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World Court Digest

Summaries of the Decisions

Land, Island and Maritime Frontier Dispute Case

(El Salvador v. Honduras),
Judgment of 11 September 1992

On 11 December 1986, El Salvador and Honduras jointly notified the Court of a Special Agreement concluded between them on 24 May 1986 whereby a dispute referred to as "Land, Island and Maritime Frontier Dispute" would be submitted for decision by a Chamber to be constituted according to Article 26 para.2 of the Statute. The Chamber would consist of three Members of the Court and two judges ad hoc chosen by each Party. The Chamber finally consisted of Judges Oda, Sette-Camara and Sir Robert Jennings and the ad hoc judges Valticos and Torres Bernárdez (cf. Digest, vol. 1, page 294).

The dispute was essentially rooted in the fall of the Spanish Colonial Empire in Central America in the 19th century. Both Honduras and El Salvador belonged to the Captaincy-General of Guatemala, which itself was a part of Mexico at the time. In 1821, Honduras and El Salvador joined the Federal Republic of Central America and became independant in 1839 after the disintegration of the Federal Republic. Their respective national borders corresponded to the administrative borders recognized for the former Spanish colonies according to the uti possidetis iuris principle applied first in Central America and later in Africa.

As early as 1854, the legal status of the islands located in the Gulf of Fonseca became an issue of dispute; the question of the land frontier followed in 1861. Border incidents led to mounting tension between the States and, ultimately, to an armed conflict in 1969. However, in 1972 the parties were able to reach an agreement on a substantial part of the land border between El Salvador and Honduras; only six sectors of the frontier remained unsettled. A mediation process initiated in 1978 resulted in the conclusion of a peace treaty in 1980.

Under this treaty a Joint Border Commission was created to determine the boundary in the remaining six sectors as well as to decide upon the legal status of the islands and the maritime spaces. In the event that the parties did not reach a settlement within five years, the treaty provided that the parties, within six months, conclude a Special Agreement to submit the dispute to the ICJ. Accordingly, a Special Agreement was concluded on May, 24, 1986 requesting the Court to delimit the frontier between El Salvador and Honduras in the subject six sectors and to determine the legal status of the islands in the Gulf of Fonseca, and the waters of the Gulf itself.

Regarding the land boundary, the decision of the Court was unanimous for all but the fourth sector, which was decided against the vote of ad hoc Judge Valticos.

The Court relied on the uti possidetis juris principle, according to which the national boundaries of former colonies correspond to the earlier administrative borders of the colonies. The Court underlined that it was the application of this principle which provided States liberated from former colonial empires with internationally recognized borders. The different titles invoked by the parties to the case were of different legal value; thus, the Court decided to recognize only the title deeds granted by the Spanish crown as valid proof of title as well as topographical characteristics in order to define a clearly recognizable borderline.

With regard to the islands in the Gulf of Fonseca, the Court decided in a vote of 4 to 1 (against : ad hoc Judge Torres Bernárdez) that, according to Art. 2 para. 2 of the Special Agreement, the parties had transferred general jurisdiction over all islands located in the Gulf to the Court as far as their national affiliation was in dispute. Accordingly, the Court concluded that three islands were in dispute, namely El Tigre, Meanguera and Meanguerita, refusing Honduras' contention that El Tigre had been part of Honduras since 1854, without challenge.

The decision of the Court was based on the assumption that none of the islands had been terra nullius in 1821, the date of independance. Thus, sovereignty over the islands had been achieved according to the uti possidetis juris principle. However, the application of this principle suffered from the lack of documents that might have testified clearly the appertainance of the islands to one administrative district or the other. Thus the Court was forced to concentrtate more on the behaviour of the parties with regard to the islands after 1821. On this basis the Court found that El Tigre appertained to Honduras and Meanguera and Meanguerita to El Salvador.

The decision on the legal situation of the maritime spaces of the Gulf constituted the part of the proceedings where the intervention of Nicaragua had been admitted (Cf. Digest, vol. 1, p. 294f). The Court, in this context, had first to decide whether the Special Agreement empowered it to draw the frontier only within or also outside the closing line of the Gulf. Following the argument of El Salvador, the Court came to the conclusion that it was not competent to delimit the waters of the Gulf, because the Special Agreement did not contain indications in this sense. According to the Agreement, the Court had to determine the legal status of the waters of the Gulf on the basis of applicable international law and, insofar as necessary, the General Peace Treaty of 1980 between El Salvador and Honduras. In view of its general characteristics, dimensions and proportions, the Gulf would today be regarded as a juridical bay in accordance with the Convention on the Territorial Sea and the Contiguous Zone of 1958 and the Convention on the Law of the Sea of 1982. As a consequence thereof, if the Gulf was a single State bay, a closing line could be drawn and the waters thereby enclosed and considered as internal waters. However, the Gulf was not a single State bay but constituted a so called historical bay, which is neither defined in the 1958 Convention nor in the Convention of 1982. From this fact the Court concluded that its decision had to be taken on the basis of customary international law. After reviewing its own jurisprudence on the topic, the Court found that it had to examine the history of the Gulf. In this context, much weight was accorded to a judgment of the Central American Court of Justice of 1917 in a dispute between El Salvador and Nicaragua. That Court had come to the conclusion that the Gulf of Fonseca effectively constituted a "closed sea" belonging to all three coastal States communally, with the exception of a three mile zone established unilaterally by each coastal State. Thus, the Central American Court viewed the Gulf of Fonseca as a condominium resulting from the succession of the three States from Spain in 1821. Until then, the Gulf had been a single State bay belonging to Spain alone. According to the Court, the decision of the Central American Court underlined the fact that at the time of independance, no boundaries were delimited in the Gulf and thus the waters had remained undivided. The Court, however, stressed that the decision of the Central American Court constituted a binding judgment only between the two parties originally involved, namely El Salvador and Nicaragua, and accordingly, the Court had to reach its own decision. With a 4 to 1 vote, the Court affirmed that the Gulf of Fonseca was a case of "historic waters", whereby the three coastal States had succeeded to communal sovereignty. In contrast to the frontier delimited on land, the waters of the Gulf had never been divided or otherwise delimited after the independance of the three coastal States. Thus, the communal succession for the three States was a logical consequence of the uti possidetis juris principle with regard to the sovereignty of the Gulf.

Finally, the Court drew the closing line of the Gulf between Punta de Amapala and Punta Cosiguina and determined that the special regime of the Gulf did not extend beyond this closing line. The legal status of these waters inside the Gulf were defined by the Court as sui generis, but would be the same as that of internal waters and not that of territorial sea, except for the three-mile coastal zone of each State.

As to the waters outside the Gulf, the Chamber noted that intirely new concepts of maritime law existed present day, unheard of in 1917. The Chamber held in this context that there is a territorial sea proper seawards of the closing line of the Gulf. Since there is a condominium of the waters inside the Gulf, there is a tripartite presence at the closing line. Only seaward of the closing line could modern territorial seas exist, as otherwise, the Gulf waters could not be waters of a historic bay. Therefore, the three coastal States, joint sovereigns of the internal waters, must each be entitled outside the closing line to a territorial sea, continental shelf and exclusive economic zone. It is, however, for the three States to decide whether this situation should be upheld or replaced by a division and delimitation into three separate zones.