| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.4. | Political Questions/
Determination of the Existence of a Dispute |
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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. 554-555] 326. In the view of the Chamber, the provision of the
Special Agreement that it determine "... la situación jurídica
insular..." confers upon the Chamber jurisdiction in respect of all the
islands of the Gulf. In the exercise of that jurisdiction, however, a judicial
determination is only required in respect of such islands as are in dispute
between the Parties. While it is therefore not open to either Party, by means of
a bald denial that the other Party can have any claim to a particular island, to
exempt it from consideration by the Chamber, the Chamber does not consider that
it is bound to exercise its jurisdiction to investigate the legal situation of
every single island or islet in the Gulf. In practical terms, this excludes,
first, the Farallones, which are recognized by both Parties as belonging to
Nicaragua and therefore outside the dispute. None of the other islands are
claimed by Nicaragua; during the hearings on its application for permission to
intervene in the proceedings, counsel for Nicaragua stated that
"Nicaragua's sovereignty over the Farallones being expressly recognized
by the Parties, Nicaragua has in principle no direct interest in the
determination of the legal situation of the other islands in the Gulf" (I.C.J.
Reports 1990, p. 1l9, para. 65).
Secondly, notwithstanding the terms of the formal claim in the submissions
of El Salvador, the Chamber should not exercise its jurisdiction so as to make a
finding in relation to any islands which are not in dispute. While it is true
that "Whether there exists an international dispute is a matter for
objective determination" (Interpretation of Peace Treaties, I.C.J.
Reports 1950, p. 74), the Chamber considers that prima facie the existence
of a dispute over an island can, in the present proceedings, be deduced from the
fact of its being the subject of specific and argued claims. The Chamber is
entitled to conclude that, where there is an absence of such claims, there is no
real dispute before the Chamber, since there is no "disagreement on a point
of law or fact" or "a conflict of legal views or of interests",
to use the terms of the Judgment in the case of the Mavrommatis Jerusalem
Concessions (Judgment No. 5, P.C.I.J., Series A, No. 5, p. 11).
[p. 556] 328. It is however contended by Honduras that, in view of
the use in the General Treaty of Peace of the same terms as appear in Article 2,
paragraph 2, of the Special Agreement, the jurisdiction of the Chamber must be
limited to the islands which were in dispute at the time that the General Treaty
of Peace was concluded; and that at that time only Meanguera and Meanguerita
were in dispute, as the Salvadorian claim to El Tigre was made only in l985. If
the two instruments referred expressly or by necessary interpretation to "the
legal situation of the islands in dispute", this argument
might be sustainable. The Chamber however considers that the jurisdiction or
mandate conferred, on the Joint Frontier Commission by the General Treaty of
Peace, and on the Chamber by the Special Agreement, extended in each case to all
the islands; the question whether a given island is in dispute is relevant, not
to the question of the existence of such jurisdiction, but to that of its
exercise. The Chamber therefore has to determine, in the context of the
proceedings currently before it, which islands were in dispute on 24 May 1986,
the date of the Special Agreement, regardless of whether or not the Joint
Frontier Commission in 1980 might or might not have found itself confronted with
a dispute in respect of the same islands.
329. Honduras however also claims that there is no real dispute over El
Tigre, that that island has since 1854 been recognized by El Salvador as
belonging to Honduras, but that El Salvador has made a belated claim to it as a
political or tactical move. In effect, Honduras's argument is that there cannot
be any real dispute because El Salvador's claim to El Tigre is wholly unfounded;
but the existence of a dispute does not depend on the objective validity of the
claims of the Parties to it. Honduras contends that El Salvador's argument,
which is primarily based on alleged events of 1833 is untenable; but for the
Chamber to find, on the basis of that contention, that there is no dispute
would.require the Chamber first to determine that El Salvador's claim is wholly
unfounded, and to do so can hardly be viewed as anything but the determination
of a dispute. The Chamber therefore concludes that it should, in the exercise of
the jurisdiction conferred on it by the Special Agreement, determine whether
Honduras or El Salvador has jurisdiction over each of the islands of El Tigre,
Meanguera and Meanguerita.
[pp. 658-659 S.O. Torres Bernárdez] 57. That the "dispute"
must be a real one is a basic tenet of international judicial law, one also
incorporated in the Statute of the International Court of Justice. According to
the jurisprudence of the Court and doctrine, the "dispute" must exist
in order to be susceptible of adjudication. Nothing would be more detrimental to
the development of "judicial settlement", and more disruptive to the
stability of international relations in general, than to allow adjudication on "phantom
disputes". International courts and tribunals have the duty to remain
vigilant in this respect, particularly at a moment when States appear to be more
ready than in the past to have recourse to "judicial settlement" as a
peaceful means of solving their "real disputes". As borne out by the
Permanent Court of International Justice, "the existence of ... a dispute"
has to be "established" before proceedings are instituted (Electricity
Company of Sofia and Bulgaria Preliminary Objection, P.C.I.J., Series A/B, No.
77, p. 83. See also Pajzs, Csáky, Esterházy, P.C.I.J.,
Series A/B, No. 68, p. 61). This represents also the jurisprudence of the
present Court, in whose eyes whether a dispute exists or not is a matter of fact
for objective determination by the Court itself, one dependent neither upon a
subjective statement by one party that a dispute exists, nor upon an equally
subjective denial by the other (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 74; South West
Africa, Preliminary Objections cases, I.C.J. Reports 1962, p. 328;
Northern Cameroons case, I.C.J. Reports 1963, p. 27). This
jurisprudence was recently reaffirmed by the Court in its Advisory Opinion on
the Applicability of the Obligation to Arbitrate under Section 21 of the
United Nations Headquarters Agreement of 26 June 1947 (I.C.J. Reports 1988, p.
27). The existence of a dispute is, therefore, a prerequisite for adjudication
which must stand objectively and, consequently, be appraised by the Court taking
into account all the circumstances of the case, independently of the pleadings,
arguments and submissions of the Parties and of the head or title of
jurisdiction concerned.
58. None of these circumstances, either of fact or law, including any
questions relating to the interpretation of jurisdictional instruments or
clauses, to the admissibility of a claim or even to the seisin of the Court, are
a priori alien to a determination whether or not an "international
dispute" exists. But the question of whether a dispute exists cannot be
wholly subsumed under the headings of jurisdiction or admissibility,
particularly when a "non-existing dispute" objection becomes the
subject of a formal submission by a party. In answering a submission of this
kind, jurisdiction and admissibility may form elements to be considered, but not
necessarily or exclusively. All other circumstances relevant in casu must
also be assessed by the Court. Moreover, the disposal of a non-dispute objection
is, normally, preliminary to any discussion as to the scope of
jurisdiction.
[p. 660 S.O. Torres Bernárdez] 60. ...The case-file shows, to
say the least, that there was at no moment any manifested conflict of legal
views between the Parties concerning sovereignty over the Nicaraguan Los
Farallones or over Salvadorian islands such as Conchagüita, Punta Zacate or
Martín Pérez. Moreover, this conclusion begs the question at issue
here, because that question is not to determine what islands were "formally"
in dispute, but what islands were "actually", or "really" in
dispute, as to sovereignty, when the special agreement was concluded and
notified to the Court. The surprise increases when the Judgment itself
distinguishes very rightly between "jurisdiction" and "exercise
of jurisdiction", and between a "formal claim" and a "real
claim", in order to put aside El Salvador's sovereignty claim with respect
to islands which have not even been the object of pleading before the Chamber,
notwithstanding the Chamber's finding on the scope of the jurisdiction over the
island dispute vested in it by Article 2, paragraph 2, of the Special Agreement.
To have made this distinction already implied the necessity of preserving the
difference between the "scope of jurisdiction" question and that of
the "existence of a dispute". If a dispute is not an "existing
dispute" it should not be made the subject of adjudication even if it would
be said to fall within the scope of the competence granted under the head of
jurisdiction concerned.
