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II. Substantive International Law - Second Part
2.3. Internal Waters

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

[pp. 588-589] 383. The Gulf of Fonseca is a relatively small bay with an irregular and complicated coastline in its inner part, a large number of islands, islets and rocks, and is in the rare if not unique position that the coastline is divided between three States. To all three coasts there are only four entrance channels, of which only two can be used for deep-draught vessels. The entrance to the Gulf, between Punta Amapala (El Salvador) and Punta Cosigüina (Nicaragua) being only 19.75 miles wide, the geographical dimensions and proportions of the Gulf are such that it would nowadays - though not in former times when the "10-mile", or even "6-mile", rule applied - be a juridical bay within the meaning of Article 4 of the Convention on the Territorial Sea and the Contiguous Zone of 1958, and Article l0 of the Convention on the Law of the Sea (1982); which would have the consequence that, if it were a single-State bay, a closing line might now be drawn and the waters be thereby enclosed and "be considered as internal waters". Neither El Salvador nor Honduras, nor yet Nicaragua, the intervening State, is party to either of these two Conventions, and the 1982 Convention is not yet in force, but these provisions on bays might be found to express general customary law. In the terms of both Conventions, however, the Article describing bays is said to apply only to "bays the coasts of which belong to a single State", and furthermore not to apply to "so-called 'historic bays'". The Gulf of Fonseca is manifestly not a bay the coasts of which belong to one State; and the Parties and the intervening State, and commentators generally, are agreed that it is an historic bay, and that the waters of it are accordingly historic waters.

384. In a passage much cited in the oral proceedings in this case, the Court, in the Fisheries case between the United Kingdom and Norway, said:

"By 'historic waters' are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title." (I.C.J. Reports 1951, p. 130.)

This, however, should be read in the light of what the Court said in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, where, also referring to the exception of "historic bays" from the definition of bay in both the 1958 and the 1982 Conventions, the latter then still in draft, the Court said:

"There are, however, references to 'historic bays', or 'historic titles' or historic reasons in a way amounting to a reservation to the rules set forth therein. It seems clear that the matter continues to be governed by general international law which does not provide for a single 'régime' for 'historic waters' or 'historic bays', but only for a particular régime for each of the concrete, recognized cases of 'historic waters' or 'historic bays'." (I.C.J. Reports 1982, p. 74.)

It is clearly necessary, therefore, to investigate the particular history of the Gulf of Fonseca to discover what is the "régime" of that Gulf resulting therefrom; especially as the Court in the same Judgment also said "Historic titles must enjoy respect and be preserved as they have always been by long usage." (I.C.J. Reports 1982, p. 73.) Moreover, the particular historical régime established by practice must be especially important in a pluri-State bay; a kind of bay for which there are notoriously no agreed and codified general rules of the kind so well established for single-State bays.

[pp. 592-593] 393. There is what might appear at first sight to be an inconsistent element of the Court's pronouncement 1, when it allows that the waters of the Gulf that "... belong to the three States that surround them ..." ("... las aguas del Golfo pertenezcan a los tres Estados que lo circundán ..."), are subject to "... the right of uso inocente over those waters ..." by "... the merchant ships of all nations..." ("... teniendo las naves mercantes de todas las naciones el derecho de uso inocente sobre esas mismas aguas ...") (CJC, Sentencia, p. 55; AJIL trans., p. 715). Such rights of "innocent use" are at odds with the present general understanding of the legal status of the waters of a bay as constituting "internal waters", whether the waters are of a juridical bay or one which has arisen from an historic title. Yet the rules and principles which normally apply to "bays the coasts of which belong to a single State" (United Nations Convention on the Law of the Sea, Art. 10 (l)) are not necessarily appropriate to a bay which is a pluri-State bay and is also an historic bay (for the fact that the Gulf of Fonseca would today qualify geographically as a "juridical" bay cannot now call in question or replace its historic status). Moreover, the Gulf being a bay with three coastal States, there is a need for shipping to have access to any of the coastal States through the main channels between the bay and the ocean. That rights of innocent passage are not inconsistent with a régime of historic waters is clear, for that is precisely now the position in archipelagic internal waters and indeed in former high seas enclosed as internal waters by straight baselines. Furthermore, there is another practical point, for since these waters were outside the 3-mile maritime belts of exclusive jurisdiction in which innocent passage was nevertheless recognized in practice, it would have been absurd not to recognize passage rights in these waters, which had to be crossed in order to reach these maritime belts.

[p. 594] 395. What does present a problem, however, is the precise character of the sovereignty which the three coastal States enjoy in these historic waters. No great difficulty arises about the legal position of the waters of an historic bay that constitutes an enclosed sea entirely within the territory of a single State; then the enclosed waters are simply internal waters of the coastal State. A complication arises when the shores of the bay comprise three States. For an enclosed pluri-State bay presents the need of ensuring practical rights of access from the ocean for all the coastal States; and especially so where the channels for entering the bay must be available for common user, as in the case of an enclosed sea. It was doubtless this problem of navigational access to the pluri-State bay, that accounts for the view, prevalent, though not unopposed, in the time of the 1917 Judgement and even for some years later, that in such a bay, if it is not historic waters, the territorial sea follows the sinuosities of the coast and the remainder of the waters of the bay are part of the high seas. This solution, however, is not possible in the case of the Gulf of Fonseca since it is an historic bay and therefore a "closed sea".

[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.

[pp. 604-605] 410. If the Gulf is an historic bay, it is necessary to determine the closing line of the waters of the bay. The normal geographical closing line for the waters of the Gulf of Fonseca would be the line Punta Amapala to Punta Cosigüina. This seems to have been the closing line recognized by the three coastal States in practice. It is, moreover, the closing line referred to in the 19l7 Judgement (loc. cit., p. 706). It had not been necessary to say more, had not El Salvador elaborated a thesis of an "inner Gulf" and an "outer Gulf", based on the reference in the Judgement of 1917, to an inner closing line from Punta Chiquirin, through Meanguera and Meanguerita, to Punta Rosario. The purpose of El Salvador's reference to this inner line, in its argument before the Chamber, was apparently to suggest that the Honduran legal interest in the Gulf waters was limited to the area inside the inner line, the remainder being left to El Salvador and Nicaragua. But there is nothing in the Judgement of the Central American Court of Justice to support this. There is no suggestion in that Judgement that Honduras was excluded from the waters between that inner line and the outer closing line subject to the régime of condominium found by the Court.

411. A word more needs to be said about the closing line proper, from Punta Amapala to Punta Cosigüina. This was constantly referred to in the argument of the Parties and of the intervening State, and geographically it is obviously the outer limit of the Gulf. There was also considerable argument between the Parties about whether this closing line is also a baseline. El Salvador thought not and sought to define it simply as a line depicting the ocean limit of the Gulf of Fonseca. The Chamber is content with that paraphrase of the words "closing line", but has difficulty in understanding how, if this line is the Gulf's ocean limit, it can escape being also the baseline for whatever régime lies beyond it, which must be different from that of the Gulf.

412. As to the legal status of the waters, inside the Gulf closing line, and other than the 3-mile maritime belts, the 1917 Judgement had no difficulty in referring to them as "territorial"; meaning thereby not territorial sea but waters that were not international and were on historical grounds claimed à titre de souverain by the three coastal States. Are they, therefore, in terms of the modern law, and as Honduras argued, "internal waters"? There are some difficulties in using this term which is apt to a single-State historic bay, but is not free from complications when applied to a pluri-State historic bay. Since the practice of the three coastal States still accepts that there are the littoral maritime belts subject to the single sovereignty of each of the coastal States, but with mutual rights of innocent passage, there must also be rights of passage through the remaining waters of the Gulf, not only for historical reasons but because of the practical necessities of a situation where those narrow Gulf waters comprise the channels used by vessels seeking access to any one of the three coastal States. Accordingly, these rights of passage must be available to vessels of third States seeking access to a port in any one of the three coastal States; such rights of passage being essential in a three-State bay with entrance channels that must be common to all three States. The Gulf waters are therefore, if indeed internal waters, internal waters subject to a special and particular régime, not only of joint sovereignty but of rights of passage. It might, therefore, be sensible, to regard the waters of the Gulf, insofar as they are the subject of the condominium or co-ownership, as sui generis. No doubt, if the waters were delimited, they would then become "internal" waters of each of the States; but even so presumably they would need to be subject to the historic and necessary rights of innocent passage, so they would still be internal waters in a qualified sense. Nevertheless, the essential juridical status of these waters is the same as that of internal waters, since they are claimed à titre de souverain and, though subject to certain rights of passage, they are not territorial sea.

[pp. 607-608] 416. That a State cannot have two territorial seas off the same littoral is manifest. The question arises, however, whether the littoral maritime belts of l marine league along the coastlines of the Gulf are truly territorial seas in the sense of the modern law of the sea. In the view of the Chamber they are not. For a territorial sea normally has beyond it the continental shelf, and either waters of the high seas (in some cases with a contiguous zone of jurisdiction) or an exclusive economic zone. The maritime belts within the Gulf do not have outside them any of these areas. In fact it is the closing line of the Gulf which constitutes "the coast", in the sense of a territorial sea baseline; and this would seem to be so whether the Gulf waters are regarded as subject to joint sovereignty, or indeed, as Honduras would have it, as waters subject to undelimited separate sovereignties subject to a community of interest. The inner littoral maritime belts are therefore certainly not territorial seas in the sense of the modern law. Those maritime belts within the Gulf may properly be regarded as the internal waters of the coastal State, not being subject to the joint sovereignty, and even though subject, as indeed are all the waters of the Gulf, to rights of innocent passage that owe their origin to the exigencies and resulting history of a three-State but relatively small bay, with its problems of navigational access.

417. There is therefore a territorial sea proper, seawards of the closing line of the Gulf. There can be no serious doubt that the closing line of an historic bay is the baseline of the territorial sea. To hold otherwise would be incompatible with the legal status of a bay.

418. Given that there is a condominium of the waters of the Gulf, it follows that there is a tri-partite presence at the closing line and that Honduras is not locked out from rights in respect of the ocean waters outside the bay. This also seems equitable. Honduras has by far the longest coastline of the Gulf and the only Gulf coastline facing the Ocean. If the Punta Amapala/Punta Cosigüina closing line is a baseline, there are within the Gulf no territorial seas of the other two States which would operate to lock Honduras into the back of the bay. The exclusive littoral maritime belts within the Gulf have remained limited to 3 miles in breadth, and, as both Parties agree, are not territorial seas, but internal waters subject to a single, exclusive sovereignty. It is therefore only seaward of the Gulf's closing line that modern territorial seas can exist. To hold that there could now be territorial seas within the Gulf would be incompatible with the Gulf's waters being waters of an historic bay, which the Parties and the intervening State agree to be the legal position. And if the waters internal to that bay are subject to a threefold joint sovereignty, it is the three coastal States that are entitled to territorial sea without the bay.

[pp. 733-734 D.O. Oda] 4. Under the rules of the law of the sea, the sea-waters adjacent to the coasts of States are in principle territorial sea. Some coasts, satisfying certain geographical requirements concerning coastal configuration, form under those rules a "bay", the waters of which constitute "internal waters". It is, however, essential to note that the concept of a "bay" does not immediately denote the legal status of the waters but is meant first to specify the geographical circumstances which allow the waters therein to be "internal waters" instead of territorial sea. The "historic bay" - a concept which emerged only towards the end of the last century in parallel with the new idea of giving special legal significance to the notion of a "bay", and a term used only since the beginning of this century - does not exist in a régime sui generis, that is, a régime applying rules different from those applicable to a normal "bay". "Historic bays" are those bay-like features (in a geographical sense) which, because of their greater width at the mouth or their lack of penetration into the landmass, could not normally be classified legally as bays but can for historical reasons be given the same legal status as "bays". The words "historic bay" are certainly not meant to suggest that the legal status of the waters concerned is anything other than that of "internal waters" of the coastal State, as in the case of a normal (juridical) "bay". Under the contemporary concept of the law of the sea, the sea-waters adjacent to the coasts of States are either territorial sea or, otherwise, internal waters. There cannot be any other category for such offshore sea-waters.

[pp. 745-746 D.O. Oda] 24. It may be concluded that the simple outcome of this study of the development of the law of the sea is that there did not and still does not (or, even, cannot) exist any such legal concept as a "pluri-State bay" the waters of which are internal waters. It is not surprising that no rule covering such a pluri-State bay has ever been presented in international law. The very concept of "internal waters", which only appeared - under the term of "inland waters" - in parallel with the fixing of the limit of the territorial waters (sea), implies, as a norm, the enclosure or semi-enclosure of the waters concerned within the embrace of a given jurisdiction. This element of embracement is absent or disappears when the shores of a geographical bay are so divided up between States as to render the criteria and rationale of a legal bay incapable of fulfilment. This is tacitly confirmed by the absence of any provision concerning the delimitation or division of internal waters either in the 1958 or the 1982 Conventions; the internal waters of one State cannot abut the internal waters of another State.

25. Some exemptions from the geographical criteria normally required for a (juridical) bay have been justified on historical grounds for certain topographical features, and the contemporary law of the sea admits the concept of a "historic bay". The words used in the 1958 and l982 Conventions to the effect that the provisions defining a (single-State) bay "shall not apply" or "do not apply" to "so-called 'historic' bays" (1982 Convention, Art. 10, para. 6) are meant to suggest that the geographical criteria serving to define a bay for legal purposes, such as the width of the mouth or the depth of penetration into the landmass, are not in those cases strict conditions of "bayhood".

[pp. 755-757 D.O. Oda] 43. "Historic waters" were defined in the Fisheries case of 1951 as meaning "waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title" (I.C.J. Reports 1951, p. 130). In fact, waters in the situation of those disputed in the 1951 case are by now enclosed as "internal waters" by an application of the new concept of straight baselines under the 1958 and 1982 Conventions, so that their "historic" background has become a superfluous reference. Similarly, a claim to a "historic bay" could have been justified by the status of its waters as "historic waters", but by now most bays known as "historic bays", such as Delaware Bay, Chesapeake Bay, the Bristol Channel or Conception Bay, have become, as I already stated above, ordinary bays because of the new rule of the 24-mile closing-line. Furthermore, some "historic waters" in a rather different situation have also been the subject of a parallel evolution. In the course of the preparation for UNCLOS III, the delegate of the Philippines introduced a draft article concerning "historic waters" reading that "historic rights or title acquired by a State in a part of the sea adjacent to its coasts shall be recognized and safeguarded" (A/AC.138/SC.II/L.46) and another draft article on "breadth of territorial sea" reading that "the maximum limit [of the territorial sea] shall not apply to historic waters held by any State as its territorial sea" (A/CONF.138/SC.II/L.47/Rev.1). These proposals by the Philippines did not appear in any of the texts which were later brought to UNCLOS III. In fact, the waters which the Philippines intended to claim on grounds of historic rights or titles would have been brought under the jurisdiction of the coastal State in terms of the new concept of "archipelagic waters" under the 1982 Convention, which would have a sui generis status similar to that of territorial sea but not, however, to that of internal waters 2. In other words, the concept of "historic waters" has become irrelevant in the case of the Philippines because of the agreed new concept of archipelagic waters.

44. In sum, the concept of "historic waters" has become practically a redundancy, which is perhaps why it does not appear in either the 1958 or the 1982 Conventions. In fact, it is not so much a concept as a description expressive of the historic title on the basis of which a claim to a particular status for certain waters has been made. Thus, firstly in the 1951 Fisheries case a claim to "historic waters" was used to justify the status of internal waters, secondly a claim to "historic waters" for the waters of a bay could have justified a concept of a "historic bay" the waters of which are "internal waters", and thirdly in another instance, i.e., in the case of the Philippines, it has been used to justify only the status of territorial sea, resulting in the emergence of a new sui generis concept of archipelagic waters. It follows, therefore, that "historic waters" have no special legal status different from the categories which have long been recognized, that is, either internal waters or territorial sea (or the newly recognized archipelagic waters): in other words, "historic waters" as such did not and do not exist as an independent institution in the law of the sea. I have to add this explanation because the essential implications of this terminology seem to have been overlooked in the present Judgment, particularly when I note in the Judgment the presumption that, the Gulf of Fonseca being "[a] historic bay, ... the waters of it are accordingly historic waters" (Judgment, para. 383; emphasis added).

1The International Court of Justice here refers to the 1917 judgment of the Central American Court.
2The reference to "archipelagic internal waters" in the present Judgment (para. 393) is thus misleading.