| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.8. | Interpretation |
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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. 582-584] 373. On the face of the text of the Special
Agreement, no reference is made to any delimitation by the Chamber. For the
Chamber to have the authority to delimit maritime boundaries, whether inside or
outside the Gulf, it must have been given a mandate to do so, either in express
words, or according to the true interpretation of the Special Agreement. It is
therefore necessary, in application of the normal rules of treaty
interpretation, to ascertain whether the text is to be read as entailing such
delimitation. If account be taken of the basic rule of Article 31 of the Vienna
Convention on the Law of Treaties, according to which a treaty shall be
interpreted "in accordance with the ordinary meaning to be given to the
terms", it is difficult to see how one can equate "delimitation"
with "determination of a legal situation ..." ("Que determine
la situación jurídica ...") No doubt the word "determine"
in English (and, as the Chamber is informed, the verb "determinar"
in Spanish) can be used to convey the idea of setting limits, so that, if
applied directly to the "maritime spaces" its "ordinary meaning"
might be taken to include delimitation of those spaces. But the word must be
read in its context; the object of the verb "determine" is not the
maritime spaces themselves but the legal situation of these spaces. No
indication of a common intention to obtain a delimitation by the Chamber can
therefore be derived from this text as it stands.
374. This conclusion is also confirmed if the phrase is considered in the
wider context, first of the Special Agreement as a whole, and then of the 1980
General Treaty of Peace, to which the Special Agreement refers. The question
must be why, if delimitation of the maritime spaces was intended, the Special
Agreement used the wording "to delimit the boundary line ..." ("Que
delimite la línea fronteriza ...") regarding the land frontier,
while confining the task of the Chamber as it relates to the islands and
maritime spaces to "determine [their] legal situation ..." ("Que
determine la situación jurídica ..."). The same contrast
of wording can be observed in Article 18 of the General Treaty of Peace, which,
in paragraph 2, asks the Joint Frontier Commission to "delimit the frontier
line in the areas not described in Article 16 of this Treaty", while
providing in paragraph 4, that "it shall determine the legal situation of
the islands and maritime spaces". Honduras itself recognizes that the
islands dispute is not a conflict of delimitation but of attribution of
sovereignty over a detached territory. It is difficult to accept that the same
wording "to determine the legal situation", used for both the islands
and the maritime spaces, would have a completely different meaning regarding the
islands and regarding maritime spaces.
375. The ordinary meaning of the term "maritime spaces" in the
context of the modern law of the sea must, in the view of Honduras, include
areas both inside and outside the Gulf, including for example, the territorial
sea and the exclusive economic zone; nor does El Salvador disagree that the
Special Agreement refers to those spaces. Honduras argues further that the
context of the Treaty of Peace and the Special Agreement do not permit it to be
supposed that the Parties intended such a half-measure as a determination of the
legal situation of such spaces unaccompanied by a delimitation, since it is
already established that the rights of the coastal States over areas off their
coasts exist ipso facto and ab initio (cf. North Sea
Continental Shelf case, I.C.J. Reports 1969, p. 22, para. 19). In
the contention of Honduras, the object and purpose of the Special Agreement is
to dispose completely of a corpus of disputes some elements of which are more
than a century old, as is clear from the Preamble to the 1980 General Treaty of
Peace; in the light of this, the Special Agreement should be interpreted to
require a delimitation, since for Honduras a legal title without delimitation of
its scope is a title without any real substance. In support of this contention,
Honduras has invoked the principle of effectiveness (effet utile), or of
effective interpretation, quoting the jurisprudence of the Permanent Court of
International Justice (Free Zones of Upper Savoy and the District of Gex
case, P.C.I.J., Series A, No. 22, p. 13) and of the Court (Corfu
Channel case, I.C.J. Reports 1949, p. 24). Honduras maintains that,
without delimitation, the Judgment will fail to attain its objective, which is
the final solution for the dispute between the Parties.
376. In the Chamber's view, however, in interpreting a text of this kind it
must have regard to the common intention as it is expressed in the words of the
Special Agreement. The situation closely resembles that in the recent case
before the Court between Guinea-Bissau and Senegal, where the Court observed:
"In short, although the two States had expressed in general terms ...
their desire to reach a settlement of their dispute, their consent thereto had
only been given in the terms laid down by Article 2." (Arbitral Award
of 31 July 1989, I.C.J. Reports 1991, p. 72, para. 56.)
In effect, what Honduras is proposing is recourse to the "circumstances
of the conclusion" of the Special Agreement, but these, it is generally
recognized, constitute no more than a supplementary means of interpretation,
used only where the meaning of the text is ambiguous or obscure, or the
interpretation would lead to a manifestly absurd or unreasonable result (see
Vienna Convention on the Law of Treaties, Art. 32).
[pp. 585-586] 379. Honduras has also invoked the rule that
subsequent practice of the parties may be taken into account to interpret a
treaty. Relying on the act that the expression "determine the legal
situation of the islands and the maritime spaces" is also used in Article
l8 of the General Treaty of Peace of 1980, defining the role of the Joint
Frontier Commission, it invokes the subsequent practice of the Parties in the
application of that Treaty to show that the delimitation of the maritime spaces
was contemplated by them. Honduras has invited the Chamber to take into account
the fact that the Joint Frontier Commission examined, inter alia, proposals
aimed at the delimitation of the maritime spaces. El Salvador has expressed
reservations at this recourse to matters raised during negotiations, but argues
that any approaches of its delegates in the Commission to delimitation of the
waters were purely by way of conciliation and did not prejudice its legal
position; it maintains further that there exists no dispute between the Parties
as to delimitation of the waters of the Gulf, and the Chamber therefore cannot
decide such a non-existent dispute.
380. The Chamber considers that, while both customary law and the Vienna
Convention on the Law of Treaties (Art. 31, para. 3 (b)) contemplate
that such practice may be taken into account for purposes of interpretation,
none of these considerations raised by Honduras can prevail over the absence
from the text of any specific reference to delimitation. In considering the
ordinary meaning to be given to the terms of the treaty, it is appropriate to
compare them with the terms generally or commonly used in order to convey the
idea that a delimitation is intended. Whenever in the past a special agreement
has entrusted the Court with a task related to delimitation, it has spelled out
very clearly what was asked of the Court: the formulation of principles or rules
enabling the parties to agree on delimitation, the precise application of these
principles or rules (see North Sea Continental Shelf cases, Continental
Shelf (Tunisia/Libyan Arab Jamahiriya) and Continental Shelf (Libyan
Arab Jamahiriya/Malta) cases), or the actual task of drawing the
delimitation line (Delimitation of the Maritime Boundary in the Gulf of
Maine Area case). Likewise, in the Anglo-French Arbitration of 1977, the
Tribunal was specifically entrusted by the terms of the Special Agreement with
the drawing of the line.
[pp. 717-719 S.O. Torres Bernárdez] 188. The law on the basis
of which the above interpretative dispute falls to be decided comprises the
rules governing the interpretation of treaties which have been codified by the
1969 Vienna Convention on the Law of Treaties (Arts. 31 and 32). It is generally
recognized that these Articles of the Vienna Convention reflect the customary
law in the matter. The Judgment of the Court of 12 November 1991 on the Arbitral
Award of 31 July 1989 (Guinea-Bissau v. Senegal) contains a
statement inspired by that proposition (I.C.J. Reports 1991, p. 69,
para. 48). It may also be added that the corresponding draft articles were
prepared by the International Law Commission as codification of existing law in
the light of the relevant jurisprudence of the present Court and of the
Permanent Court, and they were unanimously adopted at the plenary by the United
Nations Conference on the Law of Treaties, following rejection at the committee
level, by quite large majorities, of some amendments initially submitted. I
concur, therefore, with the reference made in the Judgment to the "general
rule on interpretation" (Art. 3l) and to the rule on "supplementary
means of interpretation" (Art. 32) of the Vienna Convention. At this point,
however, unfortunately, I part company with the Judgment as to the matter under
consideration, for reasons of principle as well as on account of the application
made in casu of treaty interpretation rules. I can share in this respect
neither the reasoning nor the decision of the Judgment which I, of course,
respect.
189. The reasoning of the Judgment begins by recalling that no reference is
made in Article 2, paragraph 2, of the Special Agreement to any "delimitation"
by the Chamber of the maritime spaces referred to therein and that for the
Chamber to have the authority to delimit maritime boundaries, whether inside or
outside the Gulf of Fonseca, it must have been given a mandate to do so either
in express words or "according to the true interpretation of the Special
Agreement" (paragraph 373 of the reasoning of the Judgment). This is, of
course, absolutely correct. But the problems lie elsewhere, namely in how to
reach a "true interpretation" of the Special Agreement under present
rules on treaty interpretation. In this respect, I consider that the first
proposition to be borne in mind is that the said rules of treaty interpretation
disregard any intentions of the parties to the treaty as a subjective element
distinct from the text of the treaty. Subjective intentions alien to the text of
the treaty, particularly a posteriori subjective intentions, should play
no role in the interpretation. This does not at all mean, however, that existing
interpretation rules endorse literalism as the object and purpose of
treaty interpretation. What constitutes the object and purpose of the
intrepretation process today is the elucidation of the intentions of the
parties as expressed in the text of the treaty, presumed to be the authentic
expression of the intention of the parties. In this objective environment, the
object and purpose of the interpretation is not the "words" but the "intentions"
of the parties as reflected in the terms used in the text of the treaty. It is
in this sense, and in this sense only, that the prevailing rules of treaty
interpretation are based upon the textual approach. The whole exercise is
concerned, therefore, with ascertaining the intentions of El Salvador and of
Honduras as reflected in the text of the Special Agreement through an
application of rules of treaty interpretation now prevailing and not with
ascertaining the meaning of individual words or expressions used in the Special
Agreement.
190. To determine objectively the intentions of the Parties as reflected in
the Special Agreement, one must certainly start as provided for in the Vienna
Convention, namely from the "ordinary meaning" of the terms used in
the provision of the Special Agreement which is the subject of the
interpretation, that is, paragraph 2 of Article 2 in the instant case. But not
in isolation. For treaty interpretation rules there is no "ordinary meaning"
in the absolute or in the abstract. That is why Article 31 of the Vienna
Convention refers to "good faith" and to the ordinary meaning "to
be given" to the terms of the treaty "in their context and in the
light of its object and purpose". It is, therefore, a fully qualified "ordinary
meaning". In addition to the said "good faith", "context"
and "object and purpose", account may be taken, together with the "context",
of the other interpretative elements mentioned in Article 31, including "subsequent
practice" of the parties to the treaty and the "rules of international
law" applicable between them. Furthermore, recourse to "supplementary
means of interpretation" (preparatory work; circumstances of conclusion) is
allowed for the purposes defined in Article 32. The elucidation of the "ordinary
meaning" of terms used in the treaty to be interpreted requires, therefore,
that due account be taken of those various interpretative principles and
elements, and not only of words or expressions used in the interpreted provision
taken in isolation.
[pp. 728-729 S.O. Torres Bernárdez] 204. In this connection
it is also worth recalling that the fact that the treaty to be interpreted is in
the present case a "special agreement" (compromis) does not
change by one iota the interpretation rules to be applied, which remain the same
as in the case of any other kind of treaty. It was agreed at the United Nations
Conference on the Law of Treaties that, for interpretation purposes, no
distinctions should be made on the basis of the various possible classifications
of treaties, with the single exception of the additional rules for "multilingual
treaties" (Art. 33 of the Vienna Convention). Special agreements (compromis)
are no exception, as the Court recently confirmed in its Judgment of 12
November 1991 on the Arbitral Award of 31 July 1989 (Guinea Bissau v.
Senegal) (I.C.J. Reports 1991, pp. 69-70, para. 48). Old theories about
the so-called "restrictive" interpretation of conventional instruments
providing for the jurisdiction of international courts and tribunals do not
correspond to present rules of treaty interpretation. They were consciously left
out of those rules when the latter were codified by the Vienna Convention. No
longer does restrictiveness in treaty interpretation govern a priori in
any way the act of treaty interpretation of such kinds of conventional
instrument. The subject-matter of the treaty as such is not an element of the
general rule on interpretation of treaties. I see no reason therefore to try to
establish any relationship whatsoever between the operation of interpreting
Article 2, paragraph 2, of the Special Agreement and the principle of the
consensual jurisdiction of the Court. This latter principle is not supposed to
be thrown into the crucible in order to arrive at the legally relevant
interpretation of that provision of the Special Agreement. To do otherwise, as
the reasoning of the Judgment does, begs in fact the interpretative question at
issue. It does not provide an answer to it. In fact, the Judgment quite
unwarrantedly, in my opinion, equates the efforts of the Parties to find a "neutral
formula" in order to overcome constitutional problems with the
different matter of their intentions, or their common intention, in adopting
such a formula in Article 2, paragraph 2, of the Special Agreement, the meaning
of which should be ascertained through an interpretation performed in accordance
with the rules of treaty interpretation now prevailing.
