim (Pauline and Fay are American citizens)
The commission adopts the principles referred to in an earlier decision (Case of
William A. Parker, Mar. 31, 1926) and finds that Pauline and Fay have been American
nationals since birth.
2) W/N the Mexican government lacked diligence in investigating and prosecuting
the culprits (NO)

While the Commission concedes that the Mexican authorities could have
been more enthusiastic in investigating the case, the fact that the only eyewitness
of the murder was unable to furnish them any helpful information greatly hampered
the investigation and ultimately no suspect was found. There might have been
reason for the higher authorities of the State to intervene in the matter, as they
apparently did. But it is one thing to say that the Mexican authorities could have
done better and another thing to say that they were exhibited unwarranted lack of
diligence as to make them liable for damages.
ON THE CONCEPT OF DENIAL OF JUSTICE; STANDARDS

The Commission recognized the difficulty of precise delineation of state

responsibility in cases of a denial of justice to an alien. The problem lay in
determining the boundary between an international delinquency of [the denial of
justice] type and an unsatisfactory use of power included in national sovereignty.
Citing Bassett Moore and De Lapradelle and Politis, the Commission conceded the
evasive and complex character of a denial of justice claim. It therefore refused to
lay down a precise formulation for denial of justice.

It however, said that the breadth by which the sense of denial of justice
was taken is immaterial, as it includes governmental acts regardless of whether it
was judicial, legislative, or executive.

Thus the Commission confined itself to laying down these standards:

o
the propriety of governmental acts should be put to the test of international
standards
o
the treatment of an alien, in order to constitute an international delinquency,
should amount to an outrage, to bad faith, to wilful neglect of duty, or to an
insufficiency of governmental action so far short of international standards that
every reasonable and impartial man would readily recognize its insufficiency.
o
Whether the insufficiency proceeds from deficient execution of an intelligent
law or from the fact that the laws of the country do not empower the authorities to
measure up to international standards is immaterial.

CASE AT BAR: The Commission found no evidence in the record to show that
Mexico fell short of these standards. On the contrary, it was found that the Mexican
authorities promptly (but maybe not enthusiastically) investigated the incident and
came up empty-handed [see facts]; neither was it shown that Mexican law made it
impossible for the investigating authorities to complete their task.
DISPOSITION: Claim disallowed.
Commissioner Fred K. Nielsen, separate opinion:

Vattel: The sovereignty united to the domain establishes the jurisdiction of

the nation in her territories, or the country that belongs to her. It is her province, or
that of her sovereign, to exercise justice in all the places under her jurisdiction, to
take cognizance of the crimes committed, and the differences that arise in the
country. Other nations must respect this right of the individual state to investigate
and prosecute crimes within its jurisdiction.

However, it must be recognized that the domestic law and the measures
employed to enforce it must conform to international law. Failure to meet such
requirements is a failure to perform a legal duty, and is hence an international
delinquency. Strict conformity with the domestic law is important, but not conclusive
evidence that state action was in conformity with the legal duties imposed by
international law.

Commissioner Nielsen concurs with the majoritys broad conception of

denial of justice, which includes all governmental acts (legislative, executive, or
judicial). In the case at bar, the functions performed by the Judge of Guanacevi were
not strictly judicial but were more in the nature of the duties of a police magistrate.

[I]t is probably not so very difficult to formulate a practicable and sound

standard by which to test the propriety of intervention or the right of a nation to
claim pecuniary reparation in any given case.

The propriety of governmental acts should be determined according to

ordinary standards of civilization, even though standards may differ among states. A
demand for redress based on a denial of justice is justified when the treatment of an
alien reveals an obvious error in the administration of justice, or fraud, or a clear
outrage.

Commissioner Bertinatti (in the Medina case [Costa Rica v. USA]):

It being against the independence as well as the dignity of a nation that a

foreign government may interfere either with its legislation or the appointment of
magistrates for the administration of justice, the consequence is that in the
protection of its subjects residing abroad a government, in all matters depending
upon the judiciary power, must confine itself to secure for them free access to the
local tribunals, besides an equality of treatment with the natives according to the
conventional law established by treaties.


"Only a formal denial of justice, the dishonesty or prevaricatio of a judge
legally proved, 'the case of torture, the denial of the means of defense at the trial,
or gross injustice, in re minime dubia', may justify a government in extending
further its protection."

There may be considerable and honest differences of opinion with regard to

the character of governmental acts, but an international tribunal may be guided by
the standard that an award for damages on a denial of justice is proper only on the
basis of convincing evidence of a pronounced degree of improper governmental
administration.

While claims commissions have awarded damages for neglect to prosecute

crimes or to prevent their commission (de Brissot case and Poggioli case),
Commissioner Nielsen finds that there is not enough evidence on the record to hold
that there has been a denial of justice by the Mexican authorities. He reiterates the
majority opinion that it is one thing to say that the Mexican authorities could have
handled the matter more competently and another thing to say that they were
exhibited unwarranted lack of diligence as to make them liable for damages.

Summary of the Summary of the Judgment of 18 December 2003

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)
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 "El Salvador")
submitted a request to the Court for revision of the Judgment delivered 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) (I.C.J. Reports 1992, p. 351).
In its Application, El Salvador requested the Court "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."
The Parties having been duly consulted by the President, the Court, by an Order of
27 November 2002, 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: President G.
Guillaume; Judges F. Rezek, T. Buergenthal; Judges ad hoc S. Torres Bernrdez
(chosen by Honduras) and F. H. Paolillo (chosen by El Salvador).
On 1 April 2003, within the time-limit fixed by the Court, Honduras filed its Written
Observations on the admissibility of El Salvador's Application. Public 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,
"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 Goascorn River at the entry point known as the
Estero de la Cut, 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 Goascorn River for a distance of 17,300 metres up to the place known as
Rompicin 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
Goascorn 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."
Basis of jurisdiction and circumstances of the case (paras. 15-22)
The Chamber begins by stating that, under Article 61 of the Statute, revision
proceedings open with a judgment of the Court declaring 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 contemplated 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 latest 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."
However, El Salvador appears to argue in limine that there is no need for the
Chamber to consider whether the conditions of Article 61 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 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.
The new facts alleged by El Salvador concern on the one hand the avulsion of the
river Goascorn and on the other the "Carta Esfrica" and the report of the 1794
El Activo expedition.
Avulsion of the river Goascorn (paras. 23-40)
"In order properly to understand El Salvador's present contentions", the Chamber
first recapitulates part of the reasoning in the 1992 Judgment in respect of the sixth
sector of the land boundary.
The Chamber then indicates that in the present case, El Salvador first claims to
possess scientific, technical and historical evidence showing, contrary to what it
understands the 1992 decision to have been, that the Goascorn did in the past
change its bed, and that the change was abrupt, probably as a result of a cyclone in
1762. El Salvador argues that evidence can constitute "new facts" for purposes of
Article 61 of the Statute.
El Salvador further contends that the evidence it is now offering establishes the
existence of an old bed of the Goascorn debouching in the Estero La Cut, 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. According to El Salvador, the facts thus set out are
decisive, because the considerations and conclusions of the 1992 Judgment are
founded on the rejection of an avulsion which, in the Chamber's view, had not been
proved.
El Salvador finally maintains that, given all the circumstances of the case, in
particular the "bitter civil war [which] was raging in El Salvador" "for virtually the
whole period between 1980 and the handing down of the Judgment on 11
September 1992", its ignorance of the various new facts which it now advances
concerning the course of the Goascorn 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 "well-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 demonstrated the existence of a new fact.
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.
Honduras further maintains that the facts relied on by El Salvador, 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 El Salvador could have had the scientific and technical
studies and historical research which it is now relying on carried out before 1992.
Turning to consideration of El Salvador's submissions concerning the avulsion of the
Goascorn, the Chamber recalls that an application for revision is admissible only if
each of the conditions laid down in Article 61 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 the 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 1992
Judgment). 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 of the 1992 Judgment).
The Chamber then considered "The contention of El Salvador that a former bed of
the river Goascorn 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
Goascorn 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 of the 1992 Judgment.)
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 Goascorn
was such that it debouched in the Estero La Cut . . . 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 El Salvador's proposition concerning

the avulsion of the Goascorn, the Chamber observed that El Salvador "suggests . .
. that the change in fact took place in the 17th century" (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 mainly 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. 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 Chamber 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 Goascorn. 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.
Discovery of new copies of the "Carta Esfrica" and report of the 1794 El Activo
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 Esfrica" and of a
further copy of the report of the expedition of the El Activo, 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
Esfrica" 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 El
Salvador's claims concerning the old course of the Goascorn to be inconsistent
with the previous history of the dispute, considered "the evidence made available to
it concerning the course of the river Goascorn in 1821" (para. 313 of the 1992
Judgment). The 1992 Chamber paid particular attention to the chart prepared by the
captain and navigators of the vessel El Activo around 1796, described as a "Carta
Esfrica", 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 Esfrica' leave little room for doubt that the river Goascorn 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 Esfrica" held in Madrid and the copy from Chicago differ only as to
certain details, such as for example, the placing of titles, the legends, and 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 the charts that were produced to the Chamber in 1992.
The Chamber notes further that the Estero La Cut and the mouth of the Rio
Goascorn are shown on the copy from Chicago, just as on the copies from Madrid,
at their present-day location. The new chart produced by El Salvador 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 identification of the mouth of the Goascorn. 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 El
Salvador in respect of the "Carta Esfrica" 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
Goascorn, the "Carta Esfrica" 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,
The Chamber,
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 Bernrdez;
Against: Judge ad hoc Paolillo."
*
Judge ad hoc Paolillo appends a dissenting opinion to the Judgment of the Chamber.
___________

Annex to Summary 2003/3

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 prove its allegations concerning an
avulsion of the river Goascorn. In 1992, the Chamber, after having considered El
Salvador's argument from the legal perspective, stated that no document proving a
sudden change in the course of the Goascorn had been produced by El Salvador
and that there was no scientific evidence proving that the river in its earlier course
debouched in the Estero La Cut. 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. Judge Paolillo notes, however, that it was
only after considering El Salvador'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 during 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 El Salvador did not meet the
conditions laid down by Article 61 of the Statute of the Court. It was only during the
last public sitting, at which stage El Salvador no longer had an opportunity to
respond to Honduras's argument, that Honduras maintained that the historical
considerations set out in paragraph 312 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 parties. According to Judge Paolillo, 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 respect of the first sector, nor is there
any evidence that El Salvador had "clearly accepted", by acquiescence 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
Goascorn during the negotiations prior to 1972 can in no way be interpreted as a
waiver by El Salvador of its claim that the boundary should be drawn along the old
course of the river.
The new facts relied upon by El Salvador in support of its Application for revision
consist of a group of documents containing scientific, technical 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 Goascorn, which, pursuant to
the principle uti possidetis juris, should thus form the boundary line between the
two Parties in the sixth sector. After considering these new facts, Judge Paolillo
arrived at the conclusion that they satisfy the conditions laid down in Article 61 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 Article 61 of the Statute of
the Court are cumulative, the Chamber refrained from considering whether or not
the new facts alleged by El Salvador satisfied the other conditions laid down. Judge
Paolillo 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 the 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.
International Court of Justice (ICJ) ruled on the delimitation of "bolsones" (disputed
areas) along the El Salvador-Honduras boundary, in 1992, with final agreement by
the parties in 2006 after an Organization of American States survey and a further ICJ
ruling in 2003; the 1992 ICJ ruling advised a tripartite resolution to a maritime
boundary in the Gulf of Fonseca advocating Honduran access to the Pacific; El
Salvador continues to claim tiny Conejo Island, not identified in the ICJ decision, off
Honduras in the Gulf of Fonseca
International Court of Justice (ICJ) ruled on the delimitation of "bolsones" (disputed
areas) along the El Salvador-Honduras border in 1992 with final settlement by the
parties in 2006 after an Organization of American States survey and a further ICJ
ruling in 2003; the 1992 ICJ ruling advised a tripartite resolution to a maritime
boundary in the Gulf of Fonseca with consideration of Honduran access to the
Pacific; El Salvador continues to claim tiny Conejo Island, not mentioned in the ICJ
ruling, off Honduras in the Gulf of Fonseca; Honduras claims the Belizeanadministered Sapodilla Cays off the coast of Belize in its constitution, but agreed to
a joint ecological park around the cays should Guatemala consent to a maritime
corridor in the Caribbean under the OAS-sponsored 2002 Belize-Guatemala
Differendum