Memorial of the Republic of El Salvador

INTERNATA'STRT

CASEONCERNIGANI,LAAND
MARITIMENTIRPUTE

(SALVADOR/HONDURAS)

MEMO ORIHREEPU OBLIEALLVADOR

VOLME 1 JE,88. TABLE OF CONTENTS

PART 1

GENERAL

INTRODUCTION

Chapter 1 The Objectives of the Litigation.

Chapter 2 General Descriptionsof El ~alvador
and Honduras.

PART II

DELIMITATION OF THE LAND FRONTIER

Chapter 3 The Law Applicable to the
Delimitation of the Disputed
Land Frontier.

Chapter 4 General Considerationsas to
the Validity and Conclusive
Character of forma1 Title Deeds
to Cornons ("TltulosEjidales") .

Chapter 5 Tierras Realengas '(CrownLands).

Chapter 6 The Disputed Areas

a. Tecpanguisir Mountain

b. Las pilas or Cayaguanca

c. Arcatao or Zazalapa

d. Perqufn, Sabanetasor Nahuaterique.

e. Monteca or Dolores

f. The Estuary of the GoascorSn

g. Conclusion

Chapter 7 Arguments 0f.a Human Nature
presented by El Salvador in
support of its Frontier Rights
(Efectivittés) PART III
JURIDICAL STATUS OF THE
ISLANDS AND OF THE MARITIME SPACES

SECTION A

GENERAL ASPECTS

Chapter 8 The Task of the Court

Chapter 9 The Geography of the Islands
and Maritime Areas.

SECTION B

THE LEGAL POSITION OF THE ISLANDS

Chapter 10 The Law Applicable to the
Determination of the Status
of the Islands.

Chapter 11 The Display of State Sovereignty
by El Salvador.

The Historic Title of El Salvador
chapter 12 to al1 the Islands in Dispute.

SECTION C

THE LEGAL'POSITION OF THE MARITIME AREAS

Chapter 13 The Position within the Gulf
of Fonseca.

Chapter 14 The Position in the Pacific
Ocean outside the closing line
of the Gulf of Fonseca.

SUBMISSIONS

List of Sketches and Maps included inthe present
Volume.

List of Annexes in Volume II. PART 1

INTRODUCTION

This is the Mernorial of El Salvador, filed

pursuant to the Order of the Court on 27th

May, 1987.

The Mernorialconsists of threeparts:

Part 1 - Contains the present Introduction

and Chapters 1 and 2. These Chapters cover

the objectives of the litigation (Chapter 1)

and the general description of El Salvador
and Honduras (Chapter2).

Part II - Consists of £ive Chapters coverinq

the Law Applicable to the Boundary Delimitation

in these areas (Chapter 3); the validity and

conclusive character of the "Tltulos Ejidales"

(Tities to Commons) (Chapter 4); The Clairns

of El Salvador to Crown Lands (Tierras

Realengas) (Chapter 5); the disputed areasand the technical description of the disputed areas

(Chapter 6) and The Human Arguments,(Effectivites)

(Chapter 7).

PART III - deals with the second question referred

to the Court, namely the legal positionof the islands.

and the maritime areas. It is divided into three
O
sections :

Section A , General Considerations consisting of

Chapter 8. The Task of the Court and Chapter 9, the

Geography of the Islands and the Maritime Areas.

Section B. The Legal Position of the Islands

consisting of Chapter 10, the Principles and Rules

of Law Applicable to the Determination of the States

of the Islands; Chapter 11, Display of the State

Sovereingty by El Salvador, and chapter.12, Hiçtoric
. .
Title of El Salvador with respect to al1 the islands

in Dispute,

and, 1

Section C, the Legal ~osition of the Maritime Areas,

consisting of Chapters 13, The Position within the

Gulf of Fonseca, and Chapter 14, the Position in

the Pacific Coast outside the closing line of the

Gulf of Fonseca. CHAPTER 1

THE OBJECTIVES OF THE LITIGATION

1.1 Article 2 of the Special Agreement which

forms the basis of the jurisdiction of the Court,,
under the heading "Objectivesof the Litigation",

defines in clear and precise terms the dual
.objectives of the present litigation in two

separate paragraphs, which read as follows:

OBJECTIVES OF THE LITIGATLON
"The Parties request the Chamber:.

.
"1. That it delimit the line of the frontier
in the zones or sectors not described in Article

16 of the Tratado General de Paz (General Peace
Treaty) of 30th October 1980.

"II. That it determine the juridical status

of the islands and of the maritime spaces".

1.2 This provision establishes a clear-cut distinction
between, on the one hand, the delimitation of
boundaries 'and, on the other hand, the

determination of the juridical status; the former
applies to the land frontier; the latter applies

.both to the islands and to the maritime spaces.
It is easy to define what is meant by the

"determination of the juridical status of the
islands". this evidently involves the determination of whether some or al1 of the islands whose
sovereignty is disputed belong to El Salvador

or to Honduras. The resolution of this question
does not involve delimitation. It is equally clear

that the Special Agreement defining theobjectives
of the litigation does not requires the Charnber

to carry out any delimitation of the maritime
spaces.

'1.3 It is useful to compare the terms of the present

Special Agreement with those of other Special
Agreements that have brought before the Court

disputes concerning maritime areas.

In the North Sea Continental Shelf case in 1969,
the Court, as in the present case,was not asked

to carry out any delimitation or to fix any
boundary line but instead to decide "~hat principle

and rules of international law are applicable
to the delimitation as between the Parties of

the areas of the continental shelf in the North
Sea which appertairito each of them".

The parties reserved to themselves the power to

"delimit the continental shelf as between their
countries by agreement'' (Article 1 of the

Compromise)(1).

The Court did not go beyond what the parties
had asked and limited itself to indicating that

equidistance was not obligatory, to formulating
certain general principles such as the delimita-

(1) ICJ Reports 1969 p.6 tion is to be effected by agreement'in accordanqe

with equitable principles and triindicating to
-the Parties certain criteria and factors.wh~ich

should be tàken into account in the course of
their negotiations in respect of delimitation.

1.4 In the Tunisia -Libya Continental Shelf case in

1982, the Court was similarly not asked to carry
out a delimitation. The Special Agreement asked

the Court to deliver a judgement on the question
of "what are the principles and rules of

international law which may be applied for the
delimitation of the area of'the continental shelf".

(Article 1). However this Special Agreement went
a step further than the Agreement in the North

Sea case in that it stated, in the second paragraph
of the same Article 1, that "also, the Court is

further requested to specify precisely the
practical way in which the aforesaid principles

and rules apply in this particular situation so
as to enable the experts of the two countries

to delimit these areas without any difficulties"
(2). The Court observed that this case "would

seem to lie between the North Sea Continental
Shelf cases of 1969, in which the Court was asked

only to indicate what principles ad rules of
international law were applicable ,to the

delimitation, and' the Franco-British Arbitration

on the Delimitation of the Continental Shelf of
1977, in which the Court of Arbitration was

requested to decide what was the course of the boun

(2) ICJ Reports'1982 p.21 dary between the portions of the continental shelf
appertaifingto each of the Parties in the relevant
area" (3. Further,in the operative part of the

judgemena in the Tunisia-Libya case, the Court
did notfdproceed to a delimitation but merely

establishëd the principles and rules applicable
to the @limitation, which was to be carried out
by agreaent in implementation of the judgement
\
A), specified dhe relevant circumstances
(Paragraph B) and indicated to the

parties "the practical method for the application
of the prin'ciplesand rules of International Law

to the presentcase".(ParagraphC) .
0

1.5 In the Gulf of Maine case in 1982, the Chamber
of the Court was requested to decide" [wlhat is
the course of the .;si.ngle maritime boundary that

divides the,continemta- shelf and. fisheries zones
of Canada and the ~nited States?" (4). The Chamber,

in response to the terms of the Special Agreement,
defined the course of the "single maritime
boundary" dividing the continental shelf and
_,
fisheries zones'of the Parties. (5)

In the Libya-Malta continental shelfcase in 1985,
the Special Agreementrequested theCourt to decjde

the following question:"What' principles and rules
of international law are applicable to the
delimitation of the area of the continental shelf

which appertains to the Republic of Malta and
the area of continental shelf which appertairis

to the Libyan Arab Republic, and how in practice -

(3) Ibid p.38 para. 25
(5) Ibid p.345s 1984, p253 such principles and rules can be applied by the

two Parties in this particular case in order
that they may without difficulty delimit such

areas by an agreement as provided in Article
III" (6).The Court, after defining theapplicable

principles and rules of law, considered "[tlhat
the terms of the Special Agreement also make

it its duty to define as precisely as possible
a method of delimitation which should enable

both parties to delimit their respective areas
of continental shelf 'without difficulty',

following the Court's decission in the case"
(7).The Court indicated a corrected equidistance

line, adding that "it will be for the parties
and their experts to determine the exact position

of the line"(8).

1.7 The following conclusions may be drawn from this
comparative review of the terms of these other

Special Agreements which have brought before
the Court disputes concerning maritime areas.

1. The Court performs its functions very

strictly, exercising its jurisdiction to its
full extent but never exceeding it, in complete

accord with the terms of the Special Agreement
in the case in rquestion.

II. The terms of these Special Agreements
demonstrate the 'existenceof an ascending scale,

(6) ICJ Reports 1985 p.16
(7) 1bid p.55

(8) Ibid pp.52-53the form of each Agreement being clearly influenced

by the previous one. The terms of the Agreements
range from, at one extreme, asking the Court merely

to indicate the principles and rules of law
applicable to a delimitation to, at the other

extreme, asking the Court actually to fix a
boundary, passing through the intermediate stage

of asking the Court to specify the practical ways
to apply the principles and rules of law so that

the parties may agree on a delimitati.on"without
difficulties".

III. In contrast with al1 the above-mentioned

special Agreements, the Special Agreement in the
present case stands apart because the term

"delimitation" while used in the paragraphs 1 of
Article 2 in relation to,the land frontier, has

been carefully avoidedin Paragraph II in relation
to the juridical status of the islands and the

maritime spaces.

IV, In this respect the Special Agreementin thig
case is even more restrictive thatthe Agreement

in the North Sea Case, where the parties expressly,
envisaged proceeding to a delimitation by way of

subsequent agreement, something which is not
contemplatedin the Special Agreement in this case.

Consequently, the objective of the present

litigation is, in relation to the maritime areas,
merely the determination of the juridical status

of the islands and the maritime spaces and nothing
else. This signifies thatthe Chamber, is requested merely to specify the principlesand rules of
international law which are applicable to these
maritime areas, these principles and rules of

law rnay or may not lead the parties to make in
the future a further agreement to delimit the

whole or a part of these maritime areas; this
will depend on the conclusions reached by the

Chamber as to the juridical statusof these areas.
But it is clearly beyond dispute that the Chamber

has been directly precluded £rom carrying out
any deiimitation,not only by virtue of the naturaï

and ordinary meaning of the terms utilized in
the Special Agreement, but 'also as a matter of

logic since it is not possible to delimit a
juridical status.
.

1.9 The above interpretationof Paragraph II of Article

2 is confirmed by the Preamble to the Special
Agreement whiclirefers to the fact that "no direct

settlement has been reached eitherin relation
to the frontiers of the remaining land areas in
dispute -or in relation to the juridical status

of the islands and maritime spaces" (emphasis
added). This formulation carefully distinguishes

the dispute in relation to the land areas, which
is a frontier or delimitation dispute, £rom the

dispute, ''in relation to the juridical status
of the islands and the maritime spaces".

1.10 The above interpretation is further confirmed

by the remaining provisions of the Special
Agreement, Article 6, which deals with the

Execution of the Judgement of the Court, referring to the Special Commission of Demarcation

established by the Agreement of llth February
1986 which will initiate "the demarcation of

the frontier" not later that three months after
whatever to any demarcation of the maritime

areas. Further it is well established that
a delimitation must inevitably produce a

subsequent demarcation-as Professor Bardonet
States: "demarquer consiste a reporter sur

le terrain les termes .d'une délimitation
gtablie" (91..

1.11 The Special Agreement constitutes the forma1

instrument defining in Article 2 thereof the
subject matter of the dispute and, consequently,

the function sought from the Chamber. The clear
terms of this ~greement cannot be altered as

a result of the English translation of a joint
letter dated llth December 1986 where the word

"frontier" has been displaced fromits position
in the original Spanish text, thus making it

,appear to apply not only to the land dispute
but also to the dispute over the islands and

maritime space. In the original Spanish text
of the letter, as in the Spanish title of the

Special Agreement, the word "fronteriza" appears
at the beginning of the phrase and applies
only to the land dispute. The use of a comma

in the Spanish.Title of the Special Agreement
after the Spanish word "terrestre", confirms

that the word "fronteriza" was not intended

to apply to the dispute over the islands and --

(9) Recueil des Cours de LIAcadémie:Tome 153,
1976 Vol. V p.24 and maritime spaces. A further confirmation
that the word "frontier" should be understood

as a matter of logic, to apply only to the
land dispute in the factthat,that word should

be meaningless in relation to the dispute over
the islands, where sovereignty overthe whole

of an island is to be attributed to one of
the other of the parties -as is clearly the

case in this litigation, there can be no
question of any frontiers inthe islands.Onlyin

relation to islandssubject to the sovereignty
of more than one state, as is the case of the

island La Hispaniola'which is divided between
Haiti and the Dominican Republic, can any

frontier disputes arise.

1.12 It would be a far fetched interpretationto
conclude that, by virtue of the formulation

of the title of an instryent, the parties
thereto had inadvertently macle a radical

alteration to what was clearly and specifically
provided for and stipulated in the

all-important provision of the text which
defines the objectives of the litigation. In

any event, the use. of the word "frontier",
even in the incorrect position inwhich it

was placed in the'English translation of the
, Spanish title of the Special Agreement, cannot

by itself introduce a delimitation function
for the Chamber that is clearly excluded by

Article 2 of the Speciaï ~~reément. For this
reason the Court was wise to decide by virtue ofits Order on 8th May 1987 (10) thattheEnglish

title of the case would not prejudice the
interpretation of the provision of the Special

Agreement defining the subject matter of the
dispute.

(10) ICJ Reports 1987 p.11 CHAPTER 2

GENERAL DESCRIPTIONSOF
EL SALVADOR AND HONDUiîAS

1. INTRODUCTION

2.1. El Salvador and Honduras are central American
Republics which have a common frontier of

approximately 405 kilometres in length. El
Salvador is situated to the South West of

Honduras; it has an area of 21,049.70 square
kilometres with a total populationof 5,500.000

perçons with a consequential populationdensity
of 240 persons per square kilometre. The reduced

size of its territory, of which only one tenth
is capable of being utilised for agriculture

and Pasture, together with its high birth rate
(42.2 births per 1,000 population, which

constitutes a typical example of a population
expiosion) haveproduced in this part of Central

America a nation or workers. Each Salvadorefian
loves dearly every square centimetre on the

unproductive land which he laboriously
cultivates and exploits but hasnever maintained

any acquisitive pretensions towards the
territories of other States.

2.2. Honduras is situated to the North East of El

Salvador; it has an area of 120,000 square
kilometres with a total populationof 2,500,000

persons with a consequential population density of 21 inhabitants per square kilometre. The
,'
substantial size'/of its territory (six times
/
that of El Salvador)'which contains beautiful
and luscious plains of fertile soil, imposing

mountains covered with the whispering pines,
and a sub-soil, which contains deposits of

gold, silver, iron and (possibly)oi>, together
with its relatively small population density

have produced a nation which enjoys prodigious
natural resources and hours of justified

leisure. -More than 50% of its 'substantial
territory is still uninhabited and unproductive

consisting of tropical forests.

3 Honduras has 1,033 kilometres of coasts of
which 880 kilometres are located on the Atlantic

Ocean, or Caribbean Sea or the Antilles, and
153 kilometres on the Gulf of Fonseca, the

Atlantic Coast is low and sandy its adjacent
lands are rich in animal husbandry and general

agricultureexploitation,and is located between
the Motaguillo branch of the Motagua River

and the mouth of theriver Wans-Coco or Segovia
which is the reef limit with Nicaragua Large

peninsulas shelter important ports. Punta
Cabal10 where Puerto Cortés is found: Punta

Sa1 or Salsipuedes, which shelters theport
of Tela; Punta Cangrejal to the orient of

Puerto de La Ceiba, El Cabo Camar6n to th<
Orient of Port Iriona over al1 the extensior

of the Atlantic Coast many safe anchorages
protected by nature are found.-.4 El Salvador has only a coast on the Pacific
Ocean, its length is of 350 kilometres,including

the coast on the Gulf of Fonseca and is located
between the mouth of the Paz River which is

the limit with the Republic of Guatemala and
the old mouth of the GoascoranRiver whichflows

into the Gulf of Fonseca. The Ports of Acajutla
and La Libertad were built on the waters of

the PacificOcean and has no naturalprotection.

The Port La Libertad is no longer a port for
international commercial'navigation and is

now an artesanal port. The Port of La Union
built on the Gulf of Fonseca is the only port

protected by nature, and is situated in the
most extremely Eastpart of the Republic.

2.5 Almost two thirds of the boundary between El

Salvador and Honduras has always been clearly
established and was in<eed recognised as such

by both these Central American States in the
Tratado General de Paz (General-Peace Treaty)

signed in Lima, Peru, on 30th October 1980. II. THE GEOGRAPHICAL DESCRIPTION OF THE AREAS

IN WHICH THELAND BOUNDARYBETWEEN EL SALVADOR
AND HONDURAS IS DISPUTED.

2.6 The land boundarybetween the Republicsof El
Salvadorand the,Republicof Honduras which

has not yet been settledcomprisessix distinct
sectors of that boundaryal1 of which are
situatedin the area between, onthe one hand

the boundarymarker known as El Trifinio *ch
'dividesthe Republicof Guatemala,the Repu-

blic of Honduras,and the Republic of E.1Sal-
vador and, on the other hand,the estuaryof
the River Goascoranin the Golfo de Fonseca

The disputed territories have acombinedarea
of 432.6 square kilometresand are known by

the following individual names: (1)Tecpangui-
sir Mountain; (2) Las Pilas or Cayaguanca;
(3) Arcatao or Zazalapa;(4) Perquin,Sabane-

tas or Nahuaterique; (5) Monteca or P010roS;
and (6) the Estuary of the River .Goascoran.

A more adequate understanding of these indi-
vidual sectors is pr0vided.b~the following -
descriptions of each of them.

A. Tecpanquisir Mountain

This sector is locatedbetween,on the one hand.the boundary marker known as El Trifinio, to
which reference has already been made, and,

on the other hand, the peak known as El Zapotal
or Chiporro which constitutesrespectively the

western and eastern limits of the sector. It
has an area of 69.6 square kilometres and

comprises part of the Municipalities of Metapan
and Citala wich belong respectively to the

Departments of the Republic of El Salvador known
as Santa Ana and Chalatenango. This sector is

characterised by its broken landscape which
contains peaks ranging £rom 900 metres to 2,400

metres above sea level. It forms part of the
geomorphological unit known as Sierra Alotepeque

Metapan. It includes within its Municipalities
the peaks known as Redondo, Chivo, Guamilar,

Los Papales, Pena de Tecpanguisir,San Silvestre,
Aguacatillo, Las Cruces and El Chaparr6n and

the hillside known as El Malcotal, La Cuestona
and Masala or Las Talpujas together with the

peaks known as El Zapotal, Piedra Menuda and
Montecristo which are agreed boundary markers

with Honduras. The sector is irrigated by the
waters of the gorges known as Pomola, del

Macotal, del Cedron, Cipresales, La Chicotera,
de Polcho, de los Planes, La Lima or Shushula,

La Cebadilla, El Cedro, Santa In& or Lagunetas,
Las Cruces, La Mina, Tishan and Masala and by

the Rivers known as San Miguel Ingenio, Pomola
and Shushula. The sector constitutes the major
part of the area of the Municipality of Citala

in the Department of Chalatenango, containing
five of the eight districts which form this

municipality.The yearly agriculturalproductivi ty of the sector is moderate. Certain parts

of the sector consist of permanent forests.
The sector contains minerai deposits of copper

and iron which have in the past been exploited

but are not at present under exploitation.

2,8' B. Las Pilas or Cayaguanca

: s
This' sector contains the highest peak fo. .
within the territoryof El Salvador, the mountain

of El Pital which rises some 2,730 metresabove
sea level. The sector is in the form of a

triangle whose vertices are formed by the
confluence of the gorge known as Oscura or

Chiquita with the River Sumpul and the ~efia
de Cayaguanca which is located at the summit

of the peak of the same name. Geomorphological
speaking the sector contains the mountain of

El Pital and its supporting peaks, the most
important of which are known as La Cima and

Las Cumbres or Las Granadillas. Between these
peaks flow the streams known as Las Lajas, El

Salto, Las Aradas, de.las Pilas, Honda, Las
Granadillas, de los Aguilar, Oscura or Chiquita,

de las Mojarras, El Aguacate and El Botoncillal
together with the rivers known as Jupula or

El Rosario, Chiquito and Sumpul. The. sector

comprises the districts known as El Centro,
Las Pilas and Rio Chiquito of the Municipality

of San Ignacio of the Republic of El Salvador
and the district known as La Palma of the

Municipality of Chalatenango of the Republic.
of El Salvador. The peaks within the sector

range from 1,700metres to 2,730 metres above sea level. Its yearly agricultural productivity
is moderate, being used, due to its steep slopes,'

for crops and vegetation of a permanent nature.

C. Arcatao or Zazalapa

2.9 This sector of 49.9 square kilometrescomprises
part of the Municipalitiesof Arcatao and Nombre

de Jesus in the Department of Chalatenango.
It is located between the boundary marker known

as El Pacacio and the boundary marker known
as Poza del Caj6n Situated on the river known

as 'Guayquiquin or Gualcuquin or El Amatillo.
The sector has an elong;atedform La Pintai,

Tecolote, De la Cueva, El Fraile, La Montaiiita
or La Caiiada,El Caracol, El Sapo, El Cerrbn,

Lagunetas y Pitahaya and Las Lomas Altas, El
Terrero, Rancho Quemado, Pa10 Verde, Él Cajon,

and Plan de los Morros. Its peaks range from
300 metres to 1,000 metres above sea level.

The sector is irrigated by the rivers known
as Pacacio. Gualsinga, Zazalapa, Guayquiquin

or Gualcuquin or Ei Amatillo, and the streams,
known as Grande .:(2), San .Pablo,El Zapote, LOS'

Apantes, Piedra Grande, LasMarias or Pa10 Verde,
De Le6n y la Montaiiitaand El Hoyo. A substantial

part of the Municipality of Arcatao is situated
in this disputed zone, which comprises part

of the districts known as Zazalapa, Los'Pilos
and.\Gualcimaca with many of their villages,

together with a part of the Municipality of
Nombre de Jesus. Its soi1 is able to be irrigated

and its inhabitants cultivate grain and pasture
cattle. . . D. PERQUIN, SABANETASOR NAHUATERIQUE

2.10 This sector is the largest of those in dispute,
consisting of 161.5 square kilometres and forms

part of the Municipalities of Carolina and San
Antonio in the Department of San Miguel of the

Republic of El Salvador and part of the
Municipalitites of San Fernando, Perqufn and

Arambala in the Department of Morazan of the
Republic of El Salvador. The sector extends

£rom the source of the Stream known as La Orilla
in the west to the Mai Paso de Similaton in

the esat. It contains part of the mountainrange
known as the Cordillera de Nahuaterique whose

peaks range £rom 600 metres above sea level
on the banks of the river known as Negro or

El Palmar to 1900 metres above sea level in
the neighbourhood of the Montana de la Isla,

El Zancudo or Sabanetas. The lower part of the
se'ctor is a very narrow strip lying between

the course of the river known as Las Canas and
the mountainrange on its left bank. This section

has a height above sea level of between 400
metres and 900 metres. The sector as a whole

is almost entirely broken hi11 country with
many important peaks, among which the most

notable are Chagualaca or Marquezote, El
Alumbrador, La Ardilla and Montana de la Isla

on the northern side and La Campana, Masula,
Audiencia, El Mono, El Zancudo, El Desecho,

LLano Verde, El Cerron, El Aguila, La Mina and
Ojo de Agua. Beside these and the remaining

peaks flow the streams known as De Los PinalesrDe Agua, Barrabas or El Diablo, El Mal Paso, El

Pacayal, El Mono, El Injertal, El Huatalon,
La Mina, La Golondrina, El Caiman, El Puente,
Puente' de Piedra, El Barranch and Tierra

Colorada and the rivers known as Negro or El
Palmar, La Presa, Las Flores, or Pichigual'and

Las Caiias.In spite of being a mountaniousarea,
the sector is densely inhabited, this being
sufficiently evidencedby mentioning that it

contains the following large villages or small
towns: in the district known as Nahuaterique

the villagesof El Paraiso,El Mono, Las Aradas,
El Moral, Las Vegas, El Borbollon, El Naranjo,
Volcan de Agua and San Juan and in the district

,known as El Carrizal the villages of El
Guachipilln. El Huatalon.and Barrancon, 'both
these districts being in the Municipality of

Arambala; in the district known as Las Trojas
the villagesof El Cedral,El Rincon,Los Amates,

El Granadillo, Las ~'rojas,Llano Verde and El
Aguacate, and in the district knownas Sabanetas
the villagesof La Galera, Sabanetas, elPalmar,

El Zancudo, Pa10 Blanco, Los ChagUites, Los
'patios, Cueva de Monte, Loma de ~nmedio and
La Joya, both these districtsbeing in the

Municipality of Perquln; in the district known
as Azacualpa the village of platanares and in

the district known as Agua Zarca the village
of El Copinol both these districts being in
the Municipalityof Torola; and in the district

known as La Ceiba in the Municipalitof Carolina
the village of PortilloBlanco. Although the
soi1 in this sector is not known from an

agricultural point of view particularly fertile, it nevertheless represents a very valuable

natural resource since a considerable proportion
of the population of the sector is economically

dependant on the land.

E. Monteca or Poloros

2.11 Tnis, the fifth sector in dispute, consists of
56 square kiloinetresal1 within the Municipality

of Poloros. The sector extends £rom the
confluence of the streams known as Mansupucagua

with the River Torola to the Paso de Unire on
the River known as Unire, Guajiniquil or Pescado,

which constitutes respectively the western and
eastern limits of the sector. The sector in

dispute lies to the north of the River Torola
during the first kilometres of its course, which

in this section is also known as River Lajitas,
and extends up to the peaks known as.Lope2 and

Ribita. Between the course of the River Torola
and the above mentioned peaks, the 56 square

kilometres of the sector consist of a series
.of ridges around which flow several streams

among which are those knowri as Piedra Parada,
Las Ventas, El Manzano, Plan Verde, La Tranca,

Los Ranchos del Aceituno, El Naranjo, Guanacaste
and LajitJis, together with these known as RIO

Venado or Ocote Manchon, La Chucha, San Juan,
Agua Calieiite,Colorado and Mesetas in the area

of the pefias Guanacaste. In this sector there
are several large villages or small towns, al1

in the Municipality of Poloros, amongst which should be mentioned the villages of Galera, Guacamaya

Lajitas, Guanacastillo, Cerro de PeRas, Mesetas, San
Juan and the well known villages of Hacienda Dolores

which has been referred to so ofte6 in the ,boundary
disputes of the past. Even though the annual
agricultural productivity of the sector is moderate,

it is used for the production of grain, for Pasture
and for the exploitationof the timber of its forests.
.

F. The Estuary of the River Goascoran

2.12 This is the last of the sectors in dispute and the

main problem consists in determining which is the
course of the River Goascoran that can be considered

as the frontier between El Salvador and Honduras.
The position of the Government of El Salvador is that

the frontier ' with Honduras is the old and most
eastward branch of the Goascoran River which flows

in a north-south direction from the site known as
Los Amates to the estuary known as La CutG in the
Gulf of Fonseca. The River has been prevented from

returning to its former course as the result of the
construction of a wall by Honduras in the place called

Rompimiento de los Amates. It is this fact that
constitutes the key to the frontier dispute. OCEA N OR CAR/BBEAN SEA OR THE ANT/LLES

NICARAGUA

DIRECCION GENERALDE L~MITES.

MINISTERIO DE RELACIONEXTERIORE,
REP~BLICA DE EL SALVADOR

\
CHAPTERU-1 Relative Position between Hondurdl Salvador. sboo' ~940' as~o' asaoo' ee040' 08-20' 80-00' 07.40'
- I I TECPAWI~SRWUWTAIW I 1 1 I I
LAS PILAS OR CAYAGUAWCA

NONDELlMlTEDZONES
BETWENEL SALVAQOA RNDHONDURAS
14'2- - irzo'
WITHOUT INCLUDINGTHE CROWNLANDS(TIERRAS REALENGAS)

c~nouinSABANCTASOR nAnuAmaiwc

YOI(TECAonCOLOllOI -w

- lm

,

13.2-'

DIRECCI~N GENERAL DE L~MITES

MlNlSTERlO DE RELACIONES EXTERIORES Scala. I:750,000
MP~BLICA DE EL SALVADOR I- O ,a rn , IaII.

CHAPïER ïï-ïïïJoint Visionof the non delimited Zones PART II

DELIMITATION OF THE LAND FRONTIER

CHAPTER 3

THE LAW APPLICABLE TO
THE DELIMITATION OF THE DISPUTED LAND FRONTIER

3.1 The starting point inthe consideration of what law

is applicable to the case before the,Court is Art-i
cle 5 of the Special Agreementwhich is indeed

titled "Applicable Lawl',andprovides that:

"Within the framework of Paragraph 1 of Article 38%
of the Statute of the International Courtof Justice, \
the Chamber, in delivering its judgement, shall take
into account the normsof InternationalLaw Applicable
between the parties, including, in so far as they
are pertinént, the provisions of the Tratado General
de Paz."

3.2 The Court, in thus obliged to operate within the
framework of Paragraph 1 of Article 38 of the Statute

of the International Court of Justice, which provides
that:

"The Court, whose function is to decide in accordance
with International Law such disputes as are submitted
to it, shall apply;

particular,rnestablishingnvrules expressly gerecognised
by the contesting States;

(b) International Custom, as evidence of a general
practice acceptedas Law;

(c) the general principles of Law recognised by
civilised nations;

(d) subject to the provisions of Article 59, judicial
decisions and the teachings of the most qualified
publicists of the various nations,as subsidiary means
for the delimitationof rules of Law".3.3 Further the Court is to take .into account the

pertinent provisions of the Tratado General de Paz
of 1980. The provision of this Treaty applicable

to the delimitation of the. disputed land frontier
is Article 26; which provides that:

"for the delimitation of the boundary line in the
disputed area, the Joint Boundary Commission shall
take as its basis the documents issued by the Spanish
Crown or by any other Spanish authority, civil or
ecclesiastical, during the colonial period which
indicate the jurisdictions or boundaries of
territories or towns.Account shall equally be taken
of other means of proof and arguments and reasons
of a juridical, historical, or hùman nature or of
any other kind which may be adduced by the parties
and which are admissible under International Law."

3.4 The first sentence of Article 26 thus establishes

clearly and categorically that the principle of UTIS
POSSIDETIS IURIS" is the fundamental norm for the

basis of -the delimitation of the disputed land
frontier. This principle would in fact have applied

even in the absence of such an express provision
because of Paragraph 1 of Article 38 of the Statute

of the International Court of Justice; between Latin
American States of Spanish origin, this principle

is an "International custom, as evidence of a general
practice accepted as law", as well as al'general

principle of law", applicable to any boundary
delimitation between states which have become

independent after a period of subjection to the same
colonial power. (This principle is not, on the other

hand, applicable to boundary delimitations between
countries which have been subject to different

colonial powers, as would be the case as between Brazil, a former Portuguese Colony, and its former Spanish

Colonial neiqhbours.)

3.5 In the Burkina Faso-Mali Case, the Chamber.of the
Court after pointing out that the principleof "Utis

Possidetis Iuris" is a firmly established principle
of International Law in relation to decolonization,

emphasised in the followinq terms what it described
as the "qeneral scope" of this principle.

"The principle of utis possidetis seems to have been
first invokedand applied in Spanish America,inasmuch
as this was the continent which first witnessed the
phenomenon of decolonization involvingthe formation
of a number of sovereign States on territory formerly
belonging to a single MetropolitanState. Nevertheless
the principle is 'not a special rule which pertains
only to one specific system of international law.
It is a general principle, which is logically
connected with the.phenomenon of the obtaining of
independence, whereverit occurs." (1)

3.6 In this same judgement, the Chamber pointed out

various aspects of the principle,one of which is
tnat:

"The essence of the principle lies in its primary
aim of securing respect for theterritorial~boundaries
at the moment when independenceis obtained.' (2)

3.7 It follows that any specific application of the
principle hasma prerequisite the determination, if

necessary by the Court, of the precise date when
colonial sovereignty endedand independence occured.

This is an obvious consequence of the undisputed fact
(1) (1980) I.C.J. Reports p. 565
(2) Ibid p. 566 ( emphasis added). ~ .-
thag under the SpanishColonial regime 'al1territorial
. ~ . !1 -y
,.. rights , were vested in the Spanish Crown and,
l l
consequently, that the only rightswhich individuals
or cornmuniticscould exercise in relation to specific

areas of land derived necessarily frAm'fl\<h Spanish
Crown. Given that such rights could be altered at
I
will at any moment by the Spanish Crown 'in the
exercise of its exclusive right of dominion over
\
its colonial possessions, the crucialdate is thus
\
clearly thedate when independenceactua$ly occured.
3.8 In Central America independence from the ~panish

Crown took place in 1821.This means that any alleged
delimitations carried out subsequent to that date

(unless these delimitations werebased on Title Deeds
issued by the Spanish authorities before 1821) have

no probative value as against delimitations carried
out prior to the 'end of the colonial regime.

Similarly, in the event of discrepancies between

different documents emanating from' the Spanish Crown
and/or other Spanish authoritieç.,thosé ,documents

latest in date must clearly prevail providedalways
that they are prior to the date of independence.

As the Chamber of the Court stated in the Burkina
Faso-Mali Case, the principle of "utis possidetis

iuris".

"applies to the States as it is, i.e. to
the"photographf of the territorial situation then
existing. The principle of "utis possidetis" freezes
the territorial title; it stops the clock but does
not put backthe hands" (3)

(3) [1980i I.C.J. Reports p. 568 3.9 Article 26 authorises the Court to base its decision
only on documents which enjoy two distinct

characteristics, one in respect.of origin and the
other in respect of object and purpose. The documents
must, firstly, have beenissued by the Spanish Crown

or by some .other Spanish Civil or ecclesiastical
authority and must, secondly, indicate the extent

of jurisdistionsortheboundaries of territories or
towns ("poblaciones" in the original Spanish text) .

This reference to "towns" ("poblaciones")is intended
to refer to the forma1 Title Deeds to commons (in

Spanish "Tltulos Ejidales") which constitute the
main part of the documentation relied uponby the

Republic.of El Salvador.

3.10 The specific applicationof the principle of "utis
possidetis iuris"to the case of an extended frontier
has caused some practical difficultiesin past cases

of this type due to the predictable insufficiency
of the Spanish Colonial documentation in respect

of certain sections of the disputed boundary. In
order ,to forestall any possibility of such

difficulties arisinç in the present case, Article
26,havingfirstprovided in its opening sentencethat

the process of delimitation"Shall take as its basis"
the Spanish colonial decumentation, then goes on

to provide in its secondsentence that "account shall
equally be taken" of other means of proof and

arguments and reasons of a juridical, historical
or human nature or of any other kind admissibleunder.
InternationalLaw.

3.11 The phrase "argumentsand reasons of a ... human

nature" found in this second sentence,isespecially significant. This phrase conveys the need to take
into account what may be described as the political

and human geography of the disputed areas - that
is to Say, a consideration of the situation of the
human population living and the human settlements

existing in these areas. These, as will be shown
in due course, are Salvadoreiian settlements

administered from theinmemorial by al va dore fi an
,authorities. The Salvadoreiianpopulation owns the.

lands in the disputed areas and they farm these lands
for agriculture and for livestock. Their produce

is sold to consumer markets in El Salvador -
inevitably since there is a total lack of roads or

other means of communication with Honduras. Their
health is cared for the Salvadorefian health centres

and hospitals; their children attend 'Salvadorefian
schools; they receive their electrical power from

Salvadorefianpower stations. In short, any change
of State jurisdiction would consequently adversely
affect the lives, the weel-being, theproperty rights

and the economic activitiesof the human population.

3,12 In the Burkina Faso-Mali Case,the Chamber of the
Court examined in a very profound manner the

relationship between documentary titles and what
it described as "effectivité", using that term to

signify the effective exercise of of territorial
administration and jurisdiction over disputed areas.

The Chamber stated that:

"In general terms, what legal relationship exists
between such acts and the title on which the
implementationof the principle of utis possidetis isgrounded. For this purpose, a distinction must be

drawn amongst several eventualities. Where the act
corresponds exactly to law, where effective
administration is additional to the utis possidetis
juris, the only role of effectivité is to confirm
the exercise of the riuht derived from a leual title.
Where the act does noi correspond to the iaw where
the territory which is the subject of the dispute
is effectively administered by a State other than
the one possessing the legal title, preference should
be given to the holder of the title. In the event
that the effectivité does not CO-exist with any legal
title, it must invariably be taken into consideration.
not capable of showing exactlythe territoriale expanse
to which it relates. The effectivité can then play
an essential role in showing how the title is
interpreted in practice." (4)

(4) (1980) I.C.J. Reports pp. 565-587. CHAPTER 4

The decisive importance of forma1 Title Deeds to

Commons (in Spanish "TTtulos Ejidales") in the de-
limitation of the land frontier line in the present

case in the areas where the frontier betweenEl Sal-
vador and Honduras is in dispute necessitates the

formulation of certain considerations of ageneral
nature as to the validity and conclusive character

of such forma1 Title Deeds.

1. THE ORIGINAL NATURE AND LEG.L .' SIGNIFICANCE OF
COMMONS "EJIDOS") IN SPAIN

Spanish law has at al1 stages in its development

recongnised the existence of commons (in Spanish
"ejidos"). Such areas were situated outside towns

and were intended as an area where al1 the inhabi-
tants could pasture their livestock - for this reason

any iype of constructionin such areas was prohibited.
The Spanish Academy Dictionary de£ines "ejido" as

"the land adjoining a town which is the common pro-
perty of al1 its inhabitants which land is not
cultivated but is normally used for the pasture.of

livestock of for the threshing of crops".

4.3. This common land was normally situated in the
outskirts of a Spanish town (as indeed is indicated

by the Spanishword "ejido") and was measured out by drawing a line in the direction North South one league
in the length through the centre of the town and a

second line also one league in length perpendicular
to the first one. The limits of the common land were

determined' by joining the extreme points of these
two lines.

4.4 The "Partidas" of King Alfonso El Sabio defined the

nature of the "ejido' and established its legal regime.
Law XXIII, Title XXXII,of the Third "Partida"provided

that ''no man shall build houses or any other
construction" in an "ejido"; Law IX, Title XXVIII

of the same Third "Partida" established the legal
regime of "ejidos" by classifying them, together with

fountains, squares, and other public property, as
assets "which can be utilised by anyone"; Law

XII1,Title IX, of the Sixth "Partida", provided that
"ejidos were not transmissible by way of succession,
and Law "II, Title XXIX, of the Third "partida",p-

vided that title to land within an "ejido" could notbe
acquired by long possessionsthereof. These provisions

clearly established thatland within an "ejido" was not
capable of individual ownership.

II. THE ADAPTATION OF THE "EJIDO" TO INDIAN TONWSHIPS

IN AMERICA
4.5 The Spanish "ejido" was transplantedto the Spanish

possessions in Americasince "right from the initial
period of the discovery, conquestand colonization

(of America), the Spanish Monarchs were particulai
ly interested inensuring that new cities, townsand other places in theIndies were substantiallyendowed

with lands of common use''(1)

4.6 However, the adaptation of the Spanish "ejido" to
America had to embrace certain different features

since the colonizers encounterednative Indian
communities with a high level of demographic growth

which were dedicated to communal agricultural
exploitation. Consequently, the Spanish colonizers

had to adapt the traditional nature of the "ejido"
so as to embrace within this institution the

phenomenon of communal agricultural exploitation
which it encountered in many of the native

populations of the New World, particularlyin Central
America. Ots Capdegui observes in this respect that

"at the time (of the conquest) thelands of Indian
towns or settlements ("reducciones"in the original

Spanish text) were utilised in common and were
exploited collectivelyby the Indian communitiesn(2).

4.7 The "Ordenanzas de Descubrimiento y Nueva Poblaci6nn

of 1573 (31, in laying down the procedure to be
followed for the establishmentof new towns, required

that care should be taken not to prejudice "any
Spanish or Indian towns which were already populated"
..
and prohibited any confiscation of property which
already "belongedto the Indians".

4.8 For this reason, this "Ordenanza" of 1573 altered

the rule which was traditionalin Spain to the effect

1. Jose Maria Ots Capdegui: Historia del Derecho
Espaiiolen América y del Derecho Indiano" pp.239-240
2. Espaiia en América: el rggimen de tierras enla
época colonial" (México.1959) p.85
3. The full text of this "Ordenanza" is published
in Diego de Encina: Cedulario Indiano:Vol.IV p.243. that the "ejido" should have an extension of not

more than a league and instead provided that in the
cases of Spanish'or Indian towns which were already

populated the "ejidos" should have an extension of
four leagues "either ina square or a moreprolonqed

form depending on the nature and quality of the
land". This provision demonstrates the elastic

character of the "ejidos" of Indian towns. Thus,
in order to take into account the,demographic growth

of the population, the ordenanzas insistedthat
"ejidos" should be marked out "to a sufficientextent

that, even if there is much population growth, there
will be enough 'space both for the people and for

the livestock without giving rise to any
difficulties".

4.9 However, it was not only the physical size of the

Spanish "ejido" which was enlarged inAmerica. The
"ejidos" were also adapted to permit the communal

agricultural exploitation which had been developed
by the indigenous population.To this end, the Indian

population was exempted from the traditional
prohibition on cultivating the land which had been

established in the Spanish "ejidos".In line with'
this objective, the"ejidos' were enlarged as the

as the population of the town in question expanded
and this adjudication of additional areas of land

to the Indian communities had two special features:
cultivation of the land was permitted and the

additional areas were adjudicated either without

payment or for hàlf the amount of the normal payment.
1 1
The ;Recopilacionde Leyes de Indias" of 1680 incorpg
4.10 rated Law XIV, Title XII, Book IV, a Royal "Cédula
of 1591 in which the Spanish Crown instructed its

delegate authorities to "distribute to the indians
the 1ar.ùwhich they will need for cultivation and

for carrying out their sowing and breeding in the
light of the lands which they already possess, giving

to them whatever is necessary".

II1,THE PROCEDURES FOR THE ENLARGEMENT OF "EJIDOS"

4.11 These different characteristics of the "ejido" in
Indian towns in America which have been considered

above made it necéssary for the Spanish Crown to
establish what authorities should oversec any

necessary enlargements of "ejidos" and to lay down
the procedures to be followed in such cases. This

was particularly. necessary inorder to protect and
guarantee the rights of neighbouring towns and

population that might find themselves adeversely
affected by the enlargement of the "ejido" in
question.

4.12 It is first of al1 necessary to establish what

authorities had to oversee the process. Section II
of Royal Decree of 15th October 1754 required those

Judges and Ministers who had jurisdiction over the
sale of lands belonging to the Crown (such lands

were known as "tierras realengas")to Hproceed with
suavity, temperance and moderation in theoral and

other judicial proceedings relating to the lands
possessed by the Indians and to the lands whichthey

might need for their labour, their cultivation
and for the breeding of livestock. In respect of

the lands grantedto their towns for Pasture and as common .land, no changes shall be made, such lands
being maintained in their possession; further, the

lands which have been usurped shallbe returned to
them and. enlarged areas of land shall be granted

to them in the light of their .population
requirements". The eff.ectof this Royal Decree .was

to place théprotection and enlargement of "ejidos"
under the control of the highest Spanish judicial

authority in Central America, the "Real Audiencia"
of Guatemala, the supreme civil authority in the

Kingdom of Guatemala, the supreme civil authority
in the Kingdom of Guatemala. The "Real Audiencia"

and the subordinate officials in its various
sub-jurisdictions (collectively known as "Jueces

de Tierras") had jurisdictions over the sale and
distribution of lands belonging to the,Crown (the

already mentioned "tierras realengas"). Thus the
formal'TitleDeeds to Commons ("TltulosEjidales")

constitutes' documents issued by the Spanish Civil
Authorities during the colonial period which indicate

the jurisdictions or .boundaries of territories or
towns and thus fa11 within the terms of Article 26

of the Tratado General de Paz of 1980 as documents
forming the basisof the processof delimitation.

4.13 Turning now to the procedures whichhad to be followed
d
by the ''RealAudiencia" and its subordinateofficials,
the "Jueces de Tierras", in connection with the
adjudication and enlargement of "ejidos", these can

be illustrated by summarizing, as an example, the
procedures that were followed in respect of the

Tecpanguisir Mountain (oneof the sectors which are still in dispute). In February 1776 the Indian
inhabitants of the Salvadorefian town of Citala

petitioned the judicialauthorities of Chalatenango
in the then Province of San ~alvador for a measurement

of the Mountain ir order to enlarge their "ejidos",
since their existing common lasd was insufficient.

This petition was sent to the~fReal.A~diencia" of
Guatemala, whose President and principal "JueZ de .

Tierras" directed the subordinate "Juez de ~ierra'
based in Chalatenango to carry out the necessary

' measurement and demarcation and, aditionally,directed
him to give.notice of these proceedingsto the "Juez

de Tierras" based in Gracias a Dios, since the matter
might adversely affect the indians of Ocotepeque

(nowpart of Honduras). The Judge appointed one.person
to defend the interests of the Indians of Cita15

and another person to defend the interests of the
Indians of Ocotepeque. He first carried out a survey

and then a measurement and demarcation "in the
presence of the native population of Cital$ and

Ocotepeque". The ~ecree signed by the Judge stated
that the Indians of Ocotepeque had declared that

"they were not prejudiced by the proceedings since
their boundary remained a long distance away and.

so would withdraw to their town". The following day
the Judge certified that the "measurement was

terminated, concluded and finished without any
opposition" and his decree to this effect was,

countersi.gnedby the persons 'appointed to defend
the interests of both towns. The record of the

proceedings was then sent back to the President of
the "Real Audiencia" of Guatemalawho, after reviewing the opinion of the "Fiscal" (the local Law Officer

of the Spanish Crown) , "adjudicated to the native
population of the town of San Francisco de Citala

in the Province of San Salvador" the area included
within the measurement and demarcation that had been

carried out. At the same time, the President of the
"Real Audiencia" directed the subordinate "Juez de

Tierras" based in Chalatenango to give possessions
of the land in question to the native population

of Citala and this adjudication was duly carried
into effect on 2nd. August 1776.The Indians of

Ocotepeque were once again notified that this would
take place but they answered that, since they 'were

not prejudiced thereby, they would not apperar.

IV, THE RELIANCE BY HONDURAS ON THE CONCLUSIVE
CHARACTER OF FORMAL TITLE DEEDS TO COMMONS ("TITULOS

EJIDALES") IN ITS BOUNDARY DISPUTES WITH GUATEMALA.

4.14 It is understandable that a title obtained after
complying with al1 these procedural guaranteesshould

constitute conclusive evidence as to the territorial
rights of the 'State of which the town in question,
in the above case, Citala, forms part. The conclusive

character of "Tltulos Ejidales" was decisively
accepted by the Arbitration Tribunal which by its

Award of 23rd January 1933 established theboundary
between Honduras and Guatemala. The President of

the Tribunal was Charles Evans Hughes, a former Judge
of the Permanent Court of International Justice and

President of the Supreme Court of the United States
of America, and its members were two distinquished

Latin-American Jurists, Emilio Bello Codesidoof Chile
and Luis Castro Ureiiafrom Costa Rica.4.15 The Award of the Tribunal contains the following
statement relatingto "Tltulos Ejidales":

"Deliberate and forma1 assertion of civil authority
is shown in the making of grants of the public domain.
The high significance of these grants as public
instruments evidencing the exercise of civil
jurisdiction is apparent from the character of the
official procedure pertaining to their ,execution.
The title to the public domain was in the Spanish
King,<.and the land grants could be made only with
the Royal Authority. After the middle of the Eighteenth
Century, surveys of lans in the Kingdom of Guatemala
were made by sub-delegates or special land judges,
who were appointed by the Captain General to serve
in the several provinces, and these surveys were
subject to 'confirmation by the Audiencia on behalf
of the Central Government of the Kingdom. It appears
to have been the practice that the person desiring
to acquire title 'to public land presented a petition
to the local sub-delegate, or land Judge in the
province in which the land was deemend to be
situated.An official survey was then made under the
supervision of the local Judge and the land was
measured and marked.. Opposing claims were heard and
pertinent questions were decided by the Judge subject
to appeal to the Audiencia. The price was paid into
the Royal Treasury and the dossier was sent to the
Audiencia which enteredits adjudication after hearing
the fiscal (Attorney General). In the circumstances
of the' times, it is difficult to see what procedure
could have -afforded more ample opportunity for
examining and determining questions of territorial
jurisdiction. Through these land grants it is possible
to trace the area in which each of these colonial
entities and the States which succeeded them, asserted
administrative control"(4).

4..16 These considerations apply not only to land grants
made infavour of private individuals but a fortiori

also to grants of "ejidos" to the inhabitantsof towns
where the same elaborate procedure was followed. This

is indeed confirmed by the fact that the Tribunal
fixed the boundary between Honduras and Guatemala

(4) Guatemala-HondurasSpecial Boundary Tribunal
(WashingtonD.C. (1933): Opinion and ~ward: pp.53-54 in certain disputed sectors on the basis of "Titulos
Ejidales". The first such decision was made in favour
of Honduras in the sector betweenCerro Oscuro and

the parallel of the town of CopSn. After asserting
that the area known as Tixiban, surveyed in 1817,

belonged to Guatemala, the Tribunal stated:
"But to the east and northeast of the Tixiban grant
lands were set aside for the inhabitants of the Indian
village of Pueblo Nuevo.... These Indians had
requested the authoritiesof the Province of Comayagua
to grant lands for their village Commons. In the
proceedings, which took place in 1817, it is stated
that Pueblo Nuevo was situated "in the mountain of
the Merendon distrcit of Sensenti, Subdelegation
of Gracias a Dios, in the Intendency of Comayagua".
On reference of the petition to the Judge of the
Special Land Court at Guatemala City, an order was
issued directing the Governor of Comayagua to arrange
that the surveyor of the district should n~ineasure
and delimit a league of the best lands" for the
service of the Indians."(5)

After referring to these and other land grants the

Tribunal concluded:
"Considering the land grants made prior to
independence as evidencing the extent of the
recognised provincial jurisdiction, it appears that
the line of utis possidetis of 1821 may be deemed
to be established from a point on the CopSn River
.... in a southeasterly dGection to and along the
eastern limitsofthe Tixiban grant."(6)

Thus the Tribunal recognised the "Tltulo Ejidal"
of Pueblo Nuevo as determining theutis possidetis

in favour of Honduras.

4.17 The '~ribunal also recognised "Titulos Ejidales" in
favour of Guatemala in respect of the sector between

the parallel of the town of Copan and Amates-Quirigua
on the Motagua River,stating:

-
(5) Ibid: pp.60-61
(6) Ibid: p.64 "The record shows clearly, as cont&nded by Guatemala,
that the commons of San Juan Camotan, lying to the
west of Chaguites,were in ChiquimulaW.(7)

4.18 Honduras thus invoked in the proceedingsagainst

Guatemala "~itulos ejidales" as a conclusive basis
for delimitation of the frontier and succeededinits

claims based thereon in respect of Pueblo Nuevo.
Consequently it is now estopped from denying the

relevance and conclusive effect of the "Titulos
Ejidales" being invoked by El Salvador. Furthermore,

in the course of the mediation carried out by the
State Department of the United States of America

in 1918-1919 in. relation to the dispute with
Guatemala, Honduras also asserted the general vakidity

of "Titulos Ejidales' in the followingterms:

"The titles issued before 1821, which were approved
by the Real Audiencia, after measurements carried
out by public officiais called sub-delegates, are
undoubtedly public documents of unquestionable faith,
since they declare the jurisdiction in which the
measured land was situated and the bordering lands
belonging to the same or different Provinces, after
in my cases notice being'given to the neighbouring
towns of foreign jurisdiction. They must serve as
the basisto determine iiowfar extended the territory
of each Province before 1821".

V. RELIANCE ON THE CONCLUSIVE CHARACTER OF FORMAL
TITLE DEEDS TO .COMMONS ("TITULOS EJIDALES") IN THE

BOUNDARY DISPUTES BETWEEN EL SALVADOR AND HONDURAS.

4.19 As is illustrated by the discussion of History of
the Boundary Disputes between El Salvador and Honduras

set out in Chapter III of this Memorial',both El
Salvador and Honduras, not only in the various

unsuccessful negotiations held at different times
by the Commissioners of the Joint Boundary Commis-

sions which have been set up by the two States butalso in the negotiations whichhave reached a. positive
conclusion in respect of the areas in which the
boundary is now settled,nave consistently recognised

that the delimitationof their respective territories
must,be based on "Titulos Ejidalesn. As an example
of this recognition, it is relevant ta mention the

statements made before the HondurefianCongress by
Doctor Francisco Cruz the Representative and
Commissionerof Honduras in the Cruz'Letona Convention

of 1884.
.
4.20 On the 7th February1885 by virtue of Decree Number -

7 the ond dure Cofnirans disapproved the Convention
that had been concluded betweenEl Salvador and
Honduras determining the boundary lkhe between the

two States, attempting to justify this posture by
denying the validity of the powers granted to its
delegation, accusing doctor Francisco Cruz of being

a traitor and dubbing as a mercenaryMr. A.F. Byrne,
the Canadian Engineer, who had been engaged by
Honduras to carry outthe technicalwork.

4.21 Doctor Don Fi2anciscoCruz, the Representative and
Commissioner of Honduras, was motivated by this.

serious accusation to appear before the Congress
of his country where he contradicted the assertions
of the Legislative Commission'of Honduras an at the -

same time explained the bases of the frontier line
determined by the Joint Boundary Commission, which
he considered to be in accordance both with the

instructionswhich he had received £rom the President
of Honduras and with the Title Deeds produced by
El Salvador, which, inthe opinion of his delegation,

were irrefutable. The defense presented to the,Congress of Honduras.is

set in full in Annex ( 1 ). The most significant were
as follows:

"The perçons who is at present governing Honduras,
wishing for peace with the neighbouring Republic,
anxious to put.an end to thetroublesand misfortunes
of the settlements which are in conflict, and having
been approached by the Government of El Salvador to
settle once and for al1 the frontier and the problems
arising out of the colonial Title Deeds, nominated
me as Boundary Commissioners and gave me instructions
that 1 paying attention to what just, should conclude
with the Commissioner of the'salvadorefian Government, -.
a 'definitiveagreement. With this objectiveand, given
that the negotiations at Saco had broken down, with
the intentionthat justice should prevail in the further
negotiations, we the Commissioners established the
basis that, in the appraisal of the Titles and other
proofs produced by one another,we would give preference
to the oldest authentic evidence.

"~aving thus established the basis of the negotiations,
1 could not sustain in those meetings the Titles
recently granted by Dr. Soto in favour of Opatoro and
Santa Elena as against the extremely old Titles of
Poloros, Arambala and Perquin (settlements of El
Salvador) which are conclusively opposed to the former
ones, not only because they establish permanent
landholdings of traditional accuracy but also because
of the lack of any evidence that Hondurashas exercised
jurisdictionin these areas".

4.22 In relation to the maps prepared by the Joint Boundary
Commision, the HondurefianCommissioner,Doctor Frnacisco
Cruz made in his exposition the following categoric
statement:

"The surveyor Lazo, without either ,knowing or having
inspected the disputed boundary line, drew up, os rather
copied on his desk, the sketch or small map on which
the Commission has founded its powerful arguments
against the Boundary Agreement.Thisis equivalent to -
drawing a map of a country using only historicalrefe-
rences. No. The exact map of the boundary line in
question, the truly scientific map, is the onewfiich
for the honour of science has been drawn up in al1 its
admirable detail by the engineer Byrne;a map which, jf /it is preserved, will iluminate the future. Byrne,
throwing rope over rope, and using excellentgeometrical
instruments, calculated al1 his work with scientific
precision." CHAPTER 5

TIERRAS REALENGAS (CROWNLANDS)

5.1 ~he government of El Salvador considers that in the
determination of the land frontier in some of the

disputed areas, the "tierras realengas"must be taken
into considerationby the Chamber of the Court, due

to the fact that the measurements which were carried
out in accordance with the "tftulos ejidales", do
not exhaust the territorial rights possessed by El

Sa,lvador

5.2 These "tierras realengas" are an institution of 'the
spanish colonial period based on the consideration

of the Spanish Crown that al1 the territories in
America were "res nullius"and consequently, by the
right of conquest, these lands were subject of

appropiation and thus incorporated into the spanish
crown becoming the property of the King as "crown

lands".

5.3 Gradually, as the process of colonization progressed,
the sp.nish crown, through the competentauthorities,
granted to the 'conquistadoresland 'other private

perçons, as well as to the indian comfnunities, part
of these lands. These adjudicationshad to be executed

by the "Juez de Tierras" with jurisdiction over the
town of population which was mentioned in the "tftulo

ejidal".

5.4 The manner in which the adjudication of the "ejido"

was made, left on many ocassions, between the
neighbouring communities, extensions of land which was not adjudicated to one or the other community and

remained as "tierra realenga" not covered by the
"tltulo ejidal" of the respective townor community.

This fact has been the main cause of the frontier
conflicts and has made very difficult a precise

delimitation of the land boundaries in most parts
of Latin America.

5.5 Consequently, under the doctrine establishedby the

arbitral award rendered in thecase between Guatemala
and Honduras, those "tierras realengas" belong to

El Salvador, up to the point where .Honduras may
produce a title comparable to its legal 'force and

effect to those which are presented by the Republic
of El Salvador. . CHAPTER 6

THE DISPUTED AREAS

A). TECPANGUISIR MOUNTAIN.

6.1 The first -sector whose boundary hasnot yet been

fixcd is the sector known as Tecpanguisir ~oti~tain,
which is located between the Cerro de Montecristo

(the tripartite boundary marker whichdivides the
Republic of Guatgmala, the Republic of Honduras.,

and the Republic ,ofEl Salvador) and the peak
kriow as El Zapotal which constitutes respectively

the western,and easternlimits of this sector.

6.2 The second sector whose boundary was settled by the
Tratado General de Paz, signed in Lima, PerG, in

19&0 is described in 'the following way in Article
lG of that Treaty.

"From the suniinit of the peak known as El Zapotal
to the sou.rceof the stream known as Gualcho and
frorn there to the confluence of said stream with
the river known as Leiripa.Froin there, downstream
along the Leinpa, until the confluence with the
stream known as Poy, Pacaya, de ,los Marines or
Gubrdarraya. From this point upstream along thesaid
stream uritil its source. From there in a straight
line to the peak known as Cayayuanca."

This second sector is delimited by Article 16 of
the Tratado General de Paz of 1980 as before men-

tioiiedbecause soiireof the litigation that is going
on, is to be referred to commons partially included

in this articles' second section which are partly
situated in this same sector. The boundary of this

boundary of this sector was fixed on the basis of forma1 Title Deeds to Commons executed by the Spanish
*
authorities in favourof the Salvadorefian settlement.
of Cita15 and whose validity and effect were finally

accepted by Honduras when this sector was delimited
in accordance with these Deeds.These same Deeds are

very closely connected wjth the first sector whose
boundary has not..yet been fixed, Tecpanguisir

Mountain.

6.3 The as yet undelimited sector hasbeen inhabited
and cultivated since time immemorial by the people

of San Francisco Cita15 of the Spanish Colonial
. Province of San Salvador. It has been clearly

demonstrated in the litigatiombetween the inhabitants
of Citald in El Salvador and of Ocotepeque in Honduras

over the commons situated to the East of the River
Lempa that the landsto the West of the said ~iver

Lempa, that is to Say TecpanguisirMountain, belonged
to the Crown and had always been cultivatedby the

Indian population of'Citala. These lands were marked

out in 1742 and the definitive measurement and
adjudication was carried out in 1776 by the

subordinate "Juez de Tierras" based in the judicial
district of Chalatenango in the Spanish Colonial

Province of San Salvador, Don Lorenzo 'Jiménez Rubio;
at this measuremènt the indigenous populationof

San Andrés Ocotepeque in the Province of Honduras
was present; they, appeared with their own forma1

Title Deed and -when the first boundary marker was
placed on top of a mound of small stones the said

natives of Ocotepeque declared that they did not
feel that they were being prejudiced in any way since

their own boundarieswere a substantial distance away;

* Means Town . 8
consequently they retired to their own township..
Throughout the entire colonial period until,

independence and also thereafter, no Hondureïian
settlement* has - disputed that these lands were

legitimately possessed by the inhabitantsof Citala.
It is as recently.as 1935 that Honduras officially

presented a proposa1 to the Governmentof El Salvador
showing a frontier line which differed'tothe extent,

of approximately 7 Square ~ilomitresfrom the boundary
line indicated by the forma1 Title Deed to the Commons

of Tecpanguisir.

1. THE LITIGATION BETWEENCITALA AND OCOTEPEQUE

6.4 Since ancient tiines the Indians of Ocotepeque in

the Province of Honduras had wished to deprive of
their commons the population of Citala in the Province

of San Salvador. This was expounded by the inhabitants
of Cita15 in the dispatch which they presented to

the "AlcaldeOrdinario" and Lieutenant of the "Alcalde
Mayor" of San Salvador on 23rd November 1658, in

which it was stated that the inhabitantsof Citala
had been in possession of these disputed Commons

since the founding of the said township and that
these lands were within the boundaries and the

jurisdictionof the Province of San Salvador.

6.5 The first proceeding of a litigious nature between
these two townships dates from 1702, in which it .

is recorded that, having gone through the appropiate
procedures and proofs, the matter was resolved in

favour of the inhabitants of Citala who were seeking
to protect their rights so as to ensure that they

. were not dispossessed either £rom the said lands
or from any part of them.

* Means Town6.6 Notwithstanding .the protection of this Royal Decree
in favour of the inhabitantsof San Francisco Citald,
/
th; inhabi-tantsof 06otepeque persisted with their
hostile activities in the desire to snatch away these
/
lands. Consequently once again Citald sought

protection and its titles were confirmed in the year
1740 by Don Pedro Dlaz del Castille, the subordinate

"Juez de ~ieiras" of the Province of San Salvador.
Having concluded the proceedings, the Judge sent

the record of the proceedings up to the "Juzgado
Privativo de Tierras" (Private Land Court) having

notified the matter to "AbogadoFiscal" of the "Real
Audiencia" (the Law Officer of the Spanish Crown

in Guatemala) whose responseincluded the following
remarks:

"It is necessary to inforrnyour 2Excellency that a
forma1 Title Deed of Adjudicationof the land measured
should be issued to the inhabitants of Citald
containing a reference to the boundary fixing which
according to the recordhas been carriedout in favour
of the inhabitants of Ocotepeque; and that along
with this Title a dispatch should be issued so that
the said subordinate Judge of the Province of San
Salvador indicates and marks out Commons in favour
of the inhabitants of Ocotepeque in accordance with
the Ordinance in force, directing hirnthat he warn
them to remain within theirown boundaries and not
in any manner eitherexceed those boundariesor enter
into the territoryof the Province of.San Salvador,
given that they arebefore the boundary line of two
jurisdictïons. "

6.7 By reason of the fact that the inhabitantsof
Ocotepeque persisted in their desire to enter ont0

territory belonging to San Francisco Citald in the

Province of San Salvador, the inhabitantsof the latter petitioned for a reconfirmation of the boundary

markers of their Commons in the section which had
a boundary with. the township of 0cotepeque in the

Province of Honduras. This 'was carried out by the.
subordinate Judges Don Pedro Diaz del Castillo on

behalf of Citala and by Don Juan Segundino de Lanus1
on behalf of Ocotepeque in the year1742, the releyant

part of which States as follows:

"It being necessary to grant lands to the inhabitants
of Citala in the manner that your. Excellency'has
stated and ordered and that thiç should be done
without prejudice to the inhabitants of Ocotepeque,
consequently taking into account al1 these mattersand
doing justice in accordance with the instructions
of your Excellency, we ought to direct that land
be given to them in the surroundings of their township
from the River Lempa towards the West leaving.free
for them the mountain which the inhabitants of Citala
have always cultivated and along with this that the
.boundary markers of the lands of Jupula be confirmed
according to what,is established in the forma1 Royal
Title Deed of adjudication whichthey have ........."

The possession givento the Indians of the township of
Citala was thus'confirmed in the town of Santiago de

Eçquipulas on 23rd February 1742 by the "Oidor y AlcaL
de de Corte de la Real Audiencia' of Guatemala, the

"Juez Privativo" of the Royal Law governing lands and
the visitor of the Kingdom.

II. THE MEASUREMENT OF TECPANGUISIR.MOUNTAIN

6.8 In ~ebruari 1776 the inahbitants of San Francisco
Citala of the Province of San Salvador appeared ----- before Don Lorenzo Jiménez Rubio, subordinate"Juez

de Tierras" for the judicial district of Chalatenango,
within the jurisdiction of the Province of San

Salvador, to ask that he would measure Tecpanguisir
Mountain for them in order to complete their Commons

on the grounds that. the Commons which they already
had were poor and insufficient. This request was

granted to them and the Spanish authoritiesissued
in their favour a forma1 Title Deed in respect of

the Tecpanguisir Mountain (the procedure involved
was described in Chapter IV of this Memorial in

paragraih 4.13) The forma1 Title Deed to the Commons
of Tecpanguisir is a precise and decisive document

which constitutescomplete proof as to what was the
competent Provincial jurisdictionover the area which

was the subject of this measurement,boundary marking
and adjudication.(l){ANNEX1) (Bookof maps 6.1)

6.9 Sincethereisno disputeabout the fact that the township

of Citala belonged to the Province of San Salvador,
and since a forma1 Title ueed to Commons on

Tecpanguisir Mountain wasgranted to that township,
the administrative control over that mountain was

also necessarily adjudicated to the Province of
which the township entitled to the Commons formed

part, in this case therefore to the Province of San
Salvador, since Commons constitute a political

institution which belongs not only to the township
to which it belongs but also to the Province of which

the township formspart.

6.10 El Salvador has always exercised jurisdiction and
sovereingty over this area, to such an extent that

even the numerousincidentswhich arose inrespect of

(1) Map 6-1 Included in the Text Commons with the inhabitantsof Ocotepeque of on duras

(which is the closest -.ighbouring township) never
produced any incursions.ont0 Tecpanguisir ~ountain
. .
to measure out royal landholdings between the one
township and the other. From the very earliest times

the controversies have concerned exclusively the
lands. to the East of Tecpansguisir Mountain which

alsofokmed. part 'ofthe Commons of citala.

6.11 As can be seen from the Protocol relating to the
series of meetings which, took place betweén Honduras

and El Salvador. in the town of Concepcion de Oriente
(formerly known. as ~aco)' as :rom 15th March 1884,
. .
both delegations clearly 'stated at the . s.venth of
these meetings.,which took place .in San' Miguel of

6th April 1884, that the Title Deeds to Commons which
were held by the inhabitants of Citala had the.greater

authority and that the lands of Tecpansguisir Mountain
'had been duly adjudicated to Citala ever êince 1776.

In the Cruz-Letona Convention signed by both
delegations the boundary line was described as

indicated in the seventh meeting in accordancewith
the.forma1 Title Deed to the.Commons of Tecpanguisir.

No protest whatever against this d&scription of the
.boundary in this area was formulated by'the ond dure fi an

Congress or by any .Hondurefian township or
municipality.

6.12 .Consequently the frontier line. between El Salvador

and Honduras in this sector remains that indicated
by the forma1 Title Deed to the Commons of

~ecpanguisir Mountain issued in 1776,*ch isas'follows:

. . "From the zone or tripartite boundary marker of the

Cerro de Montecristo to the summit of the ~e'rro
Obscuro in a staight line towards the north east.
From the summit of the Cerro Obscuro to the headwaters
of the Quebrada de Pomola taking the most northerly
branch of the said Stream. From the said branch of
the Quebrada de Pomola downstream as far as the
boundary stone of Talquezalar. From the boundary
stone of Talquezalar to the summit of the Cerro de
Piedra Menuda. From the summit of the Cerro de Piedra
Menuda to the summit of El Zapotal."

6.13 The title proves without any doubt the jurisdiction
of Citala, Department of Chalatenango, Republic of

El Salvador over the Nountain of Tecpanguisir, and
without prejudice of the, rights that 1 Salvador

has over the crown lands situated between the commons
of Cita15 in El Salvador and the commons of Ocotepeque

in Honduras. B. LAS PILAS OR CAYAGUANCA

.

6.14 Between the peak known as Cayaguanca,

which is the final point of the second sector
whose boundary was settled by the Tratado General

de Paz of 1980, and the River Alto Sumpul, there
is the striking massif known as the Mountains
of the River Chiquito or Sesemiles, which has

as its outstanding feature the mountain known
as Cerro El Pital of some 2,780 metres in height

on the sea level. To the north of this region
in the Colonial period there were lands belonging

to the Spanish Crown by right of conquest which
were, administratively speaking, withinthe almost

totally uninhabited judicialdistrict of Tejutla,
part of the Province and Intendency of San

Salvador. The villagers of this area, some100
kilometres to the north of the City of San

Salvador and under its jurisdiction,began during
the Seventeenth Century the colonization of this

northern outpost of the judicial district of
Tejutla, populating lands which belonged to the
Spanish Crown which, as was normally the case

with such lands within the Colonial Kingdom of
Guatemala, were not subject to any Municipal

jurisdiction but which, as a result of their
colonization, became subject to the already

mentioned administrative, political and judicial
jurisdictionof Tejutla. 6.15 From the mouritains known as Cerro El
Pital of 2,780 metres .in height and Cerro Burro

of 2,698 metres in height there on the sea level
run towards the East streamsand brooks which

join from the rigth hand side the River Sumpul
which in this its first section flowsfrom North
to South. Between these peaks and the course

of the River Sumpul, inhabitants of El S'alvador
founded in the distant past the hamlet known

as Sumpul in the "Hacienda" (Country estate)
of the same name at some 2,060 metres above sea

level. This hamlet is some 10.3 kilometres to
the North East of San Ignacio, a town of El

Salvador, in jurisdiction of Tejutla of the
Republic of El Salvador.

6.16 In one document which exists in the

"Archive General of Central America" for the
year 1695 States as follows:

"That on 19th January 1689 there was a General
Meeting of the Exchequer at which were present
the President, Governor and Captain General of
the Kingdom of Guatemala,the Generalof Artillery
Jacinto de Barrios, the "Oldores Licenciados"
(Qualified Judges) Antonio de Navlo Bolaîios,
Francisco de Valenzuela Banegas and Manuel
&Baltadano and the "Contador Juez Oficial Real"
(Officia1 Royal Judge Accountant) Captain Felipe
.de Mais y Lisarraga."

"In this session there were considered the
"General Meetings of the Exchequer of 11th July
and 12th September of the previous year (1)687
and the proceedingswhich were being taken by JuanMartin, resident of the Valle de Guarrabuqui
in the jurisdiction of Tegucigalpa to obtain
a declaration of the true value of two
"caballerlas" of land which he had measured out
on the area known as La Concepcibn and by Antonio
de la Portillo, resident of San Salvador
concerning the 11 "caballerlas"and 17+ "cuerdas'
of land which he measured under the instructions
of the'Supreme Government in the Valle de Sumpul,
which proceedings have been sent by petition
to His Worship Doctor Pedro de Barreda of the
Council of His Majesty."(3)
\

6.17 In another document which exists in
the "Archivo General de Centroamerica" it is

stated that Bartolomé Mejla, resident of the
Valle del Dorado in the jurisdiction of San

Miguel, declared that he had occupied some lands
in the Valle de Sumpul and through his

"Procurador' Juan Gregorio Vasquez (Court
Solicitor) asked that the3 lands belonging to

the Crown in this area,be measured so that he
could agree their value with the Crown. The

carrying through of the measurement was entrusted
to Manuel Pacheco de Espinoza or, failing him,

to 'his brother, Jose Pacheco, by virtue of a
decree issued on 7th January 1718 by the "Juez
~rivativo de Medidas, Ventas y Composiciones

de Tierras del Reino de Guatemala" (thePrivate
Judge of Measurements, Sales and Land Valuations,'

of the Colonial ~in~dornof Guatemala) the "Ofdor
~icenciado" (QualifiedJudge) Ignacio de Arana.(4)

(3) General Archive of Central America
AGCA A1.24, leg. 1569, exp. 10213, fo1.2436
(4) General ~rchivom o fentral America
AGCA A1.57, leg. 669, EXp. 61196.18 The lands of the Valle de Sumpul were
to the est and. South East of the waterfalls

and the initial course of the River Sumpul in
the jurisdiction of the original "AlcaldlaMayor"

and subsequent -1ntendency of San Salvador, in
an area within the judicial district of Tejutla.

Its colonizers and subsequent proprietors were
always Salvadorefians and the said district,
according to the recordeddocuments,was occupied

and civilised by families'£rom the Province of
San Salvador. Ever since these remote times the

upper course of the River Sumpul has always been
the established boundary betweenwhat are today

the States of El Salvador and Honduras.

THE COMMONS OF LA PALMA
,

6.19- In the formal Title Deed to the Commons
of La Palma there appears the measurement of

the lands in the mountain Known as Rio Chiquito
or Sesemiles.. This measurementwas carried out

in 1829. Although this Title Deed is subsequent
to the date of independence, the prosimity oE

its date to the date of independence permits
the ascertainment of precedents prior to

independence which corroborate the Salvadoreïian
Title Deeds in this sector. The presiding Judge

sent the documents relating to the measurement
and to the valuation of the landsof the mountains

of'Rio Chiquito and Sesemiles to the Intendencia
de Hacienda (Principal Officeof the Exchequer),

in El Salvador and it was the Mayor andCouncillors of the ,SalvadorefiaV nillage of Dulce

Nombre de la Palma who executed the necessary
powers "in order that in the name and

representation of the said settlement" .....
"the proceedings relating to the purchase of

106"caballerfas"of land measuredin the Mountain
of Rio Chiquito and Sesemiles shouldbe carried

out and concluded". Furtheronce the proceedings
had beencarried out, these lands were adjudicated

as Commons for this SalvadorefianVillage.
(Annex2, pages .llv-14v.)(Bookof map 6.11)(2)

6.20 With the survey and chace to buy Common

Lands that waszgrantedto salvadoran communities
was endowed the Township of Dulce Nombre de la

Palma, which since its foundation was integrated
to the district of Tejutla. Under the Law of

Feb 18th of 1841, Dulce Nombre de La Palma
constituted in itself an electoral Cantoh in

the State of El Salvador.
Doctor Santiago Ignacio Barberena says the

following (1910): "Near 1844 was built in La
Palma a national customs house with one guard

or employee to avoid smmugling and to collect
the Fisical rights on the importations coming

£rom Honduras and Guatemala. Some thirty years
ago (around 1880), the house was sold out by

superior orders to the office holder".

- - -
(2) Map 6.2 included in the text.By Decree of the Deputies Chamber of February

21th of 1882, the town of La Palma was ranked
as a Villa. In 1890 it had 2180 inhabitants (Annex

3

THE HACIENDA.OF SUMPUL.

6.21 The Hacienda of Sumpul, within the
jurisdiction of the judicial district of Tejutla

in El Salvador and containing an ancient
settlement, belonged in 1820 to Santiago Valle,

being to the North of the Quebrada de Copantillo,
to the South West of the source of the River

Sumpul and bordering on the West à great part
of the mountain Cerro El Pital. Even further

to the North of this district there extended
Royal landholdings where the hardworking

Salvadorefian people produced and still produce
timber and have exercised and continue to exercise

acts of civil, criminal and military jurisdiction
and other evidence of ownership. It should be
pointed -out thay this sector of the frontier

was never disputed last century; thus even when
in the proceedings carried out for the purpose

of executing the forma1 Title Deed to the Commons
of La Palma in favour of its Salvadorefian

inhabitants. The neighbouring inhabitants of
Ocotepeque in Honduras were duly summoned, buy

al no time did they express any opposition to
the measurement which was carried out, nor didthey claim that these lands belonged to Honduras.

This claim was formulated for the first time
in the Joint Boundary Commission of 1916 but

without any documentary evidence being presented
to justify this claim. Indeed, even further to

the North than frontier line defended by El
Salvador there are former ,Royal landholdings

inhabited and possessed by Salvadorefianswhich
El Salvador woul have the perfectright to.claim

and it would then be for Honduras to present
the documentation with which to justify its

jurisdictionover these lands.

6.22 The salvadoran position before.Honduras,
in this sector is totally justifiedby the Commons

Title Deeds issued in its behalf, other colonial
documents and by the rights corresponding to

El Salvador in the Surrounding Royal Land
holdings.MAP 6.2 C. ARCATAO OR ZAZALAPA

6.23 This sector which has an area of 49.9 square kilomekes

not including the Crown Lands (TierrasRealengas),
comprises part of the Municipalities of Arcatao and
\
Nombre de Jesus in the Department of Chalatenango
in El Salvador. In terms of its position on the overall

frontier with Honduras, it is situated between the
boundary stone known as El Pacacio on the river known

as Pacacio and the boundary stoneknown as Poza del
caj'6non the River known as ~uayqui~uin,Gualcuquin

or El Amatillo.El Salvador has had possession of
this sector through thecenturies as a matter of

tradition both during the colonial period and
subsequent to independence. It is only recently that

ond/dur aas made any claim to this sector, a claim
whi6h is not supported by any forma1 Title Deeds

whatsoever.

6.24 The sector has an elongated form with a very broken
landscape, in which are included the peaks known as

La Pintal, Tecolote, De la Cueva, El Fraile, La
Montafiita or La Cafiaaa, El Caracol, El Çapo, El

Cerron, Lagunetas y Pitahaya and Las Lomas Altas,
El Terrero, Rancho Quemado,- Pa10 Verde, El Cajou,

and Plan de los Monos. Its peaks range from the 300
metres to 1,000 metres above sea level. The sector

is irrigated by the rivers known as.Pacacio, Gualsinga,
Zazaiapa or Guayquiquin or Gualcuquin or ~i Amati110

and the strèams known as Grande (2), San Pablo, El
Zapote, Los Apantes, Piedra Grande, Las Marfas or

Pa10 Verde, De Le6n y la Montaiiita and El Hoyo. A
substantial part of the Municipality of Arcatao is

situated in this disputedzone, which comprises part
of the districts known as Zazalapa,Los Filos and Gualcimaca with many of their villages under

El Salvador jurisdictions. The sector also includes
a part of the Municipality of Nombre de JesGs,of

El SalvadorIts soi1 is able to be irrigated and its
inhabitants cultivate grain andPasture cattle.

II. THE TITLE DEED TO THE COMMONS OF ARCATAO.

6.25 The possession enjoyed by El Salvador in this sector

is supported by the forma1 Title Deed to the Commons
of Arcatao, executed in favourof the Indian population

inhabiting the township of San Bartolomé Arcatao in
the year 1724. The said Indian population inhabiting

the Salvadorenan township of San Bartolomé Arcatao
appeared before the subordinate Judge Lieutenant Don

José Gonzalez Batrez asking that he would measure for
them the lands within the township of San Bartolomé

Arcatao. They stated:

"That the titles and documents by virtue of which they
possessed the said lands had been destroyed by £ire
and that they were being prejudiced by the activities
of perçons who occupied neighbouring landswho wished
to enter ont0 their lands and take them over [and they
requested that] he would measure al1 the said lands
which they thus possessed as their Commons".

The Indians occupying these neighbouring lands came
£rom Gracias a Dios in the Province of Honduras.

6.26 .On 7th August 1723 Don ~ornasIgnacio de Arana, a member

of the Council of His Majesty, his "Oldor y Alcalde
de Corte de la Real Audiencia" (QualifiedJudge of the Supreme Court of Guatemala) and the Chancellor of
Guatemala, sent the subordinate Judge responsible for

land measurements in San Salvador, San Miguel and the
Villa of San Vicente, Don Jose Gonzalez Batrez, to

carry out the measurement of the land in the above
mentioned township.

6.27 To this end the "Juez de Tierras" of San Salvador

carried out this measurement in August 1723 in the
presence of a witness there to defend the interests

of the Indians. From this measurement, whose complete
text is contained among the documents appended to this

Memoria1,it is clearly apparent that the boundary line
stated in this forma1 Title Deed is based funàamentally

on the actual physical characteristics of the sector,
such as its mountains and its rivers.

6.28 The measurement commenced "at the peak of the mountain

which is known as Juquln" proceeding from North to
South along "a Stream of water which is known as the

Quebrada Honda". "Moving in direction from South to
North, upstream along the River Sumpul, the Quebrada

Honda was reached". Here, because it was late, the
measurement was halted and two days later was continued

"and following the same direction from South East to
North West, crossing some hummocks, the highest point

of the Cerro Quifufia was, reached and following the
same course we reached to the headwaters of the gorge

also called Quifufia." Then the measurement passed
"through the highest point of a peak", then "changing

direction from South to North" reached "a ridge of
stones", subsequently taking the line of a "rivulet".

Following this rivulet upstream, the measurement- reached '!the foot of a great peak which has many
crags". The following day, proceeding from South to

North, the. Quebrada of Colomariguan was reached,
"having come there through the ridges of the Cerro

Colomariguan'. Subsequently the measurement went up
to Sasalapa it being then declared that the "Hacienda"

(country estate) of this name was "under the
jurisdiction of the Province of San Salvador" until

"reachi'ng the summit .of some very high peaks";
subsequently there was.a change of direction, from

North to South, to go right round the Commons and
for this reason this part of the record is not of

any interest for the. purposes of the delimitation
of the frontier, although the measureinentuses the

same technique of going £rom peak to peak, it being
stated that none -of these peaks divides the two

jurisdictions, that of San Salvador with that of
Gracias a Dios". In this way the actual physical

characteristics of the land were established as the
basis of the ~itle to the Commons. (Annex4). ( Book of

the Maps 6. III ) (5).
III. CONCLUSION

6.29 El Salvador exercises full jurisdiction over this

sector and has its documentary proof thereof in the
forma1 Title Deed to the Commons of Arcatao. The

jurisdictionof El Salvador in this sector is confirmed
* by the exercise therein of civil jurisdiction, such

as the registrationof titles to land in the Property
Registry, the grant of Municipal Titles to perçons

in possession,' and.the registration of the Births,
Deaths and Marriages of the inhabitarits,as well as

by the ,records of the Municipal and Presidential
Elections carried out in this area. Al1 this

documentation is included among thedocuments appended
to this Memorial.

(5) Map 6.3 ïncluded in the text. , '

INTERPRETATION OF THE COMMONLANDS TlTLE OF ARCATAO,

wnlw PROTECTSTHE ZONE OF ZAZALAPA

nadwatars of Gu

GuayompopoRiwr-

"a Varystg piocO?th.bill"

hi10 aicamh M*

"O stony littlhillŒ

uma of Hndo porgawithLampaRlvar

DIRECCI~N GENERAL DE L~ES Scala : 1rn.000.
MlNlSTERlO DE RELACIONES EXTERIORES
l O 1 2 3 4 SKmS.
REPUBL DECEL SALVADOR

,

. . .. MAP 6.3 ,/ D. PERQUIN, SABANETAS OR NAHUATERIQUE.

6.30 This sector is situated at the North of the

Salvadorefian Departament of Morazan which has a
common boundary with the Republic of Honduras. Prior

to the arriva1 of the Spanish in Central America,
this area was inhabitated by the Lenca Tribe of

the Taulepas or Caiz Indians. This tribe inhabited
in this sector four indigenous communities of great

antiquity, those of Arambala, Perquin, Torola and
Jocoatique. At Present the area forms a

jurisdictional and geographical part of .the
territory of El Salvador. This area not delimited

by the Tratado General de Paz of 1980 is the largest
of the sectors in dispute between El Salvador and

Honduras with an area of 161.5 square Kilometres
not including the Crown Lands (Tierras realengas).

During the colonial period, this sectorwas within
the jurisdiction of the Province of San Miguel and

formed part of the Commons princlpally of Arambala
and Perquin and also of Torola.

THE TITLE DEED TO THE COMMONS OF ARAMBALA AND

PERQUIN.

6.31 The original Royal Title Deed to the Commons of

Arambala and Perquin was issued by the King of Spain
in the year 1745 but this was destroyed in 1760

on the occasion of the fire which destroyed the townships of Arambala and Perquln, the forma1 Title

Deed to their Commons being lost in this fire.
Because of this occurrence, in May 1769 the 'Mayor

and the Councillors of the township of Arambala,
which was within the jurisdictionof the city of

San Miguel, presented themselves before Don Domingo
L6pez Urruelo y Arrocha, "Alcalde de Corte de la

Real Audiencia de Guatemala y Juez Privative del
Real Juzgado de Tierras de este Reino" (Principal

Officer of the Supreme Court of the Kingdom of
Guatemala and Private Judge of the Royal Land Court

of this Kingdom). In their petition, they declared
that the Title Deed to the Commons of Arambala and

Perquin had been destroyed in a fire which had also
destroyed the entire township and consequently

requested the inmediate remeasurement and grant
of a forma1 Title Deed to their lands, in other

words that a new Title Deed to their Commons should
be issued once al1 the appropriate informationhad

been obtained.

6.32 The appropriate instructions were given to Don
Antonio de Guzman, subordinate Judge for land

measurement of thecity of San Miguel Alcaldia Mayor
de San Salvador, and on 26th May 1769it was ordered

that, once he had received the necessary information,
he should proceed to summon the inhabitants of the

land bordering on these Commons to obtain their
recognition of the exact boundaries, reerect the

boundary Stones and carry out the measurement of
these Commons, a task which he in fact delegated
to Don Antonio Ignacio de Castro because he was

in bad health.6.33 In order to comply with the instructions whichhad
been given to him, Don Antonio Ignacio de Castro

on 28th May 1769 set out from the city..f San Miguel
to the township of Arambala with the witnesses whose

presence was necessary, who were Agustin de la Torre
and Sebastian de Pereda, and the other necessary

perçons, arriving on 30th Mayand beginning at 11
a.m. on that day to car,ry out his instructions.

He immediately proceeded to nominate Don ~ntonio
Lazo de la Vega as defender of the interests of

the inhabitants of Arambala and Perquln and he was
duly sworn as such and also to summon the inhabitants

of the townships and the owners of the lands which
adjoined the old Commons of Arambala andPerquzn.

6.34 On 6th June 1769, Don Antonio Ignacio de Castro,
the Judge Commissioner, carried out the necessary

"visual inspection" in the Company of the perçons
whom he had summoned and nominated with the object

of recording the boundaries of the Commons of
Arambala. This inspection proved that the Commons:

".... in the part to the North have a common boundary
with the jurisdiction of Comayagua; in the part
to the South border on the township of Torola of
this jurisdiction (of San Miguel) and with a
"Hacienda" (country estate) which the townships
of Osicala have on lands of the township of
Meanguera; in the part to the East border on the
"Hacienda" of Joateca (or Juateca) which the Indians
of San Juan Yarula have purchasdin this jurisdiction
(of San Miguel) and have a common boundary with
the other jurisdiction;and in the part to the West
have a common boundary with the jurisdiction of
Gracias a Dios." (Annexi323 v.and 324 v.)6.35 On the 12th June 1769 the Judge Commissioner Don .
Antonio Ignacio de Castro drew up the forma1 record

of the remeasurement of the Commons of Arambala
and Perquin, duly accompanied by the justices, the

practitioners, the witnesses, and the nominated
measurer. The said measurement descites the entire

area of Nahuaterique, al1 the boundary stones still
being able to be encountered on the land in its
present state. In this formal Title Deed (which

is transcribed at length among thedocuments which
are appended to this Memorial) the "Juez de Tierras"

declared that he "would point his compass in the
direction of the Cerro de la Ardilla and the lands

of Nahuaterique because it was in these lands where
the inhabitants of Jocoara had entered". He then

ntated that "going towards the North East he went
to the foot of the peak which is known as the Cerro

de la Ardilla :',established that "the boundary of
the Commons ot the township of Jocoara is a

considerable distance from this land since between
the boundaries of the two Commons there remain Royal

landholdings", and consequently took as the first
boundary of the Commons the Cerro de la Ardilla.

From this peak, he moved off towards the East "to
a peak which is know as Salalmya" and in the same

direction reached the peak known as Napansapa, then
the pass of Olocicala, "from there following the
same direction to the peak of Chagualaca". The

Deed then States that "changing to the direction
North to South" he reached the "River Negro which

is also known as Pachigual, which river divides
this jurisdiction ;rom the jurisdiction of Gracias a Dios", and then to the Roble Negro (another peak

some 940 metres above sea level). There the Indians
of Colomoncagua of the jurisdiction of Gracias a

Dios questioned his measurement "on the grounds
that it entered well within their lands".

Consequently the "juez de Tierras" requested their
Title Deed, "to which they replied that they did
not have it with them but would bring it within

two days". Given that "they had not appeared
with 'their Titles as they had offered to do", the

"Juez de Tierras" "from the said Roble Negro"
continued with his measurement, climbing up and

descending from "a ,high ridge" which bordered on
Royal landholdings and afterwards with the land

of Colomoncagua. He then continued his measurement
taking heights as his points of reference: "the

ridge kncwn as Monguetas", "the line of low hills
known as Esquingala", "the peak known as La Limpe",

"the peak of Sefoal", "the peak Guayampal", "a rocky
peak", "the ridge Morata", "the pass known as

Equilatina" "where the lands of San Juan Joateca
of the said Indians of San Juan Yarula of the

jurisdiction of Comayagua end and wher'ethe Royal
landholdings of the mountain begin", "the peak

Zapamani", returnig finally "to the Cerro de la
Ardilla". The "juez de Tierras" concludedhis forma1

record by refering to the "views expressed in
contradiction of this measurement by the inhabitants

of the townships of Jucuara and Colomoncagua of
the jurisdiction of Gracias a Dios" and decided

that "these statements ought to be repudi?.ted since
they had no legal foundationn.(Annex5 pages 324 v --
331 v.) (6) (Book of Maps 6.IV) .
(6)Map 6.4 included in the Text. 6.36 Having concluded the proceedings,Don Antonio Ignacio

de Castro remitted the documents for the information
of the subdelegate judge of the Province of San

Miguel, Alcaldia Mayor of San Salvador, who on 16th
June of that year ordered that a map of the land

remeasured should be drawn up and that the number
of "Caballerias" of land within the measurement should

be established, it resulting that the area was
60 (Caballerias) and 58 square "Cuerdas". On the

17th June 1769 the subdelegate Judge responsible
for Royak Land Measurements approved the measurement

made. and remitted the documents to the Principal
Judge Don Domingo L6pez de Urruelo.

THE INCIDENTS WITH THE INHABITANTS OF JOCOARA 'OR
JUCUARA.

6.37 In spite of the above mentioned measurements and
decisions, the Indians of Jocoara (today Santa Elena

in the Republic of Honduras) continued entering
into the lands of Nahuaterique. In 1763, the

corporation of Arambala, in order to treat well
and grant a favour to the Indians of the township

of Jocoara or Jucuara, granted them a licence to
put their communal maize fields, pasture their

cattle, provide themselves with firewood, and
even carry out their sowing on almost two and a

half "Caballerias" of land in the mountains of
Nahuaterique (withinthe jurisdictionof the Province

of San Miguel). The inhabitants of Jocoara brought proceedings before the Private Judge of the Royal

Land Court for the grant to them of a Title Deed
to the Commons of these almost two a half

"Caballerias' located in the section situatèd in
Crown Lands (Tierras Realengasi of the jurisdiction

of Arambala - Perquln.

6.38 On 11th November 1815 the inhabitants of Arambala

and Perquin presented a document to the Judge

Prosecutor declaring that, for many years they had
lacked forma1 Title Deeds to their Coimons because

these had been burnt in a £ire which their townships
had suffered; that

"because proceedings had been brought by the
inhabitants of Jocoara of the Province of Comayagua
in respect of two and half "Caballerias" they had
not brought to a conclusion the proceedings relating
to their Title D'eeds and consequently they today
appeared before Your Excellency to ask that these
Title Deeds be granted with the sole reduction of
the two and a half caballerias which had been taken
away £rom them and measured out to the inhabitants
of Santiago de Jocoara and that they did not wish
that the latter shouldusurp these lands any more".

On 13th November 1815 the Judge Prosecutorexpressed

the view that the request of the inhabitants of
Arambala and Perquin was just and', consequently,

he suggested that the proceedings relating to the
measurement of their Commons should be approved

and that the forma1 Title Deeds should be issued
to them with the appropri.ateinsertions. 6.39 On 16th November 1815, Don Jose de Bustamante Guerra

de la Vega Pineda CovoEstraday Zorlado,as President
of' the "Real Audiencia" of Guatemala, and in the

name of his Majesty, and by virtue of the Royal
"Cédula de Instrucci6n" (formal document conferring

jurisdiction) granted in San Lorenzo El Real on
15th October 1754, issued a Judgment in the said

matter in the followingform:

"In the name of his Majesty (may God preserve him)
and i5yvirtue of the Royal "Cgdula de InstrucciSn
given in San Lorenzo El Real on 15th October in
the past yeak 1754, by the power and the.faculties
which by that document are conferred upon me, 1
decree that .the Indians of the.townshipsof Arambala
and ~erqu'inÇhould be protected in their age old
possession of their Commons in order that they may
on those lands carry out their sowing and their
other communal labours whichthey may see fit and
may utilise freely their .lands, waters, pastures,
and waterplaces as something which belongs
to them by just and ïegitimatetitle".

CONCLUSION.

6.40 From the study of this Title Deed to the Commons

of Arambala and Perquen, 'the following conclusions
are able to be drawn:

(il That there is no other title, posterioto the Commons

of Arambala and Perquin Title and its reposition
of 1815 issued by the spanish authorities, that

could be opposed to that either modifingor affecting
it. (ii) ThrouglmutCheTitle it is stated that the lands

., cjraiitedto Ararnbala and PerquIn always formed part
of the Province of San Miguel.Çince iriclependenc these

tcrritories have continucd up until the present day

Lo form.(>art oftlic tcrritory of El S;ilva(lor.

(i.i) l'licsc1;iiidsborder to the south, and within
Çalvadorehan territory an the lands',ofthe township

of Torola and on a "Hacienda" (country estate) of the
townçliips of Osicala, on. lands of the township of.
\
Meanguera and to the East border on .the "Hacienda"
of Joatcc;~(or Juatreco).

iiv) The key or established points of the
boundaries of the lands of','~rambalaand Perquin to

the East, North and West with the other jurisdictions
of the Province of Honduras start from a rocky peak

where there was a boundary marker of old Stones (the
Mal Paso of Similaton), as far as the Pass of

Equilatina and the Royal landholdings of Nahuaterique
bordering on the Cerro de Sapamani; from there to

Sabanetas on the Montana de la Isla and from there
to the Cerro de la Ardilla where theIndians of Jocoara,

in Comayagua, had entered, being at a considerable
distance the Commons of Jocoara and the Royal

landholdings; then Salalamuya, the ravine of Sojoara,
then to the peak of Napansapa, to the Pass of Olosicala,

the peak of ~hagualaca; and afterwards towards the
West to the ridge of Guiriri bordering on Royal

landholdings, then to the Roble Negro and then to the
road which leaves Arambala for Colomancagua, where

the boundary with the Province of Comayagua ends
and the lands of the township of Tor019 begin.

(v) This Title Deed to the Commons of Arambala

and Perquin, executed in 1815, constitutes ovcrwhelming
proof of the rights of El Salvador ovcr this area of

Nahuaterique or Sabanetas. THE TITLE DEED TO THE COMMONS OF TOROLA.

6.41 The Title Deed to the Cornons of ~orola is
complementaryto the Title Deed to the Commons of Arambala

and Perquln. It is of qreat antiquity and was preserved
in the Municipal Archive of the said township until 1734

when it was destroyed ina ferocious fire which devastated
the entire township. As a result of this eventthe Town

Council at the end of 1742 requested that witnesses be
examined so as to provide proof of what had happened.

The witnesses summoned in evidence qiven on 5th May 1743
were unanimous in statinq that a fire detroyed the

township of Torola in .the year 1734. The first of the
witnesses José Dlaz Recinos declared "that the Royal

Title Deed to the said indiqenous community (Torola)
was an extremely old Title and that he knows that the

town of Torola had a Royal Title Deed ot its cornons
and when the aforesaid town was destroyed by a fire,

the said title was also destroyed, and that he is well
acquanintedwith the borders and landmarksof his property

which are public and well known." (Annex 6 paq.3.)

6.42 Captain Juan José de Canas commenced the

remeasurement of these Cornons on 7th May 1743,
accompanied by' the necessary witnesses Pablo de Urbina

and Lucas Roque, the first of whom he nominated defender
of the .interestsof the Indians of Torola and the second

of whom he nominated defender of the interests of the
Indians of Colomoncagua, Arambala, Perquin and

Jocoaitique. They were also accompanied by the nomindted
measurer Juan Cris6stomo Leon, the people of Torola and

many perçons from neiqhbourinq townships. The
remeasurement commenced on the northern boundary on the

riqht hand bank of the River .Torolaat the point where
the, Stream Güespique or Mal Paso (today known as 'paso
de Guacuco) flows into the river. At this point there is a round mound in the middle
of the stream, a boundary marker which is also

mentioned in the Title Deed of the nacienda of San
José. Measuring in the direction South North the

boundary passed by way of some peaks with rugged
summits, by way of the Portezuelo de Sm Diego where

there is a large Stone of "Talpetate", by way of
the stream of Las Anonas and by way of the Pass

of San Diego.The Title.Deedadds that the measurement
"reached a spot which is known as Las Tijeretas
and in the same direction reached the shores of

a river in a ravine known as the River de las Cafias".
(Annex 6) (7) (Bookof 1-laps, IV).

6.43 The Title Deèd so issued in 1743 was still preserved

in 1844 but in .a much deteriorated state and so
the Mayor 'and his Secretary, in the name and

representation of the .Corporation and People of
Torola, requested the Political and Millitary

Governor of the Province of San Miguel, General
Joaquin Eufrasio Guzman to carry out once again

a remeasurement of these Commons so as to avoid
the continuous disputes that were arising over land

boundaries. On 29th February 1844, the said
Political and Military Governor nominated Cecilio
Espinoza as Special Judge for Land Measurements

in respect of these proceedings so that he, with
the assistence of the surveyor Fernando Bustamante'

and the witnesses Jos6 Pio Argueta and Esteban
Echeverria, should proceed to remeasure the said

Comrnons in accordance with the established laws
and procedures, and should localise and renew the

old boundarymarkers.
(7) Map 6.4 included in the text. Consequently on 5th March 1844, the Mayor and

Secretary of Torola handed over to the nominated
Special Judge for Land Measurementsthe forma1 Title

Deed to the Commons of Torola of 1743 which consisted
of twenty two written pages. The remeasurement

began on 6th March 1844, the appropriate forma1
record being issued by the Special Judge for Land

Measurements in which is stated that: "According
to the Title Deed of the lands of the township of

Torola... its boundaries commenceat the point knoiin
as the Stream ~Üespique on the north bank or right

hand side of the River Torolan. From this
geographical feature, whichwas taken as the starting

point, the measurement was taken, using a cord
of 50 "Varas castellanas'in length, in the direction

South North and the boundaryof the Commons of Torola
to the West was determined in accordance with the

following boundary markers: from the gorge of
Güespique to the Cerro (peak) Chiriqui, 15 cords;

from the Cerro Chiriqul to the Cerro El Portezuelo,
17 cords; £rom the Cerro El Portezuelo to the Pass

of San Diego, 31 cords; and from the Pass of San
Diego to the point known as Las Tijeretas, 41 cords.

6.44 The Mayor of Colomoncagua, Don J. Inés Diaz, was
summoned to' attend for the fixing of these

measurements and replied that.: "he would attend at the point known ass aiseretas
with the Title Deed to the Commons of his township
so that in the light of both documents (that
is to Say the Title Deeds to the Commons of Torola
and of Colomoncagua) we way be assured of our
property"

6.45 By forma1 process on 11th March 1844 the Special'

Judge for Land Measurements proceeded to compare
both Title Deeds with the followingresults:

"he indicated, citing folio 13 of the Title Deed
to the Commons of Torola of 1743, that as from the
point known as Las Tijeretas this document indicates
that the boundary proceeds by way of the boundary
marker of the River de Cafias,which line is the
dividing line between the jurisdictionsf San Miguel
and of Gracias aDios."

The people of Colomoncagua declared that in their

Title Deed to the Commons of San Pedro Colomoncagua
their boundary markers were £rom Las Tijeretas to
Los Picachos. The Judge, having asked them for

their Title Deed, found the appropriate.part and
read in a loud voice the following: ....."by way
of boundary, the river de la Yuquina". He then

asked the people of -Colomoncagua which was this
river. They replied that this was the same river
as the River de Cafias. In other words, in the Title

Deed to the Commons of San Pedro Colomoncagua it
is stated that "... the said river Yuquina or
de las Canas is .theboundary line" (emphasis added). The people of Colomoncaguaaspresenteb deforethe Judge,

asked him to point his compass in order to see what
was the direction taken by the boundary line at

Las Tijeretas from South to North (the direction
stated in the Title Deeds both of Torola and of

Colomoncagua) and it was seen that the line taken
encountered a river in a ravine called Las Pilas

and in the same direction (from South to North)
at a short distance it encountered the River de

las Canas, known as Yuquina in the already mentioned
Title Deed of Colomoncagua.

6.46 This same boundary, the River de las Canas, has

indeed been accepted as the boundary between El
Salvador and Honduras in the various Joint Boundary

.Commissions that have taken place between the two
States. Thus at the Fifth Meeting of the Cruz.

Letona Joint Boundary Commission in 1884 there were
summoned the representativesof the frontier townships

of Torola and Carolina of El Salvador and
Colomoncagua of Honduras, as well as the owners

of the Haciendas of San Diego and Candelaria which
constitute the boundary of Salvadorefianterritory

in this area under the jurisdiction of Carolina.
When the respective Title ~eeds had been examined,

the Commissioners agreed to adopt the frontier line
stated in the most authentic of these Title Deeds

and consequently the state frontier linewas agreed
in the following form! From the peak "Alquacil

Mayor", where the Rio de Cafiashas its source,
following the line of the said river as far as a place called Caj6n de Champate where theriver passes
between two peaks, the Southern peak being in the

territory of El Salvador and the Northern peak in
territory of Honduras. At that point the frontier

line leaves the river, which enters Salvadoreiian
territory, and in a direction approximately South

75O West runs in. a straight line to the summit of
the peak known as El Vallecillo or Redondo, where

the stream known as La Orilla has its source. From
there the frontier line follows the course of this

stream until it flows into 'the River Torola at the
foot o- the Cerro Azacualpa, which belongsto Honduras,

opposite the lands of'the hacienda de Candelaria which
belongs to El Salvador. From this confluenoe of the
stream with the River Torola, the frontier linefollows

the course of the River Torola until its confluence
with the River Lempa, the territory of ~1 Salvador

being on the left and the territoryof Honduras being
on the right. This recognition of the frontier line

in 1884 confirms the rights of El Salvador in this
sector.

JURISDICTION AND SOVEREIGNTY OF EL SALVADOR IN THIS

SECTOR OF NAHUATERIQUE.

6.47 On the basis of the provisions of Article 26 of the
Tratado General de Paz, signed in Lima, Per6, on --

30th October 1980, by both STates, the superiority
of the SalvadorefianTitle to the lands comprised in

this sector is indiscutible by virtue of the fact
that its Title Deed, apart from the fact that it was

issued by the Spanish authorities, clearly indicates
which jurisdictionhad control over the land in respect

of which the measurements were carried out. The
fundamental and essential aspect of the Title- inin~uquestkonirac~ses~uout~foâhth act:hthat:hkhelabànd
rn~measu~edtht-hereininu&wasjrgcant'ed:ctd:hthe;.nj?nhabktants

cfofArAraniljalaanàndPeP~quin~.sasloh~ngagagoisas~71i~45;oso

th~hati:lElÇaSti%Cadoiitahas~ebeen?xexe~,cis~ngjuj~$~diction
anandsosovee~iggtyovoverththesela3àndssiskncetht-hese
imimmemor,ialti~i-me.FuEur~t-hertht-het~o~og~èphyseset~uout

inin~h~hisTiTit-le~eDèed:cco~nÇi.desinin?vev~rys$spect.iwi.th
thtihecact-üal.tstatefof.h ahhànd.

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anàndosoveeqi.g~ty.

6-6949 FuEurktherArAtt.icle ?62oi?:ht-heTr~rat'ado;~Gene~a1~~de~aPaz

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clcEeagly dedemons&rates tht-hat ththis sesec'tor isis

adadminist-rakkir.gly. -apart.fof;lEEaSa.l;5ador. INTERPRETATION OF T .E COMMON LANDSTlTLE OF

PERQUIN -ARAMBALA AND TOROLA,WHICHPROTECTSTHE ZONE

OF NAHUATERIQUEOR SABANETAS
l

"~orcidaOlosicol

ORIGINAL ENCAYWENT
or PERWIN-ARAM.D . ALA

COMMûNLAND8 Or

. .

DIRECCI~NGLNERU DE L~MITEs
MINISTERIODE RELKDNES EX/ERORES
I REP~BLICADL EL SAW-

MAP 6.4 E. MONTECA OR POLOROS

6.50 The area in dispute inthis sector was in the Colonial

period within the jurisdiction of the Province of
San Miguel, in the Alcaldla Mayor de San Salvador,

as an inteqral part of the Commons of San JuanPolor6s,
in agreement with the Title Deed to these Commons

which was qranted to the inhabitants of Polor6s in
Guatemala in 1760 by Don Dominqo L6pez de Urrelo y

Arrocha, "Alcalde de Corte de la Real Audiencia de
Guatemala y Juez Privative del Real Juzqado de Tierras

de este Reino" (PrincipalOfficer of the Supreme Court
of the Kingdom of Guatemala and Private Judqe of the

Royal Land Court of that Kingdom), in accordance with
the measurements made by Don Antonio La20 de la Vega,

duly commissioned to carry out this function.

6.51 At the present time this sector forms part of the

SalvadorefianDepartment of La Union (created in 1865)
and has an area of 56 Square Kilometres, not includinq

the Crown Lands (TierrasRealenqas).

6.52 In accordance with the forma1 Title Deed to the Commons
of ~olor6s, the limits of the Commons are, from the

East to the West as followinq:

"Upstream alonq the River Guajiniquil, whichin this
area takes the name Unire, as fas as the source of
the eastern most branch of this river, which qoes
towards the Cerro de RivitS; from this source in a
straight line to the summit of the said Cerro de.
RivitS, which is. the hiqhest peak; from the summit
of the Cerro RivitS to the summit of the Cerro de
L6pez and from the summit of the Cerro de L6pez to
the confluence of the Stream Mansupucaqua with the
River Torola."6.53 Although there have been a number of Joint ~oundar~
Commissions and Conventions between the two States

in order to resolve the frontier problemsbetween
them and although serious disagreements have arisen

between,the Salvadorefiantownship of Polor6s and the
Hondurefian township of Opatoro,it was only

comparatively recently in 1880 that Honduras begin
its claim in this sector.

6.54 In 1884 there commenced on 15th March in Concepcion

de Oriente (formerly known as Saco) a new round of
Meetings of this Joint Boundary Commission to resolve

the frontier problems betweenEl Salvador and Honduras,
the Salvadorefiandelegation comprising General Don

Lisandro Letona, the surveyor Don Maximo Brizuela
and (as Secretary) Don Salvador G. Hernandez and the

Hondurefiandelegation comprising DoctorDon Francisco
Cruz, the surveyor A.F. Byrne and (as Secretary) Don

Tomas Membrefio.The territory which was the subject
of dispute in the sector of Monteca was considered

at the Third Meeting of the Commission, which took
place at Joateca, within the jurisdictionof Cacaopera

on 24th March 1884. At this Meeting, in accordance
with the examination carried out of the documentation
presented by each side, agreement was reached to the

effect should be determined in accordance with the

Title Deed to the Commons of Polor6s on the grounds
that this Deed was the oldest document presented and
that it referred to well known landmarks.6.55 According this Conference, the borderline between
both Republics was determinedunder to the Commons

Title of Polor6s, because of being this the older
one and the Title that mentioned the best known places,

beginning the description from thePaso Unire following
the course of this river towards the north-northwest

till the Rivitd,whichis the highe~tiestpeak of the
four that constitute the sierra of Rivita, which is

made of four prominences, being the first the one
they cal1 El Guanacastillo, on the Planes de Monteca

and the hightiestand northernmostpeak that of Rivita,
which is located near the landmark of the Commons

of San Antonio del Norte in El Robledal; witha west
path itis reached the Cerro de L6pez; from this hi11

with a south to West route in a straight line till
the junction of the ~ansupucaguagorge with the Torola

River and from here till the confluence with the San
Antonio River. (Annex 7) (8) (Bookof Maps 6.v)

6.56 One of the principal consequences of these ~eetings

was the signature by both delegations on 10th April
1884 in the city of San Miguel in the Republic of

El Salvador of a Convention fixing theState boundaries
with the, object of delimiting the frontier line
between, on the one hand, the townships of Opatoro,

Santa Elena, Colomancagua, and Ocotepeque in Honduras
and, on the other hand, the townships of Polor6sr

Arambala, Perqufn, San Fernando, Carolina and Citala
in El Salvador. This Convention was signed after the

Title Deeds to the Commons andof otheroommunalpmperty
df the frontier townshipsof both Republicshad been

duly read, compared and examined and the frontier line
of the sector at present being considered was fixed in

(8) Map 6.5 included inthe text. accordance with the Title Deed to the Cornons of

Polor6s.

!
6.57 This Convention was not approved by the ~ongress
of Honduras where its Commissioner,Dr. Francisco

Cruz, was accused of being a traitor. As a consequence
of this, Dr. Cruz appeared before the Congress of

his country to make his defence. (Hisspeech is
included among the documents appended to this

Memorial). In his speech he declared, inter alia
that the Commissioners had "established the basis

that, in the appraisal of the Titles and other proofs
produced by one another, (they)would give preference

to the oldest authentic evidence." He added "that
it is not correct, as the Congress asserted, that

the SalvadorefianTitle Deed to the Commons of Poloros
is not authentic; it is in fact one of the very

oldest, it refers to well known landmarks,and there
were no documents whatever whichcontradicted its

terms." His most important statementis the following
passage:

"It is nor true thatthc inhabitants of Opatoro have
possessed the area of Dolores from time
immemorial.What happened was that when the Cornons .
of Polor6s were measured at the time of the execution
of the last mentioned Title Deed, express permission
was given by the inhabitants of POlor6s that .the
inhabitants of Opatoro could have a farm for the
raising of cattle within the jurisdiction of the
Commons of Poloros."

THE EXERCISE OF JURISDICTIONAND SOVEREIGNTYBY EL
SALVADOR IN THIS SECTOR.

1 6.58 The legitimate rightof El Salvador in the Monteca ..
.
zone is mainly backed by the Common Title of San
Juan Polor6s of the year of 1760, exercising'thence
.
undisputed sovereignty and jurisdiction because this
title is one of the oldest and because it mentions

well known places.

Based on the 26th Article of the General Peace Treaty

suscribed in Lima, PerG, on October 30th 1980, .by
both States, the superiority of the salvadoreiian

title does -t admit. discussion,.
-

Besides the cited article establishes .It also'1
+ab intoaccount otherrdence and ar&&ts if a l&al, -hist4

r{cfi# hma0. or aW other u* brou&+ beforeit by.tùe ~artfes;
admitted onderinternational lav.' t- -
!

El Salvador has exercised effective possession -over

this sector as is illustrated by the Census carried
out by the National Geographic Institute of El

Salvador in 1975 and 1979 which prove that 90% to
95% of the persons who live in this disputed sector
are Salvadorefian. There also exists in the Property

Registry the registration of the properties of
~àlvadoreiians; al1 that is lacking is that the

appropiate rnaps of thl sector are produced. The
MiAistry of the Intekior has a1s.o been able to

provide Certificates of Births and Deaths, ithe grani
of National Identity Documents, and the nomination

of Teachers for the inhabitants of this region whoaresettled under Salvadorefianjurisdiction. In the same

way there exist salvadorefian Civil unic ci pal
authorities, Cantonal and other Commissioners in

this region, something which is even confirmed by
some proceedings carried out in the Political

Government of Honduras as a result of a request froin
the Municipality of Opatoro, in which Hondureiian

subjects provide authority for the fact that the
perçons who live in the Settlements of the farms

and the plains and other geographical features
in this disputed sectorare Salvadorefians.MAP 6.5 F. THE ESTUARY OF THE RIVER GOASCORAN

O

6.59 El Salvador adduces, that the frontier line is the
ola and easternmost of the branches of the Goascoran

River and that it flows into the same Gulf, in the
La CutG Estuary, jurisdiction of Pasaquina, Department

of La Union, Republic of El Salvador.

6.60 Accordingly to the beforesaid has been the criteria
established by the honduran geographer .Professor

Bernardo Galindo y Galindo, who fixed the old mouth
of GoascorSn River in the Estuary of ''LaCutG", facing

the Zacate Grande Island, being this the primitive
mouth of the Goascoran River.

6.61 To the West of the former course of the River

Goascoran was the Hacienda Los Amates ( 9 ), within
the jurisdiction of the Province of San Miguel in

the "Alcaldla Mayor" of San Salvador. The first Royal
measurement of these lands was carried out in the

year 1695 at the requést of San Juan B'autista de
Fuentes, originary from the Province of San Miguel,

which in the concerning part says:

I... a statement was made to the effect that in an
area known as Los Amates, which is an estuary (the a
Estero El Capulln) in the vecinity 02 the sea, there
were some unoccupied Royal Land holdings which he
[Juan Bautista de Fuentes] ' sought to have measured
and marked out. " (Annex 8 Pag. 11).

(9) A place name which still exists since this sector
has recently been given this .naine in the dispüte-

with Honduras.6.62 The "Alcalde Mayor" of San Salvador, Principal

Lieutenant José Calvo de Lara, delegated the 'carrying
out of this measurement to Captain Francisco de

Goicochea y Uriarte, who in the appropiate forma1
record in which the boundaries of Los Amates were

described made the following statement:

"The measurement was commenced from a large ceiba
(silk-cotton tree) where a cross was placed (the first
boundary marker). .. going in a North South direction
an estuary was reached at a distance of three cords
and, passing the estuary proceeding in the same
direction through a plain known as Sabana Larga, the
sea was reached at a distance of five cords (thesecond
boundary marker) ...walking from West to East along
and over the actual beaches'we reached the mountain
which borders on the River Goascoran at its meeting
with the sea at a distance of twelve cords (third
boundary marker) ...walking from South to North along
the bank of the said River (~oascoran) the end point
of the mountain was reached at a distance of eight
cords where a cross was placed (the fourth boundary
marker) and proceeding from East to West the ceiba
where the measurement had been commenced was reached
at a distance of twelve cords." (Annex 8 ?ag.13,14 )
(10) (Book of the maps 6.VI). '

6.63 It is obvious that this description in the year 1695
of the property known as Los Amates in the Estuary

of the ~iver. Goascoran (at the eastern extremity of
the Province of San Miguel in the "Alcaldla Mayor"

of San 'Salvador)only ;lasone possible explanation when
considering the old bed as the dividing line of the

Goascoran River that is, when it flowed into the "La
CutG" Estuary. Besides.El Salvador has possessed the

zone from immemorial days, where its dwellers have
exploited and still' exploit the extense mangrove

'forests, living in general from fishing.

(10) Map 6.6. included in the text)6.64 The arguments maintainedby El Salvador in order

to demonstrate its legitimatetitle to this sector
are based on the formal Title Deeds executed by

the "Jueces de Tierrasn (LandJudges) in the sector

in compliance with the instruction of ,the "Real
Audiencia" (SupremeCo'urt)of Guatemala. One of

these Title Deeds (the already mentioned Title
Deed of Los Amates executed in favour of a

,.Spaniard, Juan Bautista de Fuentes, who was
resident in the Province of San Miguel in the

"Alcaldla Mayor' of San Salvador) executed in
1695 contained an express declaration that "the

land of Los Amates within the jurisdiction" of
the Province of San Miguel. (Annex 8 pag.la 22)..The

Title of the lands of Peje Espada issued by the
respective Judge of Land Surveying with

instructions of the Royal Audiencia of Guatemala,
comprehended in the salvadoreiian Hacienda of San

Juan Buenavista.(11).

6.65 Around the year of 1916 the Hondureiianconstructed
a reinforced dike on the left bank of the River

Goascoran in Los Amates. This dike has been
constructed where the former course of the river

ran thus prevents or avoids the river running
along its former course. At the present time and

in the same place there is a Stone wall made by
Honduras.

6.66 In the Arbitration of El Chamizal in 1911, it

was recognised that a total change in the course
of a river does not bring 'about any change in

the States'ownership of the lands situated between

(11) Revista La Quincena aiioII1,TomoV,No.49,
San Salvador,loof abri1 of L905. the old and the new courses of the river. It was
accepted in these negotiations between Mexico

and the United States of America that there is
a rule of Public InternationalLaw to the effect

that: "if a river abandons its former course,
the international boundary remains the middle

of the abandoned course of the river". 'Thus the
former course of the river, now dry land because

of the change in the water course, remains the
international frontier. As Hackworth states in
the Digest of InternationalLaw Vol. 1 p. 4:

"When sudden and violent changes in the channel
of the stream occur, whether from natural or
artificial causes, and the stream suddenly leaves
its old bed and forms a new one, the process is
known as a vulsion, and the resulting change in
the channel does not bring about a change in the
boundary. In the latter case, in the absence of
an agreement to the contrary the middle of the
old channel, it is previously marked theboundary, 1
continues to do so even though the old bed may
have been entirely abandonedby the stream."

67 The HondurefianGeographers and Historiansmembers

of the "Sociedad Pedag6gica del Departamento de
Valle'' (~he Society of Teachers of the Department

of Valle) who under the direction of Bernanrdo
al in ydoGalindo carried out a very detailed

study entitled "Monografia del Departamento de
Valle", the relevant part of which states:

"On the left are found traces of its original
riverbed...which had its mouth in the Estero La
CutG opposite theIsla Zacate Grande." (12).

(12)Monografla del Departamentode Valle, Bernardo
Galindo y Galindo, aiio1933.-6-68, Among the Salvadore.ïiar neports referring to the
change in the course of the River Goascoran is

the study carried out by Doctor Santiago 1.
Barberena entitled "Los Rios Lempa y Gbascorann,

y la Regla de Babinet O de Baern, the relevant
parts of which state:

n
....the flow of its waters (those of the River
Lempa) tends to have preference for the right
hand bank in which the effect of erosion is much ,
more fierce and efficient that on the opposite
bank".
n...in 1888 1 made an analogous observation in
relation to the Goascoranwhich, as is well known,
also runs in a Northe South directionin the final
part of its course from the pointwhere it receives
the waters of the Guajiniquil or Rfo del Pescado
until its mouth in the Golfo de Fonseca.Some 7
kilometres upstream from this same latter point
is the place where the Goascoran leaving its old
course took a new course towards the right
abandoning.... a piece of land of very high quality
with an. area of some 25 "caballerias" known as
Peje Espada, which land is comprised within the
Titles of the SalvadoreïianHacienda of San Juan
Buena Vista. (13 1.

(13) Ibid, cita Revista La Quincena. 1
e7e4s1 8T'd

DELTA OF THE RIVER GOASCORAN 13-30'-

Romdn deLoeAmotes

1s-25'-

iiio comb Of FONSECA

lm'-

DIRUCI~NQWERAL DL L~YITES
MWTLRIO DL RLLACIOWESEXTCR- Scola 1:100,000
I O 1 p 3 4Kms.
RV~KA DL CL ULWDM w -
87.4s' #7*40A
2

MAP 6.6 CONCLUSION

The Commons Title issued by the Crown and the

spanish authorities in behalf of the Province of
San Salvqdor and which embrace the disputed zones

let us determine with absolute evidence the
boundaries of the commons perimeter belonging to'

El Salvador, same which, although demarcating with
absolute precision the limits of salvadoreiiancommon

lands are not restrictive of its jurisdiction
because in the Colonial days, a province's

jurisdiction always extended beyond the limit of
its commons. The interpretation of these Cornon.

Titles has abledEl Salvador .to trace technically
the line that determines the inclusionof the common

lands comprehended in the disputed z0nes.A technical
interpretation which preserving the salvadoreiian

rights in the claimed crown Lands, goes as
following:

Starting £rom the summit of the peak known as Cerro
Zapotal or Chiporro situated at Latitude 14O23'26"

North and Longitude 89'14'43'' West, the frontier
continues in a straight linein the direction North 71°27'20" West for a distance of 3,530 metres as

far as the peak known as Cerro Piedra Menuda
situa&d at Latitude 14°24'02" North and Longitude

89°16'35"West. From this peak, it continues
in the direction North 57O19'33'West for a distance

of 2,951 metres as far as the boundarymarker known
, as Moj6n del Talquezalar on the river known as

Pomola situated at Latitude,14O24'54" North and
Longitude 89'17'58''West. From this boundary

marker, it follows the course of the River Pomola
upstream for a distance of 875 metres as far as

the confluence of the streams known as Pomola and
Cipresales situated at Latitude 14O24'45" North

and Longitude 89"18'21"West. From this confluence,
it follows the course of the StreamPomola upstream
for a distance of 4,625 metresas far as its source

situated at Latitude 14O26'05" North and Longitude
89°20'12' West. From this source, it continues

in a straight line in thedirection South51°35'00"
West for a distance of 2,700 metresas far as the

summit of the peak known as Cerro Montecristo
situated at Latitude 14°25'10,784n North and
\
Longitude 89°21'21,568"West. (14)

II. LAS PILAS OR CAYAGUANCA.

6.70 Starting from the confluence of the Stream known

as Oscura or Chiquita with the river known as Sumpul
situated at Latitude 14020126"North and Longitude

(14)Map 6.7.included in'the text. 89°04'58" West, the frontier follows the course

of the River Sumpul upstream for a distance of
10,500 metres as far as its source situated at

Latitude 14O24'17" North and Longitude 89°06'45n
West.. From this source, it continues in a straight

line in the direction South 53°46'31" West for a
distance of 7,404 metres as'far as the peak known

as Peiiade Cayaguanca situatedat ~atitude 14°21'54"
North and Longitude 89°10'04"West. (15)

III. ARCATAO OR ZAZALA-PA.

6.71 Starting from the boundary iarker known as Mojbn

Poza del Caj6n on the river known as Guayquiquin,
Gualcuquln or El imatillo situated at Latitude

14°01'28" North and Longitude 88°41'09" West, the
frontier follows the said river upstream for a

distance of 5,000 metres as far as its source
situated at Latitude 14°02'45" North and Longitude

88O42'33" West. From this source, it continues
in a straight linein the direction North18°21'16n

West for a distance of 9,853 metres as 'faras
the summit of the peak known as Cerro El Fraile.

situated at Latitude 14°07'49n Northand Longitude
88°44'16" West. From this peak, it continues in

the direction North 60°30' West for a distance
of 7,550 metres as far as the summit of the' peak

known as Cerro La Pinta1 situated at Latitude
14°09'49" North and Longitude 8E047'55"West. From

this peak, it continues in a straight line in the

(15) Map 6.8 included in the-text.direction South 21°30' West for'a distance of 2,830

metres as far as the source of the Stream or river
known 'as Pacacio situated at Latitude 14'08 '23"

North and Longitude 88°48'30"West. From .this
source, it follows the course.of the Stream or

River Pacacio downstream for a distance of 5,125
metres as far as a point on the said Stream or

River Pacacio situated at Latifude 14O06'27" North
and Longitude 88a49'18"West.(l6).

IV : PERQUIN, SABANETAS OR NAHUATERIQUE.

~taiting from the boundary markerknown as Moj6n

Mal Paso de Similaton situated at Latitude 14°00'53"
North and Longitude '88°03'54" West, the frontier.

continues in a straight line 'in the direction
North 3' West for a distance of 3,000 metres as

far as the boundary marker known as the Antiguo .
Moj6n de la Loma situated at Latitude 14O02'32"

North and Longitude 88O03'59"West. From this
boundary marker, it continues in a straight line

in the direction North 31°30 West for a distance
of 2,780 metres as far as the-mountain known as

La Isla situated at ~atitude 14°03'49" North and
Longitude 88O04'47West. From this mountain',

it continues in a straigth line in the direction
North 89040102"West for a distance .of . 7;059

(16)Map 6.9 included in thetext. metres as far as the suit of the pe'akknown as

Cerro La Ardilla situated at Latitude 14°03'51"
North and Longitude 88O08'43" West. From this
\
peak, it continues in a straight line in the
direction South 78O35'13" West for a distance of

6,833 metres as far as the summit of the peak known
as Cerxo El Alwnbrador situated at 14°03'08" North

and Longitude 88'12'26" West. From this peak,
it continues in a straight line in the direction

South 18O13'36" West for a distance of 4,222 metres
as far as the summit of the peak known as'Cerro

Chagualaca or Marquezote situated at Latitude
14°00'57" North and Longitude 88°13'11" West. .From

this peak, it continues in a straight line in the
direction South 66O45' West for a distance of 2,650

metres . as far as an elbow of the river known as
Negro situated at Latitude 14°00'22" North and

Longitude 88°14'31" West. From this elbow of

this river, it follows the course of the River
Negro upstream for a distance of 1,800 metres as

far as the confluence with it of the river known
as La Presa, Las Flores or Pichigual situatedat

Latitude 13°59'38" North and Longitude'88°14'16"
West. From this confluence, it follows the course
1
of the River la Presa, las Flores or Pichigual
upstream for a distance of 4,300 metres as far

as a boundary marker situated on its course at
Latitude 13O57'44" North and Longitude 88'57'44"

North and Longitude 88°13'49" West. From this
boundary marker, it continues in a straight line

in the direction South 22O40' West for a distance offor a distance of 8,800 metres as far as its source
situated at Latitude 13°55'16" North and Longitude

87O47'58" West. From this source, it continues
in a straight linein the direction North 56°23'13''

West for a distance of 4.,179metres as far as the
peak known as Cerro 'Ribits situated at Latifude

13O56'32" North and Longitude 87O49'54"West. .From
this peak, it continues in a straight line in

the direction South 87°02124' West for a distance
of 6,241 metris as far as the peak known as Cerro

Ldpez situated at Latitude 13'56'23" North and
Longitude 87°53'21" West. From this peak, it

continues in a straight line in the direction South
40°30' West for a distance of 2,550 metres as far

as the boundary marker.known as Mojdn Alto de la
Loza situated at Latitude 13O55'18" North and

~on~itude~ ~7~54.'17"' West. ' From this boundary
marker, it continues in a straight line in the

direction South 10' West for a distance of 500
metres as far. as the source of the Stream known

as Manzucupagua or Manzupucaguasituated at Latitude
13°55'03" North and Longitude 87O54'19" est. From

this source, it follows the course of the Stream
Manzucupagua or Manzupucagua downstream as far

as its mounth in the river known as ~orola situated
at Latitude 13053'5gn North and Longitude 87'54'30

West. 138).

(18)Map 6.11 included in the text.VI ESTUARY OF THE GOASCORAN

Departin £rom the old mounth of the Goascoran River,

in the inlet of "La Cutfi"(Latitude13°22'00" North;'
Longitude 87O41'25")West the limit continues along

the old course of the Goascoran during a distance
of 17.3 Kilometers till reaching the placeknown

as Rompicion de los Amates (Latitude 13O26'29"
North; Longitude 87°43'25" West)*, point where

in former days was deviated the courseof the river.
(19).

*Everithing according to the GreenwichMeridian.
(19) Map 6.12 included in thetext. 1 1 >
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LOCALIZATIONOF CROWNLAND (TIERRASREALENOAS)

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LOCALIZATION OF CROWN'LAND (TIERRAS REALENOAS)

BEYONDTHE COMMONLAND (TIERRASEJIDALES)

DESCRIBEDIN THE TITLE OF POLOROS

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MAP 6.11 DELTA OF THE RIVER GOASCORAN

lrla Conrjo

Iilo El GarroM,
-13~20'
a

Scots I:lOO~
DIRECC GONNRALDE L~MITES
MlNlSTERlO DE RELACIONES EXTERIORES I O I - 3 I KM.
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1

MAP 6.12 CHAPTER 7

ARGUMENTS OF A HUMAN NATURE PRESENTEDBY EL SALVADOR
IN SUPPORT OF ITS FRONTIER RIGHTS

(EFECTIVITTES)

1. T~E LEGAL BASIS OF SUCH ARGUMENTS

7.1 The Tratado General de Paz signed between
the Republic of El Salvador and the Republic

of Honduras in Lima, PerG, on 30th October 1980,
declares in its Preface that the respective

Govenimentsin signing the same are acting

"Under the inspiration of that high spirit of
fraternity which for reasons of tradition and
of their profound historical and cultural links
constitutes the ,natural basis for their relations
at every level".

This spirit of fraternity underlies al1 the
principles, provisions and procedures contained

in the Treaty which is much more than a Peace
Treaty, being rather a Treaty of Fraternity and

Co-operation, as it was indeed entitled in the
first draft prepared by the Commission by which

it was drafted.

7.2 In this context Article 26 of the Treaty,
in laying down the methods of proof to be used

in the resolution of the various disputes between
the Parties, not only includesthose of a purely

juridical nature but also, as is both natural
and indispensable, embraces others without

considerationof which the settlement ofa dispute
between countries united by such unavoidable

historical, geographicaland human destiny muid nctfocus on the most profound aspects of the problem.
Thus this Article of the Treaty States textually

that:

"Account shall equally be taken.of other methods
of proof and arguments and reasons of a juridical,
historical or human nature or of any other kind
which may be adduced by the parties and which
are admissible under International Law."

This provision, applicable at the appropiate
time to the work of the Joint Boundary Commission

created by the Treaty, was clearly contemplated
in Article 5 of the "Special Agreement between

El Salv.,or and Honduras to submit for' the
decision of the International court of Justice

the dispute existingbetmen the to States as to
the land frontier, the islands, and the maritime ,

spaces" signed between the parties in Esquipulas,
Guatemala, on 24th May 1986; this Special

Agreement, when laying down the law applicable
by the Chamber of the International Court of

Justice, provides that

"....the Chamber, in delivering its judgment,
shall take into account the norms of International
Law applicable between the parties, including,
in so far as they are pertinent, the provisions
of the Tratado General de Paz." (emphasis added)

The arguments of a human and historical nature

which were relevant for the work of the Joint
Boundary Comission are undoubtedly also relevant

for the Chamber of the International Court of
Justice since the basis of the dispute is exactly

the same and the complex characteristics of the
problem have not changed inany way. Thus to takeinto account arguments of a human nature is not
merely convenient but in fact indispensable in

the best interests of the requirements of
authentic internationaljustice.

II. THE HISTORICAL BACKGROUND

7.3 The actual political configuration of
Central America has explanations that are not

only geographical but also, perhaps principally,
historical. The reduced size of El Salvador in

relation to its four neighboursis a phenomenon
which cannot fail to awaken the interest of any

researcher. The geograph'icalposition, volcanic
and coastal, of the country undoubtedly

contributed right from the beginning in reducing
its dimensions but equally undoubtedly the

mobility of the groups of settlers who
established themselves over the years in this
narrow strip of land also had an influence.

7.4 Geographical destiny seems to have

imprisoned El Salvador, since before the Spanish
Conquest, within a very small and very well

defined space between a line of mountains to
the North and the Pacific Ocean to the South

with a river, theRio Lempa, dividing the country
into two parts. Before the Spanish Conquest the

River Lempa divided this land into two principal
domains, Cuscatlan to the West and Chaparrastique

to the East. The historian Rodolfo Baron Castro
in his monumental work "La Poblacion de El

Salvador" States:"It is barely necessaryto Say that the boundaries
of these primitive organisationshave not been
established with any precision. Perhaps there
were no other frontiers between them than, to
utilise the expression of Tacitus, those
establishedby their fearanother.(l)

Throughout a period whose time limits are
difficult to determine various peoples reached

this territory and also emigrated from it in
part of a series of population movements that

have been .one of the historical featuresof the
country.

7.5 Towards the end of the prehispanic period,

E-1Salvador seems to have been denselypopulated
this at least can reasonably be presumed from

the abundant resistance that was made by the
indigenous population, principally that of

Cuscatlan, to the Spanish Conquest. Making very
accurate calculations based on the data provided

by the Spanish conquering forces as to the number
of the indigenous population that opposed the

Spanish troops, Rodolfo Baron Castro affirms:

"Now if we consider that from the River Acelhuate,
regarded as the eastern boundary of the "pipil"
region which put up resistance to the Spaniards,
to the River Lempa there extended a territory
almost as large as that embraced by the first
region and of whose abundant population there
exist vario,uspieces of evidence subsequent to
the Conquest, there can be no obstacle whatever
to estimating its population to have been at
the very least equal to that of th,efirst region,
that is to Say a further 38,640 Indians. And
in so far as concerns the final region Ithat
comprised between the RiverLempa and the River
Goascoran, that is to Say the area of
Chaparrastique], the reports from the middle
of the Sixteenth Century present this region
as having hadpopulation equivalentto half ofthat

1. (2nd Edition (1978)San Salvador) p.23. established.in the two regions already discussed,
that is to Say the same as each them. In this
way, therefore, we would arrive at the conclusion
that the sum total of the population of El
Salvador at the moment of the ~onquest would
have been, at the very least, 115,920 perçons.
If, in order to give greater flexibilityto the
calculations, we introduce a variable factor
somewhat in excess of IO%, we can Say that the.
population of the Salvadoreiianterritory at the
moment of the arriva1 of the Spanish was in round
figures somewhere between 116,000and 130,000
Indians. This supposes a population density of
£rom 5.1 to 6.1 inhabitantsper square kilometre."
(2)

7.6 One of the most relevant connotations
of the Salvadoreiian population phenomenon is

its balanced distribution both in the prehispanic
period but above al1 in the colonial and
republican periods..To a sustained and accelerated

population growthis added its racial homogeneity,
with a percentage of interbreeding superior to

'80%, and the total:utilization of its territory
by its inhabitants even in its most precipitous

and remote parts. In 1821 the estimated population
was 250,000 inhabitants (3); in 1900 the

population had grown to 783,433 (4) ; and in the
1971 Census, the population was 3,647,147 (5).

According to the projections and estimates of
the salvadoreiiapstatisticians, the pupulation

of El Salvador in the year 2000 is estimated
as 11,000,000 inhabitants which supposes a

population density of 523 inhabitants per square
kilometre (6). The following diagrammatic synthesis

2. Ibid. p.96
3. Baron Castro: op.cit. pp.132-133
4. Ibid. p.493
5. Ibid. p.516
6. Direcci6n General de Estadfsticas y Censos,
Ministerio de Economfa de El Salvador.makes it possible to appreciate the population
grown both in total and in percentage terms,

it being understood that the birth rate is 42.2
births per 1,000 population in the Republic

of El Salvador. A

msus msus FOJLWION msus ION
1950 1961 GIxM'H% 1971 GaTH%

1,855,9172,310,984 135.3 3,647,147 42.2

The percentages of qrowth in accordance with
the above figures were: (7)

In 1950 88 inhabitants per square kilometre.

In 1961 119 inhabitantsper square kilometre.
In 1971 137 inhabitants per square kilometre.

In 2000 523 inhabitants per square kilometre.

In the colonial period El Salvador was already

a densely populated territory in marked contrast
to the rest of Central America, somethinqwhich
gave it a certain organizational peculiarity

in respect of its administrative and political
order. The Salvadorefianswere notable for the

love of their work and for their dedication
in exploiting their land. They were good

businessmen ad the Spanish concessionaries
appreciated them because they were productive

forthe Crm in that they paid its taxes and
increased its wealth. They carried out extensive

dtivation ofcocoa,dedicatethemçelvetsothepastwe of

'7. Third .and Fourth National Population Censi
in 1961 and 1971; Direcci6.n General de
Estadfsticas y Censos, Ministerio de Economla
de El Salvador.their floks, produced articles for commerce,

and established themselvesin towns which they
subsequently causedto grow as a result of their

unceasing efforts.

7.7 The scarce territorial extension of
El Salvador is linked to its geographical

configuration but is undoubtedly indicative
of an historical injustice which has been

becoming more visiblewith the passage of time,
given the population growthand the enlargement

of the means of communication; al1 this has
meant that the average Salvadorefianhas had

to respond with a series of titanic efforts
merely in order to survive, something which
has influenced the social and political

organization of the country and the permanent '
and grievous phenomenon of emigration, which

has always been a very significant part of the
national destiny.

III. THE SOCIOLOGICALDIMENSION

7.8 The SalvadoreRan population, which is
territorially the most dense in America, has

a scarce physical area which apart from being
coastal and volcanic has been impoverishedby

the upheavals of nature such as earhqudkes,
droughts and floods. This reality is in ,Stark

contrast to the situation of the other Central
American countries . Honduras, for example, is

more than six times greater in area than El
Salvador and possesses enormous fertile valleys,mountains with rich resources of timber, an

ample Atlantic coastline and extensive areas

which are scarcely or not at al1 inhabited.
Faced with this situation, the Salvadorefian

population has had to develop techniques whose
laboriousness and efficiency are recognised

both within Central America and outside that
region. El Salvador is, basically a country

of emigrants and the persons who do emigrate
have to be psycologically prepared to face the

vicissitudesthat tend to occur to perçons living
in a foreign country. This philosophy of

emigration, a product of necessity, is now
incorporated into the Salvadorefian national

character but is balanced by a real sense of
belonging to the land which produces a permanent

desire to return. Al1 this has ensured that
El Salvador is grossly overpopulated butthat

at the same time its development is merely
beginning.

"At the present time the Salvadorenanpopulation
is spread out over the entire territory. The
population density is already fierce and it
can fairly be said that there are no empty
spaces. The popular classes occupy the greater
part of Our population pyramid. The growth curve,
which had remained for hundreds of years very
even, began during this century a rise which
has placed it close to the vertical. In the
last forty-eight years of Our life, the
Salvadorefianpopulation has more than tripled;
£rom the 1,493,000 persons whom we had in 1939,
we have reachedat the present time [1978]almost
5,000,000. This can be explained by the high
birth rate and the reduction in the deathrate,
which was 21.9% in 1930 but which had reduced
by 1960 to 9.9%, less than half.' (8)

8. Escamilla, ManuelLuis and others: op.cit.
P.14The drama of overpopulation hasbeen compensated
in El Salvador by the emergence of a human

attitude which defies poverty and geoqraphical
difficulties with enormus amounts of effort,

even sacrifice. Baron Castrohas pointed out
in .thisrespect:

"and over and above everythinq written, the
most efficient and self-evident demonstration
is the living realityof the country. Look only
at the numerous population, hardworking and
daring, which developsand expands in a narrow
territory, which cultivates its lands with
skilful mastery, which raises towns where the
forces of the earth destroy them;which fills
its soi1 with industries greatand small, with
roads, with vehicles...." (9)

The Salvadorefians have dedicated themselves

to the introductionof progress to their land:
electric power, the telegraph, the railway;

later the cultivation of indigo, ofcoffeeand
of sugar cane. They have intesified their

commerce with European countries following the
construction of two important ports which

neccesitated the construction of the most
advanced network of roads and hiqhways in the

entire national territory.

7.9 In the areas of Tecpanquisir,Las Pilas,
Arcatao, Nahuaterique, Polorbs and Los Amates,

the Salvadorefianshave developed.valleys,cantons
and hamlets which they have dedicated for years

to the cultivation of cereals,to the caré of
flocks, and to the development of handicrafts.

Thousands of families have settled themselvesin these places in which they have consolidated

their customs and deepened their convictions.
They have obtained a social identity eminently

Salvadorefian, linked to El Salvador, their
country. The Central Government of the Republic

and the Municipal Corporations have assisted
in the development of these areas by the

provision of important services such as the
creation of schools,the introductionof drinking

water, the vigilance of the police and military
authorities, the opening of highways and local

roads, the attenti,n to and preservation of
public health, the concession of important

financial credits and loans in order to increase
the planting of fruits, cereals, fine timber,

and vegetables, and the rearing of livestock
of al1 types. The rewards of al1 this have been
a greatly accelerated economic and social

development which has produced,due to political
deficiences, an intense upheaval within the

country to the point that it has descended into
an armed conflict that has still not been

resolved. This has tended to render still more
acute ancestral problems to do with the land

and with those who cultivate it or yearn for
it.

7.10 The relationship between man and the

land is more intense in El Salvador than in
the remainder of the Central American countries.

For the Salvadorefian,the land is an element
which is tremendouslyscarce; which it becomesnecessary to preserve, conserve and curtivate
with great care hecause it represents a patrimony

that is limited, and which the volcanic .nature
of the terrain-renders still more unfavourable.
The human factor fhus -.acquires an inevitably

important-.dimension because, despite its scarce
geographica1.-area-.and its population density,

El Salvaaor continues to be an emintly
agriculturalcountry. The whole of its productive

potential and the whole of its social development
depend, to a &?eatly elevated ektent, on its

limited number of agricultural products, such
as coffee, sugar cane, and Cotton. Al1 thïs

ensures that the sense of belonging to the land,
the possession thereof, and the affection

therefor have for the Salvadorefiana much more
emotive significance than for the inhabitants

of countries whose extensive territories have
not yet been fully developed and which have

agricultural and mineral riches incomparably
sup,erior

7.11 Al1 this contrasts rather curiousIywith
the fact that El Salvador has not been,

historically speaking, a country with
expansionistic aspirations. To the cont'rary,

its attitude has been permanently in favour
of union and integration with the remaining

countries of Central America. The territorial
dispute with Honduras has arisen due to the

pretensions of the latter country, which has
a long history of frontier disputes with al1

its neighbours, both in .relation to land
frontiers and in relation to islands and maritimespaces. It is not known as a matter of historical

record when Honduras first set out in search
of acces to the Pacific Ocean. What is known

in relation to -such territorial expansion is
that in 1812, nine years before independence,

two representatives of the Town Council of
Comayagua presented to the King of Spain a

declaration in whichthey sought vehemenently:

"The addition of the Judicial District of San
Miguel, subject today to the Intendency of San
Salvador, forty leagues distant from Comayagua;
extending the boundaries of the Province of
Honduras, or its deputation, as far the banks
of the Rivex Lempa as from its source." (10)

This Hondurefian claim went so far as to fix
this territorial expansionas:

"Following the normal course of this river and
the emptying of its waters in the sea." (11)

With this claim Honduras was seeking from the

Spanish Monarch the curtailment of what is at
the present day al1 the territoryof the Eastern
part of El Salvador and, to the North, the

Department of Chalatenango, an area of 9,711
Square Kilometres with a coastline on the Golfo

de Fonseca, where El Salvador is the owner of
al1 the islands.

10. Boundary Arbitration between Guatemala

and Honduras: Plea of Gua.temala:Vol.1, p.232.
11. Ibid.7.12 Honduras has an area of 112,880 Square
kilometres, that is to Say an area 5.38 times

greater than that of El Salvador. Its population
is relatively small and is essentially
concentrated in the northern part of the country,

on its Atlantic coast, and in the area of
Tegucigalpa; these are the places where, since

the colonial area, the most importan cities
of the country have been developedand enlarged.

The southern part of Honduras which has a common
frontier with the northern part of El Salvador

is virtually uninhabited. The Hondurefiansthat
do live in this area sel1 their products in

the salvadorefian market rather than in their
own country because the salvadorefian network

of communication grants them better and cheaper
access and also better prices for their products.

The HondurefianDepartments of La Paz, Intibuca,
Lempira and Ocotepeque, which border on El

Salvador, are inhabited by less tlianten persons
per square kilometre and only four towns,

Ocotepeque, La Esperanza, Intibuca and Marcala,
have populations of between 1,000 and 5,000

persons. In the Population Census taken in
Honduras in 1887, the country proved to be

inhabited by 331,917 persons. The results
of subsequent Censi have been as follows:

1940: 1,107,859 persons. 1961: 1,884,765 persons.

1945: 1,200,542 persons.. 1974: 2,656,948 persons.
1950: 1,368,605 persons. 1980: 3,500,000 perçons. It is calculated that by the year 2000 the

population of Honduras will rise to some
7,000,000 persons. These figures show that in

1974 Honduras had 24 inhabitants per square
kilometre, that in 1984 it had 31 inhabitants

per square kilometre and that in the year 2,000
it will have 62 inhabitants per squeare

kilometre.

7:13 While El Salvador has a reduced number
of water basins because of the narrOwneSs of

its territory, Honduras has water basins with
rivers such as the Charnelecon,the Aguan and

the others which flow into the Caribbean
amounting to 91,912 Square Kilometres which,

with the addition of the Hondureiianrivers which
flow into the Golfo de Fonseca, amount to a

total of 112,088 Square Kilometres. These
resources have permited Honduras to develop

large hydroelectric projects and thus increase
its agricultural production and the numbers

of its livestock which in turn has nourished
an increasing industrial development of vast

proportions. While El Salvador the longest river
is the River Lempa which has a length of 260

Kilometres, in Honduras, the River Segovia has
a length of 550 Kilometres, the River Patuca

has a length of 550 Kilometres, and the Rivers
-t UlGa, Choluteca, Aguan, Tinto and Charnelecon

al1 have lengths of between 250 and 125
Kilometres.

7.14 In the light of the data set out above,

it can be appreciated that Honduras has
considerable natural advantages which are

perfectly capable of being utilised; that its
population is prirnarilysettled in the Northof the country and in the central .Department

where its capital, the city of Tegucigalpa,
is located; that in the region of Honduras that

borders on El Salvador there are no substantial
communities with firm links with those lands;

and that the Government of Honduras has made
little effort to develop this frontier region

to the extent that 'even at the present time
the progress that can be observed is èxtremely

limited.

7.15 On the other hand, Honduras has obtained
notable territorial gains as a result of the

Ruling of the King of Spain made in 1906 in
its territorial dispute with Nicaragua and as
a result of the Arbitration Award made in 1932

in its territorial dispute with Guatemala.
Further on 2nd August 1986 Honduras signed with

the Republic of Colombia a Treaty delimiting
between the two States substantial maritime

spaces in the Caribbean Sea or Sea of the
Antilles. The signature of this Treaty achieved

for Honduras maritime spaces "of an area of
27,000 Square Kilometres" accordingto the report

of the Hondurefian Foreign Minister to the
National Congress, as reported in the Hondurefian

newspapers.

7.16 El Salvador has traditionally and
unquestionably pssessed the territories claimed

by Honduras. This possession, based on historic
titles, is also based on reasons of crucial

human necessity. This has ensured that the areasunder dispute have always received such attention

in al1 aspects as has .been within the
administrative and financial possibilities of

the SalvadoreiïanState and Society. In these
areas, as is proven statistically by the

documents which are appended to this Memorial,
El Salvador has provided normal and ever

increasing services in matters of health,
security, education; and juridical,

administrativeand political organization. Indeed
these services are frequently utilised by the

Hondurefians living on the other side of the
frontier since by contrast, these Hondurefian

territories are virtually isolated from the
rest of that country and have hardly been

developed at al1 in comparison with what has
been achieved by El Salvador. Ifthe descendants

of the original settlers of the disputedareas,
who are Salvadoreiïansand have a strong sense
of being permanently settled therein, were to

be evicted from theirlands, a further historical
injustice would be added in these areas to al1

the injustices which the Salvadorefiannation
has suffered for a variety of reasons during

its history and this would in turn produce a
still greater economic, social and political

chaos in El Salvador, a truly catastrophic
prospect for this small nation. It is for this

reason that in this case the supplementing of
the doctrineof uti possidetis juris by arguments

of a human nature is,a reinforcement which is
indispensable for the obtaining of justice in

order.to ensure that the duly consederedjudgment
is appropriate for the destiny and necessities

of the persons whose lives arebound up in the
matter.IV. DOCUMENTARY TITLESAND EFFECTIVE \

7.17 The clear ethical basis of the

Salvadorefianposition in defenseof the scarce
territories which it possesses has, of course,

both juridical and human dimensions, a
combination which is, as has already been

indicated, envisaged in theTratado General '
de Paz and in the Special Agreement which brought

this matter before the Chamber of the
International Court of Justice for its decision.

Colonial Title Deeds are almost always vague
and deficient simply because of their antiquity.

Consideration of such Title Deeds, which is
obviously indispensable, has to be aided by

a consideration of the question of long term
exercise of effective jurisdiction over the

diverse aspects of the life of the cokunities
affected. This concept. of "effectivité" over

a period of time is the only satisfactory
way of dealing with the emotively real and

ethically unavoidable question of the link
between man and the land.

7.18 The precise applicationof the doctrine

of uti possidetis iuris over the length of an.
entire frontier has on some cases in the past.

produced certain practical difficulties due
to the insufficiencies of the Spanish

documentation in relation to certain sectors
of the frontier in dispute. Consequently, in

order to be able to carry out a complete
delimitation, it has been necessary incertain

cases to give those responsible for making thedecision, powers to take into account in a
subsidiary or complementary form other arguments

or reasons. In this case, Article 26 of the
Tratado General de Paz, after indicating in

its opening phrase that the "basis" of the
delimitat'ionis to be the documents issued by

the Spanish colonial authorities,adds in the
following phrase that "account shall equally

be taken of other means of proof and arguments
and reasons of a juridical, hirroricalor human

nature". In this phrase the reference to
arguments and reasons of a human nature is

particularly significant since it involves the
taking into account of what it is appropriate

to cal1 the political geographyand the human
geography of some of the disputed sectors. In

particular, there should be taken into account
the situation of townships and human Settlements

which have been since immemorial time located
in some of the areas -of the disputed sectors

under the administration of the Salvadorefian
authorities, inhabitedby Salvadorefian citizens

who are the propietors of the lands comprised
therein, with road communications with El
Salvador and without any means of communication

with Honduras so that any change of jurisdiction
would have a grave effect on the lifes, the

properties and the economic activitiesof these
human groupings dedicated above al1 to

agriculture.

7.19 In the frontier dispute between Burkina
Faso and Mali, the Chamber of the International Court of Justice rightly chose to examine the
relationship between docùmentary titles and

what it described as "effectivité", that is
to Say the conduct of the administrative

authorities as proof of the effective exercise
of territorial jurisdiction. The Chamber

-consideredthat it was necessaryto clarifity:

"In general terms, what legalrelationshipexists
between such acts and the titles on which the -
implementationof the principleof uti possidetis
is grounded. For this purpose, a distinction
must be drawn among several eventualities.Where
the act corresponds exactly to law, where. .
effe~~ive administration is additional to the
uti possidetis iuris,' the only role of
effectivité is to confirm the exercise of the
right derived from a legal title. Where the
act does not correspond to the law, where the
territory which is the subject of the dispute
is effectively administered by a State other
than the one possessing the legal title,
preference should be given to the holder of
the title. 1n the event that the effectivité
does not CO-exist with any legal title, it must
invariably be taken into considera.tion. Finally,
there are cases where the legal title is not
capable of showing exactly the territorial
expanse to which it relates. The effectivité
can then play an assential role in showing how
the title is interpreted in practice.' (12)

V' OVERALL CONSIDERATIONS

7.20 The treatment of the case relating to
the delimitationof the land frontier between El

12. 1.c.'~.Reports [1986] Par.63 pp.586-587.El Salvador and Honduras and the determination
of the juridical status of the islands and of

the maritime spaces is indissolubly determined
by historical reasons, geographical realities

and çociological and human conditions. The law ,
applicable to the case for this reason permits

a range of proofs and argumentswhich take in
these varied perspectives. Although the case

is now in the course of being litigated, any
global consideration of its complexities

involves, inevitably, evidenceof two national
realities, those of El Salvador and of Honduras,

which, despite their similarities, manifest
many clear differences. Honduras has a

geographical size greatly superior to that 'of
El Salvador and a population which is

comparatively very much smaller. Honduras has
access to the two great oceans: to the Atlantic

by means of its ample coastline thereon and
to the Pacific by virtue of its rights of

CO-ownershipin the Golfo de Fonseca. El Salvador
is small in terms of territorial dimensions

and is populated extremelydensely. It has access
only to the Pacific Ocean, something which

contitutes a disadvantage for its commerce
and its access to the major maritime routes

of the world. The attempt to reduce still further
these precarious geographical conditions of

El Salvador is something which goes well beyond
the simple considerationof historical documents;

it constitutes a type of injustice which modern International Law, so steeped in ethical
considerations and so zealously in favour of

equitable solutions, cannot accept withserenity.

"For unremedied wronqs to be allowed to endanqer
social stablity it is not enough that they are
profound nor that they are leqitimate; such
a situation depends above al1 on the strateqic
position and the nworical importance of the
victims of wrong. Thus, for example, a small
state can see itself obliqed to submit to
conditions for which there does not exist any
type of moral justification.''(13)

7.21 The riqhts of El Salvador are clear
and exact in relation to documentaryTitle Deeds,

in so far as this is possible in view of the
juridical and administrative limitations of

the colonial period. But raised to the same
level as these rights is the imperious sway

of a justice which is not content merely with
arguments of a technical juridical nature but

considers in the first place man, as a being
settled on land which has belonged to him since
imrnemorialtime and to which is united not only

his material well-being but also and principally
his spiritual destiny. The statistical figures

are eloquent in support of the Salvadorefian
rights over al1 the territories claimed by

Honduras; here the nurnbersreflect palpitating
realities, which the honourable Judges will

- without any doubt be able to evaluate in the
interests of right and of justice, its primary

substance.

13. C.A.W.Manning: "Les elements de la secuité
collective''p.231 (quotedby De Visscher). ,7.22 El Salvador requests, with al1 due
respect, the Honourable Chamber of the

International Court ofJustice that when making
its judgment it will consider these human factors

which are social, cultural, economic and
political aspects of the feeling of thousands

of Salvadorefianfamilies that they have their
roots in the lands which their ancestors settled

in the areas which Honduras claims as its
property. El Salvador also wishes to indicate

that the areas claimed by Honduras have been
developed culturally and economically by its

Government and by its Municipal Authorities
within whose jurisdiction they have been

incorporated since 1821, the date of
Independence. El 'Salvador considers that the

Honourable Chamber of the International Court
of Justice will appreciate al1 these ,elements

which, together with the juridical proofswhich
are appended, determine thatthe areas claimed

by Honduras are and always have been
Salvadorefian. DENSIP.- POPULATIONACCORDINGTO

THE LAST CENSUS RAISED

SYMBOLOGY

DENSITY

Go110 de Fonreco

51 - 100

> 100 Inhabitants
Golf0 de Popog

EXTENSION POPULATION DENSIT

142,847119ao) 6

GUATEMALA 108,889K~S: 6.054,222(i,sei) 56
112,088 Kms. 2,656,948(1,9141 24
EL SALVADOR 21,040.~9~m: 3.554,648(1,9ri)169

NICARAGUA 127,755 ~ms~ 1,877,952(i,97i) 15 CURVE OF THE HUMAN POPULATION

OF EL SALVADOR

Token from"~nvironrnentalConscrvation in El Solvador'' by Howard E. Daugherty,

pope 18, printed by Artes~raficos PublicitariaS.A. Son Salvador, El Salvador

1,973; actualired Io 1,985. NON DELlMlTED '
MUNICIPALITIES INCLUDED IN THE . P

ZONES EL SALVADOR-HONDURAS FRONTIER

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MlNlSTERlO DE RELACIONES EXTERIORES

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ESTUARY OF THE QOASCOR~N

SDE LIMASA

SAN ALEJO PART LI1

JURIDICAL STATUS OF THE ISLAND

OF THE MARITIME SPACES

SECTION A

GENERAL ASPECTS

CHAPTER 8

The task of the Co urt

The task of the Court in this part of the case is to

respond to the request of the Parties to "determine the
legal position of the island and the maritime areas".

This request contrasted with the first request to.the

Court

As stated in Chapter 1 above, the Government of El Sal-
vador (G/ES) recalls the contrast between this request

and the one contained in paragraph 1 of Article 2 of ,
the Spacial Agreement. In the first request the Court "

was asked "to delimit the boundary kine" in the spaci- \
fied areas. In the second request the simply to decide,

as between the Parties, the legal status of certain is-
land and of certain maritime areas.

THe G/ES feels it necessary to insist on this point prin-
cipally because of the title which has been given to

this case in the documentation of the Court, namely,
"Land, Island and Maritme Frontier Dipute". While the

G/ES has not thought it necessary to raise with the Courta preli .mi.ay question as to the~appropriateness of this
:A-
title. It is -bliged 'to stress:that although one aspect
of thé-case is certainly about the delimitation the land

frontier between the Parties, the remaider of the case
is certainly not about an "island frontier", since that

is a meaningless concept, and is equally not about a
"maritime frontier", even though that is not a meaningless

concept. So far as the island and the maritime areas
are concerned, the Court is asked to determine "Thkir

legal position". CHAPTER 9

The geography of the region comprising "the island and the
maritime areas' may be described as follows:

On the stretch of PacificCoast extending betweenthe points
in the northwest and the southeast at which tha land boun-

daries between Guatemala and El Salvador and between
Nicaragua and Costa Rica respectively reach the Pacific,
the most prominent identation is the Gulf of Fonseca.

The Gulf of Fonseca is divisible into two parts, an inner
and an outer part. The natural and visuallyobvious dividing

line between the two parts is formed by a straight line
joining Punta Chiquirin on the coast of El Salvador to Punta

El Rosario on the coast of Nicaragua. This line is 31.25
kilometers (16.87 nautical miles) long. To the north and

east of the line lies the inner part of the Gulf which is
bounded, moving a clockwise direction, by the coast of El

Salvador, Honduras and Nicaragua. Within this part there
lie a number of Islands.

To the' south West of the line lies what may be described
as the "neck" of the Gulf extends to a straight line draw

between Punta Amapala, on the El Salvador coast, to Punta
Cosiguina on the Nicaraguan coast. (For convenience this

line will be referred to as "the Pacific closing line".)
The length of this line is 35.20 kilometers (19,Olnautical

miles).Thus "the islands" spoken of in the Special Agreement

are the islands which lie within the two parts of
the Gulf of Fonseca. " The maritime areas" are the

waters comprised within the Gulf of Fonseca together
the waters of the Pacific seaward of the Pacific

closing line is so far as the latter may be the
subject of a claim by Honduras which conflicts with
the traditional and historic of El Salvador. SECTION B

The Legal Position of the Islands

CHAPTER 10

THE LAW APPLICABLE TO

THE DETERMINATION OF THE STATUS OF THE ISLANDS

10.1 As has already been seen in Chapter
1 of this Memorial, one of the issues in dispute

between the Parties to the present case is the
sovereignity over a number of islands in the Golfo

de Fonseca. The Special Agreement requests the
Chamber to determine the juridical status of these

islands, that is to Say to determine which State
enjoys sovereignity over each of the islands in

dispute. The consideration of this question
requires some preliminary discussion of the

principles and rules of International Law
applicable to the determination of which State

enjoys sovereignity oves an island or group of
islands. The controversy over the islands

constitutes a typical dispute over the "attribution
of territory", something which has to be

distinguished £rom a frontier dispute, which
concerns the delimitation of land territory.

10.2 The island in the Gulf of Fonseca are

the following: Meanguera, Meanguerita O Pirigallo,
Conchagüita, MartinPérez, Ilca O Irca, Zacatillo,

Perico, Periquito, Coyote, Conejo,Vidin, Garrobo,
Inglesera, Exposici6n, El Tigre, Zacate Grande,

El Comandante de las Almejas de la Vaca. THE DISTINCTION BETWEEN DISPUTES OVE' THE ATRIBUTION OF

1 TERRITORY AND FRONTIER DISPUTES

10.3 The International Court of Justice,
Following precedents established both by Tribunals

of Arbitration and by the Permanent Court Of
International Justice, has drawn a clear

distinction between disputes over the attribution
of territory and disputes over the delimitation

of a frontier and has consequently applied
different principales and rules of law to the

two types of dispute.
a

10.4 In disputes over the attribution of
territory, the tribunal in question has to decide

which of two or more claimant States enjoys
sovereignity over an island, a group of islands,

or an entire detached territory. On the other
hand, in disputes over the delimitation of a

frointier the tribunal is asked eithex to fix
a boundary line or to indicate the principales

and rules of law which will permit the Parties
themselves to establish a frontier.

10.5 The s%oFifi&nce of the distinction lies
in the different legal principales and rules

applicable in each case. In disputes over the

attribution of territory the tribunals .have based
their decisions on considerations relating to
the exercise or display of sovereignity overthe

disputed island, isalnds or territory. In disputes
over the delimitation ofa frontier, considerations

of this type have, generally speaking, been subordinated to the legal titles invoked by the

Parties, such as Treaties, Arbitration Awards,
or, where the principle utis possidetis juris

is applicable, documents issued by a former
sovereign power fixing administrativeboundaries.

10.6 Thus in the Island of Palmas Case the

arbitrator based his decision not on the ancient
titles invoked by the Parties but on what he

described as the "actual display O sovereignity",
stating that "the continuous and peaceful display

of territorial sovereignity"is as good as title.
On this ground, the island was awarded to The

Netheilands, which had shown "unchallenged acts
of peaceful display of sovereignity". (1)

10.7 In the Eastern GreenlandCase in 1933,

the Permanent Court of International Justice
accepted the Danish claim to sovereignity over

Eastern Greenland because that claim was "founded
on the peaceful and continuous display of State

authority". The Court took into account the
existence of Danish legislation for the area,

remarking that "legislationis one of the most
obvious forms of the exercise of sovereign power".

It also paid attention to acts of recognition
by other States. (2)

1. U.N. Reports of International Arbitral Awards

Vol.11 p.839.
2. P.C.I.J. Series A/B No. 53 p.48.10.8 The leading case on the subject in the

. jurisprudence ofthe InternationalCourt of Justice
is the judgement in the Minquiers and Ecrehos
Case, where the Court decided that "the

sovereignity over the islands and rocks of the
Ecrehos and Minquiers groups .... belongs to the

United Kingdom"-(3)
This case was a typical dispute over the

attribution of territory, comparable to the Island
of Palmas Case, to the Eastern Greenland Case,
and to the present case. Again the decision was

based on the peaceful and continuous display of
State authority over the territory in dispute.

The Court analysed the contentions ofboth Parties
that they possessed an ancient or original title
to the islands but concluded: "What is of decisive

inportance, in the opinion of the Court, is not
indirect presumptions derived £rom events in the

Middle Ages, but the evidence which relates
directly to the possession of the Ecrehos and

Minquiers groups"(4). The Court attached "in
particular, probative value to the acts which
related to the exercise of juridictionand local

administration and to legislation". It found in
an favour of the United Kingdom on the ground

that "British authoritiesduring the greater part
of the Nineteenth Century and in the Twentieth

Century have exercisedState functions in respect
of both groups of islandsn.(5)

3. (1953) I.C.J. Reports p.72
4. Ibid.p.57

5. Ibid. pp.65,67,70.10.9 On the other hand, in disputes over

the delimitation of a frontier the Court has
attributed decisive affect to legal titles and

has stated that acts of exercise of administrative
functions are ':insufficient to displace ....

sovereignity established by the Convention" (6)
and do not suffice "to efface or cancel out the
clear impression of acceptance of the frontier

line" created by the absence of objection to
certain maps. (7)

10.10 In the Burkina Faso-Mali Case, the

Chamber stated that the application of utis
possidetis juris "resulted in administrative

boundaries being transformed into international
frontiers". (8) While the Chamber consedered that

the distinction "is not so much a difference in
kind but rather a differenceof degree", it anyway

found that the dispute beforeit "belongs rather
to the category of delimitation disputes" (9).
The Chamber also said that "the effect of any

judicial decision rendered either in a dispute
as to attributionof territoryor in a delimitation

dispute, is necessarily to establish a frontier".
However, this is not the situationin the present

case, nor was it in the Minquires and Ecrehos
Case where the attribution of sovereignity over

an island or a group of islands in favourof one
of the Parties did not result in the establishment

of a frontierwith the other Party.

6. Case concerningSovereignity over certain
frontier land (1959) I.C.J. Reports p.229..
7. Temple Case (1962) I.C.J. Reports P.30.

8. (1.986I.C.J. Reports p.566.
9. Ibid p.563.10.11 It may be concluded from the preceding

exposition that, according fo established
jurisprudence, the determination of the status

of the disputed islands in the Golfo de Fonseca
involves a decision as to which of the two States

has exercised in respect of these islands a
continuous and peaceful display of territorial

sovereignity and has performed State functions
and exercised State authority, in particular by
.means of acts of jurisdiction, of administration,

and of legislation. GOLF0 DE FONSECA Escalo Aproximada 1:350,000

EL SALVADOR

HOMDURAS

rrnnuA-**

DIRECC~NSEIIEIDE L;UITES
MICARAOUA
YNISTERIDE IIELACIEXTEIIORES
RE~~BLICDL CL SILVADO. CHAPTER 11
THE DISPLAY OF STATE SOVEFU3IGNITYBY EL SALVADOR

11.1 As early in 1776, before the independenceof Central
America and therefore during the colonial regime,

the "Real Audiencïa" of Guatemala was asked to
solve a doubt as to whether the jurisdiction to

adjudicate land situated in an island in the Golfo
de Fonseca located between the isla del Tigre and

the Isla Zacate (this island is now known as the
Isla Exposicion) was vested in the judge of San

Miguel ( in what is now El Salvador ) or in the
judge of Nacaome (in what is now Honduras). The

"Real Audiencia", the supreme civil authority for
the entire Colony, decided on 14th July 1776 that

the jurisdiction to adjudicate the land belonging
to the Crown in that island was vested in the Judge

of San Miguel and ordered that "no one should place
any obstacle" to the exercise of his authority.

(Annex 1 pag 1 and pags 9-11)

11.2 This decision is significant because this island,

now known as the Isla Exposicion, is located between
the Isla del Tigre and the Isla Zacate. The latter

island, the Isla Zacate, is in a special position
because it is closely linked tk the Hondurefian

coastline, particularly at low water. Consequently,
the decision of the "Real Audiencia" indicated -. .1.

that the jurisdiction of the judge of San Miguel
extended as far as the Isla Exposicion and that

the jurisdiction of the Judge of Nacaome only ,.-
extended as far as the Isla Zacate. This is

confirmed by the fact that, when in 1769 and in
-779 a mllitary officer was officially appointed
to exercise delegated authority inNacaome, both

appointments stated that the delegated authority in Nacaome, both appointments stated that the

dclcgatcd authority cxtcndcd only to thc Isla

Zacate, which was the only island mentionedin
the two decrees. (Annex 2 pag i and pag 8)(Annex

3 pag 1).

11.3 After the independence fronSpain and the subsequent

separation of the colonial territories into the
Central .American Republics, the State authority

and jurisdiction over the islands in the 'Golfo
de Fonseca, with the exception of the Isla Zacate,

continued to be exercised by the -authorities of
El Salvador. For example, in the Reports of Cases

decided by the "Juzgado General de ~acienda" of
El Salvador in the.period £rom November 1854 to

May 1855 there can be found petitions from perçons
interested in acquiring land in the islands known

as the Punta del Zacate (an island quite distinct
frornthe already mentioned islaZacate), the Isla

El Coriejo,the isla Conchagüita, and the Isla Ilca.
The authorities in El Salvador, after declaring

that the lands inquestion were free from ownership
("b;ilùias"in the original spanish text) , authorised

u their sale to the petitioners. (Annex 4)

11.4 Further, in a report form the "Juzgado general

de! Haciendau to a Minister of the Governrnentof
El Salvador concerning the statusof decrees sent

to surveyors in San Miguel directing them tomeasure
various landholdings that were free from ownership

so as to permit their subsequent sale topetitioners, several references are made to land

on the islands of the Golfo de Fonséca: for example,
a decree was made for the measurement of land on

the. Isla Meanguera on 25th September 1854: on the
Isla Punta de Zacate on 10th February 1854: on

the Isla Conchagüita and the Isla Ilca on 3rd March
1854: and on the Isla Los Pericos on 14th October

1855. (Annex 5)

On 29th November 1879 the "Juzgado General ,de
Hacienda" ordered a further public auction of

available lands in theIsla Meanguera. (Annex 6).

The Executive of El Salvador, by a Decree of 17th

April 1893, established a school for girls on the
Isla Meanguera. (Annex 7)

On 24th April 1894 the Government of El Salvador

captured armed forces which were engaged in
revolutionary ac'ion against the Government of

Honduras and which had taken refuge on the Isla
Meanguera along with their arms and ammunition.

The Government of El Salvador declared that -these
forces han "entered ont0 the territory of the

Republic" of El Salvador; consecuently they were
disarmed'and their arms and ammunition confiscated.

The Government of El Salvador subsequently declared
that, as a mark of Central American solidarity

it was placing these arms and ammunition at the
disposition of the Government of Honduras, which

duly accepted them. (Annex 8)11.8 A 1 adoptecl by the ilat:ional. 1,cqislativë Asscnibly
of El Siilvaùor or1 >'?rd April 1914 ~ukhoriticd the
\.%
Executive to opn a frec port on orle of the. island

obiricd Gy El Çalv.3dor in the ,:Golfo de Poriseca. (Aniiex
CJa) . Çubscclucritly on 1gJtl1 May 19111 tlic National
LI.
1,cijiçlstive (\ssi:iiiI~l'y ap1.1rovcd tlic Cori tract cntcrcd

iiito Lio tltli M;-I~ 1914 I>y tlic Cuvcriiiiiéiit of El

S:iI.vj<lor idilil.. Mr. l'r~tl<:~ick 1'. Sc;iri ii<j to builil.
r>ri(le:rploit a frc!~\ix>rt in tliC Isla ficriricjuera (Aniicx 9b) .

'Pliese .rcsolutions of tlic National 1.cyislative

Açseiithly were duly U ~ ~ I S I in the Offical

Cov~?riiiireiit Journal of El Sal.vador aiid no objectioiis
wli~tsocvcr werc rdiçeù y Honduras in rkspect of

this siqiii.fic;int cxei.cise of leijislative powcr

ljy El Salviidor.

11.9 r'iiirilly a la\$ irdoptccl hy tlie EJatioiiril Legislative

Açst:!nt~ly of El. Srilvriclor oii 19th Jurië 1916 declared

thrit tlie ~:;lliiqc oii tlif la Me;inquera riow had
tiic stal-us of a townsiiip witii the nanic. "Meaiiguera

1 Golfo" anil that this township had juridiction

ovcr tlie wliolc of tlic isl~incl. This reso.lution
diily piiblisli~+d in t.li'? Official Governrnent

Jo~l of F:l balvaiior on 27th Jiirie 1916. (Anni'x

10)

'l'HE RISCOGNlr1'TON OF l'LIE SOVCR1:IGNlTY OF
----------.--
-:L. $;AI.VAnOR k3Y THE [iN18r!iiI I-:INGDOM AND BY HONDURAS.

11.10 ïii IU:I9 tlii: (;ovi~i-iiiii~i~t IJ~ tliu IJriitcd Kinqdoin

rdcoc]ri.ised tlic sovt?r~~iyiii.ty of El Sal.vaclor over

a lar~je i1iiiii1~c.r of the islancls in the Golfo de

l~~II c;c't. ln a lcttcr dated 26 th October 1049 the
Cli:ircjt> cl'.&fia.i.rf?r; of the United Kinydom, Mr.Chatfield, communicated to the Government of El
Salvador that, in view of the absence of a

satisfactory answer to certain claims by British
subjects, a blockade had been establishedby British

naval forces of the Salvadorefian port of La Union;,
Mr. Chatfield added, in the name of the Queen,

that "until final payment of al1 British claims,
and a less hostile attitude towards this nation's

interests becomes evident, al1 the islands in the
Bay belonging to the State of El Salvador, specially

Meanguera, Conchagüita, Punta de Zacate and Perez
shall be taken in pledge, and in these

circumstances, they .cannot be ceded or alienated
under any pretext" (Annex11).

According to a notice published in the "Gaceta

del Salvador" of 29th March 1850, Mr. Chatfield
subsequentlyreceived ,an order from the competent

United Kingdom Minister to return "the IslandEl
Tigre belonging to Honduras, as well as the other

ones which it occ'upiedin the Gulf of Fonseca,
belonging to El Salvador".

In respect of the Isla El Tigre, wich was the only

island so returned by the United Kingdom to
Honduras, it must be pointed out that until 1833

that island had been under the authority of El
Salvador, being administered from the Salvadoreïian

township of San Miguel. For instance, several
sales of land on that island were carried out under

the authorisation of the Judge of the port of La Union and the appropriate purchase monies were
paid over in the place of residence of the said

Judge, San Alejo in El Salvador.

11.13 ' However in 1833 the Salvadorefianauthoritiesallowed

the Hondurefianauthorities to occupy the Isla El
Tigre on condition that the Hondureiianauthorities

would disarm and intern dissident forces in
opposition to the ~overhent of El Salvador who

had taken refuge on that island.

11.14 Further in 1966 the President of the Republic of
Honduras in a Decree countersigned by the Foreing

Minister granted naturalisation to an applicant
who had been born in the Isla Meanguera and this

Decree expressly stated that this island formed
part of the Departamentof La Union in theRepublic

of El Salvador. (Annex 12) CHAPTER 12

THE HISTORIC TITLE OF EL SALVADORTO ALL THE

ISLANDS IN DISPUTE

-

12.1 The contention expounded by the Government of El
Salvador in the first part of this Chapter that in

disputes over the attribution of territory the dis-
play of State activities prevails over historic ti-

tles has not been adopted because of any absence

of historic titles in favour of El Salvador. On the
contrary, and so as to cover the possibility that

, the abovementionedcontention is not entirely accep-
ted by the Court, the Government of El Salvador can

and will demonstrate in this Part of this Chapter
that it indeed enjoys the best historic title, inhe-

rited £rom the Spanish Crown, to al1 the islands
in dispute. The basis of this title is that during

the colonial period the Golfo de Fonseca, also know
at that time as the Bahia de Conchagua, and al1 its

islands were at al1 time within the jurisdiction
of the township of San Miguel in the Colonial Provin-

ce of San Salvador, which was in turn within the
jurisdictionof the "Real Audiencia' of Guatemala.

12.2 The.historic title of El Salvador to al1 the islands
in dispute is based upon the fact that until 1672 theterritory of Hondurasdid not extend as far as the
coast of the Golfo de Fonseca. The entire coast of

the Golfo de Fonseca was governed during the Colo-
nial period through the "Real Audiencia" of Guatema-

la in respect of civil and military matters and
through the Bishopric of Guatemala in respect of

ecclesiastical matters. These principal authorities
in Guatemala had delegated the local administration

of the area to the "Alcaldia Mayor" of San Salvador.
This al1 important fact is proven by officia1 dom--

ments emanating £rom the Spanish Crown and by other
authentic documents, al1 of which were in fact invo-

ked by Honduras as evidence in the boundary disputes
which it has maintained with Guatemalaand with Gua-

temala and with Nicaragua. This fact is also confir-
med by cartographic documents of the era, such as

the Map of Mexico.or Nueva Espafiapublished by Sanson
d'Abbeville in Paris in 1659 and by a series of an--

cient maps which were published in 1980 by the govern-
ment of Columbia. Al1 this evidencie shows that at
thistimeth?territory of Honduras did not reach the

Pacific Ocean. (Annex 1) The Colonial Province of
Honduras was in fact constituted by a Royal "Cé-

dula" of 2lst August 1526 by which Diego L6pez de
Salcedo was appointed Governor of that Province.

The Government of Honduras indeed recognised in the
Pleadings which it submitted in the Mediation

Proceedings between Honduras and Nicaragua in
1920-1921 that the Province of Honduras had no coast

in the Pacific (Annexes 2a and 2b). Indeed in the Re--
ply submitted by Honduras to the King of Spain in the

Arbitration over its boundary dispute with Nicaragua, the Government of Honduras presented as part of its

evidencie a decision by the Spanish Crow to the effect
that the South Sea was the boundary of Nicaragua. ,

12.3 The original Colonial Province ofHonduras was within
the jurisdiction of the "Real Audiencia" of Panama,:

whose jurisdictional limits were stated by a Royal
"Cédula" of 8th September 1563 to extend up to but

not including the Golfo de Fonseca. On the other
hand, the jurisdictional limits of the "Real

Audiencia" of Guatemala were stated to extend up
to and including the Golfo de Fonseca (Annex 3),The

Royal "Cédula" of 1563 was subsequently amended by
another "Cédula" of 17th May.1564 which transferred

the Province of Honduras from the jurisdiction of
Panama to the jurisdiction of Guatemala. However,
this "Cédula" transferred Honduras .with the

boundaries as defined in the previousyear, in other
words without access to the Pacific Ocean.

This Royal "Cédula" of 1564 was also filed as evidence
by Honduras in the Mediation Proceedingsof 1920-1921

to which reference has already been made. This 1564
"Cédula" provides that the jurisdiction of the

"Gobernaci6nW of Guatemala extends "from and
including the Golfo de Fonseca up to and excluding

the Province of Honduras" (Annex 4) and thatthe
"Gobernaci6n" and "Bishopric of Honduras Shall have

as its boundary "the township of San Miguel with
the people as far as the South Sea and the limits

of Nicaragua". Clearly this indicates that the
"Gobernaci6n" and Bishopric of Honduras did not reach the sea, since San Miguel belonged to the Province

of San Salvador within the "Real Audiencia" of Gua-
temala. Further evidence is supplied by another do-

cument filed by-Honduras in the MediationProceedings
already referred to: a letter dated 20th November

1536 from the "Adelantado" Pedro de Alvarado, in
wich this representative of the King in Guatemala

refers to the "discovery of a very good, deep and
safe port in the mouth of the River Lempa, where

a town calledSan Miguel has been stablished".

12.4 In rebuttal of the decisive evidence set out above,

Honduras has invoked a Royal "Cédula"of 1745 appoin-
ting Colonel Juan de Vera as Governor or the Province

of Honduras and Comandant General of.<he Royal Milita-
ry Forces on the coast fr'omYucatan to the Cape .of

Gracias a Dios. However, this Royal "~édu\la"-.of 1745,
wich was pleaded by Honduras in its litigation with
Guatemala, was rejected by the Tribunal of Arbitration
..
under the Presidency of Charles Evan Hughes which
adjudicated that dispute. The Tribunal ppinted out

"that this grant of military authority was for special
reasons expressly ,limited to the two functions of

defense and the prevention of illict commerce and
was not for the purpose of disturbing or altering

the limits of provincial administrative authority
in other matters" (1) (Annex 5).

12.5 In the Mediation Proceedings of 1920-1921 to which

reference has already beenmade, Honduras recognised,
referring to the Royal "Cédula' of 1564, that "it is

not strange that the King has included in the Province.

(1) United Nations Reportsof International Arbitral
Awards. Vol. II p. 1329. of Guatemala the Gulf of Fonseca beacause at that

time and long after that time Guatemala extended
as far as the Province of Nicaragua, including the

territory that is today the Republicof El Salvador
and a parte of the territory of Hondurason the Gulf" ,

(Annex 6). As the representatives of Guatemala indi-
cated in these negotiations, this Admission by Hon-

duras signified that Honduras was therefore obliged
to furnish positive evidence by means of Royal "C6du-

las" subsequent to the Eighteenth Century thatthe
part of the territory on the Golfo de Fonseca which

did not originally belongto Honduras was subsequen-
tly awarded to Honduras and withdrawn £rom Guatemala

(Annex 7). No such evidence exists.

12.6 On 20th Decemeber 1750 the President of the "Real
Audiencian of Guatemala, Joseph de Araujo, sent from

Guatemala a Rsport, issued along with the opinion
of the Attorney-General, concerning the political

and military administrationof the Provinces of Coma-
yagua and Nicaragua. In this Report it is stated

that "the Alcaldla Mayor" of Tegucigalpa is placed
at a distance of 30 leagues from the above mentioned

Government of Comayagua and this "Alcaldia Mayor"
has no sea port through which it could suffer an

enemy invasion" (Annex 8). This document,of colonial
Spanish origin, shows clearly that at this stage

neither Comayagua nor Tegucigalpahad coastlines
on the Golfo de Fonseca.

12.7 The expansion of Honduras towardsthe Pacific Ocean took-a different and more limited form. It was not

based on any Royal "Cédulas" but began in 1672 when
the curacy of Choluteca. Wich belonged to the jurig

diction of the Bishopric of Guatemala, was transfe-
rred to the jurisdictionof the Bishopric of Comayg

gua. This decision was taken on the basis of a Report
from the Bishop of Guatemala in1669. (Annex 19).

12.8 But this transfer did not include Nacaome, which

is the crucial commandingpart of the coastline on
the Golfo de Fonseca. On the contrary, when in 1675

the Bishop of Comayagua in Honduras requested the
transfer of Nacaome, theBishop of Guatemala objected
to this request of the Bishop of Comayagua and this

request was not granted by the Spanish authorities.
(Annex 10).

12.9 Furthermore the village of Choluteca, even when it

sias transferrédto the jurisdiction of the Bishopric
of Comayagua, did not exercise jurisdiction over

the islands in theGolfo de Fonseca. These continued
to be governed from San Miguel, in the Province of

San Salvador, which had been founded earlier than
Choluteca. Nor can it be contended that Honduras

gained access to the Pacific Coast during the conclu-
ding years of the Spanish dominion. In 1807 the "Co-
rregidor Intendente" Antonio Gutiérrezy Ulloa.submi-

ted a Report on the General State of the Province
of San Salvador and in this Report he stated clearly

that the Province of-San Salvador hasa common boun-
dary with the Province of Nicaragua. When.describing

the jurisdiction of the Salvadorefiantownship of
San Alejo, the "Intendente" statesthat "Conchagua -- Barra, to the East of San Alejo, divides this juris-
diction and that of' the Province of San Salvador

from that of Leon (a township in Nicaragua)which'
is twenty-four hours journey away by boat or Ca--

noe" (Annex 11) .

12.10 This consideration ofthe historic titleto he islands
establishes the following conclusions.

(a) Choluteca and Nacaome were untii 1672under the
jurisdiction of the "Alcaldia Mayor" of San Salvador

and of the Bishopricof Guatemala.
(b) Only the curacy of Choluteca was transferred

' to the Bishopric of Comayagua, Nacaome remaining
within the jurisdiction of the "Alcaldia Mayor" of ,

San Salvador and of the Bishopric of Guatemala.
(c) Choluteca did not exercise jurisdii~ti6n over

the islands in theGolfo de Fonseca,which were gover-
ned form San ~iguel.in El Salvador.

Id) Since the whole of the Golfo de Fonseca and its
islands were under the civil and ecclesiastical

jurisdiction of Guatemala.and, more locally, under
the jurisdiction of the "Alcaldia Mayor" of San Sal-

vador, Honduras can -only claim historic title to
any of the islands in the Golfo de Fonseca if it '

is able to producing a Royal "Cédulan or other
positive evidence of title with a date .subsequent

to 1673 by which Honduras was granted jurisdiction
in the Golfo de Fonseca and in respect of the islands

therein. No such evidence in fact exists. SECTION C

THE LEGAL POSITION OF THE MARITIME AREAS

CHAPTER 13

\

The position within the Gulfof Fonseca

13.1 The legal positionof the maritime areas within the

Gulf of Fonseca is regulated by the judgement rende-

red on 9 March 1917 by the Central American Court
of Justice in the case between El Salvador and Nica-

ragua relating to the said Gulf. This judgement was
accepted by the G/ES and express reference is made

.to it in Article 84 of the Constitutionof the Repu-
blic of El Salvador of 1983 where the judgement is

identified as determining the territorialand mariti-
me right of El Salvador in the Gulfof Fonseca. (Text

of Article 84 to be inserted in an Annex).

The relevant part of the Judgement is as follows:

NINTH QUESTION: Taking into consideration thegeogra-
phic and historic conditions, as well as the situa---

tion extent and configuration of the Gulf of Fonseca,
what is the international legal statusof that Gulf? The judges answered unanimously thatit is an historic

bay possessed of the characteristics of a closed

sea.
TENTH QUESTION: As to which of those characteristics

are the High Parties litigant in accord?

The Judges answered unanimously that the parties
are agreed that the Gulf is a closed sea.

ELEVENTH QUESTION: What is the legal status of the
Gulf of Fonseca in the light of te f~regoingans~uer

.andthe concurrenceof the high parties litigant, as
expressed in their arguments, with respect to

ownership and the incident derivedtherefrom? .~
Judges Medal, Oreamuno, Castro Ramirez and Bocanegra

answered that the legal status of the Gulf of
Fonseca, according to the terms of the question,

is that of property belonging to the three countries

that surround it; and, Judges Gutiérrez Navas answered
that' the ownership of the Gulf of Fonseca belongs,

respectively, to the three riparian countries in
proportion.

The legal status of the Gulf of Fonseca having been

recognized by this Court to be that of a historic
bay possessed of the charactistic of a closed sea,

the three riparian States of El Salvador, Honduras
and Nicaragua are, therefore, recognized as coowners

of its waters, except as to the littoralmarine league
which is the exclusive property of each.

13.2 On the basis of the'1917 judgement an objective legal
regime has been established in the Gulf. Even if

iriitially the judgement was binding only in respect
of the direct parties to the litigation, Nicaragua

and El Salvador,the legal status recognizedtherein has been consolidated in the course of time its effects

extend to third States, and in particular, they

extend to Honduras.
13.3 As to third States in General, the objective legal

regime established on the basis of the judgawnt
relies on the acquiescense and in some cases on

the express recognition of third States,
particularly, of the great maritime powers. Thus,

for instance, the United. States, had already
recognized in 1904, in a diplomatic noteaddressed

to El Salvador, that "the Gulf of Fonseca is a
territorial bay whose waters are within the

jurisdiction of the bordering States". (1). The
other maritime powers have continuosiy enjoyed

the "uso inocente" of the waters of the ~ulf for
their merchant vessels and have never questioned

the character of the Gulf as a territorial bay
whose waters are within the jurisdiction of the

bordering States. And such a character of a
territorial bay has been confirmed by the 1982

UN Convention on the Law of the Sea, which
authorizes the closing of a bay when the width

of its mouth does not exceed 24 nauticalmiles.
13.4 What is decisive in this case, however, is the

acceptance by Honduras of the leqal status of the
Gulf as recoqnized and proclaimed by the 1917

judgement.It is necessary to recall that in the
Central American Court of Justice sat a Judge from

Honduras, since the. court consisted of five
justices, one appointed by each republic through

its legislative branch (Articles VI and VI1 -

0f the Convention establishing the court

(1) Ibid, p.709 The Enqlish translationof the Judge--
ment States that this express recognition toopklace
in 1914 but this seems to be aprintingmistake. signed on December 20, 1907, by the five Central-A-

merican Republics) (2) Article XII1 Declared that

the court represented "the national conscience
of Central'American and Article XXV .provided thae
the "judgements of the Court shall be communicated

to the five Governmentsof th? contr?cting ~epublics.
The interested parties . pledge themselves to submit

to such judgement and al1 to lend the moral support
that may be needed in order that i< is complied

with, thus constituting a real and positive guaran-
tee of respect to the present Convention andto the

Central American Court of Justice". (3)

It follows that if Honduras disagreed or rejected
the conclusions reached by the Central-American Court

of Justice as to the legal status of the Gulf it'
shoul have expressed its rejection or disagreement

in that respect.

13.5 Far from that, the attitude of Honduras was not only
one of acquiescense'butit had such a degree of parti-

cipation in the litigatbn that it is possible to
characterize Honduras as an "interested party" in

the meaning given to this term by the pledge contained
in the above-transcribed Article XXV of the

Convention. Before the delivery of..the judgment
.Honduras addressed a protest to El Salvador opposing

the Salvadorean complaint which as'serted the
coownership of the three riparian States over

the waters in the Gulf of Fonseca. This protest said
"That the Goverment of Honduras has not recognized

the status of coownership with El Salvador, nor with
any other republic, in the waters belongingto it in

(2) The text of the Conventions is tobe found in US
Foreign Relations 1907,II,p.692and 2 American Journal
InternationalLaw. (Supp. 1908, p219.i
(3)(Pleasecheck the English translatjon of this Article
XXV in one of the sources given in footnote 2 above) the Gulf of Fonseca". (4) During the course of the

litigation the Republic of Honduras brought to the
attention of the Central American Court a copy of

this protest. (5).

13.6 While ar the first sight, this protest might' have
been interpreted as a complete rejectionby Honduras

of the regime of CO-ownership claimed by El '~alvador,
in its applications to the Court subsequent declara-

tions by the Court and by Honduras authorities demong
trate the limited character of the Honduras protest

as to the extent of the waters claimed as "belonging
to it' in the Gulf.

The Central American Court dealt with the protest

of the Foreign Minister of Honduras, stating that
"the Court can do no less than accord to it the full

effect claimed, therefore, by that high officer in
his report of January 5, 1917, to the Nacional Congress -

of his country". (6)
In that report by the Honduras Foreign Minister,

transcribed in the judgement the Foreign Minister of
Honduras explains that his expression concerning the

"waters belonging to it" only applied to the three
miles belt of waters contiguous to the coasts and

islands of Honduras.
The Honduras Foreing Minister's report States that

the protest was made:
'hgainst the allegation of the complaint referred
to, wherein, co8wnership in al1 the waters of
the Gulf of Fonseca is claimed on the qroundof
the statusof cmmunity amng the three riparianRepu-

(4) Text of the Judgment, Ajil, p. 696.
(5) Ibid, p. 696.
(6) Ibid, p. 716. blics even as to the waters contiguous to the
toasts and islands of Honduras, own which ex-
tends the undisputed sovereignityof the Repu-
blic as exclusive owner thereof."(7)

Thus, the Foreign Ministerexplains that Hondurasprotest

referred only to the waters of the litoralmarine league
which the Court recognized as the exclusiveproperty

of each riparian State. That is why the Honduras Foreign
Minister's report adds that "the Governmentof El Salvador

took the protest mentioned into considerationand gave
to this Government frank and satisfactory evidence of
its full justification". (8)

13.7 Subsequently, Honduras accepted the conclusions of
the judgment as to the legal status of the Gulf. The

President of the Republic of Honduras, in this Report
to Congress Published in the Gaceta Oficial of the
3 January 1918, after delivery of the judgment,declared

that the judgment of the Central American Court of
Justice had "Satisfactory results and was in conformity

with the purporsesof the institution"

Referring in particular to the legal status of the
Gulf the President of the Honduras declared:

"This Tribunal, in deciding the question raised
by the Government of El Salvador against that
of Nicaragua, concerning the Bryan-Chamorro treaty,
has recognizedthe rights that Hondurashas in the
Gulf of Fonseca; a recognition which is in
perfect harmonywith the protest of this Govern--
ment against the claims of the El Salvador in --
respect of the territorial waters to which the

- - - -
(7) Ibid, emphasis added.
(8) Transcribed inthe text of the judgment,AJIL,
p. 717. sovering domain of Honduras extends".

The conclusion to be draw from these documents is
that El Salvador originally claimed the existence

of the regime of co-ownership with respect to al1
the waters of the Gulf, while Nicaragua took the

position that there was no community between the
three States in these waters. (g )Honduras, for its

part, protested against the claim of CO-ownership
only with respect to the three mile belt of littoral

waters. El Salvador amended its complaint accordingly
in order to take into account the protest of Honduras.

The Court took the intermediate position advocated

by Honduras when it recognized that the legal status
'of CO-ownership "does not exist in the three marine

miles that form the littoral on the coastsof the
mainland and islandswhich belong to the States separa-

tely and overwich theyexerciseownership and possession
both exclusive and absolute".(lO)

13.8 It may be added that in the more than 70 years since

the 1917 judgment was delivered Honduras not only
never questioned or made a reservation with respect

to the common ownership of the waters of the Gulf
but, on the contrary, it has continuouçly taken

adventage of the common character of these waters,
using its navigation channels, which are located

in the proximity of the coasts of El Salvador, for
access to and £rom its port of Amapala, for ships

of al1 flags, including the Honduran flag. The same

(9 )AJIL, 2. 6.78
(10) IBID., p. 711 applies to fishing in the area close ,to the

Coast of Honduras and El Salvador which is
conducted without distinction by fishing boats

of Salvadorean orHonduran registry.

13.9 The most recent publicy stated position of
Honduras as regards the waters in the Gulf

of Fonseca is reported in the Sumary Record
of the SecondCommittee of the 3ed UN Conference

on the law of the Sea as follow:
18. Hofiduraswas one of three coastal States
bordering on the Gulf of Fonseca in the
Pacific Ocean. That gulf was regulated
exclusively by existing delimitations and
agreements between The coastal States. The
légal concept contairiedin Article 7 of the
1958 Geneva Convention on the .Territorial
Sea and the Contiguous Zone (11) would be
applicable to that bay but for the exception
laid down in that article. i-e., that it
related only "to bays the coasts.of which
belong to a single State" and that it would
not apply to so-called "historic" bays. He
regarded the latter provision as open to
objection because of its discriminatory
nature. It was discriminatory to exclude
bays which bordered the coasts of various
States when,as in the present case, al1 the
coastal States maintained that the waters .
of the bay were international.Although there
was no established legal norm, the çtatuç
of that bay had been accepted by the coastal
States. It had never been mainstained that
the entrance to the Gulf of Fonseca was
an international strait, which showed that
the legal unity of al1 parts of the bay was
generally accepted. Moreover, there was no
valid reason for excluding from the legal
concept0 of bays the ço-called "historic"
bays in cases where the concept applied to
them. His delegation therefore maintained
that the traditional concept of "historic"
bays should be revised because it had been
elaborated in response to a former need for
a legal definition of baysunder the exclusive
competence of the coastal State. (Official
Records of the 3rd UNCLOS, vol.111 pp.
100-101).
(11)United Nations, Treaty Series, vo. 516 p. 206. CHAPTER 14

THE POSITION INTHE PACIFICOCEAN OUTSIDE THE

CLOSING LINE OF THE GULF OF FONSECA.

The G/ES turns next to a considerationof the position
of.the waters seawardsof the ~acific closing line.

At the outset, it is convenient to recall that'in

the region of the mouth of the Gulf of Fonseca only
El Salvador and Nicaragua possess.whatmay objectively
be described as a Pacific Coast or seaboard. Honduras

does not. The relative regularity of the CO-sts of
El Salvador and Nicaragua is interrupted only by the

opening of the Gulf of Fonseca which, measured along
the Pacific closing lineis 19.01 nautical miles wide.

Each of these Pacific coasts generates for each of

these States a territorial sea, a contiguous zone,
a continental shelf,and an exclusive economic zrme
(EEZ).

14.1 THE LIMITS OF EL SALVADOR.

El Salvador claimed in its Constitutionof 7 September
1950, Article 7; a territorial sea of 200 nautical

miles. This claim was re-stated in the constitution
of 13 December 1983,Article 84, as a claim to exercise

sovereigntyand jurisdiction over thesea and submarine
areas up to a distance of 200 nauticalmiles measured
£rom the low-watermark line.14.2 THE POSITION OF HONDURAS.

The position of Honduras in relation to the waters
of the Pacific seawards of the closing line of the

Gulf of Fonseca is not clear. The G/ES sets out below
some material which may indicate someclaim by Honduras

in these waters. However, until Hondurashas prese-
ted its Memorial in this case it will not be possible

for the G/ES to deal with these claims in a precise
and focussed manner. The G/ES will, therefore, after

setting out such public material as it has been able
to find regarding the position of Honduras, limit

ifself to some general observations regarding the
legal position in'the waters of the Pacific Ocean,

subject, of course, to the fullest reservation of
its right to revert to the matter in such manner as

may be necessary to respond appropriately to the
Memorial of Honduras.

By Presidencial Decree of 28 July 1950, approved by

Congressional Decree No. 25, 17 January 1951, Honduras
defined the area of its claims to continental shelf

and the waters covering it as follows:

"ARTICLE 3. The protection and supervision
of the State is hereby declared to extend
in the Atlantic Ocean overal1 waters lying
within the perimeter formed by the coast
of the mainland of Honduras and a
mathematical parallel drawn at sea 200
sea miles therefrom. With regard to the
islands of Honduras in the Atlantic,
such delimitation shall enclose the zone
of sea contiguous to their coasts and
extending for two ,hundred sea miles from
every point thereon. (UN Legislative Series, Laws and Requht30ns on the

Regime of the High Seas, Vol. 1 (19511,p. 303)

This provision, which appears in the UN volume under

the heading of "Continental Shelf", suggests that
the claims of Honduras are limited to the Atlantic

and do not extend to the Pacific.

Subsequent to the Presidential Decree of 28 January
1950, i.e. on 16 March 1950, and by a decree the

relationship of which to the Congressional Dekree
of 17 January 1950,is not clear, CongressionalDecree

No. 103 provided as follows:

(b)CONGRESSIONAL DECREE No. 103. AMENDING THE
AGRARIAN LAW, 7 MARCH 1950. "La Gaceta: DIARIO
OFICIAL DE LA REPUBLICA DE HONDURAS". VOL. 75,
No. 14,055 (16 MARCH 19501, p. 2. TRASLATION
BY THE SECRETARIATOF THE UNITED NATIONS

ARTICLE 1. The first article of the Agrarian
Law is amended, and shall read as follows:
"ARTICLE 1. The property of the land, in its
double aspect of soi1 and subsoil, as well as
the waters included in its territory, belong
originally to the State, which has the right
to transfer the dominion to individuals,
establishing therebyprivate property.
"The following belongto Honduras:
"(1) The land situated on the continent within
its territorial limits, and al1 the islands
and keys in the Pacific which have been
consideredHonduran.
"(2) The following islands: Cisne (Swan),
Viciosas, Misteriosas and Mosquitos; the
following keys: Gorda, Vivorillos,
Cajones,Becerro, Cocurucuma, Caratazca, Falso,
Gracias a Dios, Los Bayos. Pichones, Pa10 de
Campeche; and others islands, banks and reefs situated in the Atlantic, over [:hicl,Honduras
exercises dominionand sovereignty, in addition
to the Islands of Bahla.
"(3) Its submarine platform or continental and
insular shelf and the waters which cover it,
in both the Atlantic and Pacific Oceans, at
whatever depth it may be found and whatever
its extent may be."
ARTICLE 2. The present decree shall be
constitutionally ratified by the next legislature
and shall enter into force immediately after
its publication inLa Gaceta.

(UN Legislative Series, op. cit., P. 12)

Whether this amounts to any claim to waters of the
Pacific beyond the closing lineof the Gulf of Fonseca

is not evident.

At the same meeting of .the Second Cornmitteeof UNCLOS
to which reference has been madein paragraphabove,

the delegate of Honduras said:

19. In connexion with the questionof the outer
limit of the territorial sea, he said that he
considered the method using the arc of a circle
best suited to the different geographical
characteristics of different coastlines and.
also the most desirable, since it' would
facilitate navigation. With regard to the
delineationof the limits between the territorial
sea of Honduras and that of adjacent States,
his delegation believed that the system that
should be used, unless otherwise agreedby the parties, concerned, was that of the median line

following the general direction of the Coast
including the archipelago of Las Islas de la
Bahia. Honduras recognized the traditional
concept of the territcrial sea and the right
of "innocent passage" 'of ' ships of any
nationality; but the concept of "innocent
passage" applied to navigation within the
territorial sea and not within the intebal
waters of a State. That was important in'
connexion with the provision of article 5 of
the Geneva Convention on the Territorial Sea
and the Contiguous Zone, which ignored the
difference betweentwo areas which were basically
different because the principle of innocent

passage did not apply to one of them.

20. He stressed the fact that hisdelegation's
position on the breadth of the territorial sea
was indissolubly Linked to the right of the
State in an area in wnich it .would control,
protect and exploit resources-anarea extending
for 200 nautical miles from the baseline of
the territorial sea of Honduras.

(=., pp. 100-101)

In response the delegateof El Salvador said:

1. Mr GALINDO POHL (El Salvador), speaking
in conexion with the. statement by the
representative of Honduras at the preceding
meeting concerning the Gulf of Fonseca, said
that the effects of applying the concept of
a 12-mile territorial sea and the rule of
equidistance to determine the outer limits were not at al1 as the Honduran representative
had described them. If the concept of
a 12-mile territorial-sea accepted by
Honduras was applied,two of the three
coastal State situated on the gulf would
completely close off the entrance to
the gulf; noreover, al1 the distances
measured from Honduran .territoryto the
line of entry to the Gulf exceeded the
12-mile limit of the territorial sea,
whereas those £rom the land territory
and islands of El Salvador fell within
the radius of 12nauticalmiles.

2. Since the Salvadorian islands of
Conchaguita.,nguerandMeangueriweresituated
between Honduran terra firmeand the
entrance to the Gulf, he wondered whether
Honduras was seeking to assert some claim
over them. If that were the case, he
must state categorically that El Salvador
exercised sovereiqnty over those islands
and was not prepared to accept any
hipothesis that could affect its
territorial integrity.

The Delegate of Honduras replied:

speakingr.inHeexercise ofesthe(Hright of,

O conforming to the wish of the Conference
in referring to specific situations in
its general statement at the preceeding
meeting. Thematter of the Gulf of Fonseca
illustrated a common situation in the
law of the sea, and it was therefore
appropiate to make reference it in
connexion with the regime of internal
seas, the territorial sea, baselines,
and historic bays, and in. order to
determine its status vis-a-vis the
'international comrnunity and not as a
function of the internal regime of the
G,ulf,as the representativeof El Salvador
had done at the beginningof the meeting,
'when he had attempted to deny the
sovereigntyof Honduras over its 'islands and waters.Honduras maintained that the waters
of the bay possessed the status of the interna1
waters and, as a consequence, it was logical
that the baseline of the territorial sea should
be that line which united the natural
geographical points of the bay. He agreed
with the re~resentative of El Salvador that
a dispute éxisted regarding the territorial
and maritime boundaries between Hondurasand
El Salvador; Honduras, for its part, had always
manifested its willingness to settle those
boundaries as soon as possible. .

(Ibid. p.108)

The delegate of El Salvador responded:

55. Mr. Galindo Pohl (El Salvador), speaking
in exercise of the right of reply, stressed
that the Conference was not an appropiate
forum for airing bilateral disputes, and
maintained that referring to particular cases
to support general ideas was different from
formulating positions which encroached upon
the established rights of other States. That
was what the representative of Honduras had
done when he had referred at the previous
meeting to the delineation of waters between
adjacent State and, at the current meeting,
to historic bays, and he cited in that
connexion a judgement of the Central American
Court of Justice on 1917. On whatever theory
the delineation of either the territorial
ür lnternal waters was based. Honduras would
be deprived of access to the line of entry
to the Gulf. What was more, the Honduran
Representative had even referred to problems
of- territorial and maritime boundaries, which
would only raise further problems. If- the
Cornmittee agreed, El Salvador intended to
pursue the controversy.

(Ibid. p.108) 14.3 The maritime claims of El Salvador and Nicaraqua
meet and overlap.

Although El Salvador and Nicaragua are not

territorially contiguous their maritime claims meet
at a point on the Pacific closing line of the Gulf

of Fonseca equidistant from their respective base
lines. That point represents the eastern (olrandward)

terminus of the boundary line that separates their
maritime claims in the Pacific in accordancewith

the prevailing standardsof internationallaw.

14.4 The legal basisof the maritime claims of El Salvador

and Nicaragua.

The legal basis of these maritime claims by the two
Pacific coastal states which lie on either side of

the seaward opening of the Gulf of Fonseca is the
possessionby them of actual coastç.

14.5 CLaims to territorialsea.

It is beyond question that it is the land or the

coastal possession of a State that generates maritime
entitlements. Historically, the concept of the

territorial se4 has always been regarded asdependent
upon the possession of the contigüousshore line.

The point was made in the following terms by Lord
(then Sir Arnold) McNair in the Fisheriescase: "To every State whose land territory
is at any place washed by the sea,
internationallaw attaches .acorresponding
portion of maritime territory.
.... International Law does not Say to
a State: 'You are entitled to claim
territorial waters if you want them.'
International Law imposes upona maritime.
State certain obligations and .confers
upon it certain rights arisingout of
the sovereignty which it exercises over
its maritime territory. The possession
of this territory .is not optional, not
dependent upon the will of the State,
but compulsory." (1)
.

Sir Gerald Fitzmaurice commented on this statement as
follows:

"The principle that where any territory
is washed by the sea, a portion of that
sea not only does, but m, attach to
the land domain, and be under its
jurisdiction,was stated in the Fisheries
case by Sir Arnold (now Lord) McNair...[in
a passage] which, though delivered in
the course of a dissenting Opinion, sets
out a general principle .of great
importance, the validity of which can
scarcely be contested. The point involved'
was not dealt with by the majority .of
the Court, but the view expressed is
entirely consistent with the decision
of the majority, and indeed implicit
in it." (2)

Sir Gerald then drew from this principle a series
of consequence of which the firstthree merit extended

quotation:

(1) ICJ Reports 1951, p.160
(2) The Law and Procedure of the International Court
of Justice (19861,I.P.202 "i. Any cession or other transfer of
territory automatically involves a cession
or transfer of the appurtenant territorial
waters: it is not necessay either to
effect, or subsequentlyto ' prove, any
express or separate transfer of the waters
as such.(1)

ii. SimiParly, the acquisition of
territory which is res nullius
automatically involves the acquisition
of a belt of territorial sea appurtenant
thereto. No separate assertion of
jurisdiction over such belt is necessary,
nor need any specific display of
sovereignty over it be proved,provided
there is an adequate display of sovereignty
over the land territory.

iii. Conversely, sovereignty over sea
waters cannot' be claimed except on the
basis of their being territorialsea (or
internal waters - e.g. in a bay)(2)
appurtenant to land territory over which
sovereignty exists or is claimed:
alternatively a claim to the waters
necessarily impliesa claim to the adjacent
land.(3)'Except on this basis, the waters
must be high seas, and therefore incapable
of appropriation."

The third of these comments has a special pertinence
to the present case in its emphasis on the total dependence

of claims to sea waters uqon appurtenanceto land territory
over which sovereignty exists. Thus, whatever may be

the position within theGulf of Fonseca, the position
seaward of the Pacific closing line is that maritime

claims must depend upon the adjacent coast lines - and
the only adjacent'coast lines are those of El Salvador

and Nicaragua. Conversely, as Sir Gerald points out,
"a claim to waters necessarily impliesa claim to the

adjacent land". There is no geographicalconnectionbetween
(1) Footnote not reproduced
(2) 1.e. where there is a closing line, whichcauses .the
waters behind it to become internalor natiorialwaters.
(3) Thus stated, the point may seem obvious, but it was the
basis of a considerable controversyin the Minquiers
and Echréhoscase. any possible claim by Honduras to waters in the Pacific
and any "adjacent"land.

14.6 Claims to continentalshelf and EEZ '

In examining the position regarding the continental

shelf and EEZ,it is appropiate to recall the words
of the Court in the Libya-Maltacase:

"AS the 1982 Convention
demonstrates, the two institutions -
continental shelf and exclusive economic
zone - are linked together in modern
law." (1)

ThesamedepaïenceuFonadjacenctyoacoaçtis as true of claims

to continental shelf and the EEZ as it is of claims
to the territorial sea. Though the concept of natural

prolongation is applicable only to the continentalshelf
and in the case of EEZ is replaced by the criterion

of distance, both standards of definition start £rom
the title of the claimant State to the adjacent coast.

This is clearly acceptedby the Court in theLibya-Malta
case (2) - and was indeed emphasized there in the
repetition of a passage £rom its judgement in the

Libya-Tunisiacase:

"The coast of each of the Parties
therefore constitutes the starting line
£rom which one has to set out inorder
to ascertain how far the submarine areas
appertaining to each of them extend in
a seaward direction, as well as in relation

.(1) ICJ Reports 1985 p.33 para.33
(2) See ICJ Reports 1985, pp.33-34,paras33 and 34. to neighbouringtates situated
either in an adjacent or
opposite position."(l)

The G/ES is therefore unable to identify in the current

law of the sea - whether as a matter of customary
international law or otherwise - any basis for

recognizing the possession by Honduras of any rights
in the waters of the Pacific beyond the closing line

of the Gulf of Fonseca different from those of any
other non-littoral State. In other words, Honduras

enjoys to the full and without any restriction freedom
of navigation to and from the waters of the Gulf of
Fonseca, as do the vessels of al1 other Stateson their

way to or £rom Honduras. However, rightsof exploration
and exploitation of the maritime areas of the Pacific

lying off the coasts of El Salvador and Nicaragua belong
exclusively to those States, though qualifiedof course

by such rights of other Statesto access to the living
resources of the exclusive economic zone as are

reflected in Article 62 of the UN Convention on the
Law of the Sea 1982.

14.7 The relationship between the claims of Nicaraguaand

the present proceedings

Nicaragua is not a party to the Special Agreement which
confers jurisdiction upon the Court in this case. Nor

is Nicaragua a necessary party to the case in so far
as the Court is requested to determine the legal status

of the islands and of the maritime areas between the
Parties inter se. ~lthou~h it is true that El Salvador

refers to the rights of Nicaragua as an element in exclu-
(1) ICJ Repprts 1982, p.61 para.74, cited by the Court
in ICJ Reports 1985, p.40. para.47.ding the claims of Honduras to 'watersseawards of the
Pacific closing line that reference is solely for the

purpose of demonstrating that between themEl Salvador
and Nicaragua exhaust the possible maritime claims

in that area. The G/ES recalls that the secondquestion
put to the Court is formulated not in terms of

delimiting a frontier line but only in terms of
"determining a legal situation". This determination

must lay down the legal foundation upon which a
subsequent delimitation(if, in the lightof the Court's

judgement one should be required) can be agreed between
the Parties. 0 SUBMISSIONS

Delimitation of the land frontier.

The Government of El Salvador requests the

Chamber of the International Court of Justice

to delimit the land frontier in the disputed

areas between El Salvador and Honduras in the

basis of:

1. The rights resulting £rom the titles to

commons owned in favour of El Salvador and the

effective sovereignty that El Salvador has

exercised and exercises in those disputed areas

in accordance with the evidencewhich has been

submitted in the annexesof the present Memorial.

The precise delimits of the areas which, in

accordance with the above are subject to its

sovereignty areset out as follows:Tecpanguisir Mountain

~aragraph 6.1 Paragraph 6.13 above;

Las Pilas or Cayaguanca

Paragraph 6.14 Paragraph 6.22 above;

Arcatao or Zazalapa

Paragraph 6.23 Paragraph 6.29 above;

Perquin, Sabanetas or Nahuaterique

~aragraph 6.30 Paragraph 6.49 above;

Monteca or Dolores

Paragraph 6.50 Paragraph 6.58 above;

The Estuary of Goascoran

Paragraph 6.59 Paragraph 6.68 above. and Conclusion; and Chapter 6 The Human Arguments

(EffectivitSs).

2. The addition to the areas thus attributed

to El Salvador of those areas of Crown Lands

(Tierras Realenqas) lyinq between the Common

Lands of El Salvador and Honduras respectively

that are properly attributed to El Salvador

after a comparison of the qrants of Common Lands

made by the Spanish Crown and authorities if

favour of the Provinces of San Salvador and

of Comayaqba and Tegucigalpa,Honduras.

II. The JuridicalPosition of the Islands.

The Government of El Salvador requests the

Chamber of.The InternationalCourt of Justice:

To determine, on the basis of long-established

possession and/or of the titles qranted by the

Spanish Crown, that El Salvador has and had

sovereignty over al1 the islands in the Gulf
of Fonseca, with the exception of the Island

of Zacate Grande which can be considered as

forminq part of the Coast of Honduras.III. The Juridical Position of the Maritime Spaces.

The Government of El Salvador request the Chamber
of the International Court of Justice to determine
the juridical position of the maritime spaces as

follows:

A. Within theGulf of Fonseca.

The juridical positionof the maritime.spaces within
the Gulf of Fonseca corresponds to the juridical
position establishedby the Judgement of the Cen..al

American Court of Justice rendered March 9th 1917,
as accepted and applied there ifter.

B. Outside of the Gulf of Fonseca.

As regardsthe juridical positionbeyond the closing

line of the Gulf of Fonseca, the Government of El
Salvador is unaware of the precise nature and extent
of the claim,if any.of the Government of Honduras
and must, therefore reserve its position. However

El Salvador maintains that in principle, as Honduras
has no coast on the Pacific Ocean, it has no rights'
in that ocean other than those possessed therein

by any other non littoralstate.

The Hague, 1st. of June 1988.

fi
FRAN ISCO ROBERT0 LIMA
Agent of the Government of
El Salvador LIST OF SKETCHESAND MAPS INCLUDEDIN THE
PRESENT VOLUME

CHAPTER 2

1 - Map 2.1 Relativeposition between Honduras
and El Salvador.
2 - Map 2.2 Joint Vision of the borderline El
salvador-Honduras accordingthe . General
Peace Treaty of October, 1980.

3 - Map 2.3 Joint Vision of the non-delimited
zones.

CHAPTER 6

4 - Title of Citala whichprotects the zoneand' of
Tecpanguisir.

5 - Map 6.2 Interpretationof the Commons Land
Title of La Palma, which protectsthe zone -
of Las Pilas or Cayaguanca.
6 - Map 6..3'~nter~retationof the Commons Land
Title of Arcatao which protects thezone,of
Zazalapa.

7 - Map 6.4 Interpretationof the Common Land
protects thezone of Nahuateriqueor Saba-h
netas. 8 - Title of Polor6s, which protects thezonend
of Monteca.

9 - Map 6.6 Delta of the River Goascoran.

10 - Map 6.7 Localization ofCrown Lands (Tierras
Realengas) Beyond the Common Land (Tierras
Ejidales) described in the Title of Citala
(TecpanguisirMountain).
11 - Map 6.8 Localization of Crown Lands(Tierras
Realengas) beyondthe Common Land (Tierras
Ejidales) described in the Title of La Palma.

12 - Map 6.9 Localizationof Crown Land (Tierras
Realengas) beyondthe Common,Land (Tierras
Ejidales) described in the ~itle of Arcatao:.

13 - Rea1engas)beyondthe ComrnonowLand (Tierrass
Ejidales) Described in the Title of Perquln-
Arambala and Torola.

14 - Map 6.11 Localization of CrownLand (Tierras
Realengas) beyondthe Common. Land (Tierras
Ejidales) described in the Title of Poloros.

15 - Map 6.12 Delta of the River Goascoran.

CHAPTER 7

16 - Population Density according to the last
Census.

17 - Curve of the Human Population ofEl'Salvador.

18 - zones El Salvador-Hondurasfrontier Tecpanguisir
Mountain sector.

19 - Human Settlement included in the non-delimited
zones El Salvador-HondurasfrontierLas Pilas
or Cayaguancasector.20 - Human Settlementsincluded in the non-delimited
Zazalapa sector.r-HondurasfrontierArcatao or

21 - Human Settlement included in the non-delimited
zones El Salvador-Honduras frontier Perquln-Sa
banetas or Nahuateriquesector.

22 - Human Settlementsincluded in'the non-delimited O
zones, El Salvador-HondurasfrontierMonteca or
Poloros sector.

23 - Human Settlements included in the non-delimited
zones El Salvador-Honduras frontier Estuary of
the Goascoran.

CHAPTER 10

24 - Map of the Gulf of Fonseca with al1 of its -
Islands.

CHAPTER 12

25 - Municipalitiesin the SalvadoranTerritory in
the First Decades of the Colonial Time. ANNEX CHAPTER 4

Annex 1 Explanat~on of the Envoy Don Francisco Cruz
before tReHOndurqCongress of 1885, Refuting
the Verdict of the Commission to whose Vote
was spbmitted'the Boundaries Treaty Between
Honduras and El Salvador, signed in San.
Miguel by the General Lisandro Letona,
Commissioned to the Effect by the Government
of the Republic of El Salvador, and Mr.
Francisco Cruz, by the Government of the
Republic of Honduras.

ANNEXES CHAPTER6

Annex'1 Certificate issued by Mr. .AntonioVallejo,
Chier of thi?General Archives of the Republic
of Honduras of the survey -of the Mountain .
of Tecpanguisir, in behalf of the
salvadorefian township of Citala, of the
Province of San Salvador, which. covers the
zone of Tecpanguisir Mountain,Year of 1776
Pages 2 to 6.

Annex 2 Forma1 Commons Title Deed of La Palma, which
. covers the zone of Las Pilas or
-Cayaguanca,pages11, reverseand 14 reverse.

Annex 3 Taken £rom "History of El Salvador: Its
Towns,Villages and Cities" of Jorge Lard6
y Larin. San Salvador,1957.

Annex 4 Forma1 Commons Title Deedof Arcatao, which
covers the zone of Zazalapa, pages 7 to
12.

Annex 5 Forma1 Commons Title Deed of Perquin,
Arambala, which covers the zone of Perquln,
Sabanetas orNahuaterique,Year of 1776.

-Visual Inspection, from page 323, reverse
to page 324, reverse.
-Act of Resurveying, £rom page 324 reverse.
Seepage 331, reverse.

Annex 6 Forma1 Commons Title Deedof Torola, which
covers the zone of Perquln, Sabanetas or
Nahùaterique.Page 3 and pages 22 to 30.

Annex 7 Forma1 Commons Title Deed ofPolor6s, which
covers the Zone of Monteca or Polor6s. Page
3 to 11.

Annex 8 Forma1 Title Deed of Two and* a Half
Caballerias in the Hacienda Los Amates,
in behalf of Juan Bautista de Fuentes, Year
1695. Page 11 pages lland 14 and pages 1
to 22.CHAPTER 7

Annex
In the controversialzones of Tecpanguisir, Las

Pilas, Zazalapa, Nahuaterique, Monteca, and in

the Islandof Meanguera inth& Gulf have been -

annexed certified Actsof.Birth and Death. -

There have been annexed also:

a) Certified PropertyTitles or Certificates

of taxes collected uponthem.

b) Sketches where are indicated the properties

of salvadorancitizens, asset in the Hypo--

thec and Property Registriesof the respec-

tive territorialdistricts.
C) Sketches where are indicate dhe high-voltage

electric networks destined to the agroindug

trial developmentof tiïedisputed zones.Annex 1 General Archives of Central America (GACA),
(Archivo Generalde Centro América) (AGCA).
Martz A 1.57 (3),file 699, expedient 6053 ,
year of 1766,pages 1 and 9-11.

Annex 2 General Archives of Central América (GACA),
(ArchivoGeneral de Centro América) (AGCA).
Martz A 1.39, year 1769, pages 1 and 8.

Annex 3 General Archives of Central America) (GACA) ,
(Archivo Generalde Centro América) (AGCA).
Martz A 1.40, file 4795,expedient41454,p~g.l

Annex 4 Gazette of the Government of El Salvador in
Central America. page-3, Cojutepeque,thursday
21 of June 1855.

Annex 5 Gazette of the Government of El Salvador in
Central America.
Cojutepeque, thursday 7th.August 1856

Annex.6 Official Journa1,Volume 7, number 284, 3rd.of
december 1879.

Annex 7 Official Journa1,Volume 34, number 94. 24 of
April 1893.

Annex 8 Official Journal, volume 36, number 95. 24 of
April 1894.

Annex 9a Official Journal, volume 76, nupber 95. 27 of
April 1914.

Annex 9b Officia1 Journal, volume 76. number 121.
Wednesday 27 May of 1914
Annex 10 Officia1 Journal, volume 80, number 145.
Thursday 27 June of 1916.

Annex '11 Gazette of the Government of El Salvador in
Central América.
San Salvador,November9th. 1849

Annex 12 Gazette of the ~overnment of Honduras, Tegu-.
cigalpa,D.C., 11 February 1966.Annex 1 See Cartoqraphic Annexes .maps. No.1,
The map of Mexico or Nueva Espafia
published by Sanson D'abbeville inParis,
1656 and a series of anciept maps which
were published in 1980 by the Government
of Colombia. (White-Book, Republic of
Colombia).

Annex 2a Limits between Honduras and Nicaragua,
Mediation 1920-1921 Brief of
Honduras,pag.42.

Annex 2b Limits between Guatemala and Honduras,
mediation 1918-1919,pag. 71.

Annex 3 General Archives of Central América
(GACA). (Archivo General de Centro
América)(AGCA). Martz A 1.23, file 1512,
folio 327.

Annex .4 General Archive of Central América
(~~C~),(ArchivoGeneral de Centro América
(AGCA). Martz A 1.23, file 1512, folio
332.
Annex 5 Guatemala-Honduras - Special boundary
tribunal .opinion and award-Washington,
D.C. 1933. pag. 17.

Annex 6 Replication to the Dr. Policarpo Bonilla,
RepresenVof Honduras mediation oflimits
between Guatemala and Honduras, Vol.1,
P. 65 Spanish Edition Publication of
the Comission of Limits, Republic of
Guatemala No. 13, Vol. 1 Guatemala,
march 1929.

Annex 7 Mediation of Limits between
Guatemala-Hondurasp. 165 op cit.

Annex 8 General Archives of Indies. Audiencies
of Guatemala, file 236.
(Archivo General de Indias. Audiencias
de Guatemala, legado 236.

Annex 9 General Archive of Central América (GACA)
(Archivo Generalde Centro América)(AGCAl
Marz A 1.23, file 1520, folio 85.

Annex 10 Mediation of limits between Honduras
and Guatemala p. 276 op, cit.Annex 11 General State of the Province of San
Salvador, Kingdom of Guatemala (1807) by
Don ~ntonio Gutiérrez Ulloa, Intendant
Magistrate of the Province of San Salvador.

ANNEX.. CHAPTER 13

Article 84th of the Political Constitution
of El Salvador, invigo?