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World Court Digest

I. Substantive International Law - First Part
7.8. Interpretation

¤ 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.