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III. The International Court of Justice
2.4. Jurisdiction on the Basis of a Special Agreement

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

[pp. 390-391] 47. The 1980 General Treaty of Peace does not specify the criteria employed for the determination of the sectors of the land boundary which were recorded in it as already agreed. There is however a link between the task of the Chamber and the task of the Joint Frontier Commission initially entrusted by the General Treaty of Peace with the delimitation of the non-agreed sectors; this link is provided by the reference in Article 5 of the Special Agreement itself to the provisions of that Peace Treaty. That Article provides:

"In accordance with the provisions of the first paragraph of Article 38 of the Statute of the International Court of Justice, the Chamber, when delivering its Judgment, will take into account the rules of international law applicable between the Parties, including, where pertinent, the provisions of the General Treaty of Peace."

This reference to the rules of international law and to the "first paragraph" of Article 38 obviously excludes the possibility of any decision ex aequo et bono. The reference to the General Treaty of Peace which, as a treaty between the Parties, would in any event have to be applied by the Chamber by reason of Article 38 of the Court's Statute is presumably intended to make it clear to the Chamber that it should also apply, "where pertinent", even those Articles which in the Treaty are addressed specifically to the Joint Frontier Commission.

[pp. 554-555] 324. The contention of Honduras that only Meanguera and Meanguerita islands are in dispute between the Parties has not been presented by it as a preliminary question, independent of the terms of the Special Agreement, on the basis that the existence of a dispute might be a precondition to the exercise of the Court's jurisdiction. The contention of Honduras is on the contrary "based from the outset on Article 2, paragraph 2, of the 1986 Special Agreement, according to which the subject-matter of the dispute is ... to 'determine the legal situation of the islands'". The question which the Chamber should first address is thus the interpretation of the Special Agreement: did the Parties intend that the Chamber should "determine the legal situation" of all the islands of the Gulf, or only of Meanguera and Meanguerita?
325. Considering first simply the words employed in the Special Agreement, the use in the Spanish text of the adjective "insular" appears to the Chamber to be less specific than the expression used in the agreed English translation, "of the islands", which would normally be understood, as was urged by counsel for El Salvador, as meaning "all the islands". However the Chamber considers that if the intention had been to ask the Chamber to determine the legal situation of only certain of the islands situated in the Gulf of Fonseca, some more precise expression might have been expected. The Chamber notes that the wording of Article 2, paragraph 2, of the Special Agreement had already been employed in Article 18 of the General Treaty of Peace, defining the function of the Joint Frontier Commission.
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).

[pp. 582-583] 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 juridica ...") 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 juridica ..."). 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.

[p. 585] 378. ... Since the jurisdiction of the Chamber, as of the Court, depends upon the consent of the Parties, it follows that it has no jurisdiction to effect any such delimitation. It is true that, as Honduras observes, States may and do draft definitions of disputes to be submitted to a settlement procedure in terms which will avoid any clear surrender of the legal position of either of them. In the present case the Parties have reserved their legal positions in this way on the question whether the legal situation of the waters of the Gulf is such as to require or permit a delimitation; that will be a question for the Chamber to decide. But there can be no such reservation of the question of what the jurisdiction of the tribunal to be seised of the dispute will be, since it is only from the meeting of minds on that point that jurisdiction is created. Honduras in effect interprets the Special Agreement to mean that the Parties intended that the Chamber should decide for itself whether it has jurisdiction to delimit the maritime spaces; but a positive decision to that effect could only be based on the consent of both Parties to a judicial delimitation, which, on Honduras's own argument, is lacking. The Chamber concludes that there was agreement between the Parties, expressed in Article 2, paragraph 2, of the Special Agreement, that the Chamber should determine the legal situation of the maritime spaces, but that this agreement did not extend to delimitation of those spaces, as part of that operation.

[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.