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World Court Digest

II. Substantive International Law - Second Part
1.1. Acquisition and Loss

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

[p. 577] 364. The Chamber considers that this protest of Honduras, coming after a long history of acts of sovereignty by El Salvador in Meanguera, was made too late to affect the presumption of acquiescence on the part of Honduras. The conduct of Honduras vis-à-vis earlier effectivités reveals an admission, recognition, acquiescence or other form of tacit consent to the situation. Furthermore, Honduras has laid before the Chamber a bulky and impressive list of material relied on to show Honduran effectivités relating to the whole of the area in litigation, but fails in that material to advance any proof of its presence on the island of Meanguera.

[p. 579] 367. Thus the conclusion of the Chamber concerning Meanguera is that, while the uti possidetis juris position in 1821 cannot be satisfactorily ascertained on the basis of colonial titles and effectivités, the fact that El Salvador asserted a claim to the island of Meanguera in 1854, and was thereafter in effective possession and control of the island, justifies the conclusion that El Salvador may be regarded as sovereign over the island. If there remained any doubt, its position in respect of Meanguera is made definitive by the acquiescence of Honduras in its exercise of sovereignty in the island since the later years of the last century. As regards Meanguerita the Chamber does not consider it possible, in the absence of evidence on the point, that the legal position of that island could have been other than identical with that of Meanguera.

[pp. 676-677 S.O. Torres Bernárdez] 96. The second element of the applicable law system put forward by El Salvador in the island dispute is the one expressed by the descriptive heading of "peaceful and continuous exercise of State authority". This is certainly a valid element deserving careful examination, because of the role played by effectiveness in international law generally as well as in decisions of international courts and tribunals on competing claims concerning territory. However, the "peaceful and continuous exercise of State authority" is not in itself a principle of international law, but a manifestation of a given unilateral conduct of the State concerned, whose eventual legal effects ought to be defined in concreto in the light of the various circumstances and, first of all, of the operating norm of international law relevant in final analysis to the said unilateral conduct. Hence, in defining the legal effects to be attached in casu to a proven "peaceful and continuous exercise of State authority", a connection between that conduct and a given norm of international law is of paramount importance. This conclusion is particularly relevant in the instant case because, as indicated, the Judgment has rejected the existence of the "historic title" invoked by El Salvador.

97. Another element that in the present context needs to be produced, in order judicially to ascertain any legal effects of the principle of effectiveness with respect to sovereignty over the islands in dispute, is the basic status of the islands under international law. This, in the present case, cannot by definition, and particularly since the uti possidetis juris principle is admitted by the Judgment as applicable law, be the status of terra nullius. This is moreover a proposition accepted, though via different arguments, by both Parties. That being so, the well-known Island of Palmas dictum to the effect that the peaceful and continuous exercise of State authority is "as good as title" is a maxim subject to caution: one needing close examination and careful analysis. Certainly, a judicial body must take cognizance of a State's presence on the ground, but the legal issue before the Chamber was one not of satisfying itself that this or that Party was present in a certain island in dispute, but of deciding the different matter of the "sovereignty" over the island concerned.

[pp. 678-679 S.O. Torres Bernárdez] 101. ... To establish, obtain or have title and to maintain it are not necessarily the same thing under international law. Title may be eroded by the operation of other principles or norms of international law applicable between States, particularly when territorial rights are at stake. Territorial sovereignty also connotes obligations and, in the first place, the obligation to maintain and protect it by observing a vigilant conduct towards possible inroads by other States. International law is particularly inimical to prolonged situations of "abstract territorial sovereignty" or of "territorial sovereignty by mere title" when a competing territorial sovereignty claim of another State, accompanied by effectivités of that State on the ground, is not challenged as it should be at the relevant times. All depends, ultimately, on the particular circumstances of the case concerned, but the position of principle of international law on the matter seems clear to me.