Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht Logo Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht

Sie befinden sich hier: Publikationen Archiv World Court Digest

World Court Digest

I. Substantive International Law - First Part
4.2. States
4.2.5. Fundamental Rights and Obligations Sovereignty

¤ Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening),
Judgment of 11 September 1992,
I.C.J. Reports 1992, p. 351

[pp. 597-598] 398. The essence of the 1917 decision concerning the legal status of the waters of the Gulf was thus that these historic waters were then subject to a "co-ownership" ("condominio") of the three coastal States. On the correctness of this part of the decision the Parties are diametrically opposed. El Salvador approves strongly of the condominium concept in these waters and holds that this status not only prevails but also cannot be changed without its consent. Honduras opposes the condominium idea and accordingly calls in question the correctness of this part of the 1917 Judgement, whilst also relying on the fact that it was not a party to the case and so cannot be bound by the decision, as indeed it made clear to the Court in 1917 and as that Court accepted. Nicaragua, the intervening State, which was a party to the 1917 proceedings, is and has consistently been opposed to the condominium solution.

399. Honduras also argues against the condominium inter alia upon the ground that, allegedly, condominia can only be established by agreement, though in its Memorial it had contended that some sort of "trilateral local custom of the nature of a convention" might have the same effect. It is doubtless right in claiming that the historical examples of condominia, in the sense of arrangements for the common government of territory which would otherwise be, and in many cases already had been, delimited between two or more States, is ordinarily created by treaty. It is difficult to see how such a structured system of joint government could be created otherwise than by an agreement between the States concerned. It is true that condominium as a term of art in international law usually indicates just such a structured system for the joint exercise of sovereign governmental powers over a territory; a situation that might more aptly be called co-imperium. But this was not what the Central American Court of Justice had in mind. By a condominium they clearly meant to indicate the existence of a joint sovereignty arising as a juridical consequence of the succession of 182l. A State succession is one of the ways in which territorial sovereignty passes from one State to another; and there seems no reason in principle why a succession should not create a joint sovereignty where a single and undivided maritime area passes to two or more new States.

[pp. 599-600] 401. Thus the ratio decidendi of the 1917 Judgement appears to be this: there was, at the time of independence, no delimitation between the three countries; and while the absence of delimitation does not always result in community, the undelimited waters of the Gulf have remained undivided and in a state of community, which entails a condominium or co-ownership of these waters. Further, the existence of a community was evidenced by continued and peaceful use of the waters by all the riparian States after independence. It seems to the Chamber that the Central American Court was correct, as a matter of international law, in holding that the mere absence of the delimitation of divisions of a maritime territory, cannot be said of itself "always" to entail a joint sovereignty over that area of maritime territory. What matters, however, is not what is "always" true, but what was the position in this particular case, in which the maritime area in question had long been historic waters under a single State's sovereignty, apparently without any demarcated administrative limits, and was in l82l jointly acquired by the three successor States by reason of the succession. That seems to be the essence of the decision of the Central American Court for this confined maritime area which so intimately concerns all three coastal States. Certainly there is no reason why a joint sovereignty should not exist over maritime territory. An instance of a condominium of the waters of a bay is the Baie du Figuier at the Atlantic boundary between France and Spain: by a "Declaration" of l879, the bay was said, for purposes of jurisdiction to be in three parts, "la troisième formant des eaux communes".

[pp. 601-602] 404. The opinion of the Chamber on the particular régime of the historic waters of the Gulf parallels the opinion expressed in the 1917 Judgement of the Central American Court of Justice. The Chamber finds that the Gulf waters, other than the 3-mile maritime belts, are historic waters and subject to a joint sovereignty of the three coastal States. The Court in 1917 also excluded from the condominium the waters delimited in 1900 between Honduras and Nicaragua; this delimitation will be considered below (paragraph 413).
405. The reasons for this conclusion, apart from the reasons and effect of the 1917 decision of the Central American Court of Justice, are the following: as to the historic character of the Gulf waters, the consistent claims of the three coastal States, and the absence of protest from other States. As to the character of rights in the waters of the Gulf: those waters were waters of a single-State bay during the greater part of their known history. They were, during the colonial period, and even during the period of the Federal Republic of Central America not divided or apportioned between the different administrative units which at that date became the three coastal States of El Salvador, Honduras and Nicaragua. There was no attempt to divide and delimit those waters according to the principle of uti possidetis juris. The Chamber has been much struck at the fundamental difference, in this respect, between the land areas it has had to deal with, and this maritime area. The delimitation effected between Nicaragua and Honduras in 1900, quoted in the Chamber's Judgment on the intervention of Nicaragua (I.C.J. Reports 1990, pp. 101-102, para. 26) which was substantially an application of the method of equidistance, gives no clue that it was in any way inspired by the application of the uti possidetis juris to the waters. It is evident that the Mixed Commission responsible for that delimitation based its work on the land boundaries on 17th and 18th century titles, but simply took it as axiomatic that "there belonged to each State that part of the Gulf or Bay of Fonseca adjacent to its coasts (Límites Definitivos entre Honduras y Nicaragua, Honduran Ministry of Foreign Affairs, 1938, p. 24). A joint succession of the three States to the maritime area seems in these circumstances to be the logical outcome of the principle of uti possidetis juris itself.

[p. 606] 414. If the condominium could, by an agreement, be substituted as Honduras evidently desires by the delimitation of separate areas of sovereignty, the question may be asked in what practical ways that process of delimitation would be at all affected by the fact that the waters were subject to a régime of a condominium rather than being simply undelimited waters. The existence of the joint sovereignty in all that area of waters other than those subject to the treaty or customary delimitations means that Honduras has existing legal rights (not merely an interest) in the Gulf waters up to the bay closing line, subject of course to the equivalent rights of El Salvador and Nicaragua. This position of principle cannot but endorse Honduras's case that any eventual delimitation should not assume that the rights of Honduras are in some way confined to the back of the Gulf; and this as will be seen below must have certain consequences also for the waters outside the Gulf.