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.