| I. | Substantive International Law - First Part |
| 4. | SUBJECTS OF INTERNATIONAL LAW |
| 4.2. | States |
| 4.2.5. | Fundamental Rights and Obligations |
| 4.2.5.1. | Sovereignty |
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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.
