Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
OVERVIEW OF THE CASE
On 11 December 1986, El Salvador and Honduras notified to the Court a Special Agreement whereby the Parties requested the Court to form a Chamber — consisting of three Members of the Court and two judges ad hoc — in order to (1) delimit the frontier line in the six sectors not delimited by the 1980 General Treaty of Peace concluded between the two States in 1980 and (2) determine the legal situation of the islands in the Gulf of Fonseca and the maritime spaces within and outside it. That Chamber was constituted by an Order of 8 May 1987. The time-limits for the written proceedings were fixed, but extended several times at the request of the Parties.
In November 1989, Nicaragua addressed to the Court an Application under Article 62 of the Statute for permission to intervene in the case, stating that, while it had no desire to intervene in the dispute concerning the land boundary, it wished to protect its rights in the Gulf of Fonseca (of which the three States are riparians), as well as “in order to inform the Court of the nature of the legal rights of Nicaragua which are in issue in the dispute”. Nicaragua further maintained that its request for permission to intervene was a matter exclusively within the procedural mandate of the full Court. The Court, by an Order adopted on 28 February 1990, found that it was for the Chamber formed to deal with the case to decide whether the Application for permission to intervene should be granted. Having heard the Parties and Nicaragua at a series of public sittings, the Chamber delivered its Judgment on 13 September 1990. It found that Nicaragua had shown that it had an interest of a legal nature which might be affected by part of the Judgment of the Chamber on the merits, with regard to the legal régime of the waters of the Gulf of Fonseca.
The Chamber on the other hand decided that Nicaragua had not shown such an interest which might be affected by any decision it might be required to make concerning the delimitation of those waters, or any decision as to the legal situation of the maritime spaces outside the Gulf or any decision as to the legal situation of the islands in the Gulf. Within the framework thus defined, the Chamber decided that Nicaragua was entitled to intervene in the case. A written statement of Nicaragua and written observations on that statement by El Salvador and Honduras were subsequently filed with the Court. The oral arguments of the Parties and the oral observations of Nicaragua were heard at 50 public sittings, held between April and June 1991. The Chamber delivered its Judgment on 11 September 1992.
The Chamber began by noting the agreement of both Parties that the fundamental principle for determining the land area is the uti possidetis juris, i.e., the principle, generally accepted in Spanish America, that international boundaries follow former colonial administrative boundaries. The Chamber was, moreover, authorized to take into account, where pertinent, a provision of the 1980 Peace Treaty that a basis for delimitation is to be found in documents issued by the Spanish Crown or any other Spanish authority during the colonial period, and indicating the jurisdictions or limits of territories, as well as other evidence and arguments of a legal, historical, human or any other kind. Noting that the Parties had invoked the exercise of government powers in the disputed areas and of other forms of effectivités, the Chamber considered that it might have regard to evidence of action of this kind affording indications of the uti possidetis juris boundary. The Chamber then considered successively, from west to east, each of the six disputed sectors of the land boundary, to which some 152 pages were specifically devoted.
With regard to the legal situation of the islands in the Gulf, the Chamber considered that, although it had jurisdiction to determine the legal situation of all the islands, a judicial determination was required only for those in dispute, which it found to be El Tigre, Meanguera and Meanguerita. It rejected Honduras’s claim that there was no real dispute as to El Tigre. Noting that in legal theory each island appertained to one of the Gulf States by succession from Spain, which precluded acquisition by occupation, the Chamber observed that effective possession by one of the States could constitute a post-colonial effectivité shedding light on the legal situation. Since Honduras had occupied El Tigre since 1849, the Chamber concluded that the conduct of the Parties accorded with the assumption that El Tigre appertained to it. The Chamber found Meanguerita, which is very small, uninhabited and contiguous to Meanguera, to be a “dependency” of Meanguera. It noted that El Salvador had claimed Meanguera in 1854 and that from the late nineteenth century the presence there of El Salvador had intensified, as substantial documentary evidence of the administration of Meanguera by El Salvador showed. A protest in 1991 by Honduras to El Salvador over Meanguera was considered too late to affect the presumption of acquiescence by Honduras. The Chamber thus found that Meanguera and Meanguerita appertained to El Salvador.
With respect to the maritime spaces within the Gulf, El Salvador claimed that they were subject to a condominium of the three coastal States and that delimitation would hence be inappropriate ; Honduras argued that within the Gulf there was a community of interests necessitating a judicial delimitation. Applying the normal rules of treaty interpretation to the Special Agreement and the Peace Treaty, the Chamber found that it had no jurisdiction to effect a delimitation, whether inside or outside the Gulf. As for the legal situation of the waters of the Gulf, the Chamber noted that, given its characteristics, the Gulf was generally acknowledged to be a historic bay. The Chamber examined the history of the Gulf to discover its “régime”, taking into account the 1917 Judgment of the Central American Court of Justice in a case between El Salvador and Nicaragua concerning the Gulf. In its Judgment, the Central American Court had found inter alia that the Gulf was a historic bay possessing the characteristics of a closed sea. Noting that the coastal States continued to claim the Gulf as a historic bay with the character of a closed sea, a position in which other nations acquiesced, the Chamber observed that its views on the régime of the historic waters of the Gulf coincided with those expressed in the 1917 Judgment. It found that the Gulf waters, other than the three-mile maritime belt, were historic waters and subject to the joint sovereignty of the three coastal States. It noted that there had been no attempt to divide the waters according to the principle of uti possidetis juris. A joint succession of the three States to the maritime area thus seemed to be the logical outcome of the uti possidetis principle. The Chamber accordingly found that Honduras had legal rights in the waters up to the bay closing line, which it considered also to be a baseline.
Regarding the waters outside the Gulf, the Chamber observed that entirely new concepts of law, unthought of when the Central American Court gave its Judgment in 1917, were involved, in particular those regarding the continental shelf and the exclusive economic zone, and found that, excluding a strip at either extremity corresponding to the maritime belts of El Salvador and Nicaragua, the three joint sovereigns were entitled, outside the closing line, to a territorial sea, continental shelf and exclusive economic zone, but must proceed to a division by mutual agreement. Lastly, as regards the effect of the Judgment on the intervening State, the Chamber found that it was not res judicata for Nicaragua.
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