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World Court Digest

II. Substantive International Law - Second Part
11.2. Judicial and Arbitral Decisions

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

[pp. 600-601] 402. The question now poses itself of the legal status of the 1917 Judgement. It has not been suggested that it was invalid or a nullity. The Court's jurisdiction in the matter was contested by Nicaragua, but the Court found that it had jurisdiction; a decision which was within the remit of any court to decide its own jurisdiction. Nicaragua protested the Judgement; but it cannot be allowed that a judgment may be invalidated by the protest of a disappointed party. The 1917 Judgement is therefore a valid decision of a competent Court. Obviously it could not be res judicata between the Parties in the present case. Honduras, on learning of the proceedings brought by El Salvador before the Central American Court of Justice, had formally protested to El Salvador that it "... has not recognized the status of co-ownership with El Salvador, nor with any other Republic, in the waters belonging to it in the Gulf of Fonseca ..." (" ... no ha reconocido estado de condominio con El Salvador ni con ninguna otra República en las aguas que le corresponden en el Golf de Fonseca ..." (CJC, Sentencia, p. 32; AJIL trans., p. 696), and that protest was brought to the notice of the Central American Court. Honduras has also, in its pleadings in the present case, made clear its reliance on the principle that a decision in a judgment or an arbitral award "can only be opposed to the parties" (see I.C.J. Reports 1990, p. 106, para. 31). Nicaragua, which was a party to the 1917 case, is an intervener in the present proceedings but is not a party in the present case. It does not appear, therefore, that this Chamber is at present required now to pronounce upon whether the 1917 Judgement is res judicata between the States parties to it, only one of which is a Party to the present proceedings. Moreover the Court's decision on what was in 1917 the principal question respecting the responsibilities of Nicaragua in entering into the Bryan-Chamorro Treaty and its effect on El Salvador's rights in the Gulf, is in any event not relevant to the case before this Chamber.

403. In truth, however, the question of the existence or not of a res judicata arising from a case with two parties is not helpful in a case raising a question of a joint sovereignty of three coastal States. This is indeed confirmed by the fact of Nicaragua's having sought, and been granted, a right to intervene precisely on this question of the legal position of the Gulf waters. The position, therefore, is that the Chamber should take the 19l7 Judgement into account as a relevant precedent decision of a competent court, and as, in the words of Article 38 of the Court's Statute, "a subsidiary means for the determination of rules of law". In short, the Chamber must make up its own mind on the status of the waters of the Gulf, taking such account of the 1917 decision as it appears to the Chamber to merit.