| II. | Substantive International Law - Second Part |
| 2. | LAW OF THE SEA |
| 2.3. | Internal Waters |
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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. 588-589] 383. The Gulf of Fonseca is a relatively small bay
with an irregular and complicated coastline in its inner part, a large number of
islands, islets and rocks, and is in the rare if not unique position that the
coastline is divided between three States. To all three coasts there are only
four entrance channels, of which only two can be used for deep-draught
vessels. The entrance to the Gulf, between Punta Amapala (El Salvador) and Punta
Cosigüina (Nicaragua) being only 19.75 miles wide, the geographical
dimensions and proportions of the Gulf are such that it would nowadays - though
not in former times when the "10-mile", or even "6-mile",
rule applied - be a juridical bay within the meaning of Article 4 of the
Convention on the Territorial Sea and the Contiguous Zone of 1958, and Article
l0 of the Convention on the Law of the Sea (1982); which would have the
consequence that, if it were a single-State bay, a closing line might now be
drawn and the waters be thereby enclosed and "be considered as internal
waters". Neither El Salvador nor Honduras, nor yet Nicaragua, the
intervening State, is party to either of these two Conventions, and the 1982
Convention is not yet in force, but these provisions on bays might be found to
express general customary law. In the terms of both Conventions, however, the
Article describing bays is said to apply only to "bays the coasts of which
belong to a single State", and furthermore not to apply to "so-called
'historic bays'". The Gulf of Fonseca is manifestly not a bay the coasts of
which belong to one State; and the Parties and the intervening State, and
commentators generally, are agreed that it is an historic bay, and that the
waters of it are accordingly historic waters.
384. In a passage much cited in the oral proceedings in this case, the
Court, in the Fisheries case between the United Kingdom and Norway,
said:
"By 'historic waters' are usually meant waters which are treated as
internal waters but which would not have that character were it not for the
existence of an historic title." (I.C.J. Reports 1951, p. 130.)
This, however, should be read in the light of what the Court said in the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, where, also
referring to the exception of "historic bays" from the definition of
bay in both the 1958 and the 1982 Conventions, the latter then still in draft,
the Court said:
"There are, however, references to 'historic bays', or 'historic
titles' or historic reasons in a way amounting to a reservation to the rules set
forth therein. It seems clear that the matter continues to be governed by
general international law which does not provide for a single 'régime'
for 'historic waters' or 'historic bays', but only for a particular régime
for each of the concrete, recognized cases of 'historic waters' or 'historic
bays'." (I.C.J. Reports 1982, p. 74.)
It is clearly necessary, therefore, to investigate the particular history of
the Gulf of Fonseca to discover what is the "régime" of that
Gulf resulting therefrom; especially as the Court in the same Judgment also said
"Historic titles must enjoy respect and be preserved as they have always
been by long usage." (I.C.J. Reports 1982, p. 73.) Moreover, the
particular historical régime established by practice must be especially
important in a pluri-State bay; a kind of bay for which there are notoriously no
agreed and codified general rules of the kind so well established for
single-State bays.
[pp. 592-593] 393. There is what might appear at first sight to be
an inconsistent element of the Court's pronouncement 1, when it allows that
the waters of the Gulf that "... belong to the three States that surround
them ..." ("... las aguas del Golfo pertenezcan a los tres Estados
que lo circundán ..."), are subject to "... the
right of uso inocente over those waters ..." by "... the
merchant ships of all nations..." ("... teniendo las naves
mercantes de todas las naciones el derecho de uso inocente sobre esas
mismas aguas ...") (CJC, Sentencia, p. 55; AJIL
trans., p. 715). Such rights of "innocent use" are at odds with
the present general understanding of the legal status of the waters of a bay as
constituting "internal waters", whether the waters are of a juridical
bay or one which has arisen from an historic title. Yet the rules and principles
which normally apply to "bays the coasts of which belong to a single State"
(United Nations Convention on the Law of the Sea, Art. 10 (l)) are not
necessarily appropriate to a bay which is a pluri-State bay and is also an
historic bay (for the fact that the Gulf of Fonseca would today qualify
geographically as a "juridical" bay cannot now call in question or
replace its historic status). Moreover, the Gulf being a bay with three coastal
States, there is a need for shipping to have access to any of the coastal States
through the main channels between the bay and the ocean. That rights of innocent
passage are not inconsistent with a régime of historic waters is clear,
for that is precisely now the position in archipelagic internal waters and
indeed in former high seas enclosed as internal waters by straight baselines.
Furthermore, there is another practical point, for since these waters were
outside the 3-mile maritime belts of exclusive jurisdiction in which innocent
passage was nevertheless recognized in practice, it would have been absurd not
to recognize passage rights in these waters, which had to be crossed in order to
reach these maritime belts.
[p. 594] 395. What does present a problem, however, is the
precise character of the sovereignty which the three coastal States enjoy in
these historic waters. No great difficulty arises about the legal position of
the waters of an historic bay that constitutes an enclosed sea entirely within
the territory of a single State; then the enclosed waters are simply internal
waters of the coastal State. A complication arises when the shores of the bay
comprise three States. For an enclosed pluri-State bay presents the need of
ensuring practical rights of access from the ocean for all the coastal States;
and especially so where the channels for entering the bay must be available for
common user, as in the case of an enclosed sea. It was doubtless this problem of
navigational access to the pluri-State bay, that accounts for the view,
prevalent, though not unopposed, in the time of the 1917 Judgement and even for
some years later, that in such a bay, if it is not historic waters, the
territorial sea follows the sinuosities of the coast and the remainder of the
waters of the bay are part of the high seas. This solution, however, is not
possible in the case of the Gulf of Fonseca since it is an historic bay and
therefore a "closed sea".
[pp. 601-602] 404. The opinion of the Chamber on the particular régime
of the historic waters of the Gulf parallels the opinion expressed in the 1917
Judgement of the Central American Court of Justice. The Chamber finds that the
Gulf waters, other than the 3-mile maritime belts, are historic waters and
subject to a joint sovereignty of the three coastal States. The Court in 1917
also excluded from the condominium the waters delimited in 1900 between Honduras
and Nicaragua; this delimitation will be considered below (paragraph 413).
405. The reasons for this conclusion, apart from the reasons and effect of
the 1917 decision of the Central American Court of Justice, are the following:
as to the historic character of the Gulf waters, the consistent claims of the
three coastal States, and the absence of protest from other States. As to the
character of rights in the waters of the Gulf: those waters were waters of a
single-State bay during the greater part of their known history. They were,
during the colonial period, and even during the period of the Federal Republic
of Central America not divided or apportioned between the different
administrative units which at that date became the three coastal States of El
Salvador, Honduras and Nicaragua. There was no attempt to divide and delimit
those waters according to the principle of uti possidetis juris. The
Chamber has been much struck at the fundamental difference, in this respect,
between the land areas it has had to deal with, and this maritime area. The
delimitation effected between Nicaragua and Honduras in 1900, quoted in the
Chamber's Judgment on the intervention of Nicaragua (I.C.J. Reports 1990,
pp. 101-102, para. 26) which was substantially an application of the method
of equidistance, gives no clue that it was in any way inspired by the
application of the uti possidetis juris to the waters. It is evident
that the Mixed Commission responsible for that delimitation based its work on
the land boundaries on 17th and 18th century titles, but simply took it as
axiomatic that "there belonged to each State that part of the Gulf or Bay
of Fonseca adjacent to its coasts (Límites Definitivos entre Honduras
y Nicaragua, Honduran Ministry of Foreign Affairs, 1938, p. 24). A joint
succession of the three States to the maritime area seems in these circumstances
to be the logical outcome of the principle of uti possidetis juris itself.
[pp. 604-605] 410. If the Gulf is an historic bay, it is necessary
to determine the closing line of the waters of the bay. The normal geographical
closing line for the waters of the Gulf of Fonseca would be the line Punta
Amapala to Punta Cosigüina. This seems to have been the closing line
recognized by the three coastal States in practice. It is, moreover, the closing
line referred to in the 19l7 Judgement (loc. cit., p. 706). It had not
been necessary to say more, had not El Salvador elaborated a thesis of an "inner
Gulf" and an "outer Gulf", based on the reference in the
Judgement of 1917, to an inner closing line from Punta Chiquirin, through
Meanguera and Meanguerita, to Punta Rosario. The purpose of El Salvador's
reference to this inner line, in its argument before the Chamber, was apparently
to suggest that the Honduran legal interest in the Gulf waters was limited to
the area inside the inner line, the remainder being left to El Salvador and
Nicaragua. But there is nothing in the Judgement of the Central American Court
of Justice to support this. There is no suggestion in that Judgement that
Honduras was excluded from the waters between that inner line and the outer
closing line subject to the régime of condominium found by the Court.
411. A word more needs to be said about the closing line proper, from Punta
Amapala to Punta Cosigüina. This was constantly referred to in the argument
of the Parties and of the intervening State, and geographically it is obviously
the outer limit of the Gulf. There was also considerable argument between the
Parties about whether this closing line is also a baseline. El Salvador thought
not and sought to define it simply as a line depicting the ocean limit of the
Gulf of Fonseca. The Chamber is content with that paraphrase of the words "closing
line", but has difficulty in understanding how, if this line is the Gulf's
ocean limit, it can escape being also the baseline for whatever régime
lies beyond it, which must be different from that of the Gulf.
412. As to the legal status of the waters, inside the Gulf closing line, and
other than the 3-mile maritime belts, the 1917 Judgement had no difficulty in
referring to them as "territorial"; meaning thereby not territorial
sea but waters that were not international and were on historical grounds
claimed à titre de souverain by the three coastal States.
Are they, therefore, in terms of the modern law, and as Honduras argued, "internal
waters"? There are some difficulties in using this term which is apt to a
single-State historic bay, but is not free from complications when applied to a
pluri-State historic bay. Since the practice of the three coastal States still
accepts that there are the littoral maritime belts subject to the single
sovereignty of each of the coastal States, but with mutual rights of innocent
passage, there must also be rights of passage through the remaining waters of
the Gulf, not only for historical reasons but because of the practical
necessities of a situation where those narrow Gulf waters comprise the channels
used by vessels seeking access to any one of the three coastal States.
Accordingly, these rights of passage must be available to vessels of third
States seeking access to a port in any one of the three coastal States; such
rights of passage being essential in a three-State bay with entrance channels
that must be common to all three States. The Gulf waters are therefore, if
indeed internal waters, internal waters subject to a special and particular régime,
not only of joint sovereignty but of rights of passage. It might, therefore, be
sensible, to regard the waters of the Gulf, insofar as they are the subject of
the condominium or co-ownership, as sui generis. No doubt, if the waters
were delimited, they would then become "internal" waters of each of
the States; but even so presumably they would need to be subject to the historic
and necessary rights of innocent passage, so they would still be internal waters
in a qualified sense. Nevertheless, the essential juridical status of these
waters is the same as that of internal waters, since they are claimed à
titre de souverain and, though subject to certain rights of passage, they
are not territorial sea.
[pp. 607-608] 416. That a State cannot have two territorial seas off
the same littoral is manifest. The question arises, however, whether the
littoral maritime belts of l marine league along the coastlines of the Gulf are
truly territorial seas in the sense of the modern law of the sea. In the view of
the Chamber they are not. For a territorial sea normally has beyond it the
continental shelf, and either waters of the high seas (in some cases with a
contiguous zone of jurisdiction) or an exclusive economic zone. The maritime
belts within the Gulf do not have outside them any of these areas. In fact it is
the closing line of the Gulf which constitutes "the coast", in the
sense of a territorial sea baseline; and this would seem to be so whether the
Gulf waters are regarded as subject to joint sovereignty, or indeed, as Honduras
would have it, as waters subject to undelimited separate sovereignties subject
to a community of interest. The inner littoral maritime belts are therefore
certainly not territorial seas in the sense of the modern law. Those maritime
belts within the Gulf may properly be regarded as the internal waters of the
coastal State, not being subject to the joint sovereignty, and even though
subject, as indeed are all the waters of the Gulf, to rights of innocent passage
that owe their origin to the exigencies and resulting history of a three-State
but relatively small bay, with its problems of navigational access.
417. There is therefore a territorial sea proper, seawards of the closing
line of the Gulf. There can be no serious doubt that the closing line of an
historic bay is the baseline of the territorial sea. To hold otherwise would be
incompatible with the legal status of a bay.
418. Given that there is a condominium of the waters of the Gulf, it follows
that there is a tri-partite presence at the closing line and that Honduras is
not locked out from rights in respect of the ocean waters outside the bay. This
also seems equitable. Honduras has by far the longest coastline of the Gulf and
the only Gulf coastline facing the Ocean. If the Punta Amapala/Punta Cosigüina
closing line is a baseline, there are within the Gulf no territorial seas of the
other two States which would operate to lock Honduras into the back of the bay.
The exclusive littoral maritime belts within the Gulf have remained limited to 3
miles in breadth, and, as both Parties agree, are not territorial seas, but
internal waters subject to a single, exclusive sovereignty. It is therefore only
seaward of the Gulf's closing line that modern territorial seas can exist. To
hold that there could now be territorial seas within the Gulf would be
incompatible with the Gulf's waters being waters of an historic bay, which the
Parties and the intervening State agree to be the legal position. And if the
waters internal to that bay are subject to a threefold joint sovereignty, it is
the three coastal States that are entitled to territorial sea without
the bay.
[pp. 733-734 D.O. Oda] 4. Under the rules of the law of the sea, the
sea-waters adjacent to the coasts of States are in principle territorial sea.
Some coasts, satisfying certain geographical requirements concerning coastal
configuration, form under those rules a "bay", the waters of which
constitute "internal waters". It is, however, essential to note that
the concept of a "bay" does not immediately denote the legal status of
the waters but is meant first to specify the geographical circumstances which
allow the waters therein to be "internal waters" instead of
territorial sea. The "historic bay" - a concept which emerged only
towards the end of the last century in parallel with the new idea of giving
special legal significance to the notion of a "bay", and a term used
only since the beginning of this century - does not exist in a régime
sui generis, that is, a régime applying rules different from
those applicable to a normal "bay". "Historic bays" are
those bay-like features (in a geographical sense) which, because of their
greater width at the mouth or their lack of penetration into the landmass, could
not normally be classified legally as bays but can for historical reasons be
given the same legal status as "bays". The words "historic bay"
are certainly not meant to suggest that the legal status of the waters
concerned is anything other than that of "internal waters" of the
coastal State, as in the case of a normal (juridical) "bay". Under the
contemporary concept of the law of the sea, the sea-waters adjacent to the
coasts of States are either territorial sea or, otherwise, internal waters.
There cannot be any other category for such offshore sea-waters.
[pp. 745-746 D.O. Oda] 24. It may be concluded that the simple
outcome of this study of the development of the law of the sea is that there did
not and still does not (or, even, cannot) exist any such legal concept as a "pluri-State
bay" the waters of which are internal waters. It is not surprising that no
rule covering such a pluri-State bay has ever been presented in international
law. The very concept of "internal waters", which only appeared -
under the term of "inland waters" - in parallel with the fixing of the
limit of the territorial waters (sea), implies, as a norm, the enclosure or
semi-enclosure of the waters concerned within the embrace of a given
jurisdiction. This element of embracement is absent or disappears when the
shores of a geographical bay are so divided up between States as to render the
criteria and rationale of a legal bay incapable of fulfilment. This is tacitly
confirmed by the absence of any provision concerning the delimitation or
division of internal waters either in the 1958 or the 1982 Conventions; the
internal waters of one State cannot abut the internal waters of another State.
25. Some exemptions from the geographical criteria normally required for a
(juridical) bay have been justified on historical grounds for certain
topographical features, and the contemporary law of the sea admits the concept
of a "historic bay". The words used in the 1958 and l982 Conventions
to the effect that the provisions defining a (single-State) bay "shall not
apply" or "do not apply" to "so-called 'historic' bays"
(1982 Convention, Art. 10, para. 6) are meant to suggest that the geographical
criteria serving to define a bay for legal purposes, such as the width of the
mouth or the depth of penetration into the landmass, are not in those cases
strict conditions of "bayhood".
[pp. 755-757 D.O. Oda] 43. "Historic waters" were defined
in the Fisheries case of 1951 as meaning "waters which are treated
as internal waters but which would not have that character were it not for the
existence of an historic title" (I.C.J. Reports 1951, p. 130). In
fact, waters in the situation of those disputed in the 1951 case are by now
enclosed as "internal waters" by an application of the new concept of
straight baselines under the 1958 and 1982 Conventions, so that their "historic"
background has become a superfluous reference. Similarly, a claim to a "historic
bay" could have been justified by the status of its waters as "historic
waters", but by now most bays known as "historic bays", such as
Delaware Bay, Chesapeake Bay, the Bristol Channel or Conception Bay, have
become, as I already stated above, ordinary bays because of the new rule of the
24-mile closing-line. Furthermore, some "historic waters" in a rather
different situation have also been the subject of a parallel evolution. In the
course of the preparation for UNCLOS III, the delegate of the Philippines
introduced a draft article concerning "historic waters" reading that "historic
rights or title acquired by a State in a part of the sea adjacent to its coasts
shall be recognized and safeguarded" (A/AC.138/SC.II/L.46) and another
draft article on "breadth of territorial sea" reading that "the
maximum limit [of the territorial sea] shall not apply to historic waters held
by any State as its territorial sea" (A/CONF.138/SC.II/L.47/Rev.1). These
proposals by the Philippines did not appear in any of the texts which were later
brought to UNCLOS III. In fact, the waters which the Philippines intended to
claim on grounds of historic rights or titles would have been brought under the
jurisdiction of the coastal State in terms of the new concept of "archipelagic
waters" under the 1982 Convention, which would have a sui generis status
similar to that of territorial sea but not, however, to that of internal
waters 2. In other words, the concept of "historic waters" has
become irrelevant in the case of the Philippines because of the agreed new
concept of archipelagic waters.
44. In sum, the concept of "historic waters" has become
practically a redundancy, which is perhaps why it does not appear in either the
1958 or the 1982 Conventions. In fact, it is not so much a concept as a
description expressive of the historic title on the basis of which a claim to a
particular status for certain waters has been made. Thus, firstly in the 1951
Fisheries case a claim to "historic waters" was used to
justify the status of internal waters, secondly a claim to "historic waters"
for the waters of a bay could have justified a concept of a "historic bay"
the waters of which are "internal waters", and thirdly in another
instance, i.e., in the case of the Philippines, it has been used to justify only
the status of territorial sea, resulting in the emergence of a new sui
generis concept of archipelagic waters. It follows, therefore, that "historic
waters" have no special legal status different from the categories which
have long been recognized, that is, either internal waters or territorial sea
(or the newly recognized archipelagic waters): in other words, "historic
waters" as such did not and do not exist as an independent
institution in the law of the sea. I have to add this explanation because the
essential implications of this terminology seem to have been overlooked in the
present Judgment, particularly when I note in the Judgment the presumption that,
the Gulf of Fonseca being "[a] historic bay, ... the waters of it are
accordingly historic waters" (Judgment, para. 383; emphasis added).
| 1 | The International Court of Justice here refers to the 1917 judgment of the Central American Court. |
| 2 | The reference to "archipelagic internal waters" in the present Judgment (para. 393) is thus misleading. |
