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World Court Digest

I. Substantive International Law - First Part
4.2. States
4.2.6. Succession of States

¤ 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.