| II. | Substantive International Law - Second Part |
| 1. | TERRITORY OF STATES |
| 1.1. | Acquisition and Loss |
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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
[p. 577] 364. The Chamber considers that this protest of Honduras,
coming after a long history of acts of sovereignty by El Salvador in Meanguera,
was made too late to affect the presumption of acquiescence on the part of
Honduras. The conduct of Honduras vis-à-vis earlier effectivités
reveals an admission, recognition, acquiescence or other form of tacit
consent to the situation. Furthermore, Honduras has laid before the Chamber a
bulky and impressive list of material relied on to show Honduran effectivités
relating to the whole of the area in litigation, but fails in that material
to advance any proof of its presence on the island of Meanguera.
[p. 579] 367. Thus the conclusion of the Chamber concerning
Meanguera is that, while the uti possidetis juris position in 1821
cannot be satisfactorily ascertained on the basis of colonial titles and effectivités,
the fact that El Salvador asserted a claim to the island of Meanguera in
1854, and was thereafter in effective possession and control of the island,
justifies the conclusion that El Salvador may be regarded as sovereign over the
island. If there remained any doubt, its position in respect of Meanguera is
made definitive by the acquiescence of Honduras in its exercise of sovereignty
in the island since the later years of the last century. As regards Meanguerita
the Chamber does not consider it possible, in the absence of evidence on the
point, that the legal position of that island could have been other than
identical with that of Meanguera.
[pp. 676-677 S.O. Torres Bernárdez] 96. The second element of
the applicable law system put forward by El Salvador in the island dispute is
the one expressed by the descriptive heading of "peaceful and continuous
exercise of State authority". This is certainly a valid element deserving
careful examination, because of the role played by effectiveness in
international law generally as well as in decisions of international courts and
tribunals on competing claims concerning territory. However, the "peaceful
and continuous exercise of State authority" is not in itself a principle of
international law, but a manifestation of a given unilateral conduct of the
State concerned, whose eventual legal effects ought to be defined in
concreto in the light of the various circumstances and, first of all, of the
operating norm of international law relevant in final analysis to the said
unilateral conduct. Hence, in defining the legal effects to be attached in
casu to a proven "peaceful and continuous exercise of State authority",
a connection between that conduct and a given norm of international law is of
paramount importance. This conclusion is particularly relevant in the instant
case because, as indicated, the Judgment has rejected the existence of the "historic
title" invoked by El Salvador.
97. Another element that in the present context needs to be produced, in
order judicially to ascertain any legal effects of the principle of
effectiveness with respect to sovereignty over the islands in dispute, is
the basic status of the islands under international law. This, in the present
case, cannot by definition, and particularly since the uti possidetis juris
principle is admitted by the Judgment as applicable law, be the status of
terra nullius. This is moreover a proposition accepted, though via
different arguments, by both Parties. That being so, the well-known Island
of Palmas dictum to the effect that the peaceful and continuous exercise of
State authority is "as good as title" is a maxim subject to caution:
one needing close examination and careful analysis. Certainly, a judicial body
must take cognizance of a State's presence on the ground, but the legal issue
before the Chamber was one not of satisfying itself that this or that Party was
present in a certain island in dispute, but of deciding the different matter of
the "sovereignty" over the island concerned.
[pp. 678-679 S.O. Torres Bernárdez] 101. ... To establish,
obtain or have title and to maintain it are not necessarily the same thing under
international law. Title may be eroded by the operation of other principles or
norms of international law applicable between States, particularly when
territorial rights are at stake. Territorial sovereignty also connotes
obligations and, in the first place, the obligation to maintain and protect it
by observing a vigilant conduct towards possible inroads by other States.
International law is particularly inimical to prolonged situations of "abstract
territorial sovereignty" or of "territorial sovereignty by mere title"
when a competing territorial sovereignty claim of another State, accompanied by
effectivités of that State on the ground, is not
challenged as it should be at the relevant times. All depends, ultimately, on
the particular circumstances of the case concerned, but the position of
principle of international law on the matter seems clear to me.
