INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING THE .LAND, ISLAND AND
MARITIME FRONTIER DISPUTE
REPLY OF THE REPUBLIC OF EL SALVADOR
DECEMBER 15, 1989 TABLE OF CONTENTS
CHAPTER I INTRODUCTION ....................... 1
--RT 1
CHAPTER II THE LAW APPLICABLE TO FORPIAL
TITLE DEEDS TO COMMONS ............. 3
Section 1.' The Opinionof Professor Nieto
ciarcfa ............................. 3
Section II The fact that the ~onimonsbelonged
to the Municipal Councils
("Cabildos") ....................... 15
Section III The Administïative Control over
the cornnions ........................ 18
Section IV The Authoritv to Adjudicate
Commons ...................
Section V The EffeCt of Article 23 of the
Ceneral Peace Treaty of 1980 in
relation to Forma1 Title Deeds
to commons ......................... 26
CHAPTER III THE SECTORS OF THE LAND FRONTIER
IN 1)ISPljTE ......................... 36
Section 1 Tecpangüisir Mountain .............. 36
(A) The .Iuïidicalissue ............ 36
(B) The "Effectivites" ............. 39
(C) Geoyraphicül and Cartographical
Comments ........................... 40
Section II Las Pilas or Cavaguanca ............ 07
(A) The Document relied on by
HVn~lIlraS ........................... 47
(B) The true inteïpretation of the
Forma1 Title Deed to the Commons of
of La Palma and the "Effectivités" . 54
Section III Arcatao or zazalapa ................ 63
(A) The Scupe of the Forma1 Titlt!
Deed to the Cornmonsof Arcatao ..... 63 iii
(Bi The Correct Interpretation of
the Formal Title Deed to the Commons
of Arcatao ......................... 66
(C) The "Effectivités" ............. 70
Section IV Nahuaterique and Torola ............ 70
(Ai The Forma1 Title Deed to the
Coirimons of Ar-ambalaand Perquin .... 71
(B) The Two and a Hal f "Caballerias"
adjudiciated to the Inhabitants of
Jocoara ............................ 76
(C! The Survey carried out bv Andrés
~érez .............................. 77
(Di The Forma1 Title Deed to the
Gommons of Torola .................. 80
(E) The "Effectivités" ............. 82
.......
Section V Dolores, Monteca and Poloros 83
(A) The Forma1 Title Deed to the
Cornmonsof Poloros ................. : 84
(B) The Formal Title Deed to the
Commons of Santiago de Cacaoterique 87
CC) Other Forma1 Title Deeds relied
on by Hoiiduras ..................... 89
(D) The "Effectivités" .............' 90
section VI The Estuary of the Rio Goascoran ... 90
(A) LOS Amates ...................... 90
(Bi The Delta of the Rio Goascoran . 99
(C> The "Effectivités" ............. 101
Section VI1 Royal Landholdings ("Tierras
~ealengas") ........................ 102
CHAPTER IV ARGUMENTS OF A HUMAN NATURE
PRESENTED BY EL SALVADOR IN
SUPPORT OF ITS FRONTIER RIGHTS
("EFFECTIVITÉS") ................... 111
PART II
--APTER V THE DETERMINATION OF THE JURIDICAL
STATUS OF THE ISLANDS .............. 121
Section 1 The Law Applicable to this
Determination ...................... 121Section II The Period of the Spanish Conquest . 122
Section III The "Reales Cédulas" of 1563 and
1564 ............................... 128
The Later Spanish Colonial
Doculnentation ...................... 132
Section V The Ecclesiastical and Civil
Juïisdiction over the Islands ...... 136
Section VI The Peaceful and CO~~~~UOUS Display
of State ~uthoritv ................. 1&4
Section VI1 The Position of the lsla del Tigre
(ais0 known as the Isla de Amapala) 1&7
CHAPTER VI THE MARITIME SPACES ................
i
Section 1 "Chapterx111: The SubJect of the
Dispute relating to the Juridical
Position of the Islands and the
Maritime Spaces" ...................
(r) The interpretation of the
Compromis ..........................
(A) "The legal nature of the
Compromis and its consequences" .
(8) "The background to this
dispute aiid the context
surrounding the Compromis" ......
"(1) From the Treaty of Cruz-
-Letona to the General Peace
TI-eaty (1884-1980)." .........
(a) The Cruz-Letona Treaty
(b) The reaction of El
Salvador to the delimita-
-tion between Honduras
and Nicaragua .............
"(2) The Geneïal Peace Treaty
and the Negotiations within
the frainework of the Joint
Boundarv Commission (1980-
-1985)- ......................
(a> The background to
Article 18 of the Treaty
of 1980 ...................
(b> The manner in which the
Treaty of 1980 was applied
by the Parties ............
(3, The Compromis of 24 May
1986 ......................... (il) "The need for a delimitation" . 182
<A> "Community of interests
implies delimitation" ........... 182
(8) "The determination of the
legal status of the waters
implies delimitation" ........... 184
Section II "Chapter XIV: 'The Legal Status ?f
the Waters within the Gulf and
the Judgment of 1917" .............. 187
(1) "The Place to be given to the
1917 Judgment in the presrnt case .. 187
<A) "The lirnitedrelevance of
the 1917 Judgment to the pïesent
case" ........................... 187
(B) "The legal scope of the 1917
Judgment" ....................... 193
(II) "Honduras's Objection to the
Line of Argument Set Forth in the
1917 Judgment" .G................... 195
Section III "Chapter XV: The Right of Honduras
to Maritime Areas in the Pacific
Ocean, beyond the Closing Line.
of the Gulf of Fonseca" ............ 202
<A) "Refusal to accept that
Honduras should be present
the closing line or snv
part of that 1ine" .............. 202
(8) "The contention that Honduras
is not a coastal State of the
Pacific Ocean" .................. 207
CC.) "The importance of good
faith: preclusion and estoppel" . 2091.L. Part II deals with the Island and Maritime
Frontier Dispute. This Part contains two
Chapters. Chapter V considers The Determination of
the Juridical St.atus of the Islands and c0nsist.s of
seven sections. dealing respectively with the Law
~pplicable to this Determination. the Period of the
Spanish Conquest, the "Reales cedulas" of 1563 and
1564, the Later Spanish Colonial Documentation, the
Ecclesiastical and Civil Jurisdiction over the Islands.
the Peaceful and Continuous Display of State Authority.
and the Position of the Isla de1 Tigre (also known
as the Isla de Amapala). Chapter VI considers The
Maritime Spaces and consists of three principal
sections. dealing respectively with the arguments
contai,ed in Chapters XIII, XIV. and XV of the Counter
Memorial of Honduras.
1.5. This Reply then concludes with the
Submissions of the Government of El Salvador
to the,Chamber of the International Court of Justice.
1.6. Appended to this Reply are two further
volumes containing, respectivelv, the Annexes
to this Reply and the Maps to which reference is made
in this Reply.
1.7. In the text that follows. the Pleadings
presented by the Parties to this Iitigation
to the Chamber of the International Court of Justice
are referred to by the following initiais:.
E.S.M. The Memoïial of El Salvador;
H.M. The Memorial of Honduras;
E.S.C.M. The Counter Memorial of El Salvador:
H.C.M. The Counter Metnorialof Honduras;
E.S.R. The Reply of El ~a'ivador THE LAW APPLICABLE 'TO FORMAL TITLE DEEDS TO COMMONS
2.1. As is indicated in the E.S.C.M. there
is a radical disagreement between the Parties
to this litigation as to the force and validity that
should be given to the Forma1 Title Deeds to Commons
!"~itulos Ejidales") as a firm and decisive pïoof
of uti vossidetis iuris and in r-elationto the manner
in which such Forma1 Title Deeds to Coninionsshould
be interpreted and applied. The H.C.M. presents in
relation to this fundamental question an erudite
Opinion of Professor Nieto Garcia which merits detailed
analvsis.
I. The O-ion of Professor Nieto Garcia
2.2. The Opinion of Professor Nieto Garcia, whose
conclusions are adopted by the H.C.M.. is
based on the distinction t~etween, on the one hand,
what he denominates "eiidos of reduction". that is
to Say the Forinal Title Deeds to Commoris graiited by
the Crown to the native communities, and, on the other
hand, what he denominates "eiidos de comoosici6n".
that is to say Commorisacquired not by virtue of any
concession by the Crown but rather by virtue of the
payment of a price. in other words by virtue of a
transaction of sale and purchase. Professor Nieto
Garcia argues that this distinction has important
consequences in relation to the juridical nature of
the Commons in question.
1. E.S.C.M.: Para. 2.2.. p. 12.2.3. Professor Nieto Garcia asserts that the
"ejidos of reduction" or or iyina1 Cotiimons
constituted lands of public domain which had 'he
folIowing characteristics. First. tliey were for use
in common of the favoured Inrliancommunity. Second1y.
they were incapable of being acquired by prescription
or of being alienated. Thirdly. they were subject
to a pre-deterniiiied economic purpose. Fourthlv, their
ownerstiip was shared hetween the municipality (as
a juridical persori) and the community of inhabitants
of the settlement in question. Fifthly. they .were
not able to become subject to private proprietary
rights (2).
2.4. 1n contrast, the "eiidos de com~osicion"
had the following characteristics. First.
the owner thereof was not the inuiricipality but solely
and excliisively the community of inhaùitants of the
settlemerit in question. Secondly. they were subject
to a patrimonial relationship or to pïivate proprietaïy
rights. Thirdly, these private propïietary rights
were not of the Romanic type but rather of the Germanic
type, in the form of a "Gesamtehand". ttiat, is to Say
of property subject to joint-ownership (3).
2.5. Professor Nieto Garcia and. on the basis
of his Opinion. the H.C.M. argue that the
Formal Title Deeds to Cornmons that are at issue in
this litigation are Forma1 Titles Deeds to "eiidos
de com~osici6n" (&). Consequently, these Formal Title
~eeds constitute nothing more than private proprietary
2. H.C.M.: ~nnexes: P. 45.
3. H.C.M.: ~nnexes: pp. 45-46
4. H.C.M.: Annexes: p. 55.rights or rights of ownership amounting only to a
"droit foncier" of a private nature. Consequently.
affirms the H.C.M ...El Salvador is confusing Forma1
~it~e Deeds conferring private proprietary rights
with Formal Title Deeds conferring sovereignity (5).
2.6. Professor Nieto Garcia also affirms that
"avec le temps. les "eiidos de reduction"
finirent pour disparaltre pour Otre remplacés par
des terrains acquis par composition" (6). This
affirmation relating to the disappearance of the
original "eiidos of reduction" and theil- replacement
by the execution of Forma1 Title Deeds to "ejidos
de composicibn" is quite remarkable given that the
"Reales Cédulas" (Royal Decrees) and the Spanish
Ordinances expressly excluded the Commons granted
bv the Crown to the native Indian communities from
the regime of "cornposici6n" Save in respect of those
new settlements who had no title or whose Forma1 Title
Deeds did not cover al1 the land which they occupied.
Thus in the "Real Cedula" of El Pardo of 1 November
1591, which was dix-ected to the "Real Audiencia" Of
the Colonial Kingdom of Guatemala. the Commons granted
by the Crowri to the native communities are excluded
from the process of "composici6n" ordered by the Crown
in relationonly to private landholdings. The Crown.
in effect, conferred on the "Real Audiencia" of
Guatemala the power, the duty and the faculties to
proceed to the measurement and valuation
("composicion"i of landholdings:
"aprés avoir réservé en priorite, ce qui vous paraîtra
nécessaire pour les places, les "ejidos", les terrains
communaux. les paturages et les friches des 1ieux
et consei 1s municipaux en prenant en consideration
5. H.C.M.: pp. 76-78.
6. H.C.M.: Annexes: p. 59. la situation presente et en envisageant la croissance
que peut connaltre chacun d'entre eux a 1'avenir,
et en reservant aux indiens ce dont ils auront besoin
pour leurs cultures, travaux et elevages" (emphasis
added) (7).
2.7. ~his special régime for the protection of
the native Indian communities and the
exclusion of their Commons from the regime of
"composici6n" (the process of measurement and valuation
of &andholdings) was preserved. as inevitably had
to be the case. in the Ordinance which was established
to give effect to the "Real Cedula" of 1591. In the
instructions which the President of the "Real
Audiencia" of Guatemala sent in 1598 to his
subordinates. the Judaes and Commissioners for Land
Measurements, he instructed them that, when any
application was made to them for the measurement and
valuation of land according to the process of
"composici6n". they should first obtain information
both as to the area of land which would be needed
for the Indian settlements that existed in the locality
in question and as to the area of lands which would
the object of this
be needed for their Commons (8),
was to provide the reserve of land which the Crown
had ordered to be set aside in favour of the Indian
communit es.
2.8. Paragraph 7 of this Ordinance has been
incorrectly interpreted in the H.C.M. and
this fundamental error vitiates the argument contained
7. H.C.M.: Annexes: pp. 68 8.70.
8. H.C.M.: Annexes: p. 75.therein (9). The H.C.M. declares that the régime of
"composicion" was "applicable non seulement aux colons
espagnols mais aussi aux indiens et communautés
indigènes" an incorrect affirmation which is
based on Paragraph 7 of the Oïdinance of 1598. However,
the text of this Ordinance. respecting the provisions
of the "Real Cédula", excluded the Commons of the
Indian communities that weïe already in existence
from the régime of "composicion" in that it directed
the Judges and Commissioners for Land Measurements
not to apply the re~ime of "composicion" to native
communit'ies which already had and possessed Commons.
In the light of this objective, the Ordinance directed
that these lands "should be excluded and should not
be dealt with in any respect" ("se les deje y no trate
de ellos en manera ninguna" in the original Spanish
text). The Judges and Commissioneïs for Land
Measuïernent were ordered only to engage in the process
of "composicion" with those native communi ties who
had no Forma1 Title Deed to Comuions, the Ordinance
directirig that "with the latter. deal in respect of
the process of "composicion" as with the others" ("con
estos tr-atara de la composicibn como con los demas"
in the original Spanish version). This last phrase.
translated into French soniewhat misleadingly as "avec
les autres", from its scope and ~enerality is only
capable of referring to the other persons who might
request landholdings, on the basis that they were
prepared to pay for theni, by the process of
9. As this error may possibly stem from an
incorrect. translation into French of the
original Spanish Text of the Ordinance,
El Salvador is depositing with the Registrar
a copy of the woïk by Solano entitled
"Cedulario de Tierras" so that the original
Spanish text can be verified."composicion". The only distinction between the two
types of "composici6n" was that, in respect of those
native communities who eitheï had no Forma1 Title
Deed to Commons or had a Forma1 Title Deed to Commons
that was insufficient. the process of "composici6n"
would be carried out only in respect of the
landholdings that they had in excess of their original
Commons and the "composici6n" demanded would be
"moderate".
2.9. The subsequent "Reales Cedulas" confirm
the interpretation which has been maintained
by El Salvador. that is to Say that the regime of
"composici6n" was not applicable to the native
communities Save in the event ttiat such communities
either had no Forma1 Title Deed to Commons or had
a Formal Title Deed that was insufficient to cover
the landholdings which exceeded their Commons. Thus,
the "Real Cédula" of 17 ,lune 1617 made clear "that
the lands which do not belonq to the Indians have
to be sold and are to be sold by public announcement
and in public auction ("que las tierras aue no fueren
de los indios se han de vender y se venden en preg6n
Y ~Oblica almoneda" in the original Spanish version)
(emphases added) (llj. On 16 March 1642 the obligation
to "proteger les indiens sur les terres qu'ils
possedaient avec des titres suffisaiits à cet effet"
was reiterated by a further "Real cedula" (12) with
the object of avoiding their lands being taken away
from them in favour of Spaniards by means of the
process of "composicion". This is confirmed by Ley
18, Titulo 12, Libro IV of the Recopilacibn de Indias:
"the Indians should be left with their landtioldinas"
11. Cited in H.C.M.: P. 92. The Spanish text
is in Solano: Cedulario de Tierras: p. 311.
12. H.C.M.: Annexes: p. 81. ("-a los indios se les de ien sus tierras" in the
original spanish version) (emphases added) (13). on
16 March 1646 a further "Real Cédula" ordered that
"soient laissées aux indiens toutes celles (les terres1
qui leur appartiennent et notamment en ce qui concerne
1es cornmunaut&" (emphases adrled) (14 . In the same,
year, on 30 June 1646, another "Real Cedula" was issued
in accordance with which "ne sont' pas admises
"composition" les -terres qui auraient av~artenu aux
indiens" temphasis added) (14) . Finally. or1 4 March
1661, the Crown order& that the vrocess of
"cornposicion" should never be carried out in respect
of the landlioldinclsof the native communities. This
"Real Cédula" added "je leur ordonne de ne plus,envoyer
de juge dans les villages d'indiens pour la composition
des terres" and proceeded expressly to abi'ogate and
annul any disposition which stated the contrary (15).
2.10. On 1 July 1746. instructions were sent to
the delegate judges of the "Real Audiencia"
in which they were directed that in relation
(16)
to the native coinmunities they ought to favour Commons
and communal lands and ought only to apply the process
of "composici6n" to them (it being made clear that
this was for the first time) in respect of lands which
they were occupying unlawfully without the appropriate
Fornial Ti tle Deeds. On1y for these excess landholdings
was a moderate payment to be fixed, a calculation
beirig niade of what lands had to be adjudicated to
them and what lands had to be the suhject of a
13. Solano: Cedulario de Tierras: p. 450, note 4
IL. Cited in the Opinion of Nieto Garcia: H.C.M.:
Anriexes: p. .32.
15. H.C.M.: Annexes: p. 83.
16. H.C..M.: ~nnexes: p. 95."coinposicoin" It was at the Same tinieexpressly
(17)'
recognised that the Forma1 Title Deeds to the Commons
of the Indiaris had heen granted "sans aucune
iron~positiordie sa Ma ieste" iemphasis added). On 15
October 175b roval instructions were issued in
i18)
which the order not to ha& the interests of the
Indians was reiterated and. with this objective. it
was stated that. in relation to the Commons of the
native communities "il %doit uas Otre fait de
modiFication. ceux-ci étant maintenus dans leur
possession. et en leur reiidant dans les terres qui
leur auront été usurpés. en leur concédant de plus
grandes étendues sur ces terres, conformément aux
exigences de population" temphasis added) (lgj.
2.11. From the above review of Indian law, it
clearlv emerges ttiat. contrary to what is
affirmed by Professor Niet.0 Garcia and adopted by
t.he H. C.M. . there never existed any widespread
replacement of the original Commons nor were these
original Commorissubstituteclbv Conimonsgranted through
the process of "composicion". To the contrarv. the
original Fornial Title Deeds to the Commons of the
native conimunities were respected and. in the event
that they had disappeared or been lost. were confirmed
and replaced. However. in the event of such
confir.mation, Iio pavment whatsoe6t.r by way of
"composicion" was ever reqiiired !20). -he proces2
-- "composicion" was only a~vro~riate for the new
-ative comniiinties wlio. 1ike every S~anish colonist.
r-eauested that Lhey be ad iudicated royal landholdincls
17. H.C.M.: Annexes: pp. 97-98 (para. 9)
18. H.C.M.: Annexes: p. 88.
19. H.C.M.: Annexes: p. 89.
20. H.C.M.: Annexes: p. 92 (para. 9).which thev had in excess of their Commons or in respect
of which thev had no ~re-existina Forma1 Title Deed.
2.12. What is more, the facts confirm the juridical
régime. that has just been described. The
Spanish coloriial Forma1 Title Deeds to Commons which
constitute the proof of the land frontier claimed
Salvador, that is to say the Forma1 Title Deed
to the Conrmons of Citala of 1776. the Forma1 Title
Deed to the Commons of Ar'ambala and Perquin of 1815,
the Forma1 Title Deed to the Commons of Torola of
1743. and the ori inTaille Deed to the Commons of
Polor-osof 1760. are not .Formal Title Deeds to "eiidos
de composici6n". Iri none of these did the res~ective
native communities have to pay any price or make any
fornr of "com~osicion" whatever in order to procure
the recognition or confirmation of their Commons.
In the H.C.M. it is insinuated that there was
(21)
a payment by way of "composicion" in the case of the
Commons of Poloros but this Forma1 Title Deed does
not indicate that any payment whatever was made by
way of "composicion". To the contrary, given that
this Forma1 Title Deed was a Deed of Confirmation
of existing Commons, no "cornposicion"would have had
to be paid, only the judicial costs of obtaining the
Deed. exactly as was indicated by the royal
instructions of 15 October 1754 (22)'
2.13. The Forma1 Title Deed to Coinmons relied
on bv El Salvador in which there does appear
a limited form of "com~osicioii"was the Forma1 Title
Deed to the Commo~f Arcatao The execution
(23)'
21. H.C.M.: p. 72.
22. H.c.M.: Annexes: p. 92.
23. E.S.C.M.: Annexes: Vol. III, p. 10.of tliis Foi-mal Title Deed involved the measurement
of 22 "caballerias" 15 "ciierdas". 16 "caballerias"
15 "cuerdas" were reco~nised and confirmed as belonging
to the original Cominons of tliis settlement and in
relation to this area no foi-m of "composicibn" by
way of the payment of a price was either demanded
or made. Only in respect of .the remaining 6
"caballerias" of royal landholdings which were nOt
included within the original Commons did the judge
demand the appropriate "composicion". The corresponding
public auction duly took place and the land was
acquired by the only bidder, the native community
of ArCataO. ~hus. only to this partial extent existed
any form of "composicibn" by means of the procedure
of' public announcement and public auction required
by the "Reales Cedulas" and the Ordinances which
carried these "Reales Cedulas" into effect. In no
other Forma1 Title Deed to Commons invoked by El
Salvador as vroof of its rights. was tliis procedure
followed. ~ll this confirms the interpretation of
Indian 1aw presented by El Salvador in relation to
the processes of confirmation and of "composicibn" .
in the svstem of Formal Title Deeds to Commons.
2.14. Professor Nieto Garcia is. therefore,
mistaken as to a fundamental question of
fact when he affirms categorically in his Fifth
Conclusion that:
"Des documents ecrits prouvent qu'ont eu lieu. au
XVIIIe siècle, dans la juridiction de la Real Audiencia
de Guatemala. de nombreuses ventes et "compositions"
de terres a des communautés d'indiens; on Y trouve
celles qui ont donne lieu au présent differend
frontalier" (eiiiphas siadded) (24).
This final phrase temphasised above) is inexact.
24. H.C.M.: Annexes: p. 59
, ,'.
" /
,' 1'Professor Nieto Garcia (25) enunierates a series of
"composiciones" niade by native communi ties which are
duly registered in the Archivo General de Indias.
Contrary to his affii-mations. j~ioneof the Forma1 Tm
Deeds to Commoiis invoked by El Salvad-or in support
of its rinhts is included in this list. The onlv native
cominunity mentioned in the course of this 1 itiqation
whose name appears in this list as haviriq made a
payment by way of "composici6n" is the nati~communitv
of Jocoara in 1776 in respect of the 2.5 "caballeriss"
onto which this community encroached at the expense
of the Indians of Arambala and Perquin (26). Th&
Forma1 ï'itle Deed to Commo_n~is cited not byJ
Salvador but bv Honduras. This is the only Forma1
Title Deed to which the thesis advanced by on duras
is applicable in the sense that this Deed only created
"une relation patrimoniale . ... faisant 1'objet d'urie
proprieté privée" (27) '
2.15. Coiiseauent1y. the fundamental aremise mon
which the ent-i~e arclument of this section
of the H.C.M. is based colla~ses completely aiiclthe
categoric affirmation contained therein that,
"s'agissant claiis le cas présent de "ejidos de
composition". ceux-ci rie constituent en aucune Fason
des biens appartenant au domaine public des
municipalités" is thus show11 to be totally erroneous.
The Formal Title Deeds to Commons presented bv El
Salvador are thus not Forma1 Title Deeds to "eiidos
de composici6n" but Forma1 Title Deeds to the original
Commons of the native cotnmunities in question, that
is to Say to "eiidos of i'eduction". Therefore the
25. H.c.M.: Annexes: pp. 36-37.
26. H.M.: Annexes: p. 12G9.
27. H.C.N.: p. 76.
28. H.C.M.: p. 76.juridical characteïistics possessed hv Formal Title
Deeds to privately owned property, such as for exaniple
the Forma1 Title Deed to the Commons of Jcicoara.have
no applicnbility whatever to the Foi-mal Title Deeds
to Commons presented by El Salvador; -are instead
-1 icable thereto are the iui-idicalcharacteristics
which Professor Nieto Garcia attAb2te.s to those Forma1
Title Deeds to Commons which are not Forma1 Title
Deeds to "eiidos de com~osicion" _but Formal Title
Deeds to original cornmonS. that' is to say to "eiidos
of reduction". These characteïistics have already
been enumerated (29) and. in summary. demonstrate
that such Forna1 Title Deeds to Commons constitute
titles to land in the public domainty and not to
pr ivately owiied ~i.opertv and that ownershi~ thereof
-s shared between the municipalitv (as a iuridical
person) and the communitv of inhabitants of the
settlement in auestion (30)' The erudite Opinion of
Professor Nieto Garcia thus confii'ms the traditional
position of El Salvador. that is to Say that its Forma1
Title Deeds to Commons are titles to land in the public
domain goveriied by public 1aw and not merelv titles
to privately owned propertv and that. conseqiientlY,
these titles inevitably attribute iurisdiction and
administrative control to the municipal authorities
of the settlement favoured with the arant of the
-ommons in auestion.
2.16. Professor Nieto Garcia is correct when he
States in his Opinion that it is "important
de tenir compte du tvpe d'"ejidos" devant lequel nous
nous trouvons; de concession royale et domaine public
29. In Faragraph 2.3. above
30. H.C.M.: Annexes: p. 41.oii iGsii I tciiit il'ciiie "coiiiposi tioii" oii coiitrat d'achat-
-~eirte" s Opiriii~ri is b~z11uaLile and the
(31)'
clist: i rict ioii wlricli lie liropouiicis is acceptable. Howevei-.
tl113 Part.? wlio soriglit. Iiis opi riiori t'rai led to irifor'm
tiini of ci clecisive fact:: namel? ttiat iioiie of the Forma1
Titlf Deecls to Cc~mmons invoked by El Salvador which
t.he ClraiiiV~ei- is i-eq~iired to apply in this litigation
is a Fr~t-rnal Ti tle Deed to "ados de ComPosicion"
eq~iivi~l eiit to a coiitr:tct. of sale and purchase: instead
al 1 ttie For-ina1 Ti t le 1)eeds to Contnions invoked hy El
SaI\~ailoi. ai-e For-mal Ti tle rjeeds to original Coinmons
gi'airte:i.cl bv the Crowii and thei-efore const i tute pub1 ic
proprietai.y ri rilits.
-2 17. 111 suppc~i-t of the argunients presented in
chi s Sect ioti. El Salvadoi- i s preserit i rig
as ail AnneS to ttiis Keplv air opi 11ion pi-epai-ed
(32)
bv Fr-ol'essoi- L6pez Kodc>. wht>se conclusions are
ciinirzlet<ily in accorclance wi th tlie posi tiori adopted
by El Salvador in this litigation.
II . ~tie fact ttiat t:tie Corilmuris belonqed to t.he Munici~aJ
Counc i 1s ("Cabi ld~>s" )
2.18. Tlie jiii.idical pi-iriciples of Spanish 1aw
and of Iiiclian la coiifirm the opinion of
~roFessur ~ieto Garcia to the eFFect that those Commons
whi ch were riot "e I idos de coinposicibri" t~elonged Joint 1y
to tlie liluiiicipal Courici 1s or "'abildos" of the native
communi ries to which the? hacl beeii yraii5ed and to
the iiat. ive (coniniilni tÿ in c~uest i oii.
2.19. Iir ttit: "KeaIes Cedulas" of El Pardo of 1 November 1591, the King reit.erated on varioh
occasions that the Commons beloriged to the Municipal
Courici1S. He thus I'ecognised ancl conf irmed the
existence of a relationship between the Commons and
the municipal authorities involving both municipal
pub1ic law and administrative control . This 1ink
expressly established by the Spanish Crown between
the Municipal Counci 1s and the Commons did not arise
out of any mute acquiescence on the part of the Crown
in the serise of permittirig the continuation without
correction of an arrangement that was contrary to
its wishes in the rtiannerwhich has been describeci
in the judgement of the Tribunal whicli decided the
Arbitration between Guatemala and Honduras (33)' ~n
this case. on the other hand. what is in issue is
a relationship eslabl ished as the result of a positive
decision to that effect by the Spanish Crown.
1.20. As from 1568, in a "Real Cedula" issued
in that year, the Spanish Monarch had said
that the Roval landholdings "could be assianed and
shared out .between the places and the counci 1s for
private use and for commons and for public areas and
for municipal and other purposes" ("se podi-A asianar
y repartir a los luoares Y conseios para D~OP~OS Y
eiidos y t@rminos publicos y concejiles y otros
aprovechiniieritos" in the original Spanish text)
(emphases added) i34). The expressions "municipal
cominons" and "commons of the Counci 1" ("ejidos
concejiles" and "ejidos de1 Consejo") are frequently
33. Guatemala-Honduras special Boundary Tribunal:
opinion and AWard (Washington, D.C. (1933))
pp. 7-8. ,
3&. Solano: 0W.cit.: p. 209 (cited in H.C.H.:
p. 91. n. 1. ).found in the terniinologv of tliat era (35) ' In one
of the "Reales Cédulas" of El Pardo of 1 Novernber
1591. the King proclaimed his will "de faire des dons
et de répartir equitablement lesdits sols. 'erres
et friches assignés aux localités et conseils
niunicipaux pour ce qui paraissait leur convenir, afh
qu'i 1s aient suffiomment de "eiidos". de terrains
conimunaux et de tet.rûins publics. selon la qualité
desdites 1ocalitÉs et conseils municipaux" (emphasis
added) (+). Further. in another "Real Cédula" of
the same date, in this case directed specifically
to the "Real Audiencia" of Guatemala. the King
authorised that "Real Audiencia" to alienate lands,
aft.er having reseïved the land necessarp for the
Commons "des lieux et conseils municipauxw (37)'
2.21. In the "Novlsima Hecopilaci6n". with the
objective of putting an end to the abusive
practices by ineûns of which the Spaniards deprived
the Indiaiis of their Commons. it was ordered on the
basis of an aged principle of Spariish law that "tous
les 'e jidos' ..... soient ensuite restitués et rendus
auxdits conseils municipaux a qui ils appartenaient"
("cuyos fueron v son" in the original Spanish text
(38) . The "Novisima Kecopilacion" continued (using
the royal plural): "ordonnons qu'ils soient declares
d'utilité publique pour lesdits villes, bourgs et
localités oii ils se situent" (3gj. Given that the
Commons were thus declared not only to belon9 to the
Municipal ' councils but also to be public utilities.
35. Solano: op.cit.: pp. 87 & 225.
36. H.C.M.: Annexes: p. 68.
37. H.C.M.: Annexes: p. 70.
38. Cited by Nieto Garcia: H.C.M.: Annexes: pp.
12-13.
39. H.C.M.: Annexes: p. 13. it is not possible. as Honduras has attempted. to
put them on the same level as simple private properties
of an immoveable nature ("droit foncier").
2.22. This is further confirnied by looking at
the 1ist of the persons who were interested
in sustaining the various Forma1 Title Deeds to Commons
on the basis of which El Salvador supports ts claims.
In these proceedings there appeared before the "Juez
de Tierras" (Royal Land Judge) in question the native
communities represented by the Magistrates of the
Municipal Council. the Mayor, the Principal Councillor,
the Second Councillor. and the Sheriff. that is to
Say the municipal authorities of each native settlement
(40) ' This confirms as a matter of practice the
relationship of public municipal 1aw established
between the municipal councils and the Commons by
the rules of Spanish and Indian 1aw applicable to
the native conimunities in question.
III. The Administrative Control over the Commons
2.23. The very nature of Forma1 Title Deeds to
Commons made indispensable the existence
of a .strict administrative control over the Commons
both by the municipal authorities who governed the
settlement entitled to the Commons in question and
by the authorities of the "Alcaldia Mayor" of the
Colonial Province of San Salvador and. at a higher
level still. by the "Real Audiencia" of Guatemala
itself. which was not merely a judicial body but also
a genuine governmental authority. What is more.
administrative control over the Commons was even
40. See, for example, E.S.C.M.: Annexes: Vol.
III. pp. 54, 59 & 61; Vol. IV, p. 302: H.M.:
Annexes: p. 1795.esercised by the actual hierarchical head of the
colonial regime, the King of Spain.
2.2h. A fundamental characteristic of the "eiidos
of reduction". which did not exist in the
case ~f "eiidos de com~osici6n", was the most important
of the reasons which produced the need for the
implenientation of this strict administrative control.
This fundamental characteristic is the inalienable
nature of the "eiidos of reduction". established in
Spanish law from the time of the "Partidas", inaintained
in Indian law (41)' and reiteïated by the "Real
Audiencia" of Guatemala on each occasion on which
it approved a Forma1 Title to Conimons.Just as private
property was freely alienable alid. consequently, did
not require any administrative control over its use,
inanrierof utilisation. sale, and ownership. so the
inalienable nature of the Commons belonging to the
native conimunties required the different levels of
Spanish autliorities to take particular care that the
essential nature of these Commons was not perverted
by an? partial or total alienation tliereof.The greed
of the average Spanish colonist made this type of
corruption relatively frequent, soniethingwhich obliged
the Spanish Crown repeatedly to issue "Reales Cédulas"
in order to correct what the King descrihed in one
of them as "la confusi6n et l'escés qu'ont regne".
It was with this objective that the King. in the
exercise of his supreme administrative control. ordered
the "Reales, Audiencias" that the native communities
should not be deprived of their Commons and that the
lands of which the? had already been deprived should
be restored to them.
41. opinion of Nieto Garcia: H.c.M.: ~nnexes:
p. 12.2.25. Thus, for example, it was declared by "Real
Cédula" on 30 June 1646 (42> that "les
compositions de terres ne s'appliquent pas à celles
que les Espagnols ont acquis des indiens en violation
de nos Cedulas royales et Ordenances" and that "les
procureurs-prfitecteurs, ou les membres des Audiencias
s'il n'y a pas de procureurs-protecteurs, appliquent
leur justice et le droit de par les pouvoirs dont
ils sont dotes par les Cedulas et ordonnances,, pour
requerir la nullite contre de tels contrats. Et nous
chargons les vice-rois, presidents et Audiencias de
preter toute leur assistance pour son entiere
exécution". In the same way, a "Real Cédula" of 15
October 1713 (43) ordered the Spanish authorities
to adopt measures which required a rigorous
administrative control of the Commons of the native
population. The "Real Cedula" first indicated that
it had been reported that "the governors and
concessionaries not only are not granting land to
the Indians so that they can form their Settlements
but also. if the Indians have lands. they are taking
these lands away from them by the use of violence"
("los gobernadores y encomenderos no solo no les dan
tierra a los indios para que formen sus pueblos, sino
que si las tienen. se las quitan con violencia" in
the original Spanishtext). Therefore, the King ordered
"by this present document that, in the light of the
distress that this news has caused me. care should
be taken in the future to remedy this pernicious abuse
and to castigate those who have transgressed the
established laws" ("por la presente que. en
inteligencia del desagrado que me han causado estas
42. H.C.M: ~nnexes: p. 82.
43. solano: o~.cit.: pp. 404-405 (cited in
H.C.M.: p. 59).noticias. cuiclen en Io ade1ant.e del remedio de este
perriicioso abuso y castigo de los transgresores de
las expresadas leyes" in the or-iginalSpaiiish text).
Final1y. the King eniphasised to his deleyate
authorities that they should put "al1 their greatest
effort and efficiency into procuring that the said
Indians be given the land. the ommons. and the Water
that have been granted to them" iWtodo su mayor desvelo
y eficacia en que se les de a los referidos indios.
la tierra, e iidos, agua que le estan concedidos" in
the original Spanish text) (emphases added).
2.26. On 27 October 1784 (44), the "Consejo de
Indias" (the Council for the Indies) felt
obliyed to reiterate the prohibition "on Indians
car-rying out any type of alienation of communal. or
distributed property" ("a los iiidios de toda clase
de enajenacidn con respect0 a los bienes de comunidad
y repartimiento" in the original Spanish text). This
was in ordei- to conibat "the disorder or abuse which
from day to day has been being experienced contrary
to the laws of the "Recopi1aci6ii"" ("el desarreglo
O abuso que de dia en dia se habla ido experirnentando
contra las leyes de la Recopilaci6n" in the original
Spanish text) by virtue of the fact that the Indians
were alienatirigtheir lands. plots and houses no niatter
whether these constituted their private property or
communal or distributed property. Finally, the
Ordenanza de Intendentes of 1786 created the new office
of "Intendente" (Intendant) "with the objective of
organising in a uniform maniier the government.
management and distribution of al1 the public property
and taxes ..... of the communal property of the Indian
settlements" ("con el objeto de arreglar uniformemente
44. Solano: pa.cit.: 486-487.el gobierno. manejo y distribucion de todos los propios
y arbitrios ..... de los bienes cotnunesde los pueblos
de indios" in the original Spanish test! For
(45)'
this purpose an administrative control wûs implemented
over the resources and the costs of the native
commuriities so as to be able to pay both their-
functionaries and the dues and taxes which weïe payable
to the King (46).
2.27. More generally. the review of Indian law
carried out ahove (47) evidences a constant
effort on the part of the Spanish Crown to control
and defend the Commons granted to the native
communities from the greed of the colonists. This
demanded both a constant vigilance and a strict
administrative control on the part of the delegate
and sub-delegate authorities for the purposes of
preserving the inalieriable character of the Commons
of the native communities. Another decisive reason
for the implementation of administrative control over
the Commons by the authorities of the Colonial Province
of San Salvador was the collection of the taxes which
were demanded from the native communities (48).
2.28. Another characteristic of the "eiidos of
reduction" which produced the need for the
implementatioti of a continuous administrative control
on the part of, on this occasion, the immediate
municipal authorities was the need for the reaulation
of and viqilance over the iitilisation in common of
the lands. It was necessary to restrain the inhabitants
45. Solûno: o~.cit.: p. 489.
46. Solano: o~.cit.: pp. 490. 49:, 501 & 505.
$7. See Paragraphs 2.6. - 2.10. above.
48. E.s.c.M.: para. 6.25, pp. 178-179.of the Commons who, as Professor Nieto Garcia observes
"ne résistent pas à la tentation de cultiver
(49) '
individuellement les terrains les plus faciles
d'accès". This problem also did not exist in the case
of "_ejidos de composicion" and for this reason also
it is riot possible, as the H.C.M. has attempted, to
put a Forma1 Title Deed to Commons on the same level
as a Title conferring merely private proprietary
r-ights. It was also necessary to regulate and control
the utilisation of the different sections of the
Coiiiinons:he section dedicated to Pasture, the section
dedicated to the cultivation of crops and their
seedlings, as well as the sections dedicateü to other
purpuses) since. as Professor Nieto Garcia indicates
the "ejidos sont des terrains au par leur
(50)'
destination. sont ~olyvalents" (original emphasis).
IV. The Allthori ty to Ad iudicate Commons
2.29. Anotheï of the objections formulated by
the H.C.M. is that the arguments of El
Salvador as to the probative value of Forma1 Title
Deeds to Commons canriot prosper because the only body
that was competent to establish or modify the frontiers
of the Spanish Colonial Provinces was the Spanish
Ci-own. The obvious response to this araument is that
the power to adiudicate Commons to the native
comitiuriitieshad been deleaated by the Spanish Crown
to the "Real AUdiencia" of Guatemala in its capacity
as the Supreme Governor of the Colonial Provinces.
Thus in the "Real Cédula" of El Pardo mentioned in
the H.C.M. the King. who was dit-ecting himself
(51)'
4.9. H.C.M.: Annexes: p. 14.
50. H.c.H.: Annexes: p. 9.
51. H.C.M.: Annexes: p. 70.directly to the President of the "Real Audiencia"
of Guatemala. said this (52):
"je vous conféi-e nouvoir. mission et faculté vour
que vous puissiez composer toutes les terres, aprés
avoir réservé en priorité ce qui vous parait nécessaire
pour les places, les "ejidos", les terrains communaux.
les vaturages et les friches des lieux et conseils
municiDaux en prenant en considération la situation
présente et en envisageant la croissance que peut
connaitre chacun d'entre eux à 1'avenir, et en
réservant aux indiens ce dont ils aururit besoiripour
leurs cultures, travaux et élévages". ternphasesadded)
This signifies that the "Real Audiencia" of Guatemala.
whicli had jurisdiction over each and everv one of
its component Colonial Provinces. received directly
from the King the powei', the duty. and the faccilties
to graiit Forma1 Title Deeds: to Comrnoris, without this
authcirity being qualified or rest-1-ictedin any way
by any requirernent to respect vague territorial
divisioris between the various provinces and districts
goveïned by that "Real Audiencia"
2.3C. Honduras has argued repeatedly tkiat Forma1
Title Deeds to Commons have iio relevance
for the purpose of fixing provincial boundaries on
the grounds that such boundaries cou:d only be
determiriedby means of a "Real Cédula" or as a resul t
of custom and long user. These affirmations by Honduras
completely ignore various essential provisions of
the First Law of Title 1 of the Fifth Book of the
"Recopilaci6n de Leyes de Indias" (53)' This law
expressly ordered "Viceroys. "Audiencias", Governors.
Magistrates. and "Alcaldes Mayores" to keep and observe
the liinits of their jurisdictions. in the manner in
/
whicti /hese jurisdictions might be indicated by: (1)
the laws contained in this book; (2) the deeds
52. H.C.M.: Annexes: P. 70
53. E.S.R.: Annexes: P. 1 appoiriting theni to th?ir offices: (3) the enactmerits
of the Supreme Gover-nrnents of tlie Provinces; arid (t+)
legitimately introduced user and custom." This law
is clear and pei-einptory; its provisions total ly refute
the affirmatio~is of Ilonduras that jurisdictioiial
boundaries could only be defined or altered by tlie
Spanish Monarch hy means of a "Real CGduls".
2.31. In the Case concernin~ the AI-bi tration- Award
of the King of Sp& between Honduras and
Nicaragua, Nicaragua argued tkiat juri sdicti onal
bouridaries coulcl orily be altered by ineans of a "Real
Cédula" and Hoiiduras refuted this argument. advancing
the thrsis now propounded by El Salvador. In tliese
proceedings, Honduras cited esûctly the same four
numbered clauses set out above and aff irmrd that these
contained "the true meaning of trie First L.aw of Title
1 of the Fifth Book of the "Recopilacion de 1iii:lias"".
It appears that Hondiiras has now charlged i ts opjnion
and is now adopting the argument whicti it refuted
in i ts Arbi tr.ation with Nicaragua (54)' The new
position riow adopted bv Honduras ignores the second
and third of the four riumbered clauses set out above.
It is obvious that the adjudication of Commoiis to
native Settlements governed by "Alcaldes Hayores"
constitutes an appl ication of "the deeds of appointnient
to their offices" melitioned in Clause 2 of t.his law:
equallv, the appïoval by the "Real Audiencia" of
Guatemala. the Suprenie Gover'nmerit of that Province.
of a Forma1 Ti tle Veed to Comrnons consti tutes an
appl ication of "the enactments of the Supremf;
Government of the Pïovinces" mentioned in Clause 3
of this law. What is more, such Forma1 Title Deeds
to Conimons are at the sanie t ime forti f'ied and suppor,ted
54. E.S.R. : annexes: p. 6by the "user and Custom" referred to in Clause 4 of
the law.
V. THE EFFECT OF ARTICLE 26 OF THE GENERAL PEACE TREATY
OF 1980 IN RELATION TO FORMAL TITLE DEEDS TO COMMONS
2.32. In order to decide the crucial question
which divides the Parties t.othis litigation
as to the manner in which Forma1 Title Deeds to Commons
ought to be read and interpreted, it is necessaïy
to take into account not only the juridical nature
of Forma1 Title Deeds to Commons but also the correct
interpretation which should be yiven to Article 26
of the General Peace Treaty of 1980. the pi,ovision
which defines the law applicable to the land frontier
dispute.
2.33. In that part of Article 26 which establishes
the conditions which documents issued by
the Spanish Crown have to fulfil in oi-derto be able
to be used as a basis for delimitation. there are
six words which are decisive for the correct
interpi-etation of. both the letter and the spirit of
this provision. These words are emphasised in the
followiny transcription of this part of Article 26:
"For the delimitation of the frontier line in the
disputed areas, the Joint Boundary Conimi ssion sha11
take as its basis the documents Jssued by the Spanish
Crown or by any other SDanish authority, civil or
ecclesiastical. during the colonial period which
indicate the jurisdictions or boundaïies of territories
or towns" (emphases added). \. .
2.34. The first three words so emphasised indicate
that for a Forma1 Title Deed to be able
to be taken into account by the Chambei- as a basis
for delimitation it must have been issued by a Spanish
authoritv. Thus what is important. and decisive is
the question of from wheïe eûch Forma1 Title Deed
was issued; in other words. where were the Spanishauthori ties who ordei-ed and di1-ected the measureineiits
wliich gave rise t» the val-ious Forma1 Title Deeds
to Coninions and whete dicJ they exercise their
jurisdiction? The Forma1 Title Deeds to Commons invoked
by El Salvador weïe al 1 issued as the result of
measuremerits carried out by Sub-DeleciriteLaiid Judges
of the Provinces of Chalateriaiigo. San Salvador or
San Miguel, that is t.o sa? of districts which at that
tirne fornied pai't and continue to forrn part. todav of
what is now the Kepublic of El Salvaclor. Thus the
Forma1 Title Deed to the Commons of Tecpangüisii- was
issued by a Si~b-Delegate Land Judge of the Colonial
Province of Chalatenango; the Forma1 Title Deed to
the Commons of La Palina was issued tiv the Governor
of the Province of San Salvador; the Forma1 Ti'tle
Deed to tlie Coriimonsof' Arcatao was issued by a Sub-
Delegate Laiid Judge of the Colonial Provi,nce of San
Salvador: and the Forma1 Title Deeds to the Commons
of Arambala arid Perquin. of Toi-ola, and of Polor6s
by Sub-üeleyate Land Judges of the colonial Px'ovince
of San Miguel.
2.35 The Forma1 Title Deeds thus issued by the
appropriate Sub-Delegate Land Judge of the
Colonial Province in question which attribute lands
as Commons "constitute the best possible proof of
the fact that (these lands1 were included within the
appropriate Province. and principally if that Province
has subsequently continued to exercise sovereigntv
over the saiiieland". El Salvador is not alone in
maintaining this argument. The statement which has
just been yuoted was actually made by Honduras. who
Propounded the argumeiit now presented by El Salvador
in the course of the Mediation carried out before
the State Department of the United States of America n the dispute between Guatemala and Honduras (55).
:n the course of these pt'uceedings. the Government
~f Honduras also made the following statement:
"The concession which a State makes to individual
persons or to corporations of the ownership of or
expression eofoythea sovereignty ofndthes country;rfand
the Forma1 Title Deed which the governinent of the
same State issues in 'consequence is the full
demonstration of the exercise of that sovereignty.
If two townships of the same State dispute their
'boundary line and one of them presents the Forma1
Title Deed to a piece of land whicli has been issiled
on the basis that it Falls within its jurisdiction,
the boundary OF this land wi 11 denote the said, 1ine.
The same lias to be said if two Provinces of the same
nation have the dispute."
As the above passage shows. in the course of its
dispute with Guatemala, Honduras argued that even
Fornial Title Deeds conferring private proprietary
rights prove sovereignty. Thus in this present
1itigation Horidurashas openly contradicted the thesis
which it advanced in the earlier dispute with
Guatemala. since Honduras now niaintains that Forinal
Title Deeds to Commons do nOt constitute any proof
of sovereignty wtien they merely confer private
proprietûry rights.
2.36. The Sub-Deleyate Land Judges were only given
faculties to exercise their functions in
ari exclusive marinel-within a deterniiiiedarea. These
Judges could not oparate outside the jurisdiction
whi'ch was indicated to them in their deeds of
appointment. Thus, if 'Commons or even private
proprietary rights were assigned by a person appointed
as Sub-Delegate Land Judge of, for example. the
Colonial Province of San Miguel and the rights granted
were si~bsequently confirmed by the "Real Aildiencia"
55. E.S.R.: Annexes: p. 11of, in that case. Guatemala. the Forma1 Title Deed
thus issued constitutes irrefutable proof that the
land so assigned beloriged to the jurisdiction in
question, in the example above to the jurisdiction
of San Miguel. If any confirmation of this proposition
is required. it is sufficient to draw attention to
what occured when the Sub-Delegate Land Judge of
Gracias a Dios, Cutifio and Mazariego exceeded his
jurisdiction by entering ont0 and measuring lands
within the jurisdiction of the Colonial Province of
San Salvador. The "Real Audiencia" of Guatemala ordered
that the measurement thus carried out should be
regarded as ineffective and the Indian population
of Ocotepeque should return the Forma1 Title Deed
that they had thus illegitimately acquired (56). This
incident admittedly referred to an area which is
already delimited and not to an area whose delimitation
is still siib-judice but it is nevertheless equally
illustrative.
2.37. The'fourth word in.the first part of Article
I
26 of the General Peace Treaty of 1980 which
was emphasised above has been translated into English,
both in the earlier stages of these Pleadings and
also in this Reply, by the verb "to indicate". ,just
as it has been translated into French by the verb
"indiquer". In fact, the Spanish verb "sefialar"used
in the original text of this Article is very much
stronger and significant than the English and French
veïbs by which it has been translated, which are really
a translation of the weaker Spanish verb "indicar".
In the context of the Article, a more faithful
translation of the real connotation of "sefialar"would
be the utilisation of the English verbs "to signal",
"toiniark". or "to pinpoint" and of the French verbs
56. E.S.C.M.: Annexes: Vol. 1; p. 24 et sea.. "signaler". "mai'quei.", or "fixer". The manner in which
Honduras proposes that the Forma1 Title Deeds to
~ommons should be read and interpreted does not satisfy
this particular requireinent of Article 26. namely
what these Forma1 Title Deecls "signal ". "mark", or
"pinpoint". This is 'because. if these Forma1 Title
~eeds.are read and interpreted in the manner proposed
by Honduras. they' do not "signal", "mark". or
"pinpoint" precise geographical features, boundary
markers. or defined points which will enable the
Chamber (or .later on a Demarcation Commission, in
accordance with the instructions handed down by the
Chamber) to trace a definitive. frontier in the manner
that is required by the Special-Agreement.
2.38. In effect. according. to the interpretation
pi-oposed bv Honduras, when considering the
Formal Title Deeds to Commons attention has to be
given not to the precise and well-defined geographical
features, boundary st-ones, and places pinpointed in
the course of the measurements carried out. but rather
to certain incidental references made in the course
' -f carrviii~ out the measurement as to whethei-. prior
to effectuatina the measuremeiit . some ~a~ticular area
belonaed to one or the other of the old Colonial
Provinces under the control of the "Real Audiencia"
of Guatemala. Howeveï. these incidental references,
often contained in the declaratïons of witnesses.
neither marked nor pinpointed precise geographical
features, boundary markers, or places which would
today.permit any delimitation and demarcation of the
frontier to be carr-i ed out. Ttiey were simply vague '
and imprecise affirmations about a supposed pre-
-existing provincial distribution. of which there
remain rieither traces on the ground nor historical
data which permit its definition.
2.39. The fact that .these incidental i-eferences neithei- mark nor piripoint precise featilres
is very we11 docuniented in the Opinion of Professor
Nieto Garcia wliich has been presented by Honduras.
In the course of this Opinion, Professor Nieto Garcia
makes the following observations' pertinent to the
matter at present under discussion:
"Les limites géographiques de ces circonscriptions
administratives "intra-audienciales" ne sont .pas
décrites dans les lois"
(57)'
"les lois . . . . se bornèrent à des références
abstraites politico-administratives. sans entrer dans
1es détai 1s géographiques" (58)'
"[Pour délimiter) on se dispense de toute référence
à la géographie. . . . .on décrit le territoire et
la juridiction de la "Real Audiencia" de Guatemala
par une simple référence abstraite (ou politico-
-administrative) aux circonscriptions inférieures:
deux "Gobernaciones" et Capitaineries Génerales (celles
de Valladolid de Comayagua et de la Province du
Honduras) et deux "Alcaldias Mayores" (de Trinidad
de Sonsonate et la ville de San Salvadori .....
"La délimitation des districts des "Audiencias" ne
permet pas de résoudre le probléme, vu qu'elle renvoie
au territoire de chaque province, de sorte que. si
ceux-ci étaient géographiquement pré-établis dans
une disposition générale, nous aurions la réponse
souhaitée; maltieureusement. ce n'est pas le cas étant
donné que la compilation des "Reales Cedulas" ne no,us
dit rien à ce sujet" (59)'
The H.M. itaelf, as had to be the case. has recognised
that in a particular Formal Title Deed to Commons.
when read and interpreted in the nianner proposed by
Honduras, there is "1 'absence d'indication . .....de
points géographiques précis" and the H.C.H. admits
(60)
that a "document de l'epoque coloniale n'indique pas
concrétement les limites des juridictions" (61)'
57. H.c.M.: Annexes: p. 61
'58. H.c.M.: Annexes: p. 50
59. H.c.M.: Annexes: p:49
60. H.H.: p. 324.
61. H.C.M.: p. 115. 32
2.40. Further, in the Pleadings presented by
Honduras in, 1918-19 irithe Mediation Carried
out before the State Departinent of the United States
of Arnerica. it was stated T.hat the King "could malie
the division of the districts as te wished. If he
had described in detail the boundaries of the Province
or Intendency of Honduras in order' to distinguish
those of the Province or 1nl:endency of Guatemala this
dispute would not have arisen. But he did not do this
in that way" i62). Later the Pleadings add that "The
dctailed geographical delimitation of the Provinces
of Hondiiras and of Guatemzila is not found in any
specific "Cédula"" Similarly, in the Reply
(63)'
presented to the King of Spain in the course of the
frontier dispute with Nicaragua, Honduras reiterated:
"Tlie King of Spain, with trie data of that tiine. was
able to trace general boundaries to his vast
territories in the Indies" ic,4j.
2.41. The fifth word in the first part of Article
26 of the General Peace Treaty of 1980 which
was emphasised above has becin translated into Eriglish
as "boundar-ies" and into i:rench as "limites". the
Spanish word in the original text being "limites".
Thus, for a Forma1 Title Deed to be able to be takén
into accoiint by the Ch,amber as a basis for
delimitat ion. it must indicate jur-isdictioris or
boundaries in order to maldiepossible later on the
demarcation of the international frontier. This wi11
never be able to be done if the Forma1 Title Deeds
to Commons are read and interpreted in the manner
proposed by Honduras. As is indicated by Professor
Nieto Garcia, precise bolindaries to the former-
62. E.s.R.: Annexes: p. 15
63. E.S.R.: Annexes: P. 15
64. E.S.R.: ~nnexes: p. 6 provincial territories were never indicated. If the
Honduran proposa1 as to the manner in which the Forma1
Title Deeds to Commons should be read and interpreted
were to te accepted. the Chamber would find it
impossible to indicate an!/ precise features which
could serve as boundaries for the purpose of the
demarcation of the frontier between the former
Provinces of the "Real Audinsncia" of Guatemala. There
are no firm indications in the Forma1 Title Deeds
to Commons when these are read and interpreted in
the manner proposed by Honduras which permit the
S'UCC~SS~U~ completion of the archaeological task of
reconstructing the territorial limits of the former
Provinces whose boundaries were never delimited by
the Spanish Crown.
2.42. . The sixth word in the first part of Article
26 of the Geiieral Peace Treaty of 1980 which
. .s emphasised above lias bec?n translated into English
as "towns" and into French as "localites", the Spanish
. .
word in the original text being "poblaciones". Both
translations are imprecise since they omit one of
the two meanings which the word '"poblaci6n" has in
Spanish; it was in colonial times used above al1 to
refer to native communiti~!~ (65)' Professor Nieto
Garcia observes in his Opinion that the Spaiiishword
"pueblo."(or its synonym "poblaciones") "a en espagnol
un doble sens: d'une part. il équivaut Ziagglomération.
c'est Zi dire habitat urbain ou ensemble de
constructions; d'autre part, il equivaut à communaute
sociale" (66)- In the context of this litigation.
the word "poblaciones" emibraces both of the two
distinct.,eanings which it'has in Spanish and in this
-
%
. .
65. Solano: op.cit.: pp. 216, 217, 218 & 303
66. H.C.M. : Annexes: p. 23.way clearly refers to Formal Title Deeds to Commoris
in so far as. as is once again indicated by Professor
Nieto Garcia. "les "ejidos" ("resguardos") originels
sont liés au village "puehlo" (ou agglomération au
sens physique et topographique) des lors qu'ils sont
A proximite des constructions" (67)' " 1eur
titularisation est partagee entre la municipalite
(personnalité juridique) et la communauté des
habitants" (68).
2.43. In accordance with the provisions of Article
26 of the General Peace Treaty of 1980,
recourse must be had to ForinalTitle Deeds to Commoris
that indicate the boundari- of "~oblaciones". 1-
only Formal Title Deeds which indicate the boundaries
of "~oblaciones" are the Forma1 Title Deeds to Cummons.
AS has already been stated (69), there are no Forma1
Title Deeds which indicate the boundaries of
territories. Further. those Forma1 Title Deeds which
merely confer private proprietary rights rather than
Commons are not acceptahle for the purposes of Article
26. since such documents do not indicate bouridaries
of "poblaciones" . merely the bouridaries of individual
properties. The H.C.M. has accused El Salvador. of
referring only to Forma1 Ti tle Deeds to Commons
It is not that El Salvador wishes to restrict the
spanish colonial Title Dee'Js to Forma1 Title Deeds
to Commons; the fact is that Forma1 Title Deeds to
Commons are the onlv S~anish Title Deeds which indicate
the boundaries of v~oblacion~ in the manner required
67. H.C.M.: Annexes: p. 23.
68. . H.C.M.: Annexes: p. S5.
69. See Paragraphs 2.30. - 2.31. above.
70. H.C.M.: p. 110.hy Article 26.
2.44. Finally, the manner in which El Salvador
contends that Forma1 Ti tle Deeds to Commons
oiight to be read aiid interpreted is the manner in
which Honduras and the International Court of Justice
itself read and interpreted the Forma1 Title Deed
to the Commons of the Sitio de Teot.ecacinte in the
Case conceïnina the Arbitration Award of the King
of spaij between Nicaragua and Honduras. In this
respect, El Salvador refers to the comments already
made in respect of this matter in the E.S.C.M.
(71).
71. E.S.C.M. : Paras. 2.46. - 2.47. . pp. 38 -39 THE SECTORS OF THE LAEIBFRONTIER IN DISPUTE
1. Tecpanaüisir Mountain
(A)The Juridical Isçue
?..l.. The decisive issue in respect of this sector
is of a juridical nature: that of determining
by whom and from where Che administrative control
which determines the uti poz-idetis i- was exercised
over Tecpangüisir Mountain as from 1776. The only i
possible answer to this cluestion cari be that from
1776 until the date of the independence of 'Central
America this administrative control was exercised
from the settlement of Citala by the Mayor and Town
Couiicil of Citala and. at a level liigher than that
OF these purely municipal authorities, by the "Alcaldr
Mayor" of San Salvador and by the "Real Audiencia"
of Guatemala. The contrary argument produced by
Honduras rests entirely on its erroneous conception
of the nature of the appropriate Forma1 Title Deed
to Conimons. which Honduras equates with a simple
alienation of lands in Foreign territory as if what
was in issue were a "droit foncier" of a purely
patrimonial character. The erudite Opinion of Professor
Nieto Garcia, who was consulted by Honduras. confirms
in an accomplished manner the thesis advanced h? El
Salvador, according to which Cnniniorissuch as those
in issue here which wet'e nc~t "eiidos de comnosici6n"
established a regime of public inunicipal 1aw which
transcended a mere1.y private proprietai-Y right in
foreign territory.
3.2. Another objection foïmulated by Honduras
to the claim made by El Salvador to
Tecpangüisi i' Xountain is the argument that tlieattribution to a settlement in one C0,lonial province
of Commons Situated in another Colonial Province did
not have the effect of altering the inter-provincial
bouirdaries on the grourids that aiiv modification of
such boundaries co~ild only be carried out either by
virtue of a "Real Cédula" or by a decision of the
"C;orisejode 1ndias" This argument has already
(1).
been answered (2) and it Iras beeii made clear tliat
such a "Real Cédula" in effect exists. This is the
"Real Cedula" issued in El Pîrdo on 1st November 1591.
which gave poweïs to the "Real Audiencia" of Guatemala
to adjudicate Commons tu the native coIIIIIi~nitw ie~hout
aiiy limitation of these powers by ang requirement
to respect the vague inter'--provincial boundaries then
existing. The "Juez Principal de Tier1.a~- (Principal
Royal Land Judge! and the President of the "Real
Audiencia", who was the person wliotook the definitive
decisions. had complere jui-isdiction over the wtiole
of the territory Qoverned by that "Real Audiencia"
and consequently was entit:Led to take no notice of
the supposed inter-provincial boundaries. This is
corifirnledby the First Law of Title 1 of the Fifth
Book of the "Recopilaci6n de Leyes de Indias", whose
provisions have already been considered (3).
3.3. The H.C.M. also observes ttiat it was
necessary to overcome the difficulties of
the jiirisdictiori of the Sub--Delegate"Juez de Tierras"
of Chalatenango. addirig that the extension of his
'\
iurisdiction was agïeed as an exceptional measure
and, consequently, could not have ariy effect on the
1. H.C.M.: p. 152.
2. In Paragraptis 2.28. - 2.30. above.
3. In Paragraph 2.29. above;
4. H.C.M.: p. 159.inter-provincial boundaries. The H,C,M. coricludes
by affirming that the "Juez de Tierras" of
(5)
Chalatenango was incompetent "otione materiae" to
carry out any modification of the inter-provincial
boundaries. But as the Opinion of Professor Nieto
Garcia indicates, in this case there was utilised
"la solution simple du recours à l'autorité superieure.
dont la jur-idiction s'@tend sur le territoire des
deux juridictions séparees" (6)' The H.C.M. cannot
question the validity of this Forma1 Title ~eed~to
Commons of 1776 simpiy because it recoynises that
the authorisation given to the "Juez de Tierras" of
Chalatenango "n'est valable que pour ce cas
particulier" Consequently, this Formal Title
(7)'
Deed to Commons is wholly vzilid and duly adjudicated
to the native community of Citala 'its Commons in
Tecpanyüisir Moiintain. toget:herwith al l the juridical
consequences which emerge from this adjudication.
3.4. The fact that this adjudication was carried
out cori-ectly is confi.rmed by the Opinion
of Professor Nieto Garcia (8). Under the heading:
"L'autorite ne peut. agir eri dehors du territoire de
sa iuridiction, Professor Nieto Garcia explains that
this constitutes the geneïal rule but that "Cependant,
afin d'éviter le blocage officiel qui pourrait résulter
de cette compartimentation de la juridiction. on
utilise la solution simple du recours à l'autorité
supérieure. dont la juridiction s'étend sur le
territoire des deux juridictions séparées des autorites
inférieures." .. . . "Et 1'"Audiencia". pour sa part.
5. H.C.M.: p. 194.
6. H.C.M. : Annexes: p. 57
7. H.C.M.: p. 120.
8. H.C.M. : Annexes: p. 53 (qui ii'avai t pas de problernes de .iuridict ion, vu que
la si enne compr-enai t ce1 1 e cles deux ci rconscr i pt i ons
inférieures) pouvait agit- comme suit: soit confier
la taclie 3 I'autoïite inférieure competente. soit
commettre ou déleguer iirie autori té ini tial einent
incoiiipetente pour qu'el le exerce des pouvoirs
exceptionnels". This is exaçtly what occurïed.
(B) The "Effectivites"
3.5. Honduras affiïms tliat in this sector is
useless to Cake i.nto accocint "Effectivi tés"
and that what ought tu prevail is the Forma1 Title
Deed to the Commons in question. El Salvador does
indeed invoke the "effectivites" arid the argunients
of a human nature but thie i>iily furiction of these
matters is to confirm thet rights tliat emerge Fr-om
the Forma1 Title Deed to these Commons. El Salvador
enjoÿs the benef i t of both pre-coridi tioris: iiot Only
is the right to the territory iri dispute vested in
El Salvador according to the Forma1 Title Deed thereto
but also it is a Muiiiçip~31itv of El Salvador chat
has administered and continues to administer this
territory. In real ity. the adoption of the front-iei-
1ine claimed by Honduras ,iuould slippose the transfei-
to the territory of Honduras of the ,followiny nirieteeri
villages and hamlets of E:l Salvaclor- that belong to
the Municipal i ty of Ci talzi: Saii Loi-eiizo. Saii Rainoii,
La Lima, La Ciiestona. E:l Chagui i:6ii, Talquezalar.
Hacienda Moiitecr-isto, . El Socorro. PeÏias<io Blanco.
Los Planes, El Ocotillo, Cerro Negro, La Quebrada.
Los Horni tos, Laguiietas, 1.a~ Hi gueras, Palos Boni tos,
La Chicotera. aild El Plan Grande. l'liese are townships
which, as Honduras argued in the course of its
Iitigation witti Ciuateniala: "had economic and social
interests which wer-e coinmon tu Iheni and coinmon
traditions. Therefoi'e, the priiiciple of l'ci possidetis
thus possesses a ljasis which is as moral as it islegal. Take into account the sentiments of the
townships that have 1ived, struggled and died together
and do not break the cuminunal links" (Fiore. Revue
Generale de Droit International Public, Vol. XVII,
PP. 251. 252) These were the arguments on which
(9) '
Honduras based its claim to the Merendon line,
eniphasising the existence in this liiie of hills of
eight villages and eleven hainlets of Honduras which
"belong to the Municipal itics of Concepcion and Santa
Fe" El Salvador today is relyiny on esactly
the same consideratioris. The administrative control
over the native villages and hamlets in the sector
of Tecpangüisir Mountain has been exercised and is
still exeïcised from what is riow El Salvador. The
"Alcalde Mayor" of the Colonial Province of San
Salvador during the colonial per-iod administered the
assets of the township of Citala. controlled its books
of accounts and ensured that the lndian population
sowed their lands so that they would later be able
to pay their taxes. JUrisdiction and administrative
control was exercised over the Commons of Tecpangüisi r
Mountain from San Salvador. As Honduras espressly
recognised in the course of its litigation with
Guateinala. "the territorial bouiidaries or po1itical
jurisdiction of a Province or State are those up to
which. there legally extencls power and authority to
govern and put laws into effect"
(11)'
(ci GeoClra~hicaland Carto~raphical Comments
3.6. The observations formulated in the H.C.M.
in relation to the Forma1 Title Deed to
9. E.S.R.: Annexes: p. 20
10. E.S.R.: Annexes: p. 24
11. E.S.R.: Annexes: p. 31 the Commons of Citala of 1776 reveal Che contradictorv
and arrihiva1ent attitude rnciintc-iined by- Honduras both
in respect of this partici~lar Forma1 Title Deed to
Cominons aiid iri respect of Fornial Ti tle Deeds to Communs
in general. On the one haiid. Hoiicluras impurlris such
Title Deeds on the groiirids tliat the? lacli tlie efficacy
to provicle the basis of gti possidetis itir-3. vet
on ttie other hand Honduras relies on such Title Deeds
where t-heii- provisions appeaï to be favourable to
the HotidUran case. This Cluc-il attitude is also mailifest
in 1:lie iiiconsistencies thai: appeai- between soine of
the observations for-iriu1ated bv the H.C. M. ancl the
conclusions to be drawn froin the maps presented ijy
Honduras.
3.7. Thus,. for example. the H.C.M. (,2) criticises
the coordinates provided bu El Salvador
as the exact geographical location of the Cei-1:o de
Montecristo and indicates those which Honduras regards
as the correct location of this Peak. However, tlie
coordiiiates indicated in the t~st of the H.C.M. do
not in any way. coiiicide wi.tti those that emerge frjin
the map pi-esented by Horidui-as. Montecristo 235%) 1 II
(13:)' and the niap pre.seiite<l bv El Salvstlor, Metapan
2359 'There is cciinplete agreeriierit between the
maps pi'eseiited by the Parti es and conseqitent ly there
is no ïeason whatever to have recourse to ttie
coordiiiat:es that emerge froni the map of the Joint
Techiii cal Coniiiii ssi oir of Honduras and Ciuatemala of
1937.
3.8. The H.C.M. !15j eriual lv cri ticises tlie fact
12. H.C.M.: p. 125.
13. H.C.M.: p. 132.
14. E.S.M.: Book of Mags: Map 6.1..
15. H.C.M. : p. 129. that El Sa1vador inaltes the. frontier between
the two States commence at the Cerro de Montecristo.
The obvious response to this criticism is that this
froiit ieic-anriotpossiblv ccimrnence from ariyother-point
given that the Cerro de Murit.ecristo is the tripartite
boundary marker agi-eed between Guatemala, Honduras
and El Salvador. Horiduras also makes the frontier
which it claims commence at the Cerro de Montecristo.
3.9. 1t is true tliat the sma11 triangle whicli
ïuns from the tripartite boundary marker
on the Cerro de Montecrist.0ro the Caheceïa del Pomola
is not iiicludedwithin the Forma1 Title Deed to the
Commoris of Citala. Nevertheless. this triarigulararea
forms part of the foresti-y reserve of El Salvador
and is inhabited by citizens of El Salvador, as indeed
is recoynised by the Annexes to the H.C.M. T1is
(loi '
liasùeen the case at least silice 1742. since the Forma1
Title Deed to the Commons of Citala of t-hisdat.emakes
refer-ence to a mountairi "idhich the inhabitants of
Citala have always cultivated" (,?,. T.e liirriiaargument
of a complementary character made applicable bv t.he
latter part of Article 2G oF the General Peace Treaty
of 1980 establishes that this sma11 additional area
of land should he governed by the same CI-it-eria as
are applicable to the Commons of Citala iiicluded within
its Forma1 Title Deed. This small triangular area
constitutes an example of one of those cases in which,
as writes Frofessor de L.apradelle in a passage
tr-anscrihed in the H.C.M. (ls). the frontier- "doit
respecter dans la mesure du r~ossible les groupeiiients
qu'elle rencouritreet. éviter de les sectionner. qu'il
16. H.C.M.: Annexes: P. 295.
17. E.S. H. 1Paragraph f;.7..
18. H.C.M.: p. 178. s'agisse d'aggl omératioiis ou d'uni tés économiques.
agricoles et industrielles."
3.10. The H. C. M. ali:o o1~ject.s to the mention
(19)
made of the Cerro Olsscur-O and the location
iri which this Peak appears . oii the rnap presented by
El Salvador. In this respect Horidui'as has committed
aii eri-or of i ntei-pretat i on. 'The Cerro Obscuro is the
naine giveii. iri a generic forin. to tlie entire
mountairious inass of the regiori where the Cabecera
or source of ttie Quebrada del Pomola is located sirice
it is fi-om ïhis highest poiiit that the waters which
constitute this "cabecera" cbr sciurce actiially flow.
The highest. point iri this i-irea. 2,120 metres above
sea level. is the Plan de los Martinez, which the
niaps preseiited both by El ralvador- and by Horiduras
place iii esactly the same pûsitioii. It is precisely
there that it is iiecessary t.0 locate. for indisputable
hydi-oyrnphic reasons. the ùoundary point, that is
to say tlie Cabecera del Pomolii (20).
3.11. However, the H.C.M. i21) instead attempts
to locate the Cabecera del Pomola in a quite
. diffei-ent posi tiori, ignor-inci the geoyr-aphical fact
that the sources of rivers occrir- il1 the high areas
of the niountai ns. and involiing ar-gumerits based oii
infereiice aiid i ndi 1-ect deiluctioii which do not stand
up to detailed arialysis. Twc obiections are made to
the position il1 which Ei Salvador has located the
Cabecei-a del Poinola: first. tliat the recorrl of the
rneasurerneiit af f i1-ms tliat the nieasiirers t.ook a westerl y
direction arid. secoriclly. thtit there iuere more than
19. H.c.M.: p. 1x1.
20. E.S.R.: Atlas: Map 6
21. H.C.M.: p. 196.fortv "cords" between the 1.wo Points nieasured. The
first objection. naniely that. the Cabecera of Pomola
co~ild not be located in a h8estern direction as .from
the boundai'y marker of Talquezalar. arises out of
a misinterpretation of the Formal Title Deed in
question. The Title Deed dec:lares that. upon leaving
the boundary marker of Tajquezalar. the direction
of the nieasurement was ctianged so as to move towards
the West upstream along the Oiiebradadel Pomola. This
indeed was exact Y what haPpi2ned.The rfieasurei' beyan
moving tor~ards the west. as is indicated on the maps
produced both by El Salvador and by Honduras. But
very rapidly they were obliged to follow the
undiiations which the Quebrada del Ponlola makes
throughout its course until they arrived at the source
of its waters, the Cabecera del ~omola. What is of
interest. in Forma1 Title Deeds of this type. when
it is possible to identify the topoyraphy or the
iiatural geographical location of the different places
mentioned therein. is the point from which each
measurement started and the point where each
measurement finished; this is much more important
than either the initial direction which the measurement
took or the nuniber of "cords" bet-ween the starting
and finishiny points. This is the case because. in
mountainous and uneven areas, any estimate of the
geiieral direction of a iiiea:àurementis made as the
result of Iooliiiiyfrom trie star'ting Point to the
finishing point as the crovi flies. Iinprecisions in
the measurements in respect of the nuinbelof "cords"
are common to alniost al1 Che Forma1 Title Deeds of
this period since the measLii.ers of tliosetimes laclied
the techniques available tu modern surveyors.
3.11. The H.C.M. c22) m;ikes a further infererice
22. H.C.M.: p. 199 45
or suppositioii when itr affirms that the
Cabecera ilel Pomola inust.!se located at a different
poiiit because the direction nientioned in the Forma1
Title Deed is south-west uhile the map presented by
El Salvador iiidicates that. the direction taken was
almost due south. However, it is appropriate to comment
that a similai- direction. alniost due south. is also
taken by the line proposed in the map 2359 II1
presented by Honduras (23) as from ttie point which
Honduras selects as ttie Cabecera del Poniola to the
conflilence of the Quebradzi de la Chicotera and ail
unnamed Quebrada. Thus the supposed difference in
direction indicated bv Honduras between the direction
indicated in the Forma1 Title Deed and the direction
adopted bv the line imposed by the natural geographical
featiir-eswoiild also exisr in the intei-pretatioii given
hi- Honduras itself to this Forma1 Title Deed to the
Commons of Citala. Al1 this demonstrates once agaiii
that. wtien iiiterpreting a Forma1 'Title Deed of this
period, attention should he given to the starting
point or boundary marker and finishing point or
boundary marker of each individual measurement 1-ather
than to the, iiecessarily imprecise descriptions of
each change of direction made in the course of carrying
out each nieasuremeri t
3.13. Honduras also argues (24) that there is
an error of inter-petationas to the final
point of the western bouiidary or1 the basis that the
Forma1 Title Deed indicates on1y that the measurement
proceeded "par le confluent du torrent appel6
Taguilapa". However. the Formal Title Deed States
much more tlian ttiis; it adds "and downstream from
23. H.C.M.: p. 132.
24. ' H.C.M.: p. 202.there [the measureinent 1 continued through the density
of the niountain. measured by eye because of its
intransitable nature" unti 1 a spot known as Las Cruces
was reacheci. There is agreement between the Parties
to this litigation as to this final point of the
measurement at Las Cruces. The line followed in the
measurement "through the densitv of the mountain"
to Las Cruces must necessarily be the line indicatecl
by the niap presented by El Salvador (25). This in
any event coincides to a considerable deyree with
the map Montecristo 2359 :III preserited by Honduras
which. on the other hand, does not coincide
(26)'
with the line of the frontier now proposed by the
H.C.M. q27), that is to say the confluence of the
Quebrada de la Chicotera arid an unnamed Stream. Once
again. disagreement betweeni the text of the H.C.M.
and the map presented by Honduras can be observed.
Even Honduras. ignoring the text of the H.C.M.. has
followed in the niap Montecristo 2359 III the same
interpretation of the Forma1 Title Deed to the Commons
of Citala as has been made by El Salvador
(28)'
3.14. There is. however, one discrepancy between
the two maps in the southern part of the
boundary line. as is indeed mentioned by the H.C.M.
(2'3)' The reasori for this niinimaldiscrepancy is that
the line presented by El Salvador makes the boundary
coincide with the intersection of the road which runs
froni Metapan to Citala, exactly as is required by
the Formal tle Deed.
25. E.S.M.: Book of Maps: Map 6.1..
26. H.C.M.: p. 132.
27. H.C.M.: p. 202.
28. E.S.R.: Atlas: Map 6
29. H.C.M.: p. 133..'
II. ILas Pi las 01, Cavaquaiica
3.15. Iri supr>ort of its claini to this sector.
the H.M. rias ci ted a document set out on
one single page of the Anriexes thereto This
(30)'
docuinent requires a detailed analvsis.
(A) The document relied on t~d Honduras
3.16. This document of a siiiyle page. extracted
froni a coirsi~lerably longer original. is
the basis of the entire ai-giimeiit PI-esented b'. Honcluras
in respect of this sector.. However. this document
is susceptible of considerable adverse corrinielit in
relation botli to its Foi-m an'd to its substance.
3.17. In relation to its forni. the adjudjcation
which was approved in 1742 bv the two "Joeces
de Tieri-as" by virtue of powers conferred upon theni
by the "Real Auciieiicia" 01' Guatemala was in favour
oiily of the inhabitants of Citala. iiot iri favour of
the inhabi tants of Ocotepeque NO measurement
(31)'
took place cif the land supposedly ad-iudicated to the
inhabitarits of Ocotepeque nor were any boundary markers
fixed. These forma1 defects. as will be seen, affect
considerably the process of int-erpretation of this
document invoked by Honduras.
3.18. El Salvador lias presented the complete test
of this docunient. within which are the parts
extracted by Horidur'as. Fr-om this document, i t emerges
that' the Principal "Jilez rle Tierras" of the "Real
Audiencia" of Guatemala instructed the two Sub-Delegate
31. E.s.c.M.: para. 3.33.. p. GO; Annexes: vol.
1, p. 135."Jueces de Tierras" who had jurisdiction respective1 y
over Citala and Ocotepeque to 1-evise and reconfirm
the boundary markers of the two settleinents in order
to put an end to the continuing disputes between their
iiihabitant,s.The two Sub-Delegate "Jueces de Tier-ras"
d~ily sat ût. Citala and suinmoned the inhabitants of
Ocotepeque. who appeared before them and statedthat
"so far as concerned the lands of Jupula. they consei~t
that possession thereof be given to the inhabitants
of the township of Citala". aùdins a request "that
the lands of .lupula shoulcl be restored to them in
another place". The two ".lueces de Tier-ras" viewed
"al1 the lands which were in the possession of the
inhabitants of Ocotepeque" and coiiclucled"that they
hacl riiorethaii sufficient lands for the purposes of
cultivation". "al1 of which were irrigated lands.
. ... flat lands away froin the mountains, pastures
and watering places, which must cover more than four
leagues". On the otheï hand, the two "Jueces de
Tierras" established tliat the inhabitants of Citala
had only "rtigged and unfriiitful land" and that "in
order to maintain their t:ovnship, they travel for
a distance of three leagues to cultivate a niountain
to the west".
3.19. In relation to the lands of Jupula that
were in dispute. fhe two "Jueces de Tierras"
concluded "clearl y and distinctly that the inhabitants
of Ocotepeque did not havcianv right or just claim
to tliose .lands". The 1:wo "Jueces de Tierras"
accordingly provided that the iiihabiants of Citala
"should be given the lands that surround their township
from the Rio Lempa towards the West leavinclfree for
them the niountain which the inhabitants of Citala
have always cultivated" (eniphasisadded) and directed
that the? should proceed. to revise and coiifirm the
appropriate boundary marl;.ers. The inhabitants of
Ocotepeque did n0t coriti-adictthis decision but atthis stage "only requested that there should be 'left
Free for them a mountain called Cayaguanca wtiich is
above the Rio de Jupula". The two "Jueces de Tierras".
irithe 1ight of what had been declared, pi-ovidedthat
the inhabitants of Ocotepeque stiould "desist and not
contiriue wi th the proceediings and the dispute that
they have maintairie d.with the inhabitants of Citala
and should be ready to assist at the handing over
of the possession whicli IiisExcellency directs sliould
be given to the inhabitants of Citala".
3.20. For this purpose they went out into the
countryside and proceeded to revise and
corifir-inhe bouridary marker:;, the "Jueces de Tierras"
finding that "the possession of these lands thus given
to the inhabitants of Citala was not prejudicial to
the inhabitants of Ocotepeque because of the extensive
area of land both cultivaced and uncultivated t-hat
the inhabitants of Ocotepeque have. while the
inhabitünts of Citala do not have any such lands.
as indeed is evidenced by viewing the area". The two
"Jueces de Tierras" thus or-deredtliatboundary markers
should be erected or confirnled in the places which
they described and' declared in rclation to the lands
attributed to Citala "in these lands only the mountain
has any utility because the land consists of crags
and unworkable rocky ground without any fruits"
(emphasis added). It was only wlien "the foot of a
white cray which is at the summit of a very high peak
was reached" that the inhahitants of Ocotepeque
requested that they shoulài be left with "the land
which runs from this final boundary marker towards
the east" and. the "Jlieces de Tierras" authorised the
inhabitants of Ocotepeque to use that mountain.
3.21. IIIthe disposititre part of these jutlicial
proceedings, the two "Jueces de Tierras"
supported "the inhabitants of Citala in the possessionwhich they have had and have of these lands". Further.
the Principal "Juez de Tierras" of the "Real Audiencia"
of Guatemala duly decreed "that the possession given
to the Indians of the township of Citala of the lands
in dispute with the Indians of the township of
Ocotepeque should be conf irmpd" .
3.22. Various conclusioris can be drawn f rom this
lengthy transcriptiori of these proceedings.
the full text of which is arinexed to the E.S.C.N.
First, the reading of' the proceedings in their
(32) '
entirety, which clearly denionstrates that the result
was in favour of the inhabitants of Citala, explains
why Honduras only presentecl short. extracts occupyiiig
only a single page. Secondly, the cleaïly proven penury
of the lands of the inhabitants of Citala in comparison
with the abundance of the lands of the inhabitants
of Ocotepeque demoristrates the implausibility of the
claim by Honduras that "tout le massif" was adjudicated
to Ocotepeque. Thirdly. th,? dispositive part of the
decree handed down by the F'rincipal "Juez de Tierras"
of the "Real Audiencia" of Guatemala only supported
the inhâbitants of Citala and not the inhabitants
of Ocotepeque.
3.23. Turning now to the substance of this
document, it is appropriate to formulate
the fol lowing observatioris. First. although the
mountain of Cayaguanca is indeed meiitioned in this
document. even the extract from the document presented
by Honduras clearly demonstrates that this geographical
feature is not situated in the disputed sector of
the frontier at present under discussion but is instead
situated in a sector the delimitation of which has
already been agreed by the Parties to this litigation.
32. E.S.C.N.: Annexes: Vol. 1. p. 135.The second sector of the land froritier- whose
delimitation was agi-eed bv El Salvador aiid Honduras
iii iii'ticle 16 of the General Peace Treaty of 1980
completel!' i-espects t:lie c,ont.ents of ttii s docitnient
of 1742 and de1imit.s tliis sectoi- of ttie froiitier in
accordance wi th ttie nieasureinerits and boiiiidarv mcii.iiers
establislied therein. Seçondly. the fact. that this
geographical feature is situated within this sectoi-
whicli has alreadv heeii del imited bv El Salvador and
Honduras, that is to sav the sector betwoen the summit
of Cerro Zapotal and the Peak of Cavaguanca. is
confirmed bv Nap 3.1. presented by Hondiiras il1 the
H.C.M.
(33) '
3.24. In the extract from this document. presented
bv Honduras, the i nliabi tants of Ocotepeque
"onlv recluested that thei-e should be left fret? for
them a mouiitain cal led Cayziguanca which is above the
Ki0 de Jupula" ("ils sollicitent seulement qu'on Ietir
laisse la niontagne dite C:ayaguanca. qiii se trouve
au-dessus de la riviére Jiupula" in the translation
into French in the H.C.M.:l. Now the Rio de Jupula
ends in a sector of the frontier which has already
been delimited. at least one kilometre to the soutti
of the Peak of Cayaguanca. which is the final point
of the second sector of che Frontier delimited by
Article 16 of the General Peace Treaty of 1980.
Conseqcierit IV. if the area rf?quested bv the inhabi tants
of OcotePeque is situated ahove the Rio de Jupula.
tliis area iiilist be in Honduras. in the sector of the
frontier lletweeii the sumniit of Ceri-O Zapotal and the
Peak of Cayaguanca which has already been delimited.
3.25. T'tiis is conf irmecl bv Map 3.2.. preseiited
33. H.C.M.: p. 212 bu Honduras in th@?H.C.X. (34) as a supposed
illustration of its rights. 011 this map, the Rio de
Jupula is shown as ending before the mer-idian of the
peak of Cavaguaiica: in other wor-ds. this river is
inside El Salvador accor-dirigto the frontier already
agr-eed between the Parties for the second sector
delimited b? Article 16 of the General Peace Treaty
of 1980. Similarly. the m~ountain called Cayaguanca
is situated symmetricallv above the Rio de Jupula
in the territorv of Honduras on the other side of
this agreed frontier.
3.26. Te really conclusive euidence of the true
location of this area referred to in the
extract frotn this document presented by Honduras,
namelv in a sector of the frontier which has already
been delimited. enierges fI'Ointhe Forma1 Title Deed
to the commons of OcotepetAue of 1818. presented as
evidence by Honduras In this ForinalTitle Deed.
(35) '
authorised a short time prioi- to the date of the
independence of Central ~nierica, the r'ights of the
inhabitants of Ocotepeque were regr-ouped and de€iiied
The Forma1 Title Deed establishes that
(36) ' (37)
the "Juez de Tierras", accompanied bv his assessors,
the sur'\revor and the nieasurer. carrieci out a visual
inspection of the land which was to be measured and
that. "having climbed up to the suinmit of the Cerro
de Cayaguanca", he was able to see the other boundary
marker-S. This indicates tliat he climbed up to the
highest point. that is to sa? to the Peak of
Cayaguanca. On the followirigda?, from the path fi-om
34. H.C.Y.: p. 214.
35. H.M.: Anneses: p. 1677.
36. H.C.M.: p. 231.
37. H.M.: Annexes: p. 1717.the peak called Cayaguanca, lie went in the direction
of the Monte de Sedros towards the eost and fr-omtheïe.
going in a north easterlv direction. reached the Monte
San Antonio.
3.27. Now a line running fr:on~the start.ing point
to the f iriishing point of this measirrement,
that is to Say froni the Peak of Cavaguaiica to the
prak of the Monte Sari Antonio passirig tlirough the
Monte de Cedros. denionstrates conc Iusivelv that the
niountnin of Cayaguanca referred to in the document
prosent-ed by Honduras canrioi.possiblv be located in
the rlisputed sector at present uiider-discussion but
instead in the second sectc~r of the frontier which
has already been del irnied. This is sufficiently shown
by lookiny at the boundaries of the Commons of
Ocutepeque as fixed in 1818 in trie manner that these
are shown on Map 3.A. presented bv El Salvador in
the E.S.C.M. (38) ' Further. the Monte San Antonio,.
wtiose location is crucial in order to fix the Iine
of the eastern boundary of tlie Commons of Ocotepeque,
is stiown in the sanie place on the maps presented by
~l Salvador and the inap 2359 II Nilevo Ocotepeqiie
presented by Hondur-as (39) ..This representation of
the boundaries of the defini tive Forma1 Title Deed
to the Commoiis .of' Ocotepeqiie on Map 3.A. presented
by ~l Salvador demonstrates tliat the settleinent of
Ocotepeque does not have anything to do with the lands
wliich are iri issiie in thi:; disputed sector of Las
Pilas and the Rio Sumpiil aiid that the area of land
assigned to the inhabitants of Ocotepeque on the
mountain of Cayaguanca is already inside the territory
of Honduras, witliin the frontieï agreed for the sector
between the summit of Cerro Zapotal and the Peak of
38. E.S.C.H.: p. 49
39. H.C.M.: p. 214.3.28. If. is iiideed logical that this stiould be
the case. . A last minute concession arisiiig
out of the proceedings of 1.742. without nieasurements
or boundary markers or judicial approval from the
"Rea 1 Audienc ia" of Guatema 1a. cannot possibly have
attrihuted title to "toiit le massif" de Cayaguanca
in the manner claimed by Honduras (40). The land thus
conceded must necessarily bi?limited to the east by
the line running from the peak of Cayaguanca to t-he
peak of the Monte Sari Ailtonio passing through the
Monte de Cedros, as is shown bv the Forma1 Title Deed
to the Commons of Ocotepeque of 1818, which summarised
and regrouped the vast tracts of land obtained by
that voracious municipality (41).
(9) The true interpretation of the Forma1 ntle Deed
to the Commons of La Palma and the "Effectivitts"
3.29. The H.C.M. affirms (42) that in this sector
the claims of El Salvador are based entirely
on "Effectivités". that is t.osay the fact that this
sector- is ,populated and eci~nomically exploited only
by citizens of El Salvador. It is of course true that
the sector of Las Pilas and the lands which border
on the right bank of the ilpper reaclies of the Rio
Sumpul are and have been for time out of mind inhabited
and exploited by citizens of El Salvador. However,
40. H.C.M.: p. 233
41. In this Forma1 Title Deed referring to
Ocotepeque (H.M.: Annexes: p. 1793). it
is stated: "cette caste etant toujours
encline A accaparer toutes les terres qui
les jouxtent, cela les incite A solliciter
8 fois Plus de terrains".
H.C.M.: p. 238 in this sector El Salvador relies above al1 upon a
Formal.Title Deed and resorts to arguments of a human
nature only in a subsidiary or perhaps complementary
way in respect of a sma11 part of the sector which
is not covered by the Forma1 ~'itleDeed to the COmmOnS
of the municipality of La Palma. Although this Forma1
Title Deed relates to a measurement carried out in
1829. after the date of the independence of central
America, this document is relevant and acquires binding
force inthis particular case for two reasons.
3.30. The first of these reasons is that this
measurement was carried out during the period
when what are now the five Central American Republ CS
were validly linked by virtue of a federal regime.
The authorities of Honduras and the municipalities
dependent on Honduras did mot manifest the slightest
opposition or objection to this particular measurement
in spite of the fac't ttiat the Nunicipality of
: Ocotepeque. justly celebrated for its aggressiveness
in defending and even extending its Commons, was
summoned to appear' and did not judge it necessary
to do so. Indeed Horiduras later argued. in the course
of the Mediation 'carried out before the State
Department of the United S.tates of America in the
dispute between Honduras and Guatemala, that (43>:
"The Forma1 Title Deeds executed after the date of
independence, but before the Federation was dissolved.
also have special iinportancc! for the discussion, n0t
only because of their proximity to that date but also
because, in the event that one State had by virtue
of its measurements. prejudiced the rights of another
State, there was an authoïity able to reestablish
justice."
To the same effect, Hondurzis argued on 27 November
1918 that the Forma1 Title Deeds executed during the
federal r6gime had "greater force when they mostapproached the date of independence and greater (force1
if the concessions were made during the period in
which Honduras and Guatemala were two States of one
nation governed by a comnloriFederal Government with
sufficient authority to put an end to al1 the'
1
differences that might occur' hetween them" (44)'
3.31. The second of these reasons is the fact
that, as has emerged fïom the pïevious
section of this Reply. the supposed title of Honduras
to the aïea in dispute, namely the proceedings of
1742. has heen totally discredited in that the part
of the document in question relied on by Honduras
refers only to a geograplii~=alfeature which is not
located within this disputeti sector of the frontier.
In these circumstances, the Forma1 Title Deed to t.he
Communs of La Palma acqui res an indisputable va1ue
as the only document capable of guiding the Chamber
in the process of fixing the frontier in this sectoï.
It is clearly appropriate tu apply to questions
concern iny frontiers the pb-oposition stated by the
Permanent Court of International Justice in the Eastern
Greenland Case in relation to the acquisition of
territorial sovereignity in circums.tances in which
two concurrent claims have been submitted to a tribunal
and the latter has had to decidt! which of the two
is well-founded. The Permanent Court said this
(45) :
"in iiianycases, the tribunal has been satisfied with
very little in the way of the actual exercise of
sovereiyn rights. provided that the other State could
not make out a superior clairn". Further, in the
Minauiers and Ecrehos Case. the Interriational Court
44. See Article 137 of' the Constitution of the
Federal Republic .of Central America; also
the Annexes to the Reply in this Mediation:
vol. II. p. 41.
45. P.C.I.J. Reports: Eeries A-B: No. 53, p. 46 of Justice stated that ('16)' "the Co-t fias to
determine which of the Parties has produced the more
corivncing proof of tit1e" . 1n questions concern ing
frontiers where a tribunal is faced with concurrent
claims. this cïiterion. namely that the more
authoritative of two documerits, even though it lacks
some forma1 reyuirement as to antiquity, can serve
as the basis for a judicial decision, has to be
accepted. 1rideed. Honduras has itself recogriised this
fact by devoting numerous pages to the question of
-the interpretation which o~ight to be given to the
ForinalTi tle Deed to the Commons of La Palma.
3.32. The most important question which is at
issue in tliis ciisputed sector of Las Pilas
arises out of the attempt t~y Honduras to ignore the
two historical and geographical realities which have.
tr-adtionally. deter-mined the frontier in this sector:
first. the t'act that the upper part of the course
of the Rio ,Sumpul has ~ilways beeri r-egarded as
constituting the fr-onier and. second1y. the fact
that the highest peak in this area. the Cerro El Pital.
belongs to El Salvador. Both these geographical
featur-es are supporteci by lihe Forma1 Title Deed to
the Cornmoris of La Palma. What is more. Honduras
r-ecognised the fact that the upper part of the course
of the Rio Sumpul constitutes the frontier. admittedly
only pariay iii the conciliator-y pr'oposition which
it formulated in 1985 (47:,.,However now Honduras,
which is uriable seriously to oppose these two
histoïical and yeogr-aphical real ities. has resorted
to an attempt to transfer ideologically the location .
of the mountain of Cavaguanca. which is situated in
a sector- wliich has alreadv been delimited, with the
46. I.C.J. Reports 1953 p. 53.
47. H.M.: p. 346. intention of obtaining by meaiis of this change of
location both the upper part of the course of the
Rio Sumpul and the Cerro El Pital. El Salvador does
not believe that the Chamber wi 11 allow itself to
be deceived by this change of location of this
mountain.
3.33. Honduras presents in the H.C.M. (48) an
ii-~terpretiatn of the Formal' Ti tle Deed
to the Commons of La Palma which is both wliimsical
and arbitrary. Honduras does not go so far as to
question the fundamental aspect of this Formal Title
Deed to Commons - the recognition of the fact that
the upper part of the Rio Sumpul constitutes the
froiitieras far as its source, the confluence of the
Rio Sumpul and the Quebrada de Copantillo. However.
as from this point, the incorrect and arbiti-ary
interpretation of Honduras comlmences.
3.34. With the object of explaining the straight
line which it proposes as the frontier in
Map 3.1. rather than the broken line proposed
i 49)
by El Salvador, Honduras affirms that, as froin the
confluence of the Rio Sumpiil and the Quebrada del
Copantillo, the "Juez de Tierras". according to the
Forma1 .Title Deed, walked in a straight line. The
H.C.M. states (50):. "le titre ne va pas en ligne droite
alors que le juge indique que c'est ce qu'il fit".
However. the original Spanisli version of this Forma1
Title Deed does not state that the "Juez de Tierras"
walked in a straight line. What it states is that
"from this point the direction was changed upstream
a8. H.C.M.: pp. 240 et sea. & Map 3.1. (P. 212)
49. H.C.M.: p. 212.
50. H.C.M.: P. 241.along the little Stream to the south West four points
to the soutlr west and thirtv-five niore (cordsl were
measured as fai- as the place kiiown as El Pital" iWde
este purito se cambib el riimbo aguas arriba de la
quebradita al Sud-Oeste ciiatro grados al Sud-Oeste
y se midier-ori treirita y cinco mas hasta el paraje
llamado El Pital" in the OI-iginal Spanish test). It
is obvious that the "Juez de Tierras" continued the
measureinent following the cui-ves of this Stream until
he reached the place known as El Pital. Thus the
straight line pi-oposed by Horiduras on its Map 3.1.
as an alternative must clearl!? be discarded.
3.35. The interpretation of the Forma1 Title Deed
to the Cornmons OF La Palma proposed by
Honduras also attempts to acljudicate to Honduras the
Cerro El Pital. The Fornial I'itle Deed indicates that
the "Juez de Tierras" reached "the place known as
El Pital". Common sense indicates that this place
inust be on the summit of the Cerro El Pital and this
is exactly where El Salvador places it. On the other
hand, the intei-pretation of Honduras on its Hap 3.1.
locates "the place knoiun as El Pital" at some
(51)
two kilometres to the north east of the Cerro El Pital.
This notion of Honduras as to the location of this
place is so distant and impr.ecise that Honduras does
riot actually dare to indicate its location on this
inap, putting notliing more than the words "Paraje del
Pital" (52).
3.36. From "the place known as El Pital". the
measurement proceeded. according to the
Forma1 Title Deed. to the neighbourhood of the Copo
5i. H.C.M.: P. 212.
52. E.S.R.: Atlas: Map 7de Cayaguanca and from there to the source of the
Rio JupUla. On the Map 3.1. presented bv Honduras
(53)' the location of the 111ace described as being
in the neighbourhood of the? Copo de Cayaguanca is
shown as being some four k.ilometres from the Peak
of that name and so cert-ainlyn0t in its neighbourhood,
while the location of the source of the Rio Jiipula
is shown as being some two Iklometres from the point
where the Rio Jupula ends. The fact that 'these two
boundary markers are shown tc~be located in positions
so inconsistent with their description in the Forma1
Title Deed corroborates the whimsical and arbitrary
interpretation which Honduras makes of the Forma1
Title Deed to the Commons of L.aPalma.
3.37. The Forma1 Title Deed to the Commons of
La Pa11na states that the surveyor sumrnoned
the proprietors of the adjoining "haciendas" (farms)
and that among them was included Santiago Valle, the
proprietor of the Hacienda de Sumpul . This "hacienda"
is located within the jurisdiction of the District
of Tejutla in the Republic of El Salvador and contains
an ancient settlement, which in 1829 belonged to
Santiago Valle. Honduras incorrectly argues that the
E.S.M. has not presented the location of the hamlet
of Sumpul or the location of' the "hacienda" of that
name in the past (54). However. the H.C.M. itself
(55) describes as the location of this place that
indicated bv El Salvador. Fiirther, the Formal Title
Deed to the Commons of La Palma states
proprietor of the Hacienda de Sumpul was) Santiago
53. H.C.M.: p. 212.
54. H.C.M.: p. 237. .
55. H.C.M.: p. 235.
56. E.S.C.M.: Annexes: vol. II. p. 7valle
3.38. The H.C.M. also af:Firins that El Salvador
(57)
has not preseiited certain documents of the
colonial period inentioned iiithe E.S.M. nanie1y
(58)'
Fornial Title Ueeds of 1680 and 1718 which confirin
the jurisdiction of the Colonial Province of San
Salvador over the hamlet of SumPUl. The original
Spanish version of these documents was sent to Honduras
on 10 Octoheï 1988 under Reference Numbeï 10788;
however, in the light of the fact ttiatthese documents
have onceraOain been asked for in the H.C.M.
(59)'
they wi 11.be presented as Annexes to this Reply (60).
. . .
.. . -.
3.39. ..--.-rther. other c:olonial documents exist
which corroborate the jurisdiction of the
Colonial Province of San :Salvador over the hamlet
of Sumpu1. The geographical account of the Colonial
Province of San Salvador drawn up in 1742 by Manuel
de Galvez. "~lcalde Mayor" of San Salvador. contains
a description of the settlernent of Texutla, sonte 18
eigliteeiileagues froni the tapi ta1 (San Salvador) in
a north eastei-ly direction on the far side of the
Rio Lempa. and indicates that within the circumference
of this Valley known as San Juan Chalatenanoo and
-UI, ther'e were 222 niulattos and half-breeds
together with the soldiers of two conipanies for the
defence of the coasts c61;,. Sirnilarlv, the Report
presented in 1807 hy the "Corregidor Intendente"
(Intendant Magistïate) of the Colonial Province of
57. H.C.M.: p. 236.
58. E.S.M.: Paras. 6.16. & 6.17..
59. H.C.M.: pp. 236-237.
60. E.S.R. : Annexes: p. 38-42
61. E.S.R. : Annexes: p. 48San Salvador. Antonio Gutiérrez y Ulloa. in its
description of Chalatenango as the Twelfth Judicial
District of that Pr-ovince. made the following
statement: through this judicial district pass three
mighty rivers, the Rio Sumpul. the Rio Tamulasco and
the Rio Lempa. the fiïst of which divides this
jurisdiction fi'om the jurisdiction of Gracias a Dios
in Honduras (6-).
3.40. In the Reply mad~? by the 1-ep~.eseiitatives
of Honduras to the Pleadings of Guatemala
in the Course of the Mediation carried out hefore
the State Department of the United States of America
in the dispute between Honduras and Guatemala, Honduras
argued (63):
"In relation to the Valle de Copan. iirçluded irithe
line of mountains claimed hy Guatemala. we must state
that Honduras is at present in possession of the
greater part of this valley: its Honduran Settlements.
villages and hamlets within this area are governed
by the authorities and bv the lows of this Republic.
Consequently, no special document is necessarv in
order to justify that this valley was in the possession
of Honduras in 1821 because, haviny checked the
jurisdictional possession in 1818 against the evidence
of the histor'ian Juarros and the ecclesiastical
records, and having recognised the present possession
of Honduras, its possessiori during the interveriiiig
period is confiimed by the presumption of juris tantum
which isadopted by every legislature."
El Salvador today is irivokirithe very same and even
inore cogent arguments, pr-oving. by means of the
documents of the Spanish colonial authorities to which
reference has already been made. that jurisdiction
over the hamlet of Sumpul idas exercised diiring the
colonial period. b? the "Alcalde Mayor" of the Colonial
Province of San Salvador, something which is duly
62. E.S.R.: Annexes: p. 57
63. E.S.R.: Annexes: p. 62coiifirmed bv the Forma1 Title Deed to the Commons
of La Palma of 1829 which lhas been presented by El
Sa1vador .
III. ArCataO or Zazala~a
3.41. First and foremost. it is necessary to
emptiasise the decisive nature of the fact
that Honduras has not prese:nted in relation to this
sector any Forma1 Title DlSed which has juridical
validity nor even any wtiictirefers thereto. On the
other hand, El Salvador has presented the Forma1 Title
Deed to the Coinnionsof Arcatao of 1724; this Forma1
Title Deed is the basis of the right of El Salvador
to this sectoi' and ex plain:^its Present possession
of the whole of this sector. .4cceptanceof the frontier.
claimed by Honduras would signify the transfer to
Honduras of the followiny fifteen municipalities:
La Ceiba. 1.ayunetas. El J01:0till0, El Amatillo. La
Vecina. Gualcimûca. El Pit'3. Los Filos. Zazalapa.
El Corozal. L.as Cuevas. San Pablo. Los Apantes,
Horconcillos. and Portillo del Ayuacate.
3.42. In relation to this sector, two questions
arise which must be examined separately:
first, the observation by Honduras to the effect that
the Forma1 Title Deed to the COmmOnS of Arcatao does
not cover the whole of the territorial claim formulated
by El Salvador in this sector; and. secondly, the
correct interpretation of the Forma1 Title Deed to
the Conimons of Arcatao and the exact location of the
boundary niarkersreferred to therein.
(A) The Scope of the Forma1 Title Deed to the Commons
of Arcatao
3.43. It is true that ECl Salvador has not beeri
able to present to the Chamber certain otherFornial Title Deeds to Comrnons which complement the
Formal Title Deed to the Cominonsof Ar.catao.An example
is the Forma1 Title Deed to the Commoiis of Nombre
de Jesus. whose absence is indeed the subject of
adverse cornment in the H.C.M. (64)' The authorities
of Honduras in fact know perfectly well that this
Fornial Title Deed was 1ost as the result of a fire
which occured last century in the Archives of the
Repuhlic of El Salvador. Foïtunately. however, certain
Formal Title Deeds which have been presented by
Honduras permit this shortcoming to be remedied and
so by this means complete the Forma1 Title Deeds upon
which is based the frontier claimed by El Salvador.
3.44. This is illustrated by the Formal Title
Ueed to the Commons of San Juan de Lacatao
of 1768 wliich Honduras ha>; presented (this time in
its entirety) in the Annexes to the H.C.M. (65)' This
Formal Title Deed States that the measurement
(66)
which was carried out in this location reached "au
point.de rencontre avec une petite rivière ou un grand
raviriqu'on a dit s'appeler de Los AmateS, ou également
de Gualcuquin, servant tgalemerit de limite et de
frontière a la propriét& de Nombre de Jesus".
Immediately afterwards (67,. the Formal Title Deed
adds that "le domaine se trouve aux limites de la
jurisdictioii de la province de San Salvador", making,
clear the fact that this boundary proceeded "jusqu'a
1'endroit de la jonction avec un petit ravin dénommé
Tuqiin oii de os AmatiIl 0:s ou de PalO Verde, .....
ce ravin étant la limite de la juridiction et de la
64. H.C.M.: p; 279.
65. H.C.M.: Annexes: pp. 151 et sea..
66. H.c.M.: Annexes: p. 161.
67. H.c.M.: Annexes: p. 162. division des pi-ovinces" .
3.45. The Forma1 Title Deed subsequently states
(68) that the inhabitants of Nombre de Jesus
claimed, on the basis of the Forma1 Title Deed to
their Cornmons which they presented to the "JueZ de
'Tierras" . "la petite rivière de Gualcuquin, sur la
gauche jusqu'à l'endroit ou cette rivière se joint
au ravin de El Amatillo ou Pal0 Verde", adding that
"cette petite rivière de Giialcunquin était la limite
divisant les provinces de San Salvador et Comayagua".
The "Juez de Tierras" deciijed (69) to "continuer la
mesure par cet angle en recherchant les bornes
anciennes du domaine de Nomb:rede Jesus sans y toucher,
nlème le plus legerement". This signifies that the
"Juez de Tierras" found in favour of the claim made
by the inhabitarits of Nomb.re de Jesus. a settlement
within the, jurisdiction of the Colonial Province of
San Salvador, thus ratifyiiig the jurisdiction of El
Salvador over this initial part of this disputed
sector.
3.46. The Forrnal Title Deed continues (70): "Et
1'arpenteur a suivi la direction du nord-est
quart-nord, en suivant le ravin de Amatillo en laissant
à gauche les terres de Nombre de Jésus jusqu'à arriver
à une plaine qui se trouve à mi-hauteur de la colline
où se trouve une borne ancienne de Nombre de Jesus".
The line of the frontier claimed by El Salvador reaches
precisely the line described in this measurement.
following the small river ~io Gualcuquin or El Amati110
(see the Maps 6.111. ArCatao and La Virtud 245811
(71)'
68. H.C.M.: Annexes: p. 162.
69. H.C.M.: Annexes: p. 153.
70. H.C.M. : Annexes: pp. 163-164.
71. H.M.: Book of MapS: Map 6.111. . AS is clearlv seen. the frontiei- which begiiis
(72)
at the Poza del Cajori on the Rio Amati110 or
Gualcuquin. dors not leave this river iii the niaiinei-
claimed by Honduras but 1-ather follows this river
iii the manner claimed hy El Salvador.
(B) The Coi'rect Interpretation of the Fornial Title
Deed tg the Coninions of Ai-cz&s
3.47. The H.C.N. affirins that El Salvador
(73)
has been gui 1ty of a "local isat ion inexacte.
plus à 1 'Est et plus au Nord. de certains poiiits
indiques dans l'arpentage eFfectueW in respect of
the Coininons of Ar-catao. This obsei-vat ion refers i11
pai.ticular to the source of the Rio alnoro the
Quebrada de C.ol »mari guan. and the Ctiupader'o de Agua
Cal ieiite. 1ii inaking ttiis observat ion. Hondiiras iiiakes
a supposition. namely that. if the boundaïies of these
Coninioiis had been those c 1;ainied bv El Salvador. the
sui-veyor. would ha\:e made :some refei-ence to the Rio
Zazalapa. giveii the iniportance of tliis ive. aiid
would Iiave nierit ionrd that he hacl cr-ossed the r-iver-.
3.lr8. Howevei-. the suppi~si t ion so inatle by Honiliir.:as
is iiiisound. The "Juez de' Tie1.r-as" and Llie
sur-veyor- had rio rrnsoii tcn iiien'tion the cr,ossirig of
the Rio Zazalapa at this partic~ilar- poiiit of ttieir-
meastic-eiiieiit. siinpl?; beccatise at this point this i-i\)er
was not usecl ei ther to cciiisti tute oi- to cieiiote the
bounciarv of the Coiiimoiis tliat were bei iiy ciel inii ted.
That is not to sa?. howeveï. that tliev totall? ignored
the Rio Zazalapa. 'The For-mal Ti tle Deed to the Coiiiirioiis
of Ar-catao contains in the course of the ineasureiiieiit.
72. H.C:N.: P. 200.
-(3. H.C.M.: pp. 289-2980,thereof espress references to this river. Thus, it
is indicated that the measurement "went back
(74>
alony a lar'ye aiid narr-ow hi11 until a sma11 Stream
was reached ..... the whic:h descends to the meeting
of Che Rio Gualqiiireand Zazalapa". By using the word
"descencls" ("baja" in the original Spaiiish test >.
it is beiny stated that the measuïement continued
fur-tlier to the riorth of the Rio Zazalapa. The
intei.pi-etatiogiiven by Horiduras to this part of the
Forma1 Title Deed ignores the whole of this particular
part of the nieasurement in that this interpretation
fails to take into account the climb and. later on.
the descent to the place where the river meets a mal-sh,
this beiny the route which:, according to the Forma1
Title Deed, the measur-eactuallv took.
3.49. Subsequeiltl?. the surveyor proceeded "above
Zazalapa 011the I~oundary witli the Province
of Cii-aciasa Dios". that i.sto Say proceeding up the
course of the river looking for its sources, "until
tie reaclied tliesummit of some verv high hi11s"
(75)'
which can oril? be the hi11:sof the Cerro del Fi-ai le.
It is in this place that the Forma1 Title Deed States
that there was a tree of "!auanacaste",something very
different from a place or a settlement called
Guaiiacaste, a confusion whicti has produced an error
on the part of Hoiidur'as.A further pi-oof that tlie
measurement reached this particular northeïn point
is that it is declared iii the Forma1 Title Deed that
the survevor, changing the direction of the measurement
so as to continue from nc~rth to south. went back.
that is to Say descended, towaïds the boundary markers
on the Ce1.t-od.e Arcetaguera, the Loma de El Sapo,
74. E.S.C.N.: Annexes: Vol. III, p. 8.
15. E.S.C.M.: Annexes: Vol. III. p. 8.and froni therr "to the Loma de Guanpa wliicli is ver?:
tiigh" (7tj>'
3.50. The tI.'.M. 1.efei.s 1-epeatedlv tn a place
nanied Guanacaste which it attempts to si ruate
at and identify with La Canada. Tlie H.C.M. iiidicates
thût the Forma1 Title Deed to tlita Commoiis of Ai.cata»
declares that. upon leavi ng t tic, boundarv irer of
Guanacaste, "noiis avons loiiyP cles terres de San Juan
de Lacatao" (77,. Iii the 1'irst place. as hns ali-eadv
been nient i oned. the Foi-ina I Ti t 1 e Deed to the Conlmoris
of Arcatao does iiot int?iitioii a place or settlement
cal led Guaiiacaste. oiilv a tiYe rif "guanacaste" . In
the second place. the Foriiiah Tit.lt? Deed to the Comnioiis
of Ar-catao does not sav wliat tioiiduras claims. What
it actually saYs is that the laiid in question had
a common boundary with lands of San Juan de Lacatao
as from ariother point. which is the boundary niarkei.
of Guanpa. further to the north than where Honduras
attempts to locate it.
3.51. Thus once again the attempt on the part
of Honduras to amputate the other limb from
the Forma1 Title Deed to the Commons of Arcatao fails.
The boundary of these Cominons therefore proceeds up
the course of the Rio Zazalapa as Far as its sources
on the predominant heights of the area (the Cerro
de Fraile) aiid then. changhng radically il1 dir.ection.
descends once again along the 1 ine of a series of
boundûry markers which arc? confirmed by the Forma1
Title Deeds cited by Honduras. such as the Cerro de
Arcataguera, the Loma de El Sapo. the Cerro de Guanpa.
the "talpetates blancos". and the Cerro de Caracol.
76. E.S.R.: Atlas: Map 9
77. H.C.M.: P. 292.The location of this Iast boundary marker is
arbitrarily moved by Honduras) ,78).
3.52. AS tlie E.S.C.M. indiçates t79) ' the Cerro
de Caraco1 is impor.tant, not only because
this boundary marker was accepted by t.he inhabitants
of AT-catao but above al1 because Honduras gives it
a location which is not merely incorrect but also
imaginary. Al1 the errors which Honduras makes in
relation to the other bounclaries of the Conimoiisof
Arcatao are derived froin the erroneous locatioiiwhich
it gives to this boundary marker. This location is
described as imaginary for the simple 1-eason that
Honduras has invented another Cerro de Caracol.. On
the officia1 Maps 2458 II and 2458 III La Virtud
presented to the Chamber by Honduras there appear
two Cerros de Caracol. separated by a distance of
foui- kilometres. On these maps. the i'eal Cerro de
Caracol appears. as itesists today. at Latitude 14"05'
45" North and Longitude 88"43'48" West. It also appears
with these sanie coordinates on the Map 2458 II. The
other Cerro de Caracol, the imaginary one invented
"pour les besoins de la caiise". appears at Latitude
14°03'44" North and Longitude 88"44'20" West. The
err-oneous location of the Cerro de Caracol is the
reason why Honduras also FlOSt ions incorrectIY the
peaks and the boundary marl<ers of the Forma1 Title
Deed to the Commons of Arcatao which according to
this Forma1 Title Deed are more to the north of the
Cerro de Caracol. such as lche Cerro de Arcataguel-a.
the Loma de El Sapo. the Cerro de Guanpa. and the
"talpetates blancos".
78. E.S.R.: Atl'as:Map 9
79. E.S.C.M.: Para. 3.5,2.;pp. 72-73.
80. H.C.M.: p. 260.(C> The "Effectivitesw
3.53. As in the case of the other sectors. El
Salvador is once again able to prove in
this sector not only its rights under its Forma1 Jitle
Deeds but also its "Effect:ivites".This latter point
is confirmed by a document from Honduras of t,hehighest
possible authority. which is appended as an Annex
to this Reply After an end had been 'brought
about in 1968 to ,the armed conflict of that time and
after the armed forces of El Salvador had given up
their occupation of the 'area,of. La Virtud but with
Arcatao remaining, as was only logical. subject to
the jurisdiction of El Salvador, the President of
Honduras. General Osvaldo Lopez Arellano. publicly
declared that. as a result. of this movement of the
armed forces of El Salvador. he was celebrating "with
al1 my heart the fact that peace has returned to the
Republic as a consequence of their departure from
our territory. "
IV. Nahuaterique and Torola
3.54. In relation to this sector of the frontier,
El Salvador has relied, first, on the Forma1
Title Deed to the Commons of Arambala and Perquin
of 1815, which covers the localities of Perquin,
Sabanetas, and Nahuaterique, and, secondly. on the
Forma1 Title Deed to the Commons of Torola of 1743.
Honduras for its part has relied. first, on a survey
carried out in 1793 by Anclres Perez and. secondly.
on a Forma1 Title Deed of 1770 adjudicating two and
a half "caballerias" to the? inhabitants of Jocoara.
It is necessary to examine separately the twb Forma1
Title Deeds to Commons cited by El Salvador and the
-
81. E.S.R.: Annexes: p. 65Survey and the Forma1 Title Deed cited by Honduras.
(A) The Forma1 Title Deecl to the Commons of Arambala
and Perauin
3.55. The Formal Title Deed to the Commons of
Arambala and Peïquin, which was approved
judicially in 1815. is the decisive evidence on which
is based the frontier claimed by El Salvador in this
sector. This Fornial Title Deed shows clearly and
indisputably that the Commcins of the inhabitants of
Arambala and Perquin estenilecltowards the north as
far as the heights which are perfectly identifiable
today as. mentioniiig only the three principal poiiits
which fix trie northern boundai-eis of these Commons,
the Montalla de la Isla, the Cerro de la Ardilla. and
the Portillo de Osicala or el.Alumbrador.
3.56. This line of. mouritains towards the north,
thus established as the northern boundary
of the Commons of Arambal~i and Perquin, in itself
demonstr-ates the lack of fcwridation of the cIaim by
Honduras that the RLo Negro Cuvaguara constitutes
the frontier: such a frontier would have the effect
of cutting in half the Commorisof Aranibalaand Perquin,
sirice the Forma1 Title Deed to these Commons clearly
States that it-s boundary was deliniitcd by the Rio
Negro Pichigual. ~cscording to this Formal Title Deed,
on changing the direction of the measurement fronl
north to south. Che "Juez de Tierras" reached the
boundary market- of Guiriri. where "there wei-e to the
West and the south West royal landholdings which belong
to this jurisdictiori (that is to say to [the
jurisdiction of1 San Miguel) because beyond these
lands is the Rio Negro which is also known as PichiquaL
which said river divides this jui'isdiction fronithatof Gracias a Dios" iemphasis added) (82.) ' The validity
of thi s Foi'nral Ti tle Ueecl to Coirinions has been
r-ecognised bv Honduras in al1 the negotiations ever
carried out between the two F3art:ies to this litigation.
Consequentlv. the claiin by Honduras that the river
which constitutes the frontier is inst.ead the Rio
Cuayaguar'a is both arbi trary and direct1 y contrai-y
to this Forma1 Title Deed. lrhich repeatedly rlescribes
tlie Rio Picliigual as the Fi-oiitier.
3.57. The Forma1 Title Deed then continues bY
stating that. when the nieasurement reached
another boundary niarker, the Roble Negro. the
inhabitants of Colomoncagua appeared and the "Juez
de Tieri-as" asked them fcir tlieii- Forma1 Title Deeds
"whicli they said tlrat: they had not brocight. wi th them
but which the- woi.11cl delivei- t.o me within two days"
(S3)' The experts who wer-e accompaiiving the "JWZ
de Tierras" mairitainecl thût the Roble Negro was a
boundary mar-ker of the Commoris of Arambala and Perq~in
"because from the said Roble fNegro1 to the Rio Negro
or Pichigual there was about a quar-ter of a league
and at that river tliis jiirii~dii:tiorl ends" .(84) ' This
coiifirms the identification of the Rici Pichioual as
the frontieï. The "Juez de Tierras" ordered that "this
boundary inarker should be, 'conf i rnied on the grounds
that (the iiihabi tants OF ~olciinoricagticii had not appeared
with their Forma1 Title Ueeds as they had offei-ed"
82. E. S. C. Pl.: ,\niiexes: Vol . . 1 V. p. 92 (p. 326
of the original Spanish textl.
63. E.S.C. M. : Annexes: Vol . IV, p. 93 (p. 327
of the original Spanish test ).
84. E. S. c. M. : Annexes: Vol . 1V. P. 93 (P. 32.7
of the original Spanish test).
85. E.S.C.?]. : Anneses: Vol. IV. p. 95% (p. 327
of tlie ciriginal Spaïiish test). 3.5.5. In 1:tic. sanie iriarin. the "Juez de Tier-ras"
af Fi i-riiecl that be tueen the Kohl e Negr-ct arid
the Rio Negro or I'ichiguai "the iiiteriiiediate laiid
w;is a a 1niiclIrolclirig"
(SG)' just as he tiad
iiiaint.airiei1 earl ier ttiat "tlitire w?re tn the West and
t.he south west roval laiicltioldiiigs which beloiig to
t-his jrii-isclictiori" iemphavis added? i87). Tlii s
ar'firniat i on inclicates ttiat these larids of the Spaiiish
Cr.owi1, al thorigh the^ dicl not foini part of the Cominons
of Ai-aniba la ancl Perqui n, wcii-e rieverthel ess i iicluded
wittiiri tlie jurisdictinri of the Colonial Province of
Sari Miguel .
3.59. This Fornial Ti t le Deed to the Coninioris of
Ararnbala and Pei.qu:in ~ipoii which the cl aiins
of El Salvador ar'e based is so catesoi.ical that the
rlefence which Hondui-as has attempted to use iii order
to oppose its teïms is to attack the "Juez de Tierras"
and the Sub-delegate "Juez de Tieri.asW who ordered
and car-r-ied OIJ~ tlie nieasureineiit. hasiiig thi s attack
ori tlie cri ticisms whicli were forrnulated against them
by the representat i ves of Colornoncagua. the people
who were riot able to present their Formal Title Deeds.
HoWeVei'. this ci-i t icisni overl ooks a fundaiiiental fact .
Coritrarv to wtiat occur-1-ed in tlie case of the Survev
carried out bv Andres Pérez iss) ' the Forma1 Title
Deed to the ~oii1mori.s of Ararnbala and Perqiiin i-eceived
the superioï judicial approbation of the Presirient
of the "Real AUdiencia" of Guateniala and Exclusive
"JUeZ ilP Tierras" (89)' tl1:is sppr-oval deprives of
SC. E.S.C.M. : iiries: Vol. IV. p. 93 p. 327
of the original spanish text).
67. See Paragraph 3.56. above.
88. Çee Païagraphs 3.G3.-3.66. below.
89. E.s.c.M. : Anneses: pt?. 35-36.an? substance the cïiticism:; set. out in tlie H.C.N.
which the lawyeï representing the ii1tiabitant.s
(90)
of Colomoncagua fcirinulated against the "Jueces de
Tierras" .
(B) The Two and a-Half "C@>aller-ias" aaiudicated to
the Inhabitants of Jocoûra
3.60. Tlre Forniol Titlt? Ueed to the Coniiiioii~;
Ai-aiiit~alarid Perquiri iii1udes the claini
made bv the inliabtarits of t.he settlement of Jocoara
to LWO and a ha1 f "cabal lerias". The same Forma1 Title
Deed however also clearly estab1 ishes that this siiiall
area of land was sold to the inhabitants of Jocoara
on the basis of a "composicibn", that is to Say "with
the corrdition that the? must Pa? his Majest? for them
at the rate of eight "t0StOnes" [silvei- coins1 for
each one which is the half of their true value"
(91)'
In accordance witti the thesis maint.ained bv Honduras
and supported bu the Opinion ctfProfessor Nieto Garcia.
these two and a ha1f "cablilerias" constitute the
clearest possible example of a typical grarit of "eiidos
de coinposicibri".whicti does riot serve as a basis for
anv claim of sovereignity but merely confers a "droit
foiicier", that is to say private proprietar-y rights.
This explains why the Principal "Juez de Tierras"
of the "Real Audiencia of Guatemala" ordered, directing
himself to the "Jueces de Tierras" of bot11 San Miguel
and Comayagua. that both the inhabitants of Arambala ,
and Perquin and the inhabitants of Jocoara should
be protected in their landhcildings. The two "Jueces
de Tierras" were so directed with the object of
91. E.S.C.M.: Annexes: 'V'ol. IV, p. 135 (p. 349
of the original Spanish texti. protectiny the private proprietary riyhts of the
inhahitants of Jocciarri uvei- the two aricl a half
"cabal lerias".
3.61. Ori t.he otl liand. the Forma1 Ti tle Deed
to tlie Coininoris oT .',ramhala aiid Perquin does
not coi'isti tute a grarit of "e iidos de ~:i~mposiciori".
Ttie proof of this is i n that 1:Iie paynierit that
woulrl Iiave 1.1een appi-opi.iatc hy wau ot: "composition"
was riot denianded ârid the "J1rt.z de Tiei-ras" instead
siniplv orijererl that' the irihabitaiits of the United
settleineiits of ..Ir-cinrbala and Perqiiiri should be protected
"in the nge-old possession of thei r Commons"
(92).
Conseqi~eritly. this Fornial Ticle Deed to Commons did
not tiecome affected nor in anr way diminished bg virtue
of the area of land which the inhat~itants of Jocoara
oht::iined and whicti, as was sh~:~wn irr the E.S.C.M.
(93)'
was si tuated tu the West. arid t.tie soiitli of the mountairi
of Nahuaterique.
'3.52. Horidui-as is a1it.enipt: iri~ to confuse the issue
wit-h the ohject of claiminy. on the strenyth
of the verv snial 1 ai-ea of two arid a ha1 f "cabal lei-ias"
held, Gliat is o-, on1v b.v vil-tue of private
proprietar-1. i-i<iIits, no less thari tlie whole of the
Morrtarla de Nali~ioteriyiie. The H.C.M: affirnis that "les
"e jidos"
de Pei-c~uin y Ai'aiiibala ont été arpentes. en
partie dans la pi-ovirice cle Sari Miguel. en partie dans
ce1 le de Coniayaycia" This is tota11y false. A
(94)'
nieasur-etneiit couic1 ncit r>ossiblv rake place over land
comprised within two different jurisc1ict.ions since
92. E.s.c.M.: ~iiiieses: vol. IV. p. 1~7 (p. 354
of the original Spauish Lest:).
93 . E.S.C.X.: Para. 3.77.. p. 86.
94 . H.C..Pi.: p. 3257. it was express1y indicated to the Sub-delegate "Juez
de Tierras" in his Commission the only jurisdiction
in which he had competence. The Forma1 Title Deed
to the Commons of Arambala and Perquin was drawn up
by the Sub-delegate "'Juez d'e Tierras" of Sari Miguel
and was subsequently duly approved bv the "Real
Audiencia" of Guatemala. The reference made by the
Principal "Juez de Tierras" in the "Real Audiencia"
to "al1 the "Jueces de Tierras" and justices of the
Province of San Miguel and al1 those of (the Province
of 1 Comayagua" (95) in order that they should protect
and defend the possession of tllese lands by their
inhabitants simply indicates that this Forma1 Title
Deed had to be respected as much by the "Juez de
Tierras" of San ~iguel, on the basis that the land
in question was within his jurisdiction. as by the
"Jueces de Tierras" and justices of Comayagua, on
the basis that this was the neighbouring Province
from which the Commons of Aranlbala and Perquin were
frequently invaded by the inhabitants of Jocoara,
who were subject to the jurisdiction of Comayagua.
What ismore, dual jurisdiction over the same territory
was impossible because of ths terms of the First Law
of Title 1 of the Fifth Bciok of the "Recopilacion
de las Leyes de Inclias" which was transcribed and
discussed in the preceding Chapter of this Reply (96),
given that this 1aw ordered the colonial authorities
"to keep and observe the limits of their
jurisdictions". ~his provision constituted a direct
prohibition or1 the joint exercise of jurisdiction
over the same territory by the authorities of two
different Colonial Provinces.
95. E.S.C.M.: Annexes: Vol. IV, p. 148 (p. 354
of the original Spanish text).
96. See Paragraph 2.29. above.(C) The Survev carried out bv Andrés Pm
3.b3. Honduras cites iri support of its claim a
Survey carried out in 1793 bv Andrés Pérez
in favour of the inhabitants of Colomoncagua
However, this document does not constitute a Forma1
Title Deed conferring rights of any type whatsoever
but is merely the record of a simple "reconnaissance
visuelle circulaire" carried out as the result
(98)'
of a petitiori from the iiihabitants of Colomoncagua
with the ob.ject of "réparer ou borner l'ensemble du
terrain qu'ils ont reconnu et recorinaissent comme
étant leur" (99)' In the course of this procedure,'
the adjoining landowners were duly summoneclbut. when
one of them attempted to make an objection. Andrés
Pérez simply stated "qu'il se préseilte pour user de
su droit devant qu'il juge bon. mais que je
continuerais le cours de l'arpentage comme il in'est
ordonné". adding that "je continuai l'instruction
des endroits. des bornes et des directions qui etaient
portés dans 1'6crit présent6 par Sisto Gonzales. fonde
de pouvoir des natifs du village de Colomoncagua"
(1)' Consequently. this procedure was not of a
contentious nature but merely a survey, without binding
effect for third parties. of the area claimed by the
inhabitants of Colomoncagua.
3.64. In the course of this survey, Andres Pérez
encountered the . inhabitarits of Arambala
and Perquin accompanied by the "Alcalde" of the
settlement of San Fernando. al1 of whoin objected
97. H.M.: Annexes: PP. 1296-1325.
98. H.M.: ~nnexes: p. 1297.
99. H.M.: Annexes: P. 1297.
1. H.M.: Annexes: p. 1307. violeiitly to the operation which he was carrb'ing out
at the request of tlie inhabi tants of CVIVlliOn~agUa
This opposition caused Aridrés Pérez to stop his
(2) '
survey (3). However, mure than a month later he
continued the- operat ion. vc:r'v possi bl y after havi rig
explained to the inhabitants of San Fernando that
t.his procedure was rieither t.o confer iior to take away
rights since what ttie inliabitants of Coloinoncagua
were seeking was merelv a visual survey.
3.65. The proof of how exaggerated the pretensions
of the inhabi tairts of Colomor~cagua actual ly
were is that they includecl within their claims no
less than the eritire settlement of San Fernando
which. as is well known. i the head of a muriicipal
district of El Salvador. 13oiisequeritly. this Surve':
of Andres Perez has. from the point of view of
Hondiiras, the defect tiiat it actually proves far too
much in favouï of Honduras. It is, therefore. so
excessive that it cannot be taken seriously into
account. Thus. for example. Honduras has not gone
so far as to dare to claim the whole of the
riitinicipality of San Fernando. in spite of the fact
that the whole of this municipalit? is included within
the aïea surveyed by AndrGs Pérez in 1793.
Nevertheless. the fr'ontier shown by the Maps 8.2.2.
and 5.1. (6) preserited by Honduras ciits in half
(5)
this very same inunicipality of San Fernando. On the
other harid, the Officia1 Map of Honduras 2557 1 Rio
Negro (,) does not include tliis balf of the
2. H.M.: Anneses: p. 1308.
3. H.M.: Annexes: p. 1309.
4. H.M.: Annexes: p. 1310.
5. H.M.: p. 216.
6. H.C.M.: p. 326.
I. E.S.H.: Atlas: Map 13municipality of San Fernando within the territory
of Honduras. According to tkiis last map, San Fernando
is some two and a half kilometres away from the
frontier. These inconsistences confirm the COm~entS
which have already been made. namely that this Survey
carried out by Andrés Pérez cannot be taken into
account as a basis for the delimitation which has
to be carried out by the Chamber.
3.66. The definitive confirmation that the Survey
carried out by Andrés Pérez cannot be
regarded as having attributed any legal rights is
the events of 27 July 1793. Summoned to defend his
rights. Pedro de Montoya, in representation of al1
the inhabitants of San Fernsindo. said "que parce
que l'emplacement de San ITernando.est reconnu Par
le juridiction de l'intendence de San Salvador, et
qu'il se trouve dans une autre juridiction. qui a
toujurs [sicl ete reconnu par ledit intendant, il
est pr@t a se presenter a l'une ou l'autre
juridiction". This indicates that this survey relied
on by Honduras neither attributed any rights to the
inhabitants of Colomoncagua nor constitutes any valid
proof of the rights alleged by Honduras. Nevertheless,
the position adopted by Horiduras is so extreme that
the furthest points of the frontier claimed by Honduras
go well beyond.the boundaries of the Honduran frontjer
department of Intibuca as shown on the Officia1 Maps
of Honduras (9)' Further, the boundary marker El
Carrizal, whose existence is insisted upon by the
H.C.M. (10)' is in this way moved towards the east
to such an extent that. according to Map B.2.2.
8. H.M.: Annexes: p. 1324.
9. E.S.R.: Atlas: Map 13
10. H.C.M.: p. 390presented by Honduras (111' it fiiiishes up beyond
the actual municipality of San Fernando. The location
of this boundary marker in this place is wholly
arbitrary since there is not the slightest evidence
that this place was ever known either by the actual
name of this boundary marker or by the name of Soropay.
CD) The Forma1 Title Deed to the Commons of Torola
3.67. The Forma1 Title Deed to the Commons of
Torola is categorical in that it establishes
the crucial question which has to be decided in this
sub-sector, namely the determination of whether the
Rio de las Cailas or Yuquiria is the boundary of the
Commons adjudicated to the inhabitants of Torola in
1713. The Forma1 Title Deed States that, in the course
of carrying out the measurement, the measurers "reached
with a measurement of twenty-four cords the banks
of a river situated in a ravine which is known as
the Rio de las Caiias and cioing towards the east the
cord was passed upstream along the river and a
measurement of eighty corda was taken as far as the
royal road which goes from Torola to the township
of Coloaoncagua, whose justice and principal
inhabitants witli their royal Title Deed were present"
3.68. In the H.C.M. this Forma1 Title Deed
(1:3)
to Commons is questioned on the basis of
the fact that the evidence that certifies it was
executed at the request of a member of the armed forces
of El Salvador. Neverthel€:ss. the authenticity and
11. H.M.: P. 216.
12. E.S.C.M.: Annexes: Vol. VI, p. 39.
13. H. C.M.: pp. 345 & 382-383.antiquity of this Forma1 Title Deed emerges frOm its
own contents. The original Forma1 Title Deed to the
Commons of Torola was destroyed by fire and so was
'eplaced by the Spanish colonial authorities in 1743
and, when this latter document started to suffer some
~hysical deterioration. it was protocolised by the
Notary Public. Jose Cbrdova, in 1843 (14).
Subsequently, owing to frontier problems with the
inhabitants of Colomoncagua, the Municipality of Torola
thought it convenient that a new measurement should
be carried out. This was duly sought from the Political
Governor of the Department of San Miguel. Further
confirmation. of the validity of this Forma1 Title
Deed to Commons is the fact that it was recognised
as such in the course of tlnenegotiations maintained
between the Parties to this litigation in 1869 and
1884, in which the Boundary Commissioners of both
States additionally recognised that it is "le cours
de la riviere dite "Rio de la Canas" qui forme ladite
limite en aval" (15)'
3.69. , The weight of this Forma1 Title Deed to
Commons presented by El Salvador is that
the Forma1 Title Deed establishes as the frontier
between the settlements of Torola and Colomoncagua
the Rio de las Canas or Yuquina and that this same
frontier was recognised by the inhabitants of
Colomoncagua in the Forma1 'ritle Deed which has been
presented by El Salvador. In this Forma1 Title Deed
the inhabitants of Co1omonc:igua recognised "as their
-boundary the Rio de la Yuquina and. having been asked
for this river. stated that it is the same as the
Y
14. E.s.c.M.: Annexes: VO~.'VI. pp. 1 et sea..
15. H.M.: Annexes: pp. 64. 85-86 & 182; Art.
17 of the Cruz-Leto:naConvention 1884.Rio de las Carlas" (i6). This Forma1 Title Deed is
now presented in its eritii-etyas an AnneX to this
RePlY (17).
3.70. In the saine way. the Forma1 Title Deed to
the Commons of Colomoncagua of 1776,
presented by Honduras throiiyh the Secretariat of the
International Court of Justice. confirms that the
inhabitants of that settlenient iri the course of the
measurement of their Coinnionsneither reached nor
crossed the Rio de las Carlas.According to this Forma1
Title Deed, the nieasureinent reached the Rio Chicaguita
and, proceeding upstream ~iloirgthis river, with a
measur-ement of two hundred cords reached the royal
road which joins Colomoncagua with Torola. At this
point there appeared the "Alcalde" and the inhabitants
of Torola. who presented Che Forma1 Title Deed to
theil- own Conimoiis,froin wliich it emerged that the
boundary that separates the jiirisdiction of the two
Comnioiiswas a river. This river can only be the Rio
de las Carias or Yuquina, which is therefore the
boundary that ought to be followed as far as the Caj6n
de Champate.
CE) The "EfFectivitM
3.71. So far as coni:erris "effectivités" in
this sector. El Salvador has at no time
attempted to move away froni or act contrary to the
provisions of Article 26 of the General Peace Treaty
of 1980 and even less has attempted to make such
"effectivites" prevail over what emerges from Forma1
Title Deeds to Commons. In this sector, El Salvador
16. E.S.M.: Annexes: annex 6. Chapter 6.
17. E.s.R.: Annexes: P. 69has recourse to the human arguments with the sole
object of providing confirniation and support for its
Forma1 Title Deeds to Commons; this is because El
Salvador has exercised and continues to exercise its
sovereignity over this sector in a continuous and
effective manner. Acceptance of the frontier line
for which Honduras is striving would suppose the
transfer to the territory OF Honduras of the following
settlements of El Salvador: in the sub-sector of
Arambala and Perquin, the settlements of El Rinc6n.
LOS Amates, Las Trojas. Sitio El AguaCate. Sitio Llano
Verde. EI Guachipilln. ~1 carrizal, Ë1 Huatal6n. ~1
Mono, El Naranjo, El Borbo116n. El Moral, El Paraiso.
Las Aradas, Nahuaterique, El Cedral, Las Vegas. Pa10
Blanco, El Zancudo, San Juan del AgUa. Los Chagilites.
La Galera. Sabanetas, Loma de Enmedio. El Barfancon.
LOS Patios, and El Palmar, where there is a substantial
population of citizens of El Salvador; and. in the
sub-sector of Torola, the settlements of El Picacho.
Las Piletas and Portillo Blanco.
V. Dolores. Monteca and Polo-
3.72. The frontier claiiried by El Salvador in this
sector is based principally (18) on the
Forma1 Title Deed to the CCmmOnS of Polor6s of 1760.
Within the area covered b!J this Forma1 Title Deed
to Commons is included the Hacienda de Monteca. It
is true that, as the H.C.M. observes the Forma1
(19)'
18. "[Plrincipally" because the small triangle
whose apex is the Loma de L6pez is not
included within the Forma1 Title Deed to
the Commons of Polor6s. In relation to this
triangle, El Salvaclorinvokes human arguments
since this area is 'entirely populated by
citizens of El Salvador.
19. H.C.M.: P. 420.Title Deed to the Commons OF Polor6s does not contain
any reference to the Hacif?nda de Monteca. However,
there is no particular reason why a Forma1 Title Deed
to Commons should refer to 2.11 the landholdings within
its perimeter: what such a document does is rather
to enumerate the various boundaries which comprise
its perimeter.
(A) The Forma1 Title Deed to the Commons of Polor6s
3.73. This Forma1 Title Deed to Commons was
executed with al1 the formalities and al1
the guarantees required by the Spanish colonial
legislation of the time. Contrary to what is stated
in the H.C.M. (20,, the adjoining landowners were
duly summoned and on the occasions on which some
objection was voiced by one of them. these objections
were duly taken into account. Thus. when the
measurement reached the boun~larymarker known as Piedra
Parada, having carried out a measurernent of thirty
cords, the "Juez de Tierras" stated that (21) "the
inhabitants of the township of Anamarbs objected and
showed me their Royal Title Deed. to which 1 gave
its due obedience". The measurernent carried by the
Delegate "Juez de Tierras." was subsequently du1y
approved by the Principal "Juez de Tierras" of the
"Real Audiencia" of Guatemala. Who had jurisdiction
both over the Colonial Province of Comayagua and over
the Colonial Province of San Miguel (22)' This approval
by a superior judicial autliority excludes completely
the type of insinuations of partiality which Honduras
20. H.C.M.: p. 447.
21. , E.S.C.M.: Annexes: vol. III. p. 76.
22. H.M.: Annexes: p. 1587; E.S.C.M.: Annexes:
Vol. III, pp. 56-5'7.has formulated agairist the. "Juez de Tierras" who
caïried out this measurement.
3.7&. The principal issue 1-aised by the H.C.M.
relates to the location of soine of the
bouiiciai-markers estahlished by the Forma1 Title Deed
to the Conimons of Polor6s. in particular the Cerro
de Ribita and the source of the Rio Unire.
Nevertheless. the location of two of the places
mentionecl in this Forma1 Title Deed is able to. be
clearly established and, pïoceeding from their
locations. it is possible al.so to establish precisely
the locations of the boundary maïbers in dispute.
3.75. The fil-st of these places whose location
is able to be clearly established is the
Quebradù de Narisupucagua. which both Parties to this
litigation place in the same location. The H.C.M.
recoynises that (23> "le torrent qui a aujourd'hui
cette toponymie sur la cartographie hondurienne et
salvadorienne este un cours d'eau qui coule. comme
les autres. au Nord de la rivière Toïola".
3.76. Nevertheless. the k1.C.M. observes (24) that
it is sui-prising tiiat the "Juez de Tierras"
did not mention the Rio Torola, given that it was
such an important river. Here Honduras once again
produces the same argument which. on the basis of
a supposition. it alleged in relation to the Rio
Zaza1apa (25) . The explanation for this omission is
the same as on the previous occasion and is extremely
simple. The Rio Torula was ~iotmentioned because its
23. H.C.M.: p. 454.
24. H.C.N.: P. 455.
25. See Paragraphs 3.47.-3.48. above:course was not uti 1ised as a boundary of the Commons
which were being measured. What was utilised as a
boundary was the Quebrada de Mansucupagua.
3.77. From this agreed location, the Quebrada
de Mansupucagua, the measurement proceeded:
.,... et chanaeant de directillnPour se diriger d'ouesj
en Est avec inflexiori au Nord-Est. on arriva à un
coteau qui separe ces terres (celles de Poloros) de
celles de Lopez, au droit de laquelle se trouve le
"Jato de los Lopez"; ledit Jato reste en dehors" (26).
The location of the places nientioned intliispassage,
the Cerro de L6pez and the Hato de los L6pez mentioned
in this passage emerges fïom the Map Mercedes de
Oriente No. 2657 IV presenized by Honduras (27). 0n
this map there appeaïs a place called "LOS Lopez"
with the coordinates Latitude 13"57'15" North and
Longitude 8Ï053'10" West. Alm~ost in the same position,
with the coordinates 13°56'23" North and Longitude
87°53'21" West. appears the Cerro or Loma de Lopez
on the Map 6.V. presented by El Salvador (28j. This
location coiricides with what is stated in the Formal
Title Deed. Further the geographical feature in
question can be identified today and corresponds to
the present toponymy, which has been utilised jointly
by the cartographical authorities of both States.
The Cerro L6pez is therefoi-e Altuated approximatel y
four and a half kilometres to the north of the Rio
Torola.
3.78. The establishment of the identity and the
location of the Cerro de Lopez also permits
26. H.C.M.: p. 455.
27. H.C.M.: p. 432.
28. E.S.M.: Book of Map:s:Map 6.V..the location of the Cerro de Ribita to be established.
The Forma1 Title Deed coritini.ieby.stating that ". ..et
en suivant la même direction. on arriva au Cerro cle
Ribita" (original emphasis) (29)' The significant
words thus emphasised in the H.C.M. necessarily mean
that the measurement proceeded from the Cerro de Lopez
in the direction from west t.oeast with an iriflection
towards the north east. It is obvious that if the
measurement thus continued in this same direction
From west to east with an inflection towards the north
a, the Cerro de Ribita could not possibly have
been situated to the South of the Cerro de Lbpez but
rather somewhat further to the north. This removes
completely the basis of the argument presented by
Honduras. which attempts to situate the Cerro de Ribit&
further to the south than the Cerro de Lopez with
the object of justifying it:s territorial claims and
appi-oachingcloser' to the Rio Torola despite the fact
that this river was bypassed by the projection of
the measurement towards the north as Far as the Cerro
de L6pez (30).
-B) The Forma1 Title Deed to the Commons of Santiaqo
de Cacaoterique
3.79. The H.C.M. (31) affirms that the measurement
of the commons of Cacaoterique carried out
in 1803 proves that the measurement of the Comnions
of Polor6s did not extend to the north of the Rio
Torola. On the contrary, the Forma1 Title Deed to
the commons of Cacaoterique, when correctly
29. H.C.M.: p. 457. La meme direction "était
de l'ouest à l'est: avec inflexion au nord
est" (emphasis added);
30. E.S.R.: Atlas: Map 15
31. H.C.M.: p. 445interpreted. actually confiïms the contents of the
Forma1 Title Deed to the Comm~onsof Polor6s and assists
in the process of. establistiing the location of its
boundary markers.
3.80. In the Forma1 Til:le Deed to the Commons
of Cacaoterique it is stated tnat (32):
"Le visage t.ournévers le siid. .. . .on est descendu
à un lieu qu'on nomme de Tigre" (original
emphasis), which was also the boundary of the lands
of the Indians of Poloros. The following day. the
"Juez de Tierras" stated that (33) "les trois ou quatre
bornes qui restent à localiser sont limitrophes avec
les villages de Poloros et Lislique. dans la
juridiction de la Province de San Miguel y l'lntendence
de San Salvador (34).
3.81. On the 'Map 35 presented with the E.S.C.M.
(35)' El Salvado.r has established the
identity and location of three or four of the boundary
markers referred to in the IForma1 Title Deed to the
Commons of cacaoterique, which coincide with the
boundary markers referred to in the Forma1 Title Deed
to the Commons of Poloros, ~ilthoughwith a different
toponymy. The H.C.M. . (36)agrees that one of these
places, called in the Forma1 Title Deed to the Commons
of Cacaoterique Sisicruz or the Llano del Camar6n
is the Quebrada de Mansupucagua.
3.82. However, the representation of these boundary
32. H.M.: Annexes: pp. 1602-1603.
33. H.M.: Annexes: p. 1603.
34. H.M.: Annexes: pp. 1602-1603.
35. H.M.: Annexes: pp. 1602-1603.
36. H.C.M.: p. 47b. markeïs which Honduras makes on the Map
8.3.2. is totally implausible. If the inhabitants
(37)
of Cacaoterique had invadeci the Commons of Polor6s
in this nianner,the principal inhabitants of the latter
settlement.. who were present, would certainly not
have accepted a measurement that deprived them of
the half of their Commons.
(C) Other Forma1 Title Deeds relied on by Honduras
3.83. Honduras has also sought to rely on other
boundaries of former Colonial Provinces
which have nothing whatsoever to do with the matters
which are in dispute in thiz,SeCtOr. The most extreme
example of this is the supposed Forma1 Title Deed
to the Commons of San Miguel de Sapigre, a settlement
which, according to the H.C.M. was extinguished
(38)'
as the result of an epidemic. In such an event,
according to the relevant .3panish legislation
(39)'
the lands in question would have once again become
royal landholdings and conseqiiently would have been
able to have been adjudicatetjto another muriicipality,
as indeed could have occurecl in the case of Polor6s.
It is also highly unusual in judicial proceedings
for one of the Parties to make a map of the area
covered bv a Forma1 Title Eeed on the basis of pure
hypotheses and suppositions, as Honduras has done
in the case of the Map B.3.2. (40)'
, . . ,-
3.84. Honduras also relies on the Forma1 Title
Deeds to the Commons of San Antonio de Padua
37. H.M.: p. 252.
38. H.C.M.: p. 471
39. H.C.M.: pp. 471-472.
40. H.M.: p. 252. of 1682 and 1739 and the F;ormal Title Deed to the
Commons of Cojinil of 1738. Ploneof these Forma1 Title
Deeds affects the Forma1 Title Deed to the Commons
of Polor6s or has anything 1.0do with the land which
is in dispute in this sector. This can be seen in
the representation of the Forma1 Title Deeds made
on the Map 35 presented with the E.S.C.M. 1f
(41) '
there ever was at any time an:vpoint of contact between
the Commons of Polor6s and the Commons of San Antonio
in the sector at present under discussion, this could
only have resulted from Forma1 Title Deeds other than
those of 1682 and 1739 which 13ondurashas presented.
(D) The "Effectivites"
3.85. So far as c0ncern.s "effectivites" in this
sector, El Salvador invokes them for the
purpose of providing support for its Forma1 Title
Deeds to Commons. Acceptance of the frontier line
claimed by Honduras in this sector would suppose the
transfer to the territory of Honduras of the following
Settlements of El Salvador: Coyolar, Guacamaya,
Guanacastillo, Lajitas. Cei-ro de Peilas, Mesetas,
Hacienda Dolores. San Juan. Sitio Las Ventas, Sitio
Agua Blanca. and Plan de Isletas.
VI. The ~s.tuarvof the ~io Goascoran
(A) Los Amates
3.86. El Salvador has eistablished. both in the
E.S.M. and in the E.S.C.M.. that the '1ine
of the frontier in this sector is formed by the oldest
and most easterly of the branches of the Rio Goascoran
41. E.S.C.M.: p. 116.which flows into the Golfo de Fonseca (also known
as the Bahia de la Unibn clr the Bahia de Fonseca)
in the Estuario de La Cutu or~positethe Isla de Zacate
Grande. The land which is in dispute in this sector
forms part of the jurisdiction of Pasaquina, in the
Department of La Union of the Republic of El Salvador.
,
3.87. El Salvador has demonstrated that this
Frontier line satisfies completely. both
in the geographical and in the juridical sense, the
terms of Article 26 of the General Peace Treaty of
1980. On the other hand, the H.C.M. (42)' in the course
of asubstantial number of pages which contain nothina
that has any relation whatsoever with the subject
matter of, this dispute. merely confines itself to
making insignificant distincPions as to geographical
terminology. An example of this is the attempt to
prove, quite unnecessarily, that El Salvador has
confused the meanings of the two Spanish words "estero"
and "estuario" (43) ' In fact these terms are synonymous
and simply signify "estuary". In Central America.
it is more general to use irhe term "estero". while
in South America it is, on the other haiid,more general
to use the term "estuario", such as in the case of
the Estuario del Rio de la Plata. What is more complex
is the meaning of the word "delta". utilised
indistinctly both in Spani5.h and in English. The
definition provided for this uord by the "Real Academia
Espafioa" (44) is: "a piece of land comprised between
the arms of a river at its inouth; it is thus called
because of its similarity with the shape of that Greek
42. H.C.M.: pp. 482-489.
43. H.C.M.: p. 468.
Diccionario de la Real Academia Espafiola
(1984 - 20th Edition) (Madrid).1ett.ei-.The said shape is iii the from of a triangle:
'-,,'. ,, (iri the original Spanish text, "lin teri.eno
comprendidci entre los brazos de un Rio en su
desembocadura: llàmase asi por la semejanza cor1 la
figura de aquella letr-a griega. Dicha figura es en
forma de un triArigülo: "fi".").
3.88. El Salvador considers that these lerigthy
digressions of this type in which Honduras
has engaged are a total waste of t.ime in that they
simply tr'; to deinoristrate supposed terminological
coiifusioiici-eatedbv El Salvador. The reality is tliat
these terms have been used indistinctly because this
area constitutes a geographical phenornenon which is
"sui generis. This is indeed recognised hy the H.C.M.
itself in the followirir~pas.sage "Dans la zone
(45):
de Coascor-an, il est manifeste que phénomènes
terrestres, phénomènes maritimes et phenom6nes fluviaux
sont parfois difficiles à séparer et clue terres
marecagueses caractérisées par la presence de
palétuviers ("manglares" ou "mangroves"). eaux douces
fluviales et eaus salees maritimes constituent un
mi 1ieiicomplexe et mouvarit, susceptible de variations
suivant qu'on se place à la saison des pluies ou à
la saison seche".
3.89. Apparentlv. the notion of a "delta" includes
within the triangle formed by land. fresh
water. and sait wat.er-.a gr'eater proportion of what
the H.C.M. describes as "phénoménes fluviales" and
has more arms or channels than an "estero" or an
"estuario". However, the tel-minology uti 1ised by El
Salvador has not attempted to niakedistinctions which
the geograpliers themselves encounter difficulties
45. H.C.M.: pp. 484-485 iriniaking. Consequently. at some times of the vear
what is encountered is a predominance of channels
contaitiiny fresh water. something which makes
appropriate. especial 1Y when the triangular shape
of this geographical formation is taken int0 account.
the uti1isation of the nûme "Delta de Goascoran".
At other times of the year. channels containing salt
water have a greater impact. particularlv in the areas
where the various channels are descending towards
the sea. something whirh makes appropriate the
ut i1isation of the name "E:;tiiariode Goascoran". El
Salvador wishes to record that the word "estero" has
on occasions been uti1ised simply because this was
the terininology employed by the authorities of the
Spanish Crown in the Format Title Deeds which they
issued. Without attempting either. on the one hand.
to pt-ovide a strictly scientific defintion or. on
the other hand. to attempt to produce terminological
confusion. El Salvador opines that what really exists
in this area is a "delta", simply because there exist
inarivarms or channels of the river emergin~ ont0 the
shore in siich a way as to form a convex triangular
shape .
3.90. These geographical phenomena that have
occuïred in this disputed sector are accepted
bv Horiduras. The H. C.M. coi-ttains the following
stateinent c46). "Il est vrai que, pendant la saison
des pluies". le Rio Goascoran déborde et, quittant
son lit ordinaire. peut utiliser d'autres déversoirs,
d'autres canaux d'ecoulement épisodiques. Il est vrai
Également sile le Rio Goascoran n'a pas ou n'a pas
touiours eu une emboiichure unique ...." (emphases
added) .
46. H.C.M.: p. 1685. 3.91. It is precisely this point that has led
Honduran historians and geographers to
mairitain. correctly. that ' the oldest niouth of the
Rio Goascoran used to be in the Estero de La Cutu
opposite the Isla de Zacate Grande. This has been
demonstrated by El Salvador in the E.S.M. (47), where
reference was made to the "Monografia del Departamento
de Valle". a detailed study of this area carried out
under the direction of the distinguished Honduran.
Professor Bernard0 Galindo y Galindo.
3.92. As the juridical foundation of its position
in this sector. El Salvador has presented
($8) a Forma1 Title Deed. executed in 1695 by the
resident Spanish authorities, namely the "Real
Audiencia" of Guatemala. in favour of Juan Bautista
de Fuentes. a residerit of the town of San Miguel.
in respect of the land known as "Los Amates". within
ttie jurisdiction of San Miguel. This 'matter of
jurisdiction was the reason why the "Alcalde Mayor"
of the Colonial Province of San Salvador, José Calvo
de Lar'a. was given the re:sponsibility for car-rying
out the measurement and issiiingof this Forma1 Title
Deed. but tliis task was in fact carried out with the
appropr.iate 1egal forma1itiiis by the "Escriban0 de
CAmara" (Notarv of Iiis Charnber) Francisco Goicochea
y Uriarte, to whom the "Alcalde Mayor" had expressly
delegated the matter. This document proves that the
lands which were nieasured were at that time within
the jurisdiction of San M.igue1 and so within the
jurisdiction of the Colonial Province of San Salvador.
something which is clearly indicated in the Forma1
47. E.s.M.: Para. 6.67.
48. E.s.M.: Annexes: 8.Title Deed itselfsince the Commission of each "Juez
de Tierras" always expressly indicated the jurisdiction
in which he was competent.
3.93. The Formal Title Deed satisfies the
characteristics referred to in article 26
of the Geiieral Peace Treat!! of 1980 in that it is
a document issued hy the Spanish authorities during
the colonial period. It is of course true that it
does not constitute a Forma1 Title Deed to Commons
of the type which El Salvadi~l-has presented in order
fully to j"stify its rights in the other disputed
sectors. However, although this Forma1 Title Deed
thus did not constitute a grant to a native.,comrnunity
through its municipal council, it is nevertheless
a Fornial Title Deed of th'? colonial period issued
with al1 the appropriate Iegal formalities by the
Spanish authorities in favour of a citizen of San
Miguel in the Colonial Province of San Salvador. It
was of course a Forma1 Title Deed conferring only
private proprietary rights by means of the process
of "composicion". AS such. this Forma1 Title Deed
has indisputable value, even though it does not
constitiite one of the Forma1 Title Deeds to Commoris
issued in favour of native communities ttirough their
municipal authorities. simply because the Commons
of such native Settlements were expressly excluded
from the process of "composici6n" by the "Real Cédula
of El Pardo of 1 November 1.591,which was confirmed
by the subsequent Ordinance of 1598.
3.94. Th.is Forma1 Title Deed in faveur of Juan
Bautista de Fuentes is not. consequently.
as is claimed by Honduras (Li9).an "imaginary title"
49. H.C.M.: pp. 514-543.but. repeating what ha's alread? been stated. a document
issued bv the Spanish authorities of the colonial
period of the type nientioried in Article 26 of the
General Peace Treaty of 1'380; it was issued by a
Spanisli secular authority dui-ing the colonial period
and coiitains a clear. st.ateriient as to colonial
jurisdictiori - thus. for e:<ample. the record of the
measurement carr-ied out on 30 October- 169ri clearly
states that the ineasuremenl: was carried out in the
place known as "Los Amates" in the jurisdiction OF
San Miguel.
3.95. Honcluras has attenipted. with what can only
he described as true sophisin, to denv the
validity of this Fornial Title Deed. Honduras refers
in the H.C.M. (50) to the fact that ttie course of
the nieasurement. is stated 1.0 have reached "al niorite
que confina con el Rio, de (iuascorari (sic)". The area
in question consists of riiangi-ove swarnp, the Spanish
word For wtiich ("inanglar") has been defiiied (51) as
"land in t.he tropical zone which the tiighest tides
inundate formi ng on many occasions 1ow islands where
trees which live in Salt water grow" ("un terreno
de la zona tropical que lo inundan las grandes mareas
foriiiarido muchas veces i slas bajas. donde crecen los
arboles que viven en el agua salada" in the original
Spanisti text). It is ther-efore quite obvious' that
the Spanisti wor-d "monte" iised in the Forma1 Title
Deed bv the Spanisti nota1.y Francisco Goicochea Y
L!r.iai't.e wûs not used in the first of the two meanings
50. H.C.M.: P. 525
51. 4ristos: Lccionario Ilustrado de la Leiigua
Esiriailola (1974 > : E(li tor ial Ramon Sopeiia S. A.
(Barcelona, Spain). given by the "Real Acadelriia Espafiola" <52) as "a yreat
iiatcir-a1 elevat i on uf laiid" ( "iiiia grande elevacir~n
natural de teri-erio" in th& original Sr~anish t.ext >,
but. i-atlier iii the secoiid of ttie t.wo meaiiirigs given
as "uncul tivated land covered by ti-ees. bushes or
shrubs" ("tiei-ra inculta cubierta de Arboles. ar-bustos
O matas" in the original Spanish test).
3. 96,. The lack of Forma1 Title I)er-cl* witti which
to defencl its claims has irieant ttiat Honduras
lias had to have recourse >:'O arguments whiilh neithei-
have a sourid Iogical base rior are pertinent to the
siibject iiiatter of tliis litigation. 011 tlie othei- hand.
El Salvador. in order to i-pinforce its ri~hts iri this
sectoi-. is preseiiting as ari AiiiieX to tliis Reply (53)
a Further Formal Title Ueed of 1711. once again
executed by tlie Spanisli authorities iii favour of Juari
Bautista de Fuentes. a resident of the Colonial
Proviiice of San Salvadi,r. conf irming a graiit of lairds
by the process of "composicioii". tliis time in the
area kriown as "El Nagai'ejo". This Forma1 Ti tle Deed
confirmed the granl to tlii:~ resiclerit of the Colonial
Province of Sari Salvador of the rights t.0 thirteen
and a half "caballerias" of land in the disputed sector
at pïesent under discussion.
3.97. This land wàs stated to he situated in the
jurisdiction of c~lioluteca in tihe colcbriial
Province of Guatemala. Therefore, it was this Colonial
Provirrce wliich had charge of tIie administrative and
jurisdi ctiorial control of t-hi s sectur. This Forma1
Ti t.le Deeù t:lius enables El Salvador to rati f? aiid
foi-tifw the cont.erition exprtissed iti the E.S.C.M. (54)
52. .i -c ---nar iO de 1uea 1 cadem mi-a Espas
(1984 - 20th Editiuii) (Madrid).
5:3 . E.S.H. : Annexes: p. 73
54. E.S.C..?!.: Para. 3.126.. PP. 119-120.
4 that in 1580 the "Alcaldia Mayor" of Tegucigalpa was
not created as an independent Colonial Province with
its own territory; that the only thing which happened
was that the the office of' "Alcalde Mayor" of Mines
was established bv the "Real Audiencia" of Guatemala
with the title of "Alcaldll Mayor" of Mines of the
Province of Honduras wit:h exclusive jurisdiction.
but onl~ over mattei-s'relatinci to mines. in the
judicial districts of an fliguel and Choluteca, both
within the jurisdiction of the Province of Guatemala.
The argument advanced bv El Salvador was that. despite
the ci-eation of the "AlCalCliaMayor" of Mines of the
Province of Honduras. the administrative control and
jurisdiction over San Migue?l and Choluteca continued
to correspond to the "Keal Audiencia" of Guatemala
and. at a subsidiary .Ievel. to the Colonial Province
of San Salvador. This argument is completely confirmed
by the fact that the Forma1 Title Deed of 1711
confirming the rights of Juan Bautista de Fuentes
to land in this sector was sought by his representative
on his behalf €rom Francisco de Colio. President of
the "Real Audiencia" of Gu:itemala who resided in the
town of Soiisonate inlne Colonial Province of
Guatemala. There is not the slightest mention in this
Formal Title Deed of anv confirmation being sought
from authorities of the Colonial Province of Honduras.
This was for the simple re,sson. that the jurisdiction
of the Province of Honduras, in this sector extended
on1y to matters relating to inines. Consequently, any
argument tu the effect that: the uti ~0ssedetis iuris
of 1821 is in this sector in favour of Honduras is
clearlv shown to be erïoneous.
3.98. What is more, Honduras has presented in
relation to this 5;ectoronly documents which
either do not cover the disputed part of the sectoi-
or have no jui-idicalrelevance or illustrate sections
of the frontieï which have already been delimited.This-has already been deinonstrated by El Salvador
in the E.S.C.M. (55)' On the other hand. El Salvador
has indeed presented irrefutable documents issued
by the Spanish colonial authorities which are directly
relevant to Los 'Amates. t.he disputed part of this
sector .
(B) The Delta of the Rio Goascoran
3.99. The exact date oiiwhich the change of course
of the Rio Go;ascoran occured is both
uncertain and i11-defined. It is possible that this
change of course took place in the Seventeenth Century
- this at least can be deduced from the Spanish
colonial documents of the Sixteenth Century in wliich
what was considered to be the mouth of the Rio
Goascoran was its oldest niouth in the Estero de La
Cutu opposite the Isla de Zacate Grande. This view
is indeed expressed in the H.C.M. which contains
(56)
the following statement: "Et sans doute n'est-il pas
possible de le dater avec exactitude." Consequentlv.
the arguments forinulated in the H.C.M. (57) to the
effect that acquiescence heis taken place on the part
of El Salvador in recogni:sing the Rio Goascoran as
the frontier between the iiwo States since time out
of mind lack any foundation. A river exposed to the
type of mutations to which the Rio Goascoran is subject
does not constitute a sufi'icient clear boundary for
it to be possible to argue that acquiesence has arisen
in respect thereof. Such acquiescence can onlv arise
after an agreement between the Parties or a judicial
decision lias been reached establishing what norms
55. E.s.c.M.: paras. 3.136.-3.138. pp. 126-128;
Map 3.K.. p. 128.
56. H.C.M.: p. 577.
57. H.C.M.: pp. 610-617.should be applied in the case of the mutations or
changes which have taken place irithe course of this
i.ivei,.Consequerit1v. the estoppel claimed bv Honduras
iriits own favoui-and againy't El Salvador is I-eject~d.
The only occasioiis upon which El Salvador lias
recognised ,the Rio GoascorZin as the frontier ùetweeri
the two States has been wheri what I-ios been taken into
account has been its oldest nloiitand nothing else
3.100. The change that has taken place in the course
of the Rio Goascoran miist necessarily be
due to a sudderi and violeiit event. which possibly
took place in the Seventeenth Ceiitury, peïhaps as
a resiiltof the impact of one of the tiui.ricanes which
las11 the Caribbeaii and Central Ainerican reyion.
Honduras lias tried to avoid any possibility of the
waters of the Rio Goascoran returniiigto their former
course b';means of the installalion of articial river
waI1s. In îact. these obstacles. probably constt-ucted
around the year 1916 on the left bank of the Rlo
Goascoran at Los AmateS preveiit the river from
returning to its former course. Such a course of events
inay be deduced from a letter sent bv the Miiiister
of War and Narine of the F!epubl ic of El Salvador on
16 June 1920 as from the Palacio Nacional, San
Salvador, to the Minister of Externa1 Relations of
that Republic. the relevant part of which is as Follows
"1 have the honour to acknuwledge the receipt of vour
niostattentive note of 5 of the present [monthl. which
refers to the report sent to this Ministry by Geiiei'al
Antonio Castellanos. from the Department of La Uiii6n.
in relation to the fact that the Government of Honduras
has appropriated a strip (of land within Salvadoran
territory bv vii'tueof tmFact that the Rio Goascoran
has chanaed course ...." (emphasis added). Thc occurrence is also proven hv another earlier letter
from the Pliriister- of Wai- id Marine of El Salvador
to the Ministeï of Esteïnal Relations of that Repuhlic
Ji 4 Jiirit, 1920. tlie relevant part of which states
"1 niiist iiot onii t to point out to you tliat according
to i iifoi-iiiati ori the Horidurari ~Cio\:ei.nment has appropr iated
a str'ip of Laiid from our- territory by virt~te of the
fact tliat the Rio Goascorari has cliatiyed course: the
strip refei-red to lias an ares of five leagues in letigth
bv thi-ee iii bi-eadth . .. ."
Additionallv. inspections have been made "in situ"
and aeïial ptiotographs have been taken of the sector.
3.101. This violent and sui-lden change in the course
of the Rio Goascoran must irievi t.abIy have
been favoured bv the "Law of Rabinet or of Baer" whose
appl icahi 1i tv to $:lie Rio Lempa and the Rio Goascor&n
was considered by Doctor Santiago 1. Baïbeïena in
a st.udy referred to in the E.S.M. and which
states:
".... the flow of its water-.s lt-hose of the Rio Lenipal
tends to have prefrrence for' tlie r'ight liancl bank in
wtiich tlie effect cf erosiori is iiiucli niore f ierce and
eff icient than on the opposil:e bank.
' . . . . in 188s I inüde an aria1 ogous observa1 i oit in
relation to the Goascoran."
(C) The "Effectivites"
3.102. Acceptance of the frontier 1ine cla imed
by Honduras in this sector would suppose
the transfer to' ond dur-as of the fol1owing four
mutiicipal i t ies: Los Aniates!. La Ceiba. El Conchal.
and El Capiilin. In relation to this sector. as is
59. E.S.R.: Annexes: p. 82
GO. E.s.M.: Para. 6.68..also the case in relation to the otlier disputed
sectors. the Iengthy arguments produced by Honduras
have no solid base sincc?. as has alreadv been
demonstrated. the Forma1 Ti'cle Deeds which have been
presented by Honduras have neither relevance nor
validitv so far as concei-ns the issues in dispute.
The incongruence of the arguments produced by Honduras
can be sufficiently proved :;implyby making reference
to the fact that the H.C.M. (61) attempts to alleye
that Honduras enjoys possession over this sector,
a position whicli is both ambiguous and contradictory.
since it affects the validit.~of the arguments produced
by Honduras with the object of denying the
"effectivites" which El Salvador, in a clear and
decisive manner. llas demonstrated that it enjoys to
the full in al1 the sectors in dispute. This argument
by Honduras thus goes against the other arguments
which it has expounded for this sector which are based
on sophisms. eïroneous premises, and inappropriate
claims.
VI1. Royal Landholdinas <"Tierras Realenr~as" )
3.103. El Salvador proposes to comment briefly
on the rliscussioriin the H.C.M. (62) Of
"Questions relatives aux "tierras realengas"".
that
3.104. Honduras affirms in the H.C.M. (63)
it is necessary to take into account "deux
elements figurant dans la sentence arbitrale de 1933
dans le differend frontalier entre le Guatemala et
le Honduras" (original emphasis).
61. H.C.M.: pp. 631-632.
62. H.C.M.: PD. 83-101.
63. H.C.M.: P. 89.3.105. First. that the Tribunal of Arbitration
"en effet. a indique" that Forma1 Title
Deeds to Commons provide. in the woïds of the Tribunal,
"ample opportunity for examining and determining
questions of territorial jurisdiction" (64)' Honduras
ttius adopts the argument riiaintainedby El Salvador
in the E.S.M. (65) relating to the validity and
decisive character of such Forma1 Title Deeds to
Commons for the purpose of riefinin9 the line of the
land frontier in the present litigation.
3.106. Honduras adds that the Tribunal of
(i~lj)
Arbitration "ii'rxcluaitpas d'autres sources
pour déterminer les froritieres des juriciictions
coloniales, bien que tell*--ci fussent de moinm
importance" (emphasis added,. since the Tribunal stated
that "not only had boundairies not been fixed with
precision by the Crown. but there were great areas
in which t.here had been no effort to assert any
semblance of administration authori ty". The aïeas
thus refer-red to by the Tri.buna1 of Ar-bit-ration wer-e
Crown Landholdings ("Tierras Realengas" ). which,
because they were iiot Commons. were not subject to
anv defined administrative control by the colonial
authorities.
3.107. Even though Honduras goes on to state that
the Tribunal of Arbitration made no reference
to Crown Landholdings (67), this in no way affects
the position which has been sustained by El Salvador.
Honduras. on the otlier hand, is guilty of multiple
64. H.C.M.: pp. 89-90 and judgment theïe cited.
65. E.S.M.: Paras. 4.1. & 4.14..
66. H.C.M.: p. 90 and judgment there cited.
67. H.C.M.: P. 91.inconsistencies and incongruities in the different
Chapters of the H.C.M.. For example. in an earlier
Section of the same Chapter, Honduras aff irms (6s)
that "le "territoire" et la "juridiction" qui s'exerce
sur lui se trouvent Ui«iauement définis par3
Couronne d'Es~a~ne". a corninentwhol lv contradictory
of what was stated by the Tribunal Of Arbi tration
in the section of its judgment set out above.
3.108. The territ.oria1 ares establislied by a Forma1
Title Deed to Commons by virtue of this
fact constituted a part of the territory belonging
to the Colonial Province in question. over which that
Province exercised a clearly defined administrative
coritrol. Beyoiid the boundari'ls so fixed. there existed
large areas of territorv which. because they
constituted Royal Landholdings granted to private
individuals. did not produce any particular indication
as to which of two Colonial Provinces exercised
administrative control thereover for the purposes
of enabling a determination to be made as to the extent
of the territory under its icontrol. This is corifir-ined
by the research carried out by Linda Newson based
on the Title Deeds to nati\,e properties in Honduras,
CO which reference is made in the H.C.M. This
(69).
author States that: "In addition to lands that were
owned by the Communitv hy riaht. there were other
lands, generally in the vici.nity of the village,' that
had been purchased either by the community or by
individual indians" (emphasis added).
3.109. In a similar manner, the H.C.M.
(70)
68. H.C.M.: p. 82.
69. H.C.M.: p. 62.
70. H.C.M.: p. 93. indicates that "p-là des terres des
vi1laaes des communautés indiaenes. i1 restait
également des terres sans titulaire" (emphasis added).
Tliese lands were the uncultivated lands which
constituted the Royal Landholdings. As the H.Ç.M.
(71) emphasises later on: "la Couronne @tant titulaire
des "terres eri friche" ou "tierras realenyas", elle
pouvait en disposer "a sa gu:iseet selon sa volorité",
selon l'expression de ladite "Cédula" royale de 1568.
. . . Les "terres en friche"' ou "tierras realengas"
constituent de cette fason l'clément de base de la
"composition de terres". Honduras thus 1-ecognises
that it was the Roval Landholdings. that is to say
the lands situated oiitside ttie lands of the townships
of the native communities. which were. as fr-om 1591,
the subject matter of a CroLJn policy of making land
grants y means of the proc~2ss of "composition" and
not the Commons of the nati'~0mmunities which. as
El Salvadoi- has demonstrated in Chaptei' II of this
Reply (72)s were express1y excluded from this process
of "composition".
3.110. El Salvador does not claim, as Honduras
has chosen to allege (73)' that these Royal
Landholdings are subject to its exclusive ownei-ship
on t.heyrounds that it is the sole successor in title
to the spanish Crown. What El Salvador has indicated
in the E.S.M. (74 ) is that it is those Roval
Landholdings which are not included within the scope
of 'the Forma1 Title Deeds to the Commons of the
respective native communities which are the priiici pal
71. H.C.M.: p.. 34.
72. Paragraphs 2.6.-2.15. ahove.
73. H.C.M.: p. 98.
74. E.S.M.: para. 5.4. .cause of conflicts over froritiers. It is for this
reason that El Salvador. in order to facilitate the
work of the Chamber, has asked that Honduras present
the relevant Title Deeds, if they indeed exist. which
establish its rights to the Royal Landholdings or,
at the very least. the precise extent of its
jurisdictional boundaries.
3.110. The H.C.M. (75) cites a paragraph of the
E.S.M. in support of the proposition that
"El Salvador pretend que les "tierras realengas" lui
appartiennent. sauf si le Horiduras présente "un titre
comparable par sa force et ses effets juridiques"
ceux d'El Salvador" (emphasis added).
3.111. El Salvador does ni>t consider that.anv bad
faith is. involved in its request that the
Title Deeds of Honduras which accredit its possible
rights to Royal Landholdings should be produced, above
al1 when it is taken into account that the Title Deeds
which Honduras has presentecl are almost al1 either
Title Deeds to lands in the :sectorsalready delimited
by the General Peace Treaty of 1980 or Title Deeds
to lands some considerable distance from the sectors
at present in dispute.
3.112. Neither does El Salvador consider that there
is any great relevance in the fact that
some of these Title Deeds naay we11 have been able
to have been examined by one or more of the various
Joint Boundary Commissions of the two Parties to this
litigation which have functioned in the past. None
of these Commissions has mainaged to achieve a duly
ratified agreement and the fact that such Title Deeds
75. H.C.M.: p. 95. and other colonial documents as Honduras may have
in its possession may have tleen examined in the past
makes it even more imperative that tliey should also
be examined in this litigation.
3.113. A brief consideration will now be made of
the relevance of Royal Landholdings to the
determination of the land frontier in the various
sectors which are in dispute in this litigation.
3.114. Tecpan~üisir Mount-. In this sector, there
is an area of Royal Landholdings which is
not included within the bclundaries established by
the Forma1 Title Deed to tlie Commons of Citala of
but which nevertlieless today forms part
1776 (76)
of the forestry reserve clf El Salvador and is
inhabiated by citizens of El Salvador, soniethingwhich
is indeed recognised by the H.C.M.
(77)'
3.115. Las Pilas or Cayaguanca. In this sector.
Map 3.C. presented by El Salvador (78)
represents the area included within the Forma1 Title
Deed to the ('ommons of Ocotel>eque of 1818, which has
beeii presented by Honduras (7,q). In this Forma1 Title
Deed, the rights of the inhabitants of Ocotepeque
were regrouped and defined a short time before the
date OF the independence of Central America. The same
map also represents the area included within the Forma1
Title Deed to the Commons of La Palma of 1833 which
has been presented by El Salvador (80,. 1t can be
76. H.M. :Annexes: pp. 1795 et sea.
77. H.C.M. : Annexes: p. 295.
78. E.S.C.M.: p. 51.
79. H.M.: Annexes: pp. 1677 et seq,.
80. E.S.C.M. : Annexes: Vol. II, pp. 1 et seq.. clearly observed that between the 1ine taken in the
course of the measurement of the Commons of Ocotepeque
from the Pena de Cayaguanca to the Cerro de San Antonio
and the line taken in the c:our-se of the measurement
of the Comntonsof La Palma from the Pena de Cayaguanca
to the meeting of the Rio Sumpu1 and the Quebrada
de Copantillo, there is an area of Royal Landholdings
which today is inhabited by citizens of El Salvador.
Honduras has not presented a single document which
justifies its claim to any rights over these Royal
Landholdings.
3.116. Arcatao or Zazalajo. In this sector. an
area of Royal Landholdings not included
within the boundaries established by the Forma1 Title
Deed to the Commons of Arcaliao of 1723 (81) has, as
El Salvador has shown in the E.S.M. been
(81)'
populated from time immemorial bv citizens of El
Sa1vador .
3.117. Nahuateriaue and l'or-ola. In this sector.
an area of Royal L.aiidho1dingsnot included
within the boundaries established by the Forma1 Title
Deed to the commons of Aranibala and Perquin of 1769
-i82) is expressly stated in that Formai Title Deed
to be within the jurisdiction of the Colonial Province
of Guatemala (83).
3.118. Dolores. Monteca and Polor6s. In this sector,
since. as is showri by Map 3.5. presented
by El Salvador (84). certain of the boundary markers
81. E.S.M. : Paras. 6.25. et sea. and Annexes
thereto.
82. . E.S.C.M.: Annexes: Vol. IV. pp. 1. et sect..
83. E.S.C.M.: Para. 3.75.. pp. 84-85.
84. E.S.C.M.: p. 116. established by the Forma1 Title Deed to the Commons
of Polor6s (85) coincidi?d on its north-western
boundaries with those established by the Formal Title
Deed to the Conimons of Santiago Cacaoterique (86)'
El Salvador has no diffic:ultv in recognisiny that
there are no areas of Royal Landholdings between these
two Commons. However. El Salvador consideïs that
Honduras ought to present the Title Deeds which justify
its rights tu the areas of Royal Landholdings on the
north-eastern boundaries of the Commons of Polor6s.
since here the lands of San Miguel had a common
boundary with lands subject to the jurisdiction of
the "Alcaldia Mayor" of Miries of Tegucigalpa. which,
as El Salvador has shown in the E.S.C.M. and
in this Reply did nc~t belong to the Colonial
Province of Honduras; there is consequently no apparent
justification for Honduras to claim historic rights
on the strength of a coloni.al jurisdiction which did
not form part of the Colonial.Province of Honduras.
3.119. The Delta of the Rio Goascoraq. In this
sector. El Salvador has made rio claim to
any area of ROVal Landholdings. However, Honduras
bases its claim to this entire sector on historic
rights proceeding from the "Alcaldfa Mayor" of Mines
of Tegucigalpa, which at the date of independence
of Central America was a jurisdiction which did not
forni part either of the Iritendencv of Comayagiia or
of the Interidency of Hondirras. It is important t.o
emphasise that Tegucigalpa. the present capita1 of
Honduras, has nothiny whatever to do with the "Alcaldia
85. E.s.c.M.: inriexes:vol. III. pp. a13et sea..
86. H.M.: Annexes: pp. 1594 et seo..
87. E.S.C.M.: Paras. 3.127.-3.121.. pp. 120-123.
88. See Paragraphs 5.28-5.32. below.Mayor" of Mines of Tegucigalpa. whose territory during
the colonial period was beyond the Rio Goascoran and
included Choluteca and Nacacime.
3.120. tlaving thus answered the affirmations made
by Honduras that El Salvador. without the
slightest grounds. is claiming Royal Landholdings
which supposedly belong to Honduras, El Salvador in
its turn wishes to emph,ssise and reiterate that
Honduras has not presented one single Title Deed which
accredits its rights to these Royal Landholdings:
presumably no such Title Deeds have been presented
because they simply do not exist. In reality. .these
lengthy and false argument:; produced by Honduras are
simply an attempt to confuse the issue 'and thereby
deny El Salvador the Royal Landholdings which really
belong to it, some of which' such as the area of Royal
Landholdings mentioned in the Forma1 Title Deed to
the Commons of Aïambala and Perquin, are actually
clearly mentioned in the Fol'malTitle Deeds to Commons
which have been presented by El Salvador. ARGUMENTS OF A HUMAN NATliB PRESENTED Bi' EL SALVADOR
IN SUPPORT OF ITS FRONTIER-KIGHTS ("EFFECTIVITES")
b.1. El Salvador 1-eiterates iri this Reply that
the same probative value must in this
litigation be given to. on the orle hartd. the evidence
of a juridical natiir-e fi.ir'rrished ty the Forma1 Ti tle
Deeds to 'ommons issued in its favour by the Spanish
Ci-owri in strict compl iarice wi th the pi'ocedural
requiremerits whicli the Spanist~ Crown had itself
established and. on the other hand. tlie arguments
of a liuniail nature ("effectivitt%s"). This was recoynised
b? El Salvador and Horiduras in Article 26 of the
General Peace Treaty of 19i3û signed by the two States,
a recognition which was niotivated bg trie historical
circumstances which have brought about the present
conf i guration of tlie tijo States and b? consideration.s
of elenientary justice towards the Salvadoran population
which has traditionally inhabitecl the area close to
the fi-ontier. Honduras. despi te the ef fort..s of tliose
who pi-epared the H.C.M. aricl the cciiiinients made on the
contents of the E.S.M. ,lj by i ts Anibassador in L.ondon,
Mas Veliisquez Diaz, has not been able for a single
moment to detract in aiiv wa? fr-oin the value of such
"effectivites" as evidence in this litigation. Indeed.
denying the probative value of the "effectivités"
would contradict tlie spirit and the letter of the
General Peace Treaty of 1980 and perpetuate an
histoi-ical injustice wliich El Salvadoi- has suffered
ever since the date of independence of Central America.
1. H.C.M.: Annexes: pp. 292 et seq..4.2. Honduras has introduced comments such as
tliat niade by Aiiibasss~dor Ve1aSquc.z' Diaz to
the effect that (2j. "El iSalvad01~ essaie d'introduire
rians cette affaire ce qu'i 1 appelle des arguments
de nature humait-te" . Such coinriierits coiist i tiite an atternpt
tu reduce the process of analvsiirg and resolving the,
issues which ,arise in tliis 1 i tiyation to a siinple
jui-idical operat ion. wtien these issues have rioc only
sc~ci olog i cal coniiot.ations but al so an evident human
background. Honduras i tsel f r,ecoynised this in i ts
loriy-terni insistence that the conf 1 icr between the
two States in 1969 was motivated b? questions of human
settlenierrts aiid frontiei-S. Yet. iiow that it is before
an iiiternati orial tribunal. Honduras rüishes to reduce
the issues before that tribunal to a simple evaluation
of the evidence of a juriclical nature wheii it has
alwavs previously accepted, in the lengthy negotiations
that have taken place .between the Parties. and in
the General Peace Ti-eaty of 1980. that the question
of the hiiirian sett 1emeiits was a Fundarilental aspect
of this dispute.
A.3. Honduras, having contended. that (3):
"101-sqii'El Salvador invoque 1 'uti ~ossidetis
, 1 'ciprjl ication qii' i1 en fait est inconsistente.
Il rie prodiri t pas de doc:uments de 1 'epoqiie coloniale
poiii' certaines sections de la ligne clivisoii-e". it
yoes on to af Firm that El Salvador "tente de
(4)
r-eiif0rcc.i- des pi-eiives aussi tenues el: des arguments
aiissi inexacts par le recours aux effectivités".
-. H.C.M.: Alinexes: p. 292.
3. H.C.M.: p. 318.
4. H.C.M.: p. 3484.4. With the same iiitentioiiof attacking tlie
probative value of the "effectivités".
Honduras makes the following statement
(5)'
"Coniiiiil a été dit précédemment. en ce qui concerne
les quatre zotiesindiquées sur la carte 5.2. en regard
de la page 328 di1présent contre-mémoire, El Salvador
ne fournit aucun dociimeril:de 1 'époque coloiiiale
indiquant des limites de territoires, ni méme des
docuinents postérieurs à 1821. Son tracé de la ligiie
dans ces zones ne peut pas. par conséqueiit, se baser
sui- l'uti possidetis iiirisde 1821, mais sur un autre
fondement: le recours aux "effectivités". Ce qui
évidemment itieten lumiére le "dualisme" de la position
juridique d'El Salvador. qui invoque conjointement
des effectivités et des titres juridiques.
contrai reinent aux dispositions de 1'article 2G du
Ti.aité Général de Paix de 1980. La finalité de cette
attitude est, eiidernière instance. de faire prévaloir
les effectivités sur les titres. ainsi qu'on peut
en juger a la simple lecture du chapitre 7 de son
mémoiI-e."
Honduras thus coiicl udes by affirming that El Salvador
has ended up in a "dualism" of evidence in which it
abandons Forilla1'Ttle Deeds and has recourse or1y
to the "effectivités". No such "diialism" exists in
the aryuments pi.esented by El Salvador; it is inore
accurate to sa? that the arguments produced by Honduras
are guilt? of "unilateralism" in that the- wish in
an arbitrai-y nianner to eradicate the human aryunients
envisayed bv the VI-ovisionsof a bindina Treûtv which
Honduras sianed and ratified in 1980.
4.5. The reality is that the argument of Honduras
set out above has no validity whatsoevei-.
El Salvador has relied on two diffeïent types of
evideiice whicti mutuall? complement and fortify one
another and which will enable the membeïs of the
Chamber, by virtue of the 1inks betweei, the eviherice
presented by El Salvador, to pronounce a just decisionthat takes into account the strength of the int-egrated
truth and the weight of these complementarv arguments.
4.6. In the process of evaluation of the evidence
pi-oduced in a trial. the judge. in the
function 01: inipartingjustice. has the right to take
the whole of these proceedings into account with the
objective that. ahove al1 else, the judgement may
be consistent wi th realitv and jlistice.
4.7. Both the General Peace Treaty of' 1980 and
the Special Agreement betweeii El Sa1vador
and Honduras to submit the land fr-oiitier dispute to
the International Court of .Justice are governed by
Public International Law. Consequently. it is not
possible to accept an arbitrary reduction of the
applicable principles of Public International Law
by eithei- of th*? Parties to this Treaty and this
Special rigreeineiltA.rticle 26 of the Gerieral Peace
Treaty of 1980 clearly States that, for the
deliniitatioriof the frontier line in the disputed
areas, El Saivacloi-and Honduras accept as evidence
the documents mentioned therein and that "account
shall equally be taken of other methods of proof and
argumeiits ancl reasoris of a juridical . historical .or
human nature or of any other kind which may be adduced
by the Parties and which are admissible uiider
International Law". This Provision determines the
range of evidence which inay be adduced by the Parties
but. equally. determines the standard to be adopted
in evaluating the evidence so adduced.
4.8. The Chainbertherefore has well-defined powers
and evideiitiary standards with which to
resolve the conflicts over territorial delimitation
and to deteriniiie the juridical status of the islands.
to which El Salvador has proved that it is enti tled.
and of tlie maritinie spaces. Tliese are the criteria011 wtiich the Clrarnberof the International Court of
Justice relied in its judgement in the Case concerning
the Frontier Dispute between Burkina Faso ancl the
Republic of Mali (6)'
4.9. Honduras is capriciously trying to forget
that the decision which is to be handed
down by the Chamber is. as a result of the express
maiidateof the Part-ies.to be subject to the provisions
of Article 26 of the Geiieral Peace Treat? of 1980
and of the Special Agreement. Honduras wishes to leave
to one side the "effectivites" and thus evade the
substantially human components of a dispute which
relates not onl? to the ownership of physical areas
but also to the persailent destiny of communities of
huinanbe ings .
4.10. El Salvador. in a section of the E.S.C.M.
lieaded "No Arguments of a Human Nature can
validly be invoked by Honduras", stated that. in the
H.M., <,): "The human beings involved receive uo
consideration whatever in the discussioii of a matter
which basically coricerns hurnan beinys. .... No
i'eference whatever is made to the fact that what is
in issue are inhabited settlenients.wheïe people 1ive,
work. eat and drink. need rnedicines and education.
and where by tradition and custointhey feel that they
have their roots."
4.11. The "effectivites" have. above al 1 in cases
such as this one, special sigiiificancr and
singulaï importance in the process of the determination
6. I.C.J. Reports 1986, p. 554.
7. E.S.C.M.: Para. 4.6.. p. 132 of the issues before the Chamber. namely the resolution
of the conflicts over the land frontier and the
determination of the juridical status of the islands
.. and the maritime spaces. This prominence of the
"effectivités" is riota matter only of mere legalities
but also of uiiquestionablejustice.
4.12. In the Case concern_ina the Frontier D~sDu~~
between Burkina Faso and the Republic of
Mali, the Chamber of the International Court of
Justice, having esamined the arguments pïesented by
the two Parties, stated (8>:
"a distinction must be dïawn among several
eventualities. Where the act corresponds exactly to
law, where effective administration is additional
to the titi possidetis iuris. the only role of
effecti- is to confirm the exercise of the right
dei-ived from a legal title. Where the act does riot
corresporid to the law. where the territor). which is
the subject of the dispute is effectivelv administered
bv a State other than the one possessirig the legal
title. preference should be giveri to the holder of
the title. In the event that the effectivite does
not co-esist with aiiy legal title, it must invariably
be taken into coiisider-ation. Finûlly. there are cases
where the legal title is not capable of showin9 exactly
the territorial expanse to which it relates. The
effectivités can then play an essential role in showing
how the title is interpi-etedin practice."
4.13. El Salvador has preseiit.edin the E.S.M.
and the E.S.C.M. documentation which is
more than sufficient to prove full- that, in al1 the
sectors of the land frontier clainied bv Honduras
(TecpangUisir Mountairi. Las .Pilas or Cayaguanca.
ArCatÛo or Zazalapa. Nahuaterique and Torola, DolOres,
Monteca and Poloros~ and the Estuary of the Rfo
Goascoran), El Salvadoi- has esercised and continues
to exercise an effective administrative control.
8. I.C.J. Reports 1986. Para. 63. p. 554.'Consequentlu. El Salvador is able to make t@e following
affirmations:
(1) That, by virtiie of trie practice of effective
administrative control. the "animus" on the part of
the administrative organs of state of El Salvador
to possess these disputed ter-ritorieS has been.
expressly dernonstrated.
(2) Tliat. in consequence, El Salvadui- has satisfied
the requirements of "effectivite" by means of the
effective exercise of State authority over the
territories clainierl hy Honduras. such authoi-i tv having
beeri exercised coiitinuously and iiotoriotisyl through
a quite incontroveïtible administrative system.
(3) That. alonyside the "animus occupandi". El Salvador
has exei'cised and continues to exerçise a physical
possession of these territories which can iiino sense
be categor-isedas fictitious.
(41 l'liat.by nleaiisof these "effectivi tes". El Salvador
has sufficiently proveri the existence of the two
elenients which are necessars in order to estahlish
sovereiyri title arid te mariifestatioii of State
authority.
4.14. El Salvador provided in the E.S.M. an
(9)
account of how the Government of El Salvador.
its niunicipal authoïities. and the people of El
Sa vadoï liad developeri and esploited econorncal 1y
al1 the sectors of the land frontier and of the islands
wliich are claiined by Honduras. as well as the
relationshilj hetweeii iiiüand the land wtiich has been
fcii-tifiedfor three quarters of a ceiitury. thus
ci-eatiiig i1-refutahleSalvadorari iiiterests.l'hese same
9. E.S.M. :Paras. 7.8. -7.10..arguments were also iiivoked by El Salvador in. tlie
E.S.C.M. ( ,,, iri order once agaiii to affii-II that the
social and economic development of the sectors claimed
by Honduras has been carried out by the Goveriiment
and by the municipal authorities of El Salvador aiid
by the huinanpopulation tliathas established its roc~ts
in these territories.
4.15. Honduras is now re-iecting these arguiiirnts
relating to hiiman settli?nieiit snd er:oiiom(i
development . foryettiny tliat these sanie aryiinients
were the basis of the claiinbrouylithy Honduras against
Guatemala which 1ed to ttie Aybitration brtweeii
Guatemala and Honduras. il1 which Honduras was awarded
substantial territories to which Guatemala had always
consideïed itself to be entitled.
4. 16. In this Arbitration betweenGuntemala and
Honduras, the Tribunal of Arbitration stated
that (Il):
ri Fixiriythe boundary, the Tribunal must have regard
(1) to the facts of actual )~ussessiori; (2) to the
question whetheï possession by one Party has been
acquired iii yood faith and without invadirigthe rigtit
of the other Party; and (3) to the relation of
territo~y actually occupied to that which is as yet
unoccu~~eid."
4.17. The Triburial subsequeiit 1y appli ecl these
principles to the facts in the following
manner in the following passages:
1O. E.S.C.M.: Paras. 4.11.-4.15.. pp. 135-137
11. Guatemala-Honduras Special BouiidaryTribunal:
Opinion and Award (Washington. D.C. (1933))
p. 70."Horiduras has been in possessi.on of Oiiioasince 1832
"The developments in the Cuvainel area after. 1832 were
made by Honduras (13).
"it was not until about 1912 that Honduras soiight
by her coricessions and grants to establisti her
interests to the West of that line. Since independence.
and until about 1912, Honrluras had beeri erigaged iri
developing the territory east of the Tinto river,
through the cuvamel area. arid in the soutli iri ttie
direction of Cerro San Ildrfonso"
('14i'
4.18. El Salvador has proven that the fafits (t-tie
actual possession) corresponds to the i.ght
(the Formal Title Deeds to Gommons); namely, tliat
the territories, the islancls. ancl the inai-iiine spaces
are admiriistered hy El Salvador, wtio possesses the
tit-le, understanding by that the appropriate wi-itt-eri
document. It has also been pruven that El Salvador
has possession.
4.19. EI Salvador-, through the ai:yunients wliich
it. has expouiided to the Chaiiiber in the
E.s.M.. in the E.Y.C.M.; and in this Repl':. reaffii-ms
its request that a decision stiuuld be haridt-dclown
in accordançe with the rights which it lias invoked.
namely in accordance with the justice due to the
Salvadoran human gr-oups wtio tiave fised their roots
in the territories and in the islarids wliiclitlonduras
clainis without. the sl iyhtest. t t El S:~lvador
12. Guatemala-Honduras Special Boundarv Tribunal:
Opinion and Award (washington. D:c. (1937))
p. 87.
13. Guatemala-Honduras Special Roundary Tribunal:
Opinion arid Award (Washingtori. D.C. (1933) )
p. 88.
14. Guatema la-HondilrasSpec ia1 Bouridary 71ibitna1:
Opinion and Award (Washington. D.C. (1933))
p. 92. ttierefore requests that a decision shoiilii be Iiaiided
down which 1-esolves the terri ,oi-ial de1 imitation aiid
establishes the juridical StatUS of the maritime
spaces. The human. social , cultural . ecunvniic.
adiiiiiii strative and po1 i tical development irhich Iias
beeri sarried out by the people of El Sal\,ador- in these
disputed sectors determines bevond any douhr that
these sectors belony to El Salvador: it has been on
the basis of this understaiidiiig that the Ciovernnient
of El Salvador and its miinici~ial authorites over a
1engthy per i od of time tiave exeïc i sed full
adininistrative control over these sectors and have
brought about its development to the benefit of
ttiousands of Salvadoran fami 1ies wlio have f ised thei r
'1-oots in the sectors and iii the islands claimed by
Hoiiduras.
4.20. This is iiot inel-el? a legal question, nor
merely a right to possessioii on the t~asis
of exrrcise over a long Deriad of time. This is. above
al 1 . a situation wi th prufounïl liunian repercussions.
Wi11 the Chamber be iticlined to wrest territorv froiii
a Çtate so unjustlv dirniriislied iri size as El Salvador
wi thoiit fi 1-st pondering wtiat each inch of its scai-ce
and uiiprociuctive terri tory i-epresents 'for t:iat country?
From tliis point of view, law. coiisîience, and juslice
are al1 in favour of El Salvador- and that Republic
consequent ly expects, wi th total siiiceri ty and full
conf ideilce. that the Chamber wi 11 reach i ts decision
as the result of a consideration of the global problems
of this litigation and on the basis of the inteyrated
view of the evidence presented.5.2. The H.C.M. States that the invocation
(1)
by El Salvador "des 'titres qu'il appelle
historiques n'inter-vient qu'à titi-e subsidiaire".
This is not the case. El Salvador does not 'invoke
its Iiistoric Forma1 Title Deeds to the islands as
subsidiar- evidence but in the form of joint evidence,
since it believes that its riyhts over the islands
of the Golfo de Fonseca are not mri-ely confirmed but
fortified bv the combined effect of the application
of the two criteria which are in play.
,
5.3. The H.C.M. devotes to what it calls "Le
Differend Insulaire" only thirty-three payes,
that is to Say less than foui- and a half per cent
of an extensive and repetitive Counter Mernorial of
soine Severi Iiundred aiid fifty pages. Such a shallow
development within a Counter Memorial divided into
three parts must undoubtedly be due to, the dimiriished
conviction as to its claiins now held by Honduras,
cleaïly oveïwhelmed by the documentation which has
been presentod by El Salvador. This documentation
covers the entire time from the period of the Spanish
conquest of Centi.al Amer ica passing throuyh the period
of coloiiisatic~n riglit up uiitil to the date of the
independence of Central Arnerica.
II. 'ThePeriod of the Svanish Conaues2
--
5.4. Throuyhout the H.C.M. (2), Honduras has
persisted in reiteratiny systematically
that El Salvador has not made any historical exposition
dealiriy with the period of the Spaiiish conquest and
subsequerit colonisation because of the lack of any
.?
1. H.C.M.: p. 639.
'. See, for esample, H.c.M.: p. 645 documentation in its favour. Honduras States t-hat
it was at this time wheii its riglits over the Isla
de Meanguera aiid the Isla de Meaiiguerit-ti comirienced.
1t is al 1ryecI that jurisdictiir>ii ovei' ttiese islatids,
which are the oiil?. ones claimed b? Honduras, was
assignecl to Choluteca iri the Cvioriial Pr-ovince of
Guatemala when Lhc "Alcaldia Mavol-" of Nines of
Tegucigalpa was created in 1580.
5.5. El Salvador lias not wished to bother the
Chamber wi th lengthy historical discourses;
howevei-. iri view of the iiisistence of Honduras on
this point, El Salvador will try to summarise as
briefly as po3sibIe a part of the 5xtensive histor-ical
documentai i oir whi ch cleiiiorrstrates cateyor ical \$ that
n0t only bv riyht of conquest but also by virtue of
the provisioi~s of "Reales '~Sdulas" and of the esercise
of Jurisdictioii. al1 tlie islands of the Golfo de
Fonseca h~?lonyed b initio to San Miguel in the
"Alcaldia Mayor" of Sari Salvador and therefoi-e today
belong to the Repuhlic of El Salvador.
5.6. On 1s Deceinber 1527, the King nominated
Pedi-o de Alvai-ad0 as Covei-noi- and Captain-
(iener-a1 of tlie G~>lonial Pi-oviiice of Guatemala. yiving
him faculties to make Geirer-al Oi-dinaiices for the whol'e
of tiis Covernorship and. in particular. for each of
i t.s set t 1ements (3, . In the docutnents aiid receipts
of ttie Vicet-O$ of Mexico relating to the settlemeiits
of Spaniards subject to that Colonial Kingdom and
wheri and bv whom they were populated. i t. is stated
that iri the Province aiid Goveriioi-shi p of Guatemala.
there were five townships of Spaniards wtiich wer-e
Santiago de Guatemala. San Salvador. Villa de la
3 . E.S.R. : Arinexes: p. 84
4. E.S.R. : Aiineses: p. 92Ti-inidad. Villa de San Miauel and -1la de Xerez de
la FI-ontera. while in the Provirice and Govertioi'ship
of Honduras. there were 'six townships of Spaniards,
which were Valladolid, Gracias a Dios, San Pedre,
San Juan Puerto Caballos and San Jorae de 01anclm
5.7. On 12 ~iy 1535 the Governor- Pedro de
Alvarado sent a Letter t.othe King. relating
to him what had occured during his journey to Peru
arid his arriva1 at the ~ovekrior.ship of Guatenialaand
"liow he had on many occasions ttiought that 91 that
Coast of the Southern Sea thei-cl must be manv islands
and coasts of "terra firma" .and souaht permissi-
to conquer and retain al1 that there was in ttie
Southern Sea; and of how he was niaking Settlements
and had just finished settliny the Villa de San MiRuel
of that go ver ri ors h"emphases added) (5>.
5.8. Honduras. in the course of the Mediation
carried out before the State Department
of the United States of Ameïica in the dispute between
Guatemala aiid Honduras. included as an Annex another
letter of 20 November 1535 sent b? the Governor Pedro
de Alvarado to the King, referririg to his earlier
Letter of 12 May 1535 and to thf:instructions by which
the King had orderad liinito look for a port in the
Northeïn Sea close to his Goveïnorship. Alvarado
declared that "the empress ordered him that he should
not interfere in anything wliich affects the land of
Honduras because Diego de Albitez Ilas been placed
in that Gover-noi.ship nor in tlie land of Cozunielwhich
the Goverrior MorlteJo is yoing to settle anil that in
5. E.S.R.: Annexes: p. 96 t-hese two Govei-norships 1s contaiiied aL the Coast
of tlie Northei-ri Ses which has houndaries witli this
Gover.not-shi p" . A the sanie t inle, lie reported that
"(ln ttie coastof ttie Southet-II zcwl-iich bel onus-to
-iis Governorhie a good safe deep waLer port has been
discover.tlcl and that be has settled township whicti
i s cal 1 éd San Mi21a" (emphases addecl )
(6).
5.9. Ori 16 Ap1.i 1 1538 forma1 Royal Insti-uctions
were given tu the Governor Pedro de Alvar-ado.
Governor and Captain General of the ~rovince of
Guatemala relatiny "to the agreement and the terms
of siir~reiiilei- relat ing to the cliscoverv rd conquest.
OF certain Islaiiurid PI-ovinces on t.he Coast of the
Southerii .ses towards the west.. whjch he had to cliscover'
conqueï and ~overn" t emphasi s added) (7) . ~edr6 cle
Alvarado from Piierto Viejo informed the King about
the deatli of Pedrariiis aiid tliat "the 1att.ei' had had
two stiips and that he took t.hem for ttie Puerto de
Fonseca of hi s Govei'iio~~s11i 0" (eniphases' added
(8) '
' In the accouiit which the Licentiate Pedïaza.
(9)
Pr-otector of I.lie Iridiüns aiid Bishvp of Honduras. made
to ttie Kirig. he iiiFor.niecl him of the distances that
there were from one sea Co the other, establistiiiig
1:hat the Puerto de Fonseca was or1 the Southern Sea
and the i l de San Miyriel withjn the Go\~erriorship
of Guateiiiala and that tlie Governorship of Honduras
reaclied almost as fat- as the Puerto de Fonseca aiid
that ttie1.e were commun boundari es between tliat
--ver.rioi-shiv a- that of Guatem.
6. E.s.K.: ~nnexes: p. 104
-
1. E.s.R.: Annexes: p. 114
8. E.S. R. : AniieXes: p. 123
9. E.S.R. : riri ri ex es:p. 1315. 10. In 1531 Diego de ~lhltez. the Governor of
Honduras, in a Report presented to the
"Consejo de Indias". requested the King to indicate
to him the boundaries of his Governorship. both un
the northern coast and on the southern coast. He asked
that the town of Nequepio (later San Salvador) should
be included within his boundar-ies in ordei-to be able
to go along the coast of the Southern Sea towai-ds
the settlements of Choluteca because these were the
boundarÿ of his Governorship; he also stated that.
Pedro de Alvarado had these settlements and Provinces
occupied to the great damage of his Governorship.
This Report is cited in the H.M. but Honduras
(10)
incorrect ly States that the King duly acceeded to
the above mentioned request. On the hasis of this
erïoneous citation, Honduras affirms in an equally
erroneous manner "Il résulte de ce teste qu'en
(iii:
1531 les limites de la Gobernacion du Honduras étaient
les suivant.es: AU Sud, la Mer du Su(l (aujourd'hui
Océan Pacifique). et au Sud-Ouest la vi 1le de San
Miguel (aujourd'hui à El Salvador) dans les liniites
susdites".
5.11. El Salvador presents, as an Annes to this
ReplY. the answer that the King actually
provided to the request contained in this Report.
This was indeed correctlv cited by Honduras in the
Replv to the Pleadiriysof Nicaragua which it Preserlted
to the King of Spain in the Arbitration between
Nicaragua and Honduras. This was the position wliich
Honrluras defended in that litigation. affirmiriy: "We
proposed to ourselves and we have achieved a situation
that not the least doubt remains as to the fact that
the determination of boundaries by the Monarch
10. H.M.: p. 15.
11. H.M.: p. 15.sirst.i-iiried in the F'leadiiigs of Nicai-agiia dicl iiot eiist"
5.12. Iri trie Repoi-1: which the Liceritiate Pedraza.
Protectoï of the Indians and Bishop of
lir~lidui'as, maile on 18 Play 1539 uport his arriva1 in
tkiat Pr-ovince whicli was guvei-iiecl bv the Governor
Moiitejo. he asked the King 1.0 add the Vil la de Sari
Miguel to tlie Goveriiorship of Hoiiduras for the
Fol 1 owi r~g ïeasons i13) '
"That the Villa ce San Miguel which is sitiiated in
the C;overriorshi rj of CiLiatemala real IV beloncis to the
üovernorslii 6) of Hondiiras. somettti ng wh ich would be
vei,y conveiiient foi- I'oiir Majestv. because i t is close
to two seas. tlrat. The sairl Villa is situriteci in the
ntost coilve~iieiit pai't of the Iciiid. close to gold anrl
silver, aiid its site is the most beaiitiful Valley
and t.he most fr-i~itful Valley of this land and al1
woiilci he for t.he goocl of t.his land because of the
dea1 ings frorn one sei to the other and tlius it has
been saicl to the Guverrior- aiid as Your Majesty may
Favuul- us Lw giving us the Villa de San Miguel which
is usurped b'; and placed in the Goveïnorship of
Guateniala. and in order t.hat ïour Majesty mas have
in the Goverrioi-sliip' of Honcluras botli orte sea ancl the
otliet- aiid i t wi II riot be shared between two
Governoi-sliips and it is woi-th more that a fortress
has one "Alcalile" and not two. because a house ruled
hv two gent leinen cariiiot be we11 ruled. especiall y
if they are puwerFul gentlemen Ireferring here to
Alvarado and Montejol and iii this Your MaJesty will
do what is most converiient for vour Royal service".
But the King did not accede to this request..
5.13. Tlie liistorical docunientation which Ras just
beeil corisidered r-efutes totally aiid finally
the af f i rmat i oii iiiade iri t-tte H. C. ?i. to the effect
(14)
tliat El Salvador is deliber-ately ignoring the
cit-curiist.8nces of the discover'; of the islands and
12. E.S.R.: Annexes: p. 137
13. E.S.R.: Annexes: p. 132
14. H.C.M.: p. G$5.that ttie vi 1la de Sali Migliel de la Frontera and the
i'egiorisituated to ttie East of the Rio Lempa were
consiclered as territory whose jur-isdiction could be
attributed to ttieGovernorship of Honduras.
5.14. It is possible tu appreciate as fi-om that
time uiiwards the rest1essness and ambition
of the Fiïst Colonisers. Conqurrers., and Ministers
of the spanish Crowri who had a participation in the
Province of Honduras t.owar-dswhat is now the territory
of El Salvador. since that territory provided for
them the short.est wav out tu the Southern Sea. that
is to Say to the Pacific Ocean.
-II. The "Reale~~édulas" of 1563 and 1564
5.15. The situation during the peïiod of the
Spanish conquest was confirmed by the "Reales
Ceclulas" of 1563 ' anci 1564. Admittedly Honduras has
cited as evidence two earlier "Reales Cédulas" - that
of 1524 placing vast territories under the Governorship
of Gil Gorizalez Uavila and that of 1525. which
i 15)
placed a territory called "the Province of the GolFo
de Higueras" Linder the Governorship of Diego Lbpez
de salcedo lG). However. the effect of ttiese two
"Reales Cedulas" as evidence has been totally destroyed
h? ttie espress recogiiition niade by the representative
of Horidur-as,Pol icarpo Boni 1la, before the Mediator
in the dispute with Nicaragua relating to the validity
OF ttie Arbitration ,Award of the King of Spain that
"The Province of Honduras . . .did riot'have a coast
or1 ttie Pacific" and that "the coast of this Province
15. H.M.: D. 527.
529.
16. H.M.: p. .... does not reach the Southern Sea" (emphases added)
(17)'
5.16. Honduras admits in the H.C.M. that
i18)
its representative before the Mediator in
this dispute with Nicaragua made this recognition
and simply adds that the phrases set out above were
followed by ciriotherin which Policarpo Bonilla added
ttiat "J'indiquerai ci-après 1 'extension de cette
province su cours des si6cles". As will be seen, there
were indeed subsequent changes but there is not ,the
slightest doubt that the initial situation was that
the Province of Honduras had no jurisdiction whatsoever
over ans part OF the Coast of the Pacific Ocean. This
is due to the existeiice of the two "Reales Cédulas"
of 1563 and 1564. in which the King provihed that
the Province of Guatemala (which at that time included
what is now the Republic of El Salvador) should have
for boundaries "from the Bay of Fonseca inclusive
as far as tlie Province of Honduras exclusjve" i19).
Honduras, in the course of the Mediation carried out
before the State Department of the United States of
America in the dispute between Guatemala and Honduras,
declared the validity of the "Real Cédula" of 1564
and presented a map in which the eiigineers of the
Boundary Con~nssion of Honduras indicated by means
of a dotted line the boundarv line indicated in this
"Real Cédula" (20), this map illustrates the
interpretation of the "Real Cedula" made by El
Salvador. These two "Reales Cedulas" of 1563 and 1564
are two of the relatively few "Reales Cedulas" which
17. E.s.c.M.: para. 6.10.. p. 167.
f 18. H.C.M. : pp. 650-651.
19. E.S.C.M. : Para. 6. Il., PP. 167-168, and
the Annexes there cited.
20. E.S.R.: Annexes: p. 145
look Atlas map. 18 established jurisdictional boundaries; such boundaries.
once so fixed, could only subsequently be amended
or modi fied bv a further "Real Cédula". Honduras has
not presented. nor is in position to present, any
"Real Cédula" which alters what was established by
the King in 1563 and 1564.
5.17. Iii the H.M. izi)' Honduras has cited as
evidence a "Real Provision" of 1580 (which
is incorrectly described by Honduras as a "Real
cédul&"i appointing Juan Cisneros de Reynoso "Alcalde
Mayor" of Mines of the Province of Honduras, of the
town of San Miguel and its jurisdiction. and the town
of Choluteca and the settleinents within its
jurisdiction in order to justify its claim to the
Islands of the Go1 fo de Fonseca. El Salvador has,
Iiowever, demonstrated that at this tinie the Islands
of the Golfo de Fonseca were not included withiii the
Settlements subject to the jurisdiction of the
Governorship of Honduras. This emerges from a Report
of 1582 sent to the King by the Governor of the
Province of Honduras. in which he listed a the
townships of his jurisdiction" (22) ' Neither the
"Alcaldia Mayor" of Mines of Tegk~cigalpa nor the
settlement of Choluteca were mentioned in this list.
Similarlv, in 1581 the Governor of Honduras made a
complaint to the King that the creation of the
"Alcaldia Mayor" of Mines had not increased but rather
diminished his jurisdiction. so niuch so that the
"Alcalde Mayor" of Mines denied him the deference
to whicli he was entitled and instead claimed to be
directly dependant on the "Real Audiencia" of Guatemala
21. H.M.: p. 533.
22. E.s.c.M.: Annexes: vol. V. pp. 7-47.
23. E.s.c.M.: Annexes: vol. V, p. 36.5.18. A further ai-giinienexpoiiirdedby the H.C.M.
12Y) inakes refer-ence to t.he searcti for an
inter-oceanic route caïried out in 1590 by a commission
of enginee1.s and colonial in1itary officers, oii the
basis of which Honduras explains the attribution of
Ctioluteca to the "~Icaldia Mayor" of Mines of
Tegucigalpa in 1578 and 1580. To reinforce this
argument. Honduras pïesents partial extracts from
the record of this seaïch (_=, . However, if this record
is r-ead in its ent:iretv, the true nature of the partial
~iiotatioris aricl tlie distorted interpretation which
Honduras draws from them become abundantly clear.
Ttiis docuinent, addressed to the King, commences (26)'
"Par ordre de votre Majesté, se sont rendus dans ces .
provinces de San Miquel et Honduras, Francisco de
Baluerdi et le Capitaine auintanilla et le Capitaine
Pedro Ochoa Leguisamo et l'Ingénieur Bautista ~ntonelli
pour voir les ports de Fonseca y de Cabal los .et la
disposition des terres et des chemins. Ils ont sondé
et i1s ont exainine le port de Fonseca sur la Mer du
Sud qui est le plus utile, et le meilleur qu'il Y
ait dans touL le royaume de votre Majesté". The report
subsec-luen1t- eiiumerates al 1 the riches that existecl
"clans ces provinces de Jan Mi& et du Honduras"
The Town Council of San Miguel contemporaneouslv
(27).
sent a letter to the King, thanking him for having
remenibered that Province and for having sent these
four gentlemen "to see and survev this Bahia de Fonseca
which is withiri it.s jurisdiction and which will be
so useful for those who might begin such commerce.
coiisequently they ask For permission to move for both
24. H.C.M.: p. 646.
25. H.C.M.: pp. 646-648.
26. H .C.M.: Annexes: p. 268.
27. H.C.M.: Annexes: P. 269. the towiiand its pop~lation. because they have houses
and wareliouses erected, and the thiiigs necessary for
the comfort of tliose who arrive from siich lengthy
voyages and this Corpoi-ation, in the name of the city
of San Miguel, will be very grateful. Signed in the
Puerto de Fonseca oii 8 June 1590"
(28)' \ ,
IV. The Later S~anish Colonial Documentation
5.19. In oïdeï to avoid becoming totally lost
within the abundant Spanish colonial
documentation which has been presented by the two
Parties to this litigation in relation to the question
of Jurisdiction over the Islands of the Golfo de
Fonseca, it is absolutely vital to take into account
the dates of the different documents. This is for
two reasons. First, the juïidical status of the islands
could not possibly have remained completely unchanged
throughout the three centuries of the Spanish colonial
domination. Thus, the probative force of each document
depends entirely on the date on which it was executed.
Secondly, in accordance with the doctrine of uti
possidetis iuris, it is necessary to attach prime
importance to the situation as it existed on or shortly
before the date of independence of Central America
in 1821. This means that it is not possible to
attribute the same probative effect to documents of
1500 as to those of 1600 or to those of the Eighteenth
Century or of the beginning of the Nineteenth Century.
5.20. There is a point in time which permits a
division to be made in the chronological
study of the documentation which has been presented
by the Parties; this point in time can be situated
28. E.S.R.: Annexes: P. 150between the years 1672 and 1688. It was in this period
of seventeeii vears that the transfer of Choluteca
from the ecclesiastical jurisdiction of the Bishopric
of Guatemala to the ecclesiastical jurisdiction of
tlie Bishopi-ic of Comayagua took place; corisequent ly,
it was duriny this period that the phenomenon of the
slow and progressive adaptation of the civil
jurisdiction t.o the ecclesiastical jurisdiction which
was required by the "Real Cédula" governing this matter
was occuriny (_.,).
5.21. Prior to this period. as is demonstr-ated
by tlie very fact of tlie transfer of
jurisdiction and corif ii-medby the documentation which
has beeri presented by the two Parties to this
litigation (go,, Choluteca belongrd to the jurisdiction
of the Bishopl-ic of Guatemala and was therefore
adniinistered ' froni San Salvador and not from the
Governorship of Honduras. This signifies that the
few docuirients wh ich have been presented by Horidur-as,
29. The H.M. (p. 540) affirinsthat this transfer
of ecclesiastical jurisdiction included
the Guardania de Nacaoiiie. However, the
E.S.C.M. (Para. 6.30.. p. 182) has shown.
bv means of i-rliable documents which have
yreater probati-ve force than those referred
to in the H.C.M. <p. 276). that the Guardania
de Nacaome remained subject t-O the
. jurisdiction e~f the Bishopric of Guatemala
as it had alwavs beeri. 'Consequently, the
document referr-ed to in the H.C.M. (p. 270)
relating to a visit from Nacaome t.0 the
1slands does iiot const itute the sligtitest
proof of an' jurisdiction whatsoever of
Honduras over the Islands of the Golf0 de
Fonseca.
The documentation presented by El Salvador
is that referi'ecl to in E.S.Ç.H.: Para. 6.20..
pp. 175-176. and in E.s.C.M.: Annexes: Vol.
VII. pp. 65. 70 8. 107. The documentation
presented by Honduras is that in H.M.:
Anneses: pp. 2289 R 2297.al1 of which date from the period between 1590 and
(31)' from which certain links between Choluteca
and some of the Islands of the Golfo de Fonseca might
be said to emerge, do not constitute anv proof
whatsoever in support of any jurisdiction of Honduras
over the Islands. These documents only indicate that
jurisdiction and administrative control over the
Islands was exercised from the Province of Guatemala
through San Miguel. Although some documents have indeed
appeared or1 the basis of which Honduras has claimed
that jurisdiction over the Islands was exercised from
Choluteca. the explanation for this is extremely
simple. The "Alcalde Mayor" of San Salvador had
jurisdiction over both San Miguel and Choluteca. The
proof of this is in the documents of appointment of
the "Alcaldes Màyores" of San Salvador (32,.
5.22. However, the situation changed when the
transfer of ecclesiastical jurisdiction
over Choluteca from the Bishopric of Guatemala to
the Bishopric of Comayagua took place and when this
transfer was subsequently extended so as to embrace
also the civil jurisdiction over-Choluteca. From this
time onwards. it was no longer possible to continue
goveriiing and exercising administrative coritrol over
the Islands from San Miguel through Choluteca.
Choluteca was now subject to a different ecclesiastical
jurisdiction and this necessaïily determined that
from that time onwar-ds the Islands had to be
administered exclusively from San Miguel. This fact
is proven by the documents which have been presented.
Al1 the documentation presented by Honduras in support
of its claim to the Islands is prior to 1687. On the
31. H.M.: Annexes: pp. 2297, 2300. 2302, 2303
& 2315.
32. E.S.C.M.: Annexes: Vol. VIX. p. 65; E.S.R.:
Annexes: p.other hand. the documentation presented by El Salvador
which shows its administrative control over and
government .of the Islands as from Sari Miguel, both
in respect of civil and ecclesiastical jur-isdiction.
covers the periods both before and after 1687. The
documentation presented by El Salvador has triespecial
characteristic that it extends over the whole period
and as from 1687 becomes the onlv documentation
relatirig to ttie Islands. On the othei- hand. not one
single document presented by Honduras in respect of
the period after 1687. either relating to civil
jurisdiction or to ecclesiastical jurisdiction.
establishes any connection whatever eitheï between
Choluteca and the Islands or between the "Alcaldia
Mayor" of Mines of Tegucigalpa and the Islands.
5.23. Honduras attempts to conceal this hi~hlv
significant lack of Spanish documentation
as from 1687 by affirming ttiat. after jurisdiction
over Miailgola (Meanguera) was attributed to Cho1uteca
in 1535, "Au cours des années suivantes. il n'y a
pas trace de ce que l'attribution. à Choluteca. de
I'ile en litige ait été modifiée" Irirealitv.
(33).
the starting point of this argument is misconceived.
To affirm that in 1535 jurisdiction over Meanguera
was attributed to Choluteca amounts to a radical
contradictiorrof the provisions of the "Reales Cédulas"
of 1563 and 1564. What is more, the reasoning adopted
subseqiientto this initial error is also unacceptable:
it is based on a sweeping affirmation which purports
to cover almost tliree centuries of Spanish colonial
domination during which there is abundant evidence
that the administrative control over and the civil
and ecclesiastical government of the Islands was
33. H.C.M.: p. 646.exercised from San Miguel.
V. The Ecclesiast ical and Civi 1 Jui-isdictiuii ovei.
--
the Islands
5.24. The docunientatiori rc.1at. ny bol:h to tt~e
ecclesiastical and to the civil jurisdiction
which has been presented ùv El Salvador deinonstrates
simultaneouslv. in a neyative sense. ttiat neither
jili-isdiction nor administrative coriti-ol was ever
exercised over the Islands fronl Choluteca and Nacaome
and. in a positive sense. that this jurisdiction and
admiiiistrative control over the islaiids was in fact
exerc ised from San Migue 1 .
5.25. So far as concerns the ecclesiastical
jurisdiction. it is sufficierit to list tlie
following documents.
(a) i665 Iri this document presented in tlie E.S.'.M.
the Convento de Amapala and tlie
(3'i)'
Islands are mentioned as dependencies of
San Miguel; none of the Islands is mentioned
as a dependency of Choluteca or Nacaome.
(b) 1G73 In this document presented in the E.S.C.M.
(35)' exactly the same is shown.
(c) 1675 In this document preseiited as an Annex to
this Reply (36)' the Bishop of Honduras
having attempted ta aggregate to his
Bistiopric the Guardania de Nacaome, the
Bishop of Guatemala replied that: "the
34. E.S.C.M. : Para. 5.18.. p. 152: Annexes:
Vol. VII. pp. 1 & 7.
35. E.S.C.M. : Para. 5.19.. p. 152: Annexes:
Vol. VII. pp. 24 & 25.
36. E.S.,K.: Annexes: p. 170 Bishops. not being content with the
jurisdiction of their dioceses, wish to
extend them by taiiing jurisdiction away
from other Bishops and in this they are
serving neither. God nor his Majesty". By
a "Real ,CédulaW of 21 Julv 1678. the King
resolved riot to accede to the request inade
to him by the Bishop of Honduras.
cd) 1733 In this docunient presented in the E.S.C.N.
the dependencies of the ecclesiastical
(37) '
jurisdict.ion of Choluteca are enumeïated
and no such dependency in the Islands is
ineiioned .
te) 1765 In this docunientpresented irithe H.M. (38)'
the Report prepared by Joseph Valle. there
is no mention of anv curacy in the Islands
dt?pendent on Choluteca or on the "Alcaldia
Mayor" of Mines of Tegucigalpa.
(f) 1791 In this document presented in the H.M. (39)'
the 1ist oF Curacies drawn up by the Bishop
of Comayagua. Fernando de Cadinanos. thei-e
is no mention of any dependency of Comayagua.
Choluteca or Nacaome, in the Islands. This
list was considered ,to be decisive by .Che
Tr-ibiinalof Arbitration which decided the
litigation between Guatemala and Honduras
(40).
(g) In this document presented in the E.S.C.M.
37. E.s.c.M.: ~nnexes: Vol. VII. P. 36.
38. H.M.: Annexes: p. 13.
39. H.M.: ~nnexes: p. 17.
40. See E.S.C.M.: Para. 5.23.. pp. 154-155 ($1)' the Report of the Gorernoï of Honduras.
Ranion de Anguiano. t1iel.e are iio islaiids
inc I udeci in t lie eiiuiiierat ion aiicl clesci-i pt ion
of ei tlier- Clio1 uteca or Nacaoriie.
5.26. So far as concei-ns the civi 1 juris~lict ion,
it is sufficient to 1ist tlie followiiig
docilineiits.
ta) II tliis docuiiier~t pr-eseiited in tlié E.S.'.M.
a iiieasur-enlelit on the Isla cte Asiapala
(52) *
was ordered f1-0111Saii Miguel .
(b) 1676 In tliis docilnieiit preseiitecl iii the E.S.C.M.
(SL3)' the "Real A~i~lieiicia" of r;iiateiiiaIa
declai-cd that the yovei'iinieiit of t lie 1sl aiicis
ought to be car-ried out fi-oiii Sail Migiiel .
cc) 1677 In this document pi-eseiited in tlie E.S.(:.M.
($5) ' t.axes were col lected in respect of
the ISlaiids froiii San Migiicl.
tel) 111 this dociinleiit pi'eseiited iii the 'C.S.'.M.
a pet it i ciii seek i iig an esciiipt i oii f i'oni
tL5)'
taxes in respect of tlie Islaiids was di i.t?cted
to San Miguel.
te) Iii this docilnieiit preseiitecl iii tlie E.S.C.M.
SI. E.S.C.M. : ~'3i.a. 6.51. . pp. 193194; Aiiiieses:
1. VIII. p. 195.
52. E. S. C. PI. : rai-a. G. 23. . pp. 177- 178: Aiiiieses:
vol. Vll 1. p. '3.
53. E.S.C.M. : para. 6.32.. p. 183: Annexes:
Vol. VIII. p. 57.
54. E.S.C.FI. : rai-a. 6. -7. . p. 18~1; Aillieses:
Vol. VI11. p. 49. Iiiternatioiial Court of Justice
CASE CONCERNING '1'I-IELAND, lSl~.~lXll ,\A'S)
niAKlTIklE FKON'TIELt DISP11'1'i:
(El Salvador 1 Iloiidur~is)
KEPLY OF TI-IE REPUULIC OF EL Sf11,VAUOIZ
ERKATURI
1. Page 15. Chaptcr II. Tlie 1,ow Rcl)~~lic:il~lc tu I:oiiiial
Deccls to Coiiimoiis. Footnotcs slio~ilcl rcad:
31. 11.C.kI. Anncxcs. Page 47
32. E.S.R. An11c:ics. Pngc 404.
2. I'oye 120. Cliüptcr IV. ~~i~g~i~iiciits JI :i 11ii111;iiii:itul.o
Footiiotc stiould 1,ccid:
A:i:iexcs to Chaptcr IV. I'ugc 267.
3. Page 134. Cliüptei- V. i Dctcriiiiii:itio~i OS liic:Jiiriclietil
Sttitus of tlic Isltiiids.
The second footnote sliould icnd:
32. E.S.C.VI.: Aiiiie:ics: Vol. VII. p. (i5.
E.S.K. Aiincscs: -- 159 tiiiclIliO.
4. Page 146. C1i:iptcl- V. 'l'lie I)cter~iii~:;iIio~i 01'1111,.I~~i.itlic;il
Status of tlic Islands. At the ciicl of' tiic l'ouliio1c.i. il 1.;
76 bis. E.S. R. .4ni~cxcs: p. 198.
5. Page 198. Cliapter VI. Tlic Rlt~ritiiiic Sp;iccti. 'l'lic sccoi1:l
footriote sliould rcad:
77. I-i.C.RI. : pp. 705-706;. Cliaptc~, SI\'. IJ;ii,;i13. 7
E. S. K. : Annexes. P;igc 349. (46) ' taxes wefe collected in the Isla de
Meanguera under the jurisdiction of San
Miguel.
Cf) 1740 In this document presented in the E.S.C.M.
(47)' a description by the "Alcalde Mayor"
of San Salvador of that Colonial Province.
the Islands are included.
(9) 1743 In this document presented in the E.S.C.M.
an exhaustive description by the
(48) '
"Alcalde Mayor" of Tegucigalpa, Baltasar
Ortiz de Letona. of the Colonial Province
of Honduras, the references to Choluteca
and Nacaome do not contain any mention of
the Islands and indicate that this Coast
has no sea 'ports
(49)'
(h) 1746 In this document presented as an,-Annex to
this Reply (50). it is stated that the
inhabitants of Nuestra Sefiora de las Nieves
de Amapala and of Meanguera, within the
jurisdiction of San Miguel, had to pay their
tithes to the "Alcaldia Mayor" of San
Sa1vador.
(i) 1750 In this document presented by the E.S.C.M
46. E.S.C.M. : Para. 6.34., p. 185; Annexes:
Vol. VIII, p. 219.
47. E.S.C.M. : Para. 6.35. , p. 185; Annexes:
vol. VIII. p. 155.
48. E.S.C.M.: Paras. 6.37.-6.39.. pp. 186-187,
and the documents there cited.
lr9. In 1745 a "Real Cedula" was issued in favour
of Juan de Vera which is cited by the H.C.M.
(p. 65211).The E.s.c.M. (Paras. 5.29.-5.31..
pp. 158-160) and the E.S.M. (Para. ?.??.)
set out the' reasons why this "Real Cédula"
has nothing whatever to do with the question
of the delimitation of the Spanish colonial
possessions in America.
E.S.R. :Annexes: p. 171 (51)' a census of the Indian population
of the Isla de Amapala States that it is
within the jurisdiction of San Miguel. (52)
(j)1776 In this crucial document presented bv the
E.S.C.M. (53), the "Real Audiencia" of.
Guatemala upheld the jurisdiction of San
Miguel over the Isla de Exposicidn. The
H.C.M. (54) inserts a colon into this
document in order to try to sustain that
the island in question was not the Isla
de ExposiciOn but the Isla de Zacate Grande.
However. far from improving the claim of
Honduras, this alteration actually makes
it worse. If the decision of the "Real
Audiencia- of Guatemala refers to the Isla
de Zacate Grande. that demonstrates that
al1 the remaining islands, whicliare further
from the Coast than the Isla de Zacate
Grande, were a fortiori ais0 subject to
the jurisdiction of San Miguel.
(k) 1812 In this document presented as an AnneX to
this Reply (55). the Corporation of Comayagua
asked once again that the "Alcaldia Mayor"
of Tegucigalpa should be incoi-porated into
it and that the Judicial District of San
51. E.s.c.M.: para. 6.36.. p. 185; Annexes:
Vol. VIII, p. 219.
52. In 1770 the Bishop Cortes Y Larraz produced
a Report which is relied on by the H.C.M.
(p. 649). As is explained in the E.S.C.M.
(Para. 5.26.. pp. 526-527) this Report,
whose text is in the Annexes to the H.M.
(p. 2319). has not been correctly interpreted
by Honduras.
E.S.C.M.: Paras. 6.43.-6.46.. pp. 189-191;
Annexes: vol. VIII, p. 172.
H.C.M.: Pp. 655-657.
E.S.R. : Annexes: p. 185 Miguel. witliin the jurisdiction of the
Iiitendency of San Salvadoi-, shoiild bè added
to it. therebv asking for al1 the lands
as fax- as the Rio Lempa (that is to say
al 1 tlie terr-itoi->- which is todav comprised
in the Departments of Chalatenango. San
Miguel. Morazan and La Union in the Republ ic
of El Salvador>. the boundaries of the
Pro\;ince of Honduras being the bank of the
Rio Lempa as from its source. which was
wi tliiii the boundar ies of that Province.
The Spanish "Consejo de Estado" (Council
of State) felt that it was not appr-opriate
to make an- changes until the new demarcation
of the "Provincias de iJItr-aniar" (the
Provinces beyond the Seas) took place.
5.27. ,The H.C.M. (56). unable to make an?; replv
to these categoric documents. merely produces
its original argument that matters could have been
different in so far as San Miguel could have been
attributed to the Governorship of Honduras. since
this was indeed proposed to the King. e\:en though
the King neveï accepted this proposition TO
(57).
this tvpe of hvpothetical argument.. the oiilv
appi-opriate response is to recall the maxim avec des
si et cetera.
5.28. Finally, t.he H.C.M. relies on the
(58)
Arbitration Award of the Kinw of Svain
between Nicaragua and Honduras. in which it was
affirnied that in 1791 the "Alcaldia Mayor-" of
56. H.C.M.: P. 645.
57. H.M.: p. 531.
58. H.C.M.: P. 652. Tegucigalpa was iiicoi-poi-atediiito t.he Intendeiicv aiid
Governorsliip of Coinavagila together with al1 the
territor-? of its Bishopric. Iri 1-elation to this
reliance on iiiiAr-bitration Awai'd whicfi is res i~ts
m. the following observations must be made.
5.29. First. this incor-por.atioipiroves that prioi-
to 1791 the "Alcaldia Mavor" of Mines of
Tegucigalpa did not form part of the Governoïship
of Honduras.
5.30. Secondlv. this incorporation of 1791 was
rescinded by a "Real Cédula" of 1816
(59)'
bp wliich it was provided that the "Alcaldia Mavor"
of Mines of Tegucigalpa should once again be separated
from the jurisdiction of Coniavagua so that the
situation wliich had existed pi-ioi' to 17<31 was
reestabl ishecl. Thus this "Alcaldia Mavoi-" was once
again dependant on the "Real Aiid ieiiia" of Guatenia1a
and not on the Governorship of Honduras (Lhis is proved
by documents of 171 1744. 1762 and 1765 which have
been preseiited by El Salvador (GO) bv which "Alcaldes
Mavoi,es" of Mines of Tegucigalpa in the Provinces
-f Guatemala were appointed).
5.31. Thirdlv. these transfers of jui-isdiction
had nothing whatsoever to do with the
juridical status of the Islands of the Golfo de Fonseca
simplv because the "Alcaldia Mayoi'" of Mines of
Tegucigal pa never eLther had or exerc ised iurisdiction
over these Islands. Not one single document establishes
any such jurisdiction. The confusion displayed by
59. E.S.C.M. : Para. 6.22.. P. 177; Annexes:
Vol. V. p. 48.
60. E.s.c.M. : Para. 6.21.. p. 176; 'Annexes:
vol. VII, p. 145.Honduras as to the .iurisdictionwhich it alleges that
the "~lcaldiü Mayor" of Mines of Tegucigalpa enjoyed
over the Islands of the Go1Eo de Fonseca is dispresed
once and for al1 b? u document of 13 March 1685
presented as an Annex to this Reply (61)' This document
records ttiat. during a CounciI of War attended by
the President and the "Oidores" (Judges) of the "Real
Audiencia" of Guateinala. letters were read from the
"Alcaldes Mayoi-es" of San Salvador and Sonsonate on
the danger-s posed hy hostile pirates who were in the
immediate vicinity of the ports of these jurisdictions.
The President and "Oidores" of the "Real Audiencia
of Guatemala resolved that. "in order to anticipate
what would be necessûry for thei r defence if the enemy
who was in the immediate vicinity of these ports tried
to sack the cities and towiiships of-San Miauel and
San Salvador. the "Alcalde Mayor" of Mines of
TeRucigalpa. Antonio ~~ala, is ordered to go there
with the armed companies fron~ his jurisdiction to
proviciesuch help as the occasion might demand giving
Iiis assistance in everything that could be offered
in the service of His ~ajesty and the said "Alcaldes
Mayores"". As may he seen, it emerges from this
document that the "Alcalde Mayor" of Mines of
Tegucigalpa was ordered to provide defensive help
for the Islands onl? in a situation of emergency and
with the object of assisting in the defense of the
ports which remained subject to the jurisdiction of
the "Alcaldes Playores"of San Miguel and San Salvador.
5.37. Fourthly. the "Alcalde Mayor" of Mines of
Tegucigalpa would have had 'great difficulty
in exercising his alleged jurisdiction over the Islands
since, as is demonstrated in the Report made by the
61. E.S.K.: Annexes: p. 191President of the "Real Audiencin" of Guatemala in
1752 (62). the coast under- his .iurisdiction Iiad rio
ports. The H.C.M. (63) seeks t.o counter this conclusive
Report of the Presideiit of the "Real Audiericia" of
Guatemala by nieans of a Report v Luis Diez Navar-ro
in 1758 but this document does not in fact mention
any port on the coast which was subject to the
jurisdiction of the "Alcalde Mavor" OF Mines of
Teguc iga1Pa .,
VI. The Peaceful and Continuous DisLay of State
~uthor-i ty
5.33. In considering the discussion of this matter
in the E.S.M. (65)' the H.C.M. (66) 1imits
itself to affirining that argiiments of this tvpe are
irrelevant. despite the fact r.hat Ltiev are clearlv
based on both the decision of the Irit.ernationa1Court
of Justice in 'the Minquiers Ecrehos Case and
(67)
on the decision of the PerniarientCour-t of Justice
in the Eastern Greenland Case Consequently.
in this Reply El Salvador wi11 confine itself to a
brief resumé of the antecedents of its peaceful and
continuous display of State authority over the Islands
of the Golfo de Fonseca and the documents which support
these antecedents.
5.34. Ttis resumé comprises the following
62. E.S.C.M. : Para. 6.41.. p. 188, and the
document theïe cited.
63. H.C.M.: P. 654.
,4 . H.C.M.: Annexes: p. 267.
65. E.S.M.: Chapter 11. '
66. H.C.M.: p. 662.
67. I.C.J. Reports 1953 p. 65.
68. P.C.I.J.: Series A/B No. 53 p. b5. antecedents.
The British Consul Chatfield ordere1 a
blockade and took as a Pledge "al1 the
Islands of this Bav belonging to the actual
State of El Salvador. especial1v Meariçjuera.
C~II~hagüita. Punta de Zacate and Perez"
(69)'
The same Chatfield returned to El Salvador
the Islands mcntioned above
The authorities of El Salvador agreed to
grant permission for the sales of land on
various Islands of the Golfo de Fonseca
Judicial organs of San Miguel authorised
measurements in various Islands. including
the Islas de Meanguera. Conchagüita. Punta
de Zacate, Ilca. and ios Pericos
(72)'
El Salvador protested to Honduras in respect
of an attenipt to carry oiit a measurenient
on the Isla de Meanguera and Honduras
desisted from proceeding therewith (73)'
(fi 187-, Authorities of El Salvador order-eda pub1ic
auction of unciiltivated lands or1 the Isla
de Meanguera (74)'
The Governmcnt of El Sa1vador establ ished
E.S.M.: Para. 11.10.; E.S.C.M.: Para. 6.54..
E.S.M.: Para. 11.11.; E.s.c.M.: Para. 6.51..
E.S.M.: Para. li.3. and the docuineiitscited
therein.
E.S.M.: Fat-a. 11.4. arid the documents cited
therein.
E.S.C.M.: Para. 6.60.. p. 199
E.S.M.: Para. 11.5. and the docunteiits cited
therein; E.S.C.M.: Para. 6.67.. p. 203. a school for girls on the lsla de Meanguera
(75)'
(h)1894 The Governmeiit of El Salvador captui-ed and
disarmed re'volutionary Honduran forces on
the Isla de Meariguera and placed their arms
aiid munitions at the disposition of the
Government of Honduras (76)'
Ci) Honduras signed a definitive Boundary Treaty
with Nicaragua which established a line
of equidistance between "the coasts of both
Republ ics" drawn between the Isla .del Tigre
and the Punta de Cosigüina. This 1ine implied
a definite recognition by Honduras that
the Isla de Meanguerû belonged to El Salvador
since the line of equidistance would have
been totally different if the Isla de
Meanguera belonged to Honduras.
(j) 1914 El Salvadoi' passed a Law authorising a free
port on one of the Islands of the Golfo .
de Fonseca (77)'
(k) 1914 A contract was approved for the construction
and exploitatiori of this free port on the
Isla de MeangUera (78)'
(1) 1916 El Salvador passed a Law declaring that
the township of the Isla de Meanguera had
the status of a "villa" with the riame of
75. E.S.C.M.: Para. 6.70.. pp. 204-205. and
the document cited therein.
76. E.S.M.: Para. 11.7. and the docunients cited
therein.
77. E.S.M.: Para. 11.8. and the document cited
therein.
78. E.S.M.: Para. 11.8. and the document cited
thei-ein. Meanguera del Golfo (79)
5.35. Honduras has not presented one single
documerit which establ isties ariy peaceful
and continuous display of State authority oii aiiy of
the islands of the Go1 fo de Fonseca.
VII. The Position of the &la del Tiare (also known
as the Isla de Ama~ala)
5.36. Iii an atternpt tu exclude the Isla del Tigre
(also known as the Isla de Ariiapala (80)'
from the scope of tlie dispute over tlie Islands. the
1i.C.M. (t31) affirms tliat El Salvador recognised the
sovereigrity of H0ndur.a~ ovei' this Island in a
.Diplornatic Note of 12 October 1864 <82,. However .
ariy attempt to verify ttiis assertion leads to the
suïprising discovery that this supposed recognition
woulrt emariate from an energetic Note of Protest sent
by El -1vador to . Honduras fi rinly expressing its
oppositiori to two decisions which the Goverriment of
Honduras was proposing to take: the projected sale
of the Isla del Tigre to the United States of America
and a proposed measurement of the Isla de Meanguera
and the Isla de Meanguerita. In t.his Note. the
Government of El Sa1 vador impugned the pro-iected sale
of the Isla del Tigre. indicatiirg that such a sale
would bririg about the ecor~omic ruin of the ports of
79. E.S.M. : Para. 11.9. and the documents cited
tliei-ein.
80. The two names are used quite interchangeably
(see below Paragraph 5.41. et seu.). However,
escept where the context otherwise requires,
this section will refer to this island simply
as the Isla del Tigre.San Lorenzo and La Union and. that the transfer into
foreign tiands of the coasts and islands of Centra1
America would bring along with it the loss of the
independence of the States of Central Ame1.ca.
Consequently, El Salvador- protested energetically
against any alienation of that Island that might be
made and stated that it would not hesitate in taking
al1 the measures required by the situation.
5.37. The Government of El Salvador did riotcontent
itself nlerely with sending this Note of
Protest to the Govei-nment of Honduras; it also sent
a circular letter to the other three States of Central
America. asking them to procure that ttieir energet-ic
protests also reached the Government of Hoiidi~ras with
the object of impeding alienations which would be
"as unpredictable. as (ttiey would bel fatal" ,83).
(This firm policy of El Salvsdor as defender and
promoter of an exclusively Central American character
for the Golfo de Fonseca is the same policy which
subsequently led it in 1916 to ask the Central American
Court of Justice to annul the Bryan-Chamorro Treaty,
a request which gave rise to the proceedinys between
El Salvador and Nicaragua in that Court in 1917. )
This decided opposition from El Salvador determined
that the Government of Honduras desisted from the
projected sale and the measurement which it had
contemplated.
5.38. To attenipt to extract from this serious
incident and from the Note and the circular
letter sent by El Salvador a type of implicit
recognition by that State that exclusive rights of
sovereignty over the Isla del Tigre were vested in
83. H.M.: Annexes: p. 2251Hond11r.a~ is to draw from the text of these documents
a meaning totaI1y opposed both to theii- letter and
to their spirit.
5.39. The H.C.M. (8L) affirms that the position
adopted by El Salvador in respect of the
Isla del Tigre lacks either foundation or historical
dociiinerrts to support it and is instead hased on a
supposed Agreement of 1833. El Salvador has not even
mentioned this Agreement, never mind ïelied on it.
\
l
5.&O. On the other hand. there does indeed exist
a de facto occupation of the Isla d6l Tigre
by Honduras on the basis of an authorisation which.
with limited objectives, was agreed by El Salvador
in 1833 (85).
5.11. Honduras has not indicated to the Chamber-,
as it did in the H.M. (86) in the case of
Meanguera (which is also called Meangola). that during
the colonial period the Isla del Tigre was most
commonly known as the Isla or Piierto de Amapal or
Anlapala or as the Isla de Tigres. For tliis reason.
the E.S.C.M. (87) on occasions referred to this Island
as the Isla de Amapala when discussing colonial
documents in which that name was used.
5.-'+2. Earlier in this Chapter El Salvador
set out a cronolo~ical Iist of the
documentation whicli constitutes complete proof that
8f4. H.C.M.: p. 641.
85. E.S.M. : Para. 11.13..
86. H.M.: p. &SI.
87. . E.s.C.M.: Paras. 6.23. & 6.32.. pp. 177-178
& 183.
88. In Faragraphs 5.25.. 5.26.. & 5.28.-5.32.. neither the "Alcaldia Mayor" of Mines of Tegucigalpa
nor Choluteca and Nacaome ever exercised either civil
or ecclesiastical jurisdiction over the Islands of
the Golfo de Fonseca. A brief resume wi 11 now be made
of the historical documents which support the rights
of El Salvador over ttie Isla de Tigre (also known
as the Isla de Amapala).
(a),l6l In this document presented iii the E.S.C.M.
im)' the Isla de Amapala or del Tigre is'
stated to be within the jurisdiction of
San Miguel.
(b)1643 In this document presented as an Annex to
this Replv it is stated that utc ch
pirates threateried to attack the Puerto
de Amapala in the jurisdiction of the
"Alcaldia Mayor" of San Salvador. once again
prbving that this port was within the
jurisdiction of San Salvador.
(c) In this document presented as an Annex to
this Replv (91), a Spanish vesse1 applied
for permission to disembark in the Puerto
de Amapala. described as being within the
jurisdiction of San Miguel.
(d) i688 In this document presented as an Annex to
this Reply <g2.. the "Alcalde Mayor" of
sail Salvador reported on events which had
occurred at the Ensenada de Amapala and Isla
del Tigre within his jurisdiction. It is
interesting to note that in the same document
the assistance providrd by the "Alcalde
Mayor" of Mines of Tegucigalpa is mentioned.
89. ,E.s.c.M.: para. 6.23.. pp. 177-178.
90. E.S.R.: Annexes: p. 203
91. E.S.R.: Annexes: p. 208
92. E.S. R.: Annexes: p. 215 The fact that aid was thus sought from the
"Alcalde Mayor" of Mines of Tegucigalpa
demonstrates that he did not have ariy rigtit
as such to interfere in the area of the
Golfo de Fonseca and its Islands (93)'
te) 1697 In this document presented as an Anilel;to
this Reply t94), the "Alcalde Mayor" of
San Salvador was i'eplying to a Report from
the President-Guardiaii of the township aird
district of Nuestra Sefiora de las Nieves
de Amapala, Fray Luis Davalos de Osorio.
tliat the Indians of Aniapala were very few
on account of the invasions of hostile
pirates which thev had suffered on these
coasts from 1688 onwards and tt~at
consequently thev had added theniselves,
together with the images and statues of
their Saints, to the township of the Island
of Meangola but that they nevertheless alwavs
went in their canoes t.6 sow their maize
fields on the lsla de Tigres. The "Alcalde
Mayor", in a document signed in San Salvador
on 10 July 1697, replied that he considered
it very convenient that the Indians of
Amapala should form a common settlement
and unite with the Indians of Meangola.
tf) 1714 In this document preserited as an Annex to
this Reply (95). Fray Juan Bautista Alvai'ez
de Toledo. Bishop Elect of Chiapas and
Governor of Guatemala, made reference to
the forma1 legai records of his visit &
the Judicial District of Ama~ala in the
93. See Paragraph 5.31. above.
94. E.s.R.: Annexes: p. 221
95. E.s.R.: Annexes: p. 239 ~ity Of San Miquel. in the course of which
he asked that al1 the records of the
administration of the said Judicial District
should be exhibited to him. Fray Jua~i
, Achutegui. Parish Priest of the Curacy of
Amapala. exhibited the books in which were
written and recorded the certificates of
those who were baptised, married and buried
in the townships of Santa Maria Magdalena
de la Meanguera, Santiago Conchagua and
Amapala. townships which he declared to
be under Iiiscare with the approval of the
Bishop of Guatemala. Bishop Alvarez de
Toledo, having seen these legal records
made in Meanguera, Conchagua and Amapala,
whose administration appurtained to the
Religious Order of San Francisco of the
Convent founded in the city of San Miguel.
ordered in a document signed on 16 February
1714 in the city of San Miguel. that an
original copy of these legal records should
be put in the ~egister of Baptisms of the
Parish Church of the township of Amapala
to remain as a record there for al1 time.
(g) 1729 In this document presented as an Aiinex to
this Reply (96). the title of "Maestre de
Campo de Infanteria" of the city of San
Miguel was conferred on Juan Joseph de Molina
in order that he might defend its coasts
and ports. electing him "Maestre" of the
Province of San Miguel on account of the
notoriety of the invasion by pirates of
the Bahia de Amapala. its islaiids,and its
coves in order to avoid any repetition of
96. E.S.R.: Annexes: p. 246 the same
h In this dociiment pi'esented as an Annex to
this ~epl~ ,97,. it was provided that the
inhabitants of NiiestraSellora de las Nieves
de Amapala. of the Province of San Miguel,
within the jurisdiction of San Salvador.
should pay their taxes each year to the
"Alcalde Mavor" of San Salvador. This
document once again confirms the jurisdiction
over Amapala was that of San Salvador.
.ti> ju Tri this document presented as an Annex to
this Reply <98.), José Tinoco. Intendent
of the Province of Honduras. iiifoi-medthe
King of the state of that Province, stating
that. due to the fact that the maritime
esploi.ers and geographers had spoken very
little of the Coast and bays of Honduras.
it hüd appeared to him appropriate to his
ministry thei-eof to include in his Report
an accouiit of the topograpliical state of
i1:sports, ïivers and islands. This document
coiit.ainsa verv detaileri description, with
refei-encesto nuinerousgeographical features
such as hays, islands, ïivers, ports and
so forth. of the entire Province of Honduras
in the periocl imniediately prior to the
date of the independence of Central Americ.3
in 1821: however. in spit.eof this extremely
detai1ed geographical aCCoUnt, ttiere is
riomention anywhere of the Golfo de Fonseca
nor of its Islands. This is of course simply
because they did not form part of that
Colonial Province.
97. E.S.R.: Annexes: p. 177
98. E.S.R.: ~iinexes:p. 254 (j)1820 111 this document presented as aii Anna to
this Reply (99). a Forma1 Record drawn irp
by the Municipalitv of Comayagua on 18
October 1820, it is stated that the Province
of Comayagua had we11 known houndaries and
1iriesof demarcation and t.hat this Province
had to the north the pol.ts of Fuei-te
Trujillo, Omoa and El Triunfo de Cruz. and
to the south the ports of San Bernardo,
Zapoti110 and La Baraja. This Foi-mal Record
does not inclLide among the 1ist of ports
belonging to Honduras the ISla or Puerto
de Amapala or El Tigre. This document, when
added to those that have already been
discussed. sliows clearly that the Isla or
Puerto de Amapala or El Tigre was subject
to the jilrisdiction of San Miguel from the
period of the Spanish Conquest right up
until the very threshold of the date of
the independence of central America in 1821.
This is clearly demonstrated by the absence
of any mention of this Island in these two
descriptions of the Province of Honduras
made in 1819 and 1820. immediately before
the date of the independence of Central
America in 1821.
5.43. The historical antecedents presented by
El Salvador would fully justify the Chamber
in ,piittiiiagn end to the de facto occupation of this
Island by Honduras and adjudicating it to El Salvador
on the basis of the very arguments relating to uti
possidetis iuris which, according to Honduras. ought
tu be used as the exclusive criterion for deciding
99. E.S.R. : Alinexes:P. 264the, dispute between the Parties to this litigation
as to the Islands of tlre Go1fo de Fonseca.
Nevertheless, El Salvador maintains its position that.
in accoïdance with the principles of Pub1ic
International Law as established by the decisions
of the International Court of Justice and of the
various Tribunals of Arbit1ation and as expouiided
bÿ the most important commentators, the decisive
criterion is the peacet.ul and continuous display of
State authority. THE MARITIME SPACES
6.1. In this part of its Reply. the Government
of El Salvador will respond to the
corresponding section of the H.C.M.. The adoption
of the wordina of the headinas used in the H.C.M.
is for convenience only and does not si~nify acceptance
-- the substantive implications of those headinos.
The presentation of El Salvador will follow yenerally
the same order as that of the H.C.M..
1. "CHAPTER XIII : THE SURJECT OF THE DISPUTERELATING
TO THE JURIDICAL POSITION OF THE ISLANDS AND THE
MARITIME SPACES"
"Section 1. The Interpretation of the Compromis."
(A) "The leclal nature of the comvromis and its
conseauences"
6.2. The Government of El Salvador begins by
affirming that there is no dispute between
it and the Government of Honduras regarding the legal
quality of the Compïomis. It is an international
agreement and it falls to be interpreted in accordance
with the rules of inter-national 1aw relatiny to the
interpretation of treaties as codified in the Vienna
Convention on the Law of Treaties, Articles 31 and 32.
6.3. At the same time. the applicabilitv of those
Articles does not exclude the relevance
of either the jurisprudence of international tribunals
bearing upon the subject or of the practice of States.6.4. The H.C.M. seeks to exclude any
(1)
comparison betweeti the Compromis in this
case and the comproinis in other cases, involcing the
maxim o-einter alios acta arid argui~iy that there
is no common law relating to t.he subject of disputes
and of contentious claims.
6.5. The Government. of Honduras misunderstands
the purpose of the reference by the
Governinent of El Salvador to the wording of other
special agreements. The Governntent of .El Sa1vador
does not suggest tliat tliese other texts control the
present situation. Rather. the purpose of the reference
was to show that in the practice of States there is
a clear cut distinction betweeii. on the orte hand.
the detei-minationof relevant legal rules or relavant
legal status arid. on the other. the delimitation of
a maritime boundary. The two Concepts are .n themselves
entirely different and this difference is reflected
in and illustrated by the practice of States as set
out in the E.S.N. Even though the Government
(2) '
of Honduras may wish to "spend no more time" in
considering these other examples of the manner in
which such questions have been expressed in the past.
the fact remains that other States have clearly seen
and expressed the difference between the determination
of legal status and the delimitation of maritiiite areas.
G.G. Ttiis appreciation of the distinction and
of its importance has been recognised by
the I.C.J. itself in tliat, where requested to 1ay
dowri pririciples and rules. it has done that and no
more ttianthat. Only where the Court has been expressly
1. H.C.M. :,Chapter XI II, Para. 3.
2. , E.S.M. : Ctiapter 1 ,Paras. 1.2. -1.6.. requested to decide upon the course of the maritime
boundary 01- to indicate to the Parties "the practical
method" for applying the relevant rules and principles,
has it sought to draw a line. The fact that the Court
has not been asked to perform this additional function
in the present case is evident as a matter of plain
language from the clear distinction drawn between
the two ways in which Questions One and Two have been
formulated. The Government of El Salvador need not
repeat the relevant pai't of its argument as set out
in the E.S.M. (3).and the E.S.C.M.
(&)'
6.7. The Government of Honduras has argued that
there is support in decisions of the P.C.I.J.
and 1.C.J. for the rather broad proposition tliat"the
terms of an agreement under which jurisdiction is
granted must receive an interpretation giving Full
scope to the subject of the dispute and full
effeftiveness to its judicial settlement" Tlle
(5)'
Governnient of El Salvador wi11 presently point to
decisions of the" I.C.J. which support a more
restrictive approach to the interpretation of clauses
conferring jurisdictior~on the Court. First, however,
it Bay be helpful to look more closely at the two
decisions in conteritious cases that are cited by the
Government of Honduras.
6.8. -The first is the fol1owinQ passage in the
Free Zones case:
". ... in case of doubt, the clauses of a special
agreement by which a dispute is r-eferredto the Court
must. f it does iiot iiivolvedohg violence to their
m, be construed in a manner enabliiig the clauses
3. E.S.M.: Chapter 1.
4. E.S.C.M.: Chapter VIII, Section 1.
5. ,H.c.M.: Chapter XIII. Para. 5.themselves to have aepro~riate effects" (emphases
added i.
6.9. In its aiixiety to draw support from this
passage for its rather broad proposi tion,
the Governinent of Honduras has failed to consider
the significance. so adverse to its position, of the
woïds that have been emphasised in the above quotation.
Thus the Court stressed the importarice of not "doing
violence" to the terms of the agreement. Surely, in
the present case. "violence" is preciseli what is
done to the ternis of Question Two if the words "to
determine the leyal status" are replaced bv the wol-ds
"to del imit the boundaries".
6.10. Again the Government of Honduras fails to
note the signi ficance of the adjective
"appropr iate" in the phrase "enabl ilig the clauses
themselves to have appropriate effects". The inclusion
of this adjective means that the Court is not entitled
to interpret the provision in such a way as to give
it any effect whatever - e.g. the large effect claimed
by the Government of Honduras. namely, that of
delimiting the boundary, when delimitation is not
called for and. indeed. is not required at this stage
of 'the pi-ocess of dispute settlement ùetween Honduras
and El Salvador. The Court may give the clause only
"appropriate" effLct - an idea which involves a
limitation of power appropriate to the circumstances.
6.11. Nor does the reference by the Government
of Honduras to the Cor-fu Channel Case stand
up to scrutiny any better. The question there was
whether the words "is there any duty to pay
compensation?", when read in the context of the
question as a whole. conferred upon the Court. the
power tu assess the amount of compensation. The Court's
approach to. the matter was clearly influenced bÿ the fact that Albania evidently thought so little of its
argunient that it did not raise it until its last or-al
staternent; and the British Agent did not ask leave
to reply. Also the Court attached weight to the fact
that the main object that both Parties had in mind
when they concluded the Special Agreement "was to
establish a complete equality between them by replacing
the original procedure based on a unilateral
Application by a procedure based on a Special
Agreement"
(6) '
6.12. 1t would have been ratlier more to the point
if the Governinent of Honduras had recalled
those cases iriwhich the Court had expressly stated
that jurisdictional clauses should be restrictively
interpreted.
6.13. The nature of the Court's approach to these
matters is we11 illiistrated by the Analo-
-1ranian Oil Company Case. Although the Court did
not actually use the expression "restrictive" to
describe its approach to interpretation of a
jurisdictional text. the fact that this would be the
correct word to describe the Court's approach is
demonstrated by the language of dissent employed by
Judge Read. He said
(7):
"It has been contended that the Court should apply
a restrictive construction to the provisions of the
Declaration. because it is a treaty provision or a
clause conferring jurisdiction on the Court .... The
making of a declaration is an exercise of State
sovereignty. and not, in any sense. a limitation.
It should therefore be construed in such a manner
as to give effect to the intention of the State, as
indicated by the words used; and not by a restrictive
interpretation. designed to fr-ustrate the intention
of the State in exercising this sovereign power."
6. I.C.J. Reports 1949 pp. 24-25.
7. I.C.J. Reports 1952. p. 143.6.14. It is well known that one of the n~ost
valuüble îeatures of dissentiny opinions
lies in the clarification of the Court's position
that arises froin the iinplied contrast between the
reasoning of the dissentient judye and that of the
Court. No case could better illustrate this. J,udge
Read dissented because the Court adopted a restrictive
interpretation of the Iraiiiandeclaration and thereby
rejected the liberal or expansive approach favoured
bY Judge Read.
6.15. The correctness of this interpretation of
the situation resulting from the Angle--
Iraiiian Case is confirmed by the 1anguage used by
the Court itself in its Advisory Opinion on JudYments7
of the Administrative Tribunal of the I.L.O.. There.
considering the scope of the jurisdiction conferred
upon the ndministrative Tribunal of the I.L.O.. the
Court said ' .
(8)'
"The araumeiits, deduced from the sovereignty of
States, which miyht have been invoked in favour of
a restrictive inter~retation novernina the
jurisdiction of a tribunal adiudicatina between States
are not relevant to a situation in which a tribunal
is called upon to adjudicate upon a complaint of an
officia1 against an international organization".
The words to which emphasis has been accorded in the
above quotation car)be read by themselves as a positive
statement of the Court's views on the matter.
"(B) The backaround to this disDute and the context
sur round i n^e com~romis"
6.16. The argument of Honduras places great
reliance on its assertion that the purpose
8. I.C.J. Reports 1956, p. 97of the Compromis is to achieve "the definitive and
total solution of the difference existing for nearly
a century and a half between Honduras and El Salvador
.. . regarding the determination of their land and
sea boundaries" (9)'
6.17. Before embarking ,upon an examination of
the presentation by Honduras of the history
of the matter, the Government of El Salvador must
draw attention to the fact that so far as the attempt
by Honduras to achieve a maritime boundary in the
Pacific Ocean outside the Gulf of Fonseca is concerned,
the allegation that a dispute has existed "for nearly
a century and a half" is patently absurd. The concept
of the continental shelf only began to form part of
Central American thinking regarding the extent of
maritime clainis 'in ahout 1950. <It was in that year
that Honduras. for example. introduced into its
Constitution a reference to the continental shelf.)
The concept of the exclusive economic zone (E.E.Z.)
is an even later development - of which there were
no significûnt signs before 1970 and which did not
crystallize. even in treaty form. before 1982. So,
truth to tell. the dispute regarding the legal status
of the maritime area outside the Gulf of Fonseca is
of relatively recent origin. This dispute could not
even have come into being prior to the emergence in
the last four decades of entirely riew ideas in the
law of the sea.
"(1) From the Treaty of Cruz-Letona to the Geiieral
Peace Treaty (1884-1980)."
ta) The Cruz-Letona Treaty
6.18. During this period, Honduras suggests first
9. H.C.M.: P. 672, para. 6.
i that negotiation of the unratified Cruz-
Letona Treaty showed tliat the two countries accepted
the principle of the delimitation of maritime areas
and also decided to give it .concrete expression.
However. it is necessary to look closely at the words
used in the relevant part of that treaty:
La frontiPre maritime entre le Honduras et le Salvador.
part du Pacifique en divisant par deux dans le Golfe
de Fonseca, la distance qu'il y a entre les îles
Meanguera. Conchaguita. Martin Perez et Punta Sacate,
du Salvador. et les Iles de Tigre. Sacate Grande,
Inglesa et ExposiciOn du Honduras et finit à
l'embouchure du Goascoran".
6.19. AS can be seen. other than by the presence
of the words "part du Pacifique", the WOrdS
of the remainder of the Article. when related to the
specific geographical descriptions used. do not
establish a delimitation throunhout the Gulf. but
only between the islands specifically named. As can
be seen from several of the maps that are 1-eferred
to below. a line following the directions given in
the Article terminates at a point between the island
of Meanguera and the island of El Tigre. There is
nothing in the manner in which the description has
been interpreted that would enable it now to be
extended seawards to the east and south of Meanguera
so as to reacli the Pacific at a point on the closing
line of the Gulf of Fonseca.
6.20. Indeed. this is confirmed by close scrutiny
of Map ~~16. to be foulid in Vol. VI of the
Annexes to the H.N.. This niap. which bears the
inscription that it was prepared by Mr. A.T. Byrne.
the Civil Engineer of Honduras. and was published
in 1886. only two years after the signature of the
treaty in question. shows a boundary 1ine in the Gulf
of Fonseca that terniinates in the manner justdescribed. In Map A.19.. published in 1899 and prepared
by Mr. Altschul on behalf of the "Directorio Nacional
de Honduras" the projection of the maritime frontier
between El Salvador and Honduras into the Gu1f of
Fonseca is even shorter.
6.21. Other maps demonstrate a similar
understanding of the situation.
ci) Mapa politico escolar Y telegrafico de la
Republica del Salvador. por G.J. Dawson,
San Salvador, 1887. Bajo la Inspecci6n de
E. Pector. Consul General.
(ii) Mapa de la Republica de Honduras Levantado
POT E.P. Mayes 1.c. 1:530.000. (1907)
(probahly made in Hayana) Published by
Rand, McNallY & Co.
(iii? Honduras, copyright 1909, by E.C. Fiallos,
published August R. Ohman & Co. NY:
1:800,000.
(iv) Atlas de Centro-America, ed. L. Mendioroz
(1912).
(V) Tomado del: Prontuario Geografico de Centro-
-Amer-icaque va a ser publicado proximamente
(propiedad de J.F. Ponciano) (published
at Masaya, Nicaragua), Map 35, La Union.
(vi) Map of Honduras 1:500.000 (Undated, but
acquired by the Royal Geographical Society.
13 MNCh 1936). "Hecho en Honduras". Bears
emblem "Repca de Honduras libre Soberana
Independiente 15 Septre 1821"..
(vii> "Tegucigalpa". American Geographical Society
1937. 1:1.000.000.
(viii) Esso (of Honduras) koad map of Honduras.
1963.
6.22. In any event. El Salvador remains prizzled as to why ~onciuras stiould wish to attach
such importance to the Cruz-Letona Treaty. the tel-ms ----
of which appear to run so contrary to the interests
of Honduras. First, the Treaty aclinowledges that the
islands of Conchagüita and Meanguera belong to El
Salvador. The result of this is inevitably to cut
Honduras riff from the Pacific. Second, the Treaty
lends additioiial support to the manlier in which El
Salvador has interpreted the word "Pacific" as used
in the legislation of Honduras. to describe generally
the soilthern side of Honduras. The 1886 Treaty uses
the word "Pacific" in Article 1 as the equivalent
of the Gulf of Fonseca:
"Le frontière maritime et terrestre qui delimite la
République du Honduras et ce1le du Salvadorm commence
au Pacifique, au Golfe de Fonseca. Baie de la Union,
et se termine à la montagne "del Brujo" ..."
Nor is this a unique example of this practice. In
its Presentatiori to the Mediator in 1978. Honduras
again used the expression "le golfe de Fonseca dans
le Pacifique" - a form of words which makes it clear
that for Honduras the Gulf of Fonseca is the equivalent
of the Pacific (10)' Note may also be taken of the
fact that the same equation appears again on the next
page (11) in t-he phrase "la baie de la Union dans
l'ocean Pacifique". AS the "baie de l'union" is in
the extreme north-western part of the Gulf of Fonseca,
there is no way that it can be regarded as being "in
the Pacific" unless the Gulf of Fonseca is itself
regar'ded by Honduras as forming part of that ocean.
That is just what El .Salvador says that the use of
the expression in the treaty means. Needless to Say,
that use does not yive Honduras an entitlement tc
waters outside the closing line of the Gulf.
10. H.N.: Annexes: IV.1.44. Vol. II, p. 709
11. Ibid.: p. 710.(b) The reacxion of El Salvador to the delimitation
- --
-etween Honduras and Nicaraaua
6.23. Honduras also asserts that in' relation to
the conclusion of the Agreement of 1900
hetween ,Honduras and Nicaragua relating to the
delimitation of their respective maritime areas, El
/ 1
Salvador made no protest. This is not the first time
that it has made this assertion. Honduras did so
previously in the note of protest that it sent to
El Salvador on 30 September 1916 (12)'
6.24. The point was fully answei-ed in the Note
sent to Honduras by El Salvador on 16October
1916 (13). Referring to the observation made by the
Foreign Minister of Honduras in his note to the effect
that El Salvador had raised no objection to the
delimitation between Honduras and Nicaragua. the
Foreign Minister of El Salvador said:
"My Government had no objection to make against ttie
validity of the Agreement referred to (that of 19001
nor against the corresponding limitation of
jurisdictions between Honduras and Nicaragua in the
waters of the Gulf, to the extent that it affected
only the legal relations of those two Hepublics. For
this reason, it had nothing to propose previously
admitelthatn this agreement .arid this actadof) partial
division of the patrimony could result in the annulment
of the rights of condominium that belong to El Salvador
in the waters of the Gulf. ...."
6.25. El Salvador also made its positive position
quite clear in claiming. and establishing.
before the Central American Court of .Justice that
the Gulf of Fonseca was subject to the régime of
12. H.M.: Annexes: XIII.2.40. vol. V. p. 2354.
13. H.M.: Annexes: XIII.S.Ol, Vol. V, p. 2357.condominium. Nicaragua. by denouncing the treaty which
it had concluded with the United States and which
had led to the proceedings commcnced bv El Salvador.
impliedly accepted the Court 's assessment of the
juridical status of the Gulf and it thereby also
accepted that its maritime boundary delimitation with
Honduras could not affect that status.
6.26. Honduras next contends in a rather loose
way that "relations between the two coiintries
were, moreover. to show that., at a later tinie (even
after the 1917 Judgment upon which El Salvador set
such store) tliat it did recognise the partition of
the waters of the Gulf" (14>. The practice which
Honduras invokes is "bilateral practice in regard
to measures tu control smuggling and regulate the
fishing iridustry". and reference is made to the
material filed with the H.M. (15>. El Salvador replied
to this contention in the E.S.C.M. (16)' where it
made clear that the arrangements to which Honduras
rel'erred related only to activities within the zone
of exclusive rights extending to one marine 1eague
from the coasts of the two countries. Such arrangements
were consistent witli the status of the waters outside
these limits being subject to the regime of
condominium.
"(2) Ihe General Peace Treatv and the Negotiations
witliiiithe frariieworkof the Joint Boundary Commission
(1980-1985)
6.27. Honduras next refers to the General Peace
14. H.C.M.: Pt. III. Para. 9, p. 674.
15. H.M.: Chapter XIX. Paras. 73-78. pp. 676-683.
16. E.S.C.M.: passim an@ in particular Paras
7.52.- 7.55.. PP. '2d-247. Treaty of 1980. It acknowledges that the
language of Article 18 is quite clear in the
distinction that it draws between the "delimitation"
of the land frontier and the "determination of the
juridical status of the islands and of the maritime
spaces" . Nonetheless, Honduras insists that. despi te
that difference in wording. both countries regarded
the Commission as entitled to consider the delimitation
of the maritime spaces (17)' In truth. however. the
H.C.M. makes no greater effort than did the H.M. to
analyze closely the General Treaty of Peace. It is
therefore necessary to examine the seqiience of
negotiations and texts more carefully.
6.28. By way of introduction, it should be recalled
that the distinction drawn in the Compromis
in the present case between "deliniitation of the land
frontier" and "determination of the juridical status
of the islands and the maritime spaces" is a reflection
of the wording used in the General Peace Treaty of
1980, where Article 18 describes the functions of
the Joint Boundary Commission in terms which
distinguish between the "delimitation of the frontier
line" and -the determination of the legal régime of
the islands and of the maritime spaces".
6.29. The point should therefore be made that
in view of the clarity of the distinction
thus drawn in the Treaty of 1980 there is no more
need, in relation to the interpretation of the Treaty,
to go behind these clear words to explore either the
preparatory work or the subsequent conduct of the
Parties than there is in relation to the Compromis
itself. However, in view of the weight that the H.C.M.
17. H.C.M.: pp. 675-676.gives to these aspects of the metter. El Salvador
will now examine (a) the considerations which led
to the adoption of the wording of Article 18 of the
Treaty of 1980 and (b) the manner in which the Treaty
of 1980 was applied by the Parties.
(a) The backoround to Aïticle 18 of the Treaty of 1980
6.30. In the Annexes to the H.M. Honduras
(18)'
filed part of the text of its Presentation
during the process of mediatiori that beyan in May
1978. In Paragraph 46 (19) it contended that the terms
of the resolution on the basis of which the mediation
was taking place and which referred to "questions
limitrophes" covered not only the land boundarv but
also "the maritime spaces and the islands situated
in the Gulf of Fonseca".
6.31. Naturally one must ask whether this
formulation covered both the general status
of the Gulf of Fonseca and the question of the waters
beyond the closing line of the Gulf.
6.32. The answer is to be found in the passages
that follow. The verv next sub-paragraph
(20) makes it clear that Honduras had in mind the
delimitation of waters in the Gulf only to the extent
that they might be affected by the settlement of the
laiiciboundaries or the determination of title to the
islands. There is no suggestion there that the claim
of Honduras extended to waters beyond the closing
line of the Gulf.
18. H.M.:,~nnexes: IV.1.44. Vol. II, p. 696.
19. H.M.: Annexes: 1V.1.44. Vol. II, p. 699-700.
20. H.M. : ~nnexes: IV. 1.44, Vol. 1.1.p. 699.6.33. The same Presentation refers to the prior
discussions between the two sides in the
period April-June 1972 (21), which concluded with
the so-called "Act of Guatemala" (22)' This Act, it
may be noted. dealt only with the land frontier.
6.34. Moi'eover. the Presentation claims only that
the records of these 1972 discussions show
that (23):
"la controverse comprend .... aussi les lignes
maritimes dans la zone du golf de Fonseca".
This conclusion is accurate. but only as a reflection
of the fact that the 'discussions only touched
marginally upon the maritime boundar? within the Gulf
insofar as it might be affected by the terminus of
the land boundary. Further, it is confirrned by the
Reply of Honduras filed in the course of mediation
There the Government of Honduras recalled
(24) ' (25)'
that it had proposed that the procedure should examine
"1 'ensemble de questions territoriales; ce1les-ci.
on le repete. comprennent la frontière terrestre ou
la frontière maritime dans le golf de Fonseca"
(emphasi s added) .
6.35. That El Salvador shared this view of the
limited range of maritime questions is shown
by the concluding paragraphs of its own Replique (26)'
This too was the understanding of El Salvador when,
21. H.M.: Annexes: IV.1.44, Vol. II. p. 704-707.
22. H.M.: ~nnexes: IV.1.22A. Vol. II. p. 577.
23. H.M.: Annexes: 1V.1.44. Vol. II. p. 708.
24. H.M.: AlIneXeS:Iv.1.46. Vol. II. p. 738.
25. H.M.: Annexes: IV.1.46, Vol. II, p. 760.
26. H.M.: Annexes: IV.1.47, Vol. II. p. 769. in the course of its Duplique it proposed the
(27)
establishment of an inter-State boundar-y commission
"to study, del imit and demarcate the boundary line
and to determine the status ofthe islands". No mention
was made of an- boundary within or beyond the Gulf
of Fonseca.
6.36. In short, there is nothing in the d.iscussions
prior to the General Peace Treaty of 1980
to require any interpretation of Article 18 different
from that called for by a straightforward and literal
reacling of its words. The distinction between
"delimitation" in relation to land boundaries and
"determination of status" in relation to the islands
and the maritime spaces is quite clear.
Ch> The manner in which the Treaty of 1980 was applied
hv the Parties
6.37. The only question that remains. therefore.
is whether the Parties hy their conduct
after the Treaty of 1980 evidenced in a clear and
unequivocal manner a common wish to change the meaning
of the Treaty of 1980 so as to confer upon the Joint
Boundary Commission. the task of drawing a maritime
boundary nvt only within the whole of the Gulf of
Fonseca but also in the Pacific Ocean outside the
closing line of the Gulf.
6.38. ~n this connection Honduras refers to two
items in the work of the Commission. The
first is a 1-eference in the records of the meeting
of 26-27 March 1981 (28) which Honduras sees as
27. H.M.: Annexes: IV.1.49. Vol. II, p. 776
28. H.M.: Annexes: V.1.3, Vol. II, p. 834. identifying delimitation of the maritime areas as
one of the agreed tasks of the Commission. But, as
can be seen fi-omthe text of Points V and VI of that
record, the reference to delimitation - if it is one
at al1 - is very circumscribed. The Commissioners
did no more than agree that they would undertake a
reconnaissance of "the maritime areas of the Gulf
of Fonseca .and its islands. including even its
entrance" (29) with the following objects:
"(a) the possibility of determining dividing lines;
"(b) reconnaissance of the islands;
"CC) POSS~bi1ity of developing programmes of
cooperation and joint exploration and exploitation
of these maritime spaces and adjacent zones".
Thus the nearest that this item comes to a reference
to the areas beyond the cl0sinQ lines of the Gulf
is the reference to "adjacent zones" - and even this
does not necessarily mean "adjacent zones" outside
the ~ulf. It is even more to the point that in respect
of these "adjacent zones" there was no suggestion
of delimitation. but only of the possibility of
developing joint programmes of exploration and
exploitation. Such a possibility i.s clearly not a
matter for judicial settlement by means of a
delimitation. 'The development of programmes of
cooperation and joint exploration and exploitation
is something that can be done onlv by agreement between
the parties.
6.39. The second, and Onlv otliei- item in the work
of the Commission adduced in support. of'
the thesis of Honduras that. in efFect.,the parties
amended the nature of the difference between them
by their conduct, is to be found in the proposa1 for
29. See point V.the del imitation of the maritime areas niade by El
Salvador. This, says the H.C.M. is "the
(30)'
definitive expression of El Salvador's position"
The same paragraph then goes on to make so inflated
an asseïtion of the alleged significance of this
proposal that it deserves to be quoted as an
illustration of the exaggeration to which the
Government of Honduras is driven in the attempt to
substantiate its position (31):
"[These propositionsl were formulated at the end of
five-yeaï period of negotiations and provide
additional, païticularlv striking supplementary
evidence of. the consistency with which El Salvador
Fias always .envisaged the settlement of the niartime
difference between it and Honduras in ternis of
delimitatiori - even though it continiied to refer to
the condom inium agi.eement" .
6.40. Several ïesponses may be made to these
assertions.
6.41. The first may take the form of a question:
how can one speak. as Honduras does in the
passage just quoted. of the "consistency" with which
El Salvador conteinplated de1 imitation as a solution
when the only evidence of this "consistency" is a
sinnle item, a unique proposa1 made. as the Government
of Honduras itself says. at the end of five vears
of negotiations?
6.42. Turning then to the sigriificance of this
single proposal. one may respond. secondlv.
bv recalliny the general rule, already referred to
in the E.S.C.M. (32) that proposais made in the course
30. H.C.M.: p. 676.
31. H.C.M.: pp. 676-677.
32. E.S.C.M.: para. 7.57.. PP. 247-248.of negotiations may not properly be iiivoked in the
course of subsequent negotiations.
6.43. Tliird1Y. proceedi ng fi.om the general to
the particular. there should also be noted
the express reservations bv El Salvador that preceded
the presentation of its proposal. Thus El Salvador.
in its Rejoinder in the Mediation Process said (33):
"XI. If the iiiter-State frontier commission does not
i-each complete agreemerit on the territorial question
that is the subject of its task. al1 partial
agreements. decisions. opinions, formal ities.
procedures aiid resolutions will be regarded as havirig
no probative value for the 1itigatioii itself. should
the latter be submitted to other peaceful rneans of
settlement. or for- new territorial cases between the
two counti.ies which inay be submitted to ails:procedure
of peaceful settlement of iiiternational disputes".
Again. on 1 June 1982. at the Meeting of the Joint
Boundarv Commission in Tegucigalpa. the delegate of
El Salvador. Dr. Gomes Vides
(34)
"suggested. and this was agreed. as on previous
occasions. the proposition to he made bv the Government
of El Salvador to that of Honduras, would remain under
the most absolute reserve and in a confidential manneï.
in order 'not to fetter the iiegotiations that. with
good wi 11. the governments of the two countr-ies wished
to continue" ..
6.44. As regards the proposa1 itself. n0t.e must
first be taken of the spec ific c,i rcumst.ances
in which it was made. These mav be identified in the
Proces-Verbal of the meeting of the Joint Boundarv
Commission on 23-24 May 1985 (35). 1t can be seen
that the proposa1 followed the suggestion made by
the legal adviser of the delegation of Hondir1,as.Mr.
Pedro Pineda Madrid. that conversations should continue
33. H.M.: Annexes: IV.1.49, Vol. II, p. 794
34. See Proces-Verbal in H.M.: Annexes: V.l.6..
Vol. II. p. 837.
35. H.M.: Annexes: V.1.20. vol. II. p. 898.at the working-group level and entirelv informally
to try and find a way of reconciling the positions
of the tcuo parties. The proposa1 of El Salvador was
made in response to this proposal.
6.45. Next, close regard must be paid to the
wording of the proposal itself. It was
introduced by the statement that it is
"OF an eminently coiiciliatory character that did not
assert [El Salvador'sl maximum claim-.
This qualification was echoed in the response of
Honduras, which expressly noted that the main proposa1
was of a "charûctère eminemment conciliatoire". though
it reseïved its opinion until the next meeting (36) '
O.46. As to the content of the El Salvador
proposal. particular emphasis should be
laid oii the fact that in point 1, tlie "maritime line"
did net have its seaward terminus at the entrance
of the GulF. but was expresslv stated "to begin near
the entraiice of the Gulf. bisectiny. in the Gulf of
Fonseca. the distance that 1ies betweeii the islands".
There was thus, no recognition that the dividing 1ine
was to extend right to the closing line of the Gulf.
6.47. Moreover, this proposa1 has to be read
together with tlie annex to it This
(37)'
contains a reassertion of the status of the GulF of
Fonseca as a historic bav with the characteristics
of a closed sea and of the character of its waters
as interna1 waters. There is an express recognition
that the waters of the Gulf belong to El Salvador
and Honduras "in community".
36. H.M.: Annexes: V.1.20, Vol. .II, p. 905-906.
37. H.M.: Annexes: V.1.20. Vol. II, p. 901. 6.Y8. Jn relation to the maritime areas outside
the Gulf. ,the El Salvador pr-oposal did iiot
in an? wa? involve a delimitation of those waters
but merely a pïoposal to engage in cooperation in
a vaguely defined zone lying between "lines drawn
froin points leüving the moiith oi' eiitraiiceof the <;II fI
of Fonseca. in accordance with the rules of
equidistance to a distance of 200 marine miles".
6.49. The conci 1iatory and tentative characteï
of the El Salvador proposal is confirmed
.by the fact that it went on to include a section on
.hnc&rn@ti,onai. rivers - a siibject iiot previoiwly
regai-de'&-s in issue and. which the initial response
o.fHonduras immediatelv identified as fa1 1 ing "outside
the mandate of the Commission" (38)'
6.50. The reply of the Honduras delegntion. when
it was filed at the meeting of 20-21 June
1985 in the form of a counter-proposal. was marked
by the folluwing features:
Ci> It too was made as "a constructive contribution
to the .negotiation process and without prejudice to
its being amplified and developed as necessary"
(39)'
(ii> Honduras adopted a completely different standpoint
from that of El Salvador as regards delimitation within
the Gulf. In .particulai', it proposed a line whicli
completelv disregarded El Salvador's tit.le to neangueïa
and Meanguerita
(iii) It treated the closing line of the Gulf of
Fonseca as the baseline for tlie delimitation of the
38. H.M.: Annexes: V.1.20. Vol. II. P. 906.
39. H.M.: Annexes: V.1.21. Vol. II. p. 908.
40. H.M.: Annexes: V.1.21, Vol. II. p. 908.territorial sea and the maritime spaces of the two
countries
(41)'
(iv) It expressed "the limit of the territorial sea
and of the maritime spaces of El Salvador and of
Honduras" as a single line. drawn seawards
perpendicular to the closing line of the Gulf at a
distance of tliree marine niiles from Punta Amapala.
It did not 'define the boundary between the two
countries seawards of the closing line of the Gulf.
beyond saying that it would in due course be drawn'
by agreement of the Parties on a map.
(v) It proposed the developnient of a programme of
cooperation between the Parties. but .Iimited to the
area within the Gulf. /
6.51. This rfjection by Honduras of the EI'Salvador
proposal was expressly noted at the meetings
held on 23-24 Ju15' 1985 (42). "In consequence". the
El Salvador delegation said. it "left without effect
and regarded as not having been submitted, the
proposition which, in its totality and under the
conditions there nientioned. remained as part of the
relevant records of the meetings between the two sides"
(43) ' Despite the subsequent contention by Honduras
that it had not rejected the El Salvador proposal.
but that it had accepted the proposal insofar as there
was coincidence bet.ween the positions of the two
countries. El Salvador adhered to its view that. as
its proposal liad been put forwa1-d as a package. there
could' be no effective acceptance of some points while
41. H.M.: Annexes: V.1.21. Vol. II, p. 908.
42. H.M.: ~nnexes: V.1.22, Vol. II, p. 917.
43. H.M.: Annexes: V.1.22, Vol. II, p. 918. otheïs were rejected
(44)'
6.52. It can thils be seen from a careful study
of the relevant records that:
(1) the proposals at.tributed to El Salvador were put
forward bv the delegates in the Joint Boundar-y
Commission as 110 more than an unofficial basis of
discussion:
(2) the proposa1 by El Salvador for delimitation within
the Gulf was a limited one and certainly did no< extend
eveii Q the closing 1ine of the Gu1 f. The 1-esti-icted
scope of the El Salvador proposa1 is clearly
illustrated in Map C.A. Of the H.M. <AS) '
(3) the El Salvador proposa1 for delimitation did
not estend outside the closing line of the Gulf;
(4) the El Salvador pruposal regaïding the waters
outside the Gulf was for a r-egime of cooperation.
but dicl not acknowledge any existing legal right or
claim for Honduras in those waters;
(5) Honduras effectively rejected the El Salvador
proposa1 as a basis for discussion by disi'egarding
the basis for the El Salvador proposals within the
Gulf, namely. accept.ance of El Salvador's title to
Neariguera and Meanguerita. and by replacing the El.
Sülvadoi. pi.oposa1 for cooperation outside the Gu1f
by insisterice upon division of waters in the Pacific
Ocean .
6.53. Tliese exchanges therefore provide no support
for the Honduras statement that El Salvadoi-
proposed deliinitation both within and outside the
44. H.M.: Annexes: V.1.73, Vol. II. p. 925,
especiall? at p. ,929.
45. H.M.: opposite p. 684. --) The Comprom~s-of 24 May 1986
6.54. Turning to t.he relationship between the
'ïreatv of 1980 and the Compromis. the H.C.M.
points out that the words used in the second
(47)
question of the Compromis are identical witlr those
usecl in Article 18 (4) of the Treaty. El Salvador
cannot accept the next assertion in the H.C.M., namely.
that "the inclusion in the Special Agreement of the
wording of Article 18. para. 4. of the Peace Treaty.
was a sufficiently clear reflection of the will of
the two Parties to arrive at a definition of the
boundaries of their areas of maritime jurisdiction
in the Gulf of Fonseca and beyond its closing line*
6.55. El Salvador has already shown in detail
wliy developments within the Joint Boundary
Comniission do not support the Honduras argument that
the parties wished to see the limits of their maritime
jui-isdiction establ ished beyond the closing 1ine of
the Gulf (hg). Likewise. examination of the records
of the iiegotiations (50) in 1986 leading up to the
conclusion of the Compromis reveals no suggestion
t by eithei- Party that the scope of the dispute should
be widened beyond that foreseen in the General Peace
Treaty of 1980. There is certainlv nothing in the
46. H.c.M.: pp. 676-678. Para. 12.
47. H.C.M.: pp. 178-679, Paras. 13 & 14
48. H. CM. :pp. 179--680. Para. 15.
49. see ~aragi-aphs 6.37.-6.53. above.
50. These records take the form of a series
of sis, protocols coveriny meetings that
took place in January-June 1986. records 1.efet-l-iy to del imitation outside the closing
1iiie of tlie GUIf as ail aspect of the case being
submitterî to the Court.
6.56. Equüll?. there is nothing to suggest the
assertion inade iii the H.C.M. to the
(51)
effect that Horiduras "liaclitself initially proposed
a more esplicit version". The formulation of the
question was coiisiùei-eciby the delegates of the two
Governments at a meeting or1 9 April 1986. Honduras
submi tted or11y oiie proposal. The relevant question
was wordecl tliiis(the Spanish test is used to avoid
anv disagrreinent about ti-anslation): "Qual es la
situacinn juridica insulaï v de los espacios maritimos
de cada Kepublica'?". El SaIVadoi- is uiiable to see
how this foi.mulatiun can be said to be "more esplicit"
thaii the question as pused in Article 2 (2 of the
Comproniis as firiaIV adopted: "Que determine la
' situacion jui.idica insular. y de los espacios
inaritinic~s'.Ar.e not the pertinent words of the two
questions absolutely identical?
6.57. Nonetheless. it 1-emaiiis significant that
Honduras siiould now advance this argument.
notwithstûnding its evident lack of factual foundation.
Honduras 1-ecognses that the question could have been
made more explicit if the Parties had so chosen.
Moreover, Honduras now sees that there would have
beeii advalitage tat any rate to it) if the question
had been more explisitly foïmulated. Despite this,
the fact remains that Hoiidui-as itselr. and without
any prompting by El Salvador. put forward a question
iri the terms set out above. IL clearlv did iiot think
51. H.C.M.: p. 679, Para. 14.that tiie forniu~a used in the Treaty of 1980 iieeded
alteration.
6.58. Tlie H.C.M. (52) riest seeks to draw support
for its estended interpretation of the second
question bv observiii~ "the economic importance which
attaches todav to the existence for each cosstal State
c~f the i-igtrt of esploi tation of the t-esources wi tliin
the i'elevaiit zones". Tlie Governnient of El Salvador
sees no need to dispute the general proposition tliat
off-shore areas at-e economical IV iiiiportant. rlie
statelnent niav esplain whv Honduras seeks additional
off -slioi-e areôs. Othei-wi se. i t does not advance the
debate at all. It cannot serve to extend the power
of the 'oui-t, under the second question. to do more
thaii "deterniine the juridical status of the islands
and of t.he maritime spaces". In otlier words, the first
- and ne<:essat-i 1y ttie fi r-st - question is whetlier
Honduras has an? esclusive riyhts in the maritime
spaces botli of the Gulf of Fonseca arid bevond its
closing line. Only if it lias not soine 1-ights in either
or both of these can the <-tuestion of delimitation
ar i se.
6. 59. Iloiiiluras goes on to argue that if its
(33)
esteiidt.rl interpi-etation of tlie Compi-omis
is iii>t accepte11 "ail?: other interpretatioii would siniplv
have the effccr of depriviiig the claini, as siibmitted
t o the Coui-t. t~f an? put-pose". This clearly cannot
be ri-ilit:. Just because the second question does tiot
esteiid to rle1iniitatioti does riot mean tliat ttiere is
no dispute bet-rveen tlie Parties suitable for judicial
set t 1einent . Ttie Huriduras argument ent i relv disregards
52. H.C.M.: P. 680. para. 16.
51 . H.C.M.: pp. 680--681. Para. 17 the fact that ttier-e can bc no dispute about
delimitation until it is establ ished that eacli sirle
hûs esclusive riglits in ü siven ar-ca. This is the
fii-st question - and it is the basic question between
t.he Parties. AS regards the position within the Gulf.
El Salvador süys tliat the status of the Giilf as an
area subject to condominium excludes divisioii. AS
regards the position outside the Gulf, El Salvarlor
says that Hoiidui-as is not a coastal State and is.
therefore, iiot entitled to an>, i-iglits in that area.
Hondu1.a~. of course, says otherwise. The dispute
between the Parties on t-hese poiiits is a real aiid
substantial oire. Ils resolcit ion inust necessari 1y
pi-ecede the consider.atiori of any question of
del imi tation. Thus. i t is sel f-evident IV ~insustainable
for Honduras to ai'gue that esclusion of the question
of delimitation in those areas would "deprive the
claim of an? purpose".
-ection Il. "The need for a deliniitatioii"
6.60. Nonethel ess. Honduras devel ops two furthel'
argunleiits in support -of its insistence that
the Coui-t's fuiiction extends beyoncl the deter-minat-ion
of questions of 1egal.status.
IA)ty of iriterests im~l ies delimi ta-
6.61. The first takes the forin of an assertion
tliat the existence of a "commuiiitv of
interest" in the Gu1 f iinpl ies del imi tatiori.
6.62. There are two elemeiits in this assertion.
Neither is substantiated by Honduras.
6.63. Fit. there is the claim of the existence
of a "coiiimunity of ' interest". That there
is some community of interest between the Statesbordering the Gulf there can be little doubt. eut
this is a vague and indeterminate concept to which
Honduras gives no specific content. It is to be
contrasted with the relatively precise meaniny of
the concept of "condominium" or "CO-ownerstiip".There
is no reason why the two concepts - of community of
interests and CO-owliership - cannot CO-exist: community
of interest does not exclude CO-ownership. Indeed,
the identification by the Centra1 AinericariCourt of
Justice of the existence of a community of interests
between the three States surrounding the Gulf of
Fonseca is precisely what led that court to the
conclusion that the Gulf was subject to condominium
or CO-ownership.
6.64. Honduras argues, secondly, that community
of interest implies delimitation because
(54)
there is no fusion of ownerstiip. This amounts to a
denial of the status of the Gulf as an area subject
to common ownership. The E.S.C.M. has already answered
this point (55j and there is no need to repeat the
authorities already cited.
6.65. At this point, Honduras introduces the
observation that the absence of delimitation
within the Gulf has been "a constant source of tension
and dispiites".This assertion fi.ndsno basis in fact.
El Salvador is unaware of any such constant tension
or clisputes, other than some minor episodes in recerit
years arising out of the political situation in the
area with which the Court is familiar.
54. H.C.M.: P. 683. Para. 21.
55. E.S.C.M.: Paras. 7.1.-7.21, pp. 212-225. -.) "Ttie detei'nii~-tioii of the leml status of the
Wters impl ies ciel inii tatiw
6.66. Horidiii-as rests i ts ai-yilmeiit in this section
oii t he furidaiiieri ta l proposi t ion tha t tlie
hasis of ti tle over- waters is sovei-eignt!~ over land.
Wi tli tlii s pi'oposi tion El Salvador has no qitar-[-el .
El Salvador- advarices the proposi tioii in the E.S.C.PI.
and supports it with the same authorities as are
presented Dy Honduras.
0.67. Sv wliat is the disagreeiiient between the
t:wo sides'?
6.08. It is. fii-st. tliat Hoiidur-as irivolies the
PI-oposi tion to reciuire del irni tat ion wi tliin
the Gulf of Fonseca. El Salvador accepts that this
proposition would be correct. wii-e il: iiot for the
fact that the GuIF is subject to a spei:ial Iegal
régime. t.liat of condoniiniuni ai- co.ownership. Whi le
there is 1-vorn for deliniitation of ttie band of exclusive
jui.isdict.ii>n one mai-iiie leanue wide that the Judyenient
of 1917 attrihut.ed to each littoral State, the concept
of cündominiuin otherwise total ly exclucles the iieed
for, or the possibilitv of. comprehensive delimitat-ion.
6.69. The second disagreeinent 1 ies in the atteinpt
by Hoiidrir-as ro ext eiiù the r,easoiii iiy whi ch
it applies iriitliiii the Gulf to the ai-ea of Paci fic
Oceaii outside the Gulf. This it does b the blunt
assert iori <56) ttiat "Honduras. as a coastal state
of the bay. is a cnastal State of the Pacific Ocean".
The proposition i s not suppoït,ed bv ïeasoniny. Al though
ttiere ma? in soine cases be r-ooni foi. the view that
56. H.C.M.: PP. GS5-686. Para. 24a coastal State of a païticular bay is also a coastal
State of the sea of whicti the bay forms a landward
projection, the validits or not of that view depends
eiitirely upon the Qeoyraphy of trie relevant area.
In the present case, it is evident that the contentioii
of tlondui-asis firiiilycontradicted by the pertinent
geography. Honduras is cut off from the PaciFic Ocean
bv. first. the islands of Conchayüita. Meanguera and
Meanyuerita within the Gulf and, in addition, bv t.he
fact that the fauces terrarum - the closing points
of the Gulf of Fonseca belonging respectivelv to El
Salvador and Nicaragua - are so close to each other
as to exclude any projection of Honduras towards the
Pacific through the openiny. This aspect of the matter
has alreadv beea covered in the E.S.C.N. (57)'
6.70. Honduras concludes this section of the H.C.M.
with ttie repetition of its contention
158i
that determination of the status of the maritime areas
if not atcompanied by delimitation:
"wi11 not provide a solution to the dispute betweeii
the two Parties in the present case. Without
delimitation. the status amounts to notliing Ur, more
exactly, it is on1)~ an ernpty shell, a qualification
without content".
6.71. El Sa1va1:lorrepeats that it cannot accept
the validity of this assertion. The dispute
before the Court is the one defined in the Comproinis.
There is and can be no other. The possibility.
suggested by Honduras, that the solution of the dispute
as there defii-iedmav open up a further dispute has
nothiiig to do with this case. The Court has not been
given a universal jurisdiction to determine
57. E.S.C.M.: Paras. 8.52.-8.73.. pp. 277-290.
58. H.C.M.: p. 687. Para. 26.comprehensively al1 disputes between the two countries.
but only those disputes that are defined in the
Compromis. As El Salvador sees it, there is nothing
insubstantial in the task which the Parties have asked
the Court to perform.
(1) The Court is asked to determine title to the
disputed islands within the Gulf. If. as El Salvador
claims. Conchagüita. Neanguera and fleanguerita belong
to El Salvador. then they effectively cut Honduras
off from the Pacific Ocean. This would be an important
finding since it would confirm one of the main reasons
why there is no basis for a delimitation of areas
within the Pacific Ocean.
cii) The court is asked to determine the legal status
of the Gulf of Fonseca. If, as El Salvador maintains,
it is subject to a condominium, the only waters
appropriate for delimitation are those constituting
the zones of exclusive jurisdiction one league wide
adjacent to the shores of each littoral State.
(iii) The Court is also asked to determine. partly
by reference to (i i and (ii) above and partly by
reference to the geographical configuration of the
area genei-a1y, whether Honduras liasany valid claims
to maricime areas outside the Gulf of Fonseca.
6.72. If these matters are dealt with, important
substantial questiolls would be disposed
of. If the Court were to uphold the contentions of
El Salvador. then there would be no need for
deliinitation, whether inside or outside the Gulf.
If the court were to uphold the contentions of
Hondiiras. then there would need to be negotiations
between tlie two sides regarding delimitation in the
light of the Court's findings. But there can be no
dispute about delimitation proper for the Court to
consider unless and until proper negotiations about
delimitation have taken place and have failed to
achieve a settlement.. 2. "CHAPTER XIV: THE LEGAL STATUS OF THE WATERS WITHIN
THE GULF AND THE JUDGMENT OF 1917"
Section 1. "The Place to be qiven to the 1917 Judgment
in the oresent case"
' (A) "The limited relevance of the 1917 Judament to
the oresent case"
6.73. The H.C.M. seeks to argue first that the
1917 Judgment is of' only limited relevance
in the preseiit case because it was not necessary for
the Central American Court of Justice to decide that
case on the basis of condominium. Rather. so Honduras
contends, the Court could have decided the case by
reference to "community of interests".
6.74. This approach neglects the obvious fact
that the Central American Court of Justice
a decide the case on the basis of con'dominium.The
two Parties to the case were bound by that approach
and, prior to this case. Honduras accepted it in
relation to the area of the Gulf lying seaward of
the interna1 zone of exclusive jurisdiction.
6.75. Inherent in the thesis of Honduras is the
idea that the 1917 Judgment is in some way
obsolete. That appears to be a view held only by
Honduras. Perusal of officia1 commentaries and
doctrinal writing provides no support for such a view:
the status of the Gulf of Fonseca as a condominium
is universally accepted without criticism.
6.76. It is, of course, always difficult to prove
a negative, but El Salvador would
respectfully invite the Court to examine those passages
of the following obvious works of reference where
consideration is given tu the 1917 Judgment. The Courtwill observe that in none of these works (with a
qualified exception in one case) is any adverse comment
made on the decision. In each work the 1917 Judgment
is accepted as a valid and authoritative precedent.
6.77. The examples set out below are presented
in chronological order.
(i) Jessup, The 1aw of Territorial Waters and
Maritime Jurisdiction (1927). concludes
a section of 12 pages. pp. 398-410, as
fol1ows:
"The evidence adduced of the historic claims
to the bay and the generaI acquiescence
therein confirm the soundness of the result
1-eached by the court. The geographical
characteristics make the claitn a reasonable
one."
<iii Hackworth, Digest of International Law
(1940). Vol. 1. p. 704.
(iii) Ireland, Boundaries. Possessions and
Conflicts in Centra1 and North America and
the Caribbean (1941i. pp. 205-208.
(iv) Hyde, International Law. (2nd revised
edition. 1945). Vol 1, P. 475.
(v) Oppenheim's International Law. (8th edition
by H. Lauterpacht, 1955). P. 508, n. 4.
(vi) United Nations Secretariat, Historic Bays
(A/CON'F.3/1, 1957). Paras. 44-47.
(vii) Schwarzenberger. International Law, (3rd
edition. 1957?, p. 332.
(vii > Blum. Historic Titles in International Law
(1965,. though in some respects critical
of the decision. concludes:
"Thus, if the Court's decision is limited
to the case itself. without being regarded
as a precedent to be applied under different
circumstances, the Gulf of Fonseca case might. perhaps appear to be less unjustified
in law than most writeïs have hitherto been
prepared to assume."
<ix) Colombos, International Law of the Sea,
(6th edition. 1967). at pp. 188-189.
tx) Verdross. Public International Law. (Spanish
edition, 1969). p. 210.
(xi ) Brownlie. Principles of International Law.
(3rd edition, 1979). p. 200, n. 7.
(xii) O'Connell. The International Law of the
Ses (1982). Vol. 1. pp. 436-437.
6.78. Even more cogent as evidence of the doctrinal
acceptance of the correctness of the 1917
Judgment is the fact that Latin-Amerjcan authors.
including ones who have accorded the decision extended
consideration. have accepted the decision without
criticisni. Moreover, some of these authors are
themselves from Honduras or have published theii- work
in Honduras.
(i) Antonio sanchez de Bustamente y Sirven,
El Tri buna l Permanente . de Justi-
International (1925). especially PP. 76-75.
(ii) Antonio Sanchez de Bustamente y Sirvén,
Manual de Derecho Internacional Publico
(1939). especially p. 308.
(iii) Carlos Jose Gutiérrez G., La Corte de
Justicia Centro Americana (1975). published
in Tegucigalpa by the SecretaFy General
of the Organization of Central American
States under the auspices of the Government
of Honduras. especially pp. 47-53.
(iv) Humbert0 L6pez Villamil, Professor of
International Law at the University of
Honduras, Permanent Delegate of Honduras
to the United Nations, La Corte Centro Americana de Justicia en Politica
Internacional (1960). especiallypp. 215-228.
(v) Lucio M. Moreno Quintana. Tratado de Derecho
Internacional (1963). Vol. 1, pp. 363-364.
(vi > Ha1ajcz.uk 'and Moya Rodriguez, Derecho
Internacional Public0 (1972). P. 235.
(vii) Carlos Jose Gutiérrez, La Corte de Justicia
(1978). especially pp.
129-139.
6.79. The H.C.M. also suggests in this connection
that "the whole evolution of the public
international 1aw of the sea. rests in relation to
the waters adjicent to coasts. not on the concept
of indivisibility but on that of delimitation of
maritime areas belonging to the sovereignty of the
coastal States". The inaccuracy of this assertion
is demonstrated by the examples to the contrary cited
in the E.S.C.M. (59)'
6.80. The H.C.M. signally fails to provide any
support for its proposition that the
reasoning that led the Central American Court of
Justice t~ decide in 1917 that a condominium existed
in the Gulf "would be impossible today". There are
several instances in which States have resolved
continental shelf delimitation differences by means
of the establishment of areas of joint or uridivided
authority. Thus the arrangements relating to the
Kuwait-Saudi Arabia Neutra1 Zone, which were originally
establislied in 1922, were extended to the offshore
areas in the 1950s. More recently. Malaysia and
Thailand have entered into joint development
59. E.S.C.M.: Paras. 7.15.-7.21.. pp. 219-225.arrangements in respect of offshore areas. Again,
in the case of the Jan Mayen continental Shelf in
the Conciliation Commission. rather than
lg8' (60)'
proposing a dernarcation line for the continental shelf
different from that for the economic zone, recommended
a joint development arrangement for that part of the
area in which there was a significant prospect of
hydrocarbon production (61). So tnere is no warrant
in the Honduras contention that today the concept
of joint ownership has been replaced by that of
delimitation (62)'
6.81. Moreover, it is absurd to suggest that
because there have been a number of
international judicial or arbitral decisions on
delimitation, this fact in some way dictates the
conclusion that the Chamber in this case must also
proceed to a delimitation. As the earlier portions
of the H.C.M. themselves emphasise, the scope of the
competence of the Court must be determined in each
case by reference to the specific wording of the
question. As has already been pointed out, not one
of the delimitation cases has been decided by reference
to a question expressed in terms of "determining the
juridical status" of an area - and. a fortiori. the
same is true where the relevant cornpi-omiscontains
another and contrasting question that specifically
requests the tribunal to delimit or define the land
boundary. There have indeed - as it is hardly necessary
to recall - been several maritime boundary cases where
the r61e of the Court has stopped short of actual
delimitation: the North Sea Continental Shelf cases;
60. 62 International Law Reports 108. \,
61. 62 International Law Reports 108 at p. 126
62. H.C.M.: pp. 692-693. Chapter XIV, Para. 9. the Libya/Tunisia continental Shelf case; and the
Libva/Malta Continental Shelf case.
6.82. The refefence in the H.C.M. to the
(63)
rejection at U.N.C.L.O.S. III of a
proposition by Zambia for the establishment of an
E.E.Z., common to several States in a sub-region,
is difficult to understand in the context in which
it appears. Rather than assisting the argument of
Honduras. it seems to weaken it. Although Honduras
is not land-locked in the same way as Zainbia. it.is
nevertheless locked out of the Pacific Ocean. The
rejection by U.N.C.L.O.S. of the proposal ttiatnearby
States should have access to E.E.Z. resources is
impliedlÿ a rejection of the claim by Honduras to
have access to the resources of the Pacific simply
because it believes itself near to them, but in respect
of which it does n0t possess the necessary generative
adjacent coasts. The E.S.C.M. referred to this matter
(64)'
6.83. The H.C.M. then goes on to challenge the
correctness of the 1917 Judgment by the
assertion that once the Centra1 American Court had
found that the Gulf of Fonseca was a historic bay
it failed to draw the essential conclusion that al1
its waters possessed the character of interna1 waters
(65). This suggests that al1 "historic" waters are
subject to identical legal regirnes. This is clearly
not correct..Historic waters or bays are areas which,
by definition, are exceptions to the legal regime
that would otherwise be applicable to them. The nature
63. H.c.M.: pp. 692-693, para. 9.
64. E.s.c.M.: Paras. 8.23.-8.33.. pp. 262-268
65. H.c.M.: PP. .93-694, para. 10.and degree of that exceptional quality are determined
entirely by the historical circumstances that brought
them into being. There is no single CategOrY of
"historic bays" or "historic waters" tO which - once
their existence is established - one single and
exclusive set of rules applies. The legal position
of each historic case depends upon its circumstances.
There is thus no basis for saying that "al1 the waters
of a historic bay are placed under the unequivocal
status of interna1 waters". In the case of the Gulf
of Fonseca, the circumstances were such as to lead
the Court to the view that there are within that Gulf
not only areas of "exclusive jurisdiction" but also
zones of "maritime inspection" as we11 as areas of
water not affected by these concepts.
(Bj "The leaal scowe of the 1917 Judoment"
6.84. Although there is little said in this sub-
-section (66> that is not said elsewhere
in the H.C.M. and has not been answered elsewhere
in this Reply. it may be convenient to respond directly
and briefly to what is said in these paragraphs.
6.85. Honduras denies the "objective authority"
of the 1917 Judgment and invokes the rules
of international law (including the Vienna Convention
on the Law of Treaties) relating to the effect of
treaties on third parties as a justification for the
denial of effect to the 1917 Judgment.
6.86. Honduras evidently mistakes the character
of El Salvador's arguments regarding the
nature and effect of the 1917 Judgment. Honduras does
66. H.C.M.: pp. 694-696not Say that the 1917 Judgment has the quality of
a treaty or as such is binding on Honduras. The
Judgment is self-evidently not a treaty. Nor does
El Salvador Say that the Judgment, as a judgment.
is binding on Honduras.
6.87. Al1 that El Salvador contends is that the
1917 Judgment is evidence of the rule of
customary international law applicable to the Gulf
of Fonseca and that that rule of customary
international law binds the three riparian States.
The reasoning ancl conclusions of the Judgment reflect
the pre-existing rules of customary international
law which operated independently of the Judgment.
The Judgment is merely the authoritative statement
of the 1aw - and the legal position of the Gulf as
thus stated is that of condominium.
6.88. Moreover. the authority of the 1917 Judgment
in this respect has never in any real respect
been doubted either by States or by writers of
authority. Honduras has not pointed to any State.
except Nicaragua and itself (as to which more in a
moment) that has rejected or even questioned the
Judgment. And as the 'references given above (67) make
plain, there is the widest doctrinal acceptance of
the value of the Judgment as a statement of
international law.
6.89. Finally, as to the attitudes of Nicaragua
and Honduras: the attitude of Nicaragua
was widely condemned; the attitude of Honduras was
governed. so it would appear, only by its concern
to protect its rights in its territorial waters.
67. In Paragraphs 6.77. & 6.78."Section II. Honduras's Obiection to the Line of
Argument Set Forth in the 1917 Judqment"
6.90. The H.C.M. next attempts to show that it
did not accept the 1917 Judgment. This matter
has, already been examined in the E.S.C.M. (68). ~n
particular. El Salvador has shown quite clearly that
the Honduras protest of 1916 was limited to the
rejection of condominium only in the inner belt of
exclusive jurisdiction. The protest did not amount
to a denial of condominium in the remainder of the
Gulf.
6.91. However, Honduras makes a number of specific
points that require some comment.
6.92. First. the H.C.M. devotes quite unnecessary
to rebutting a point that El
detail (69)
Salvador never made. When El Salvador referred to
the participation of an Honduran judge in the Central
American Court it was not attempting a "consensualist
analysis" in the sense of attempting to extract from
that fact a forma1 agreement by Honduras to the terms
of the Judgment. El Salvador was really saying only
that even a judge from Honduras - a judge whose
independence was in no way questioned - did not
disagree in this respect with the 1917 Judgment.
6.93. Next. the H.C.M. (70) seeks to widen the
substantive impact of its 1916 protest.
Contrary to the Honduras contention that "it is clear"
that the protest related to the whole of the Gulf
68. E.S.C.M.: paras. 7.38.-7.49, pp. 235-243.
69. H.C.M.: P. 697, para. 18.
70. H.C.M.: pp. 700-701, paras. 20-21.of Fonseca in denying the regime of condominium, it
is in fact clear from a study of the text that Honduras
sought only to oppose any interpretation of the status
of the Gulf that would impose condominium on its zone
of exclusive jurisdiction. The relevant phrase is
that Honduras "does not recognise the status of
condominium with El Salvador or any other republic
in the waters of the Gulf that belona to it". The
crucial words have been underlined. Honduras appears
not to have recognised condominium in the waters "that
belong to it". It did not deny condominium in the
waters of the Gulf that did not belong to it. The
waters "that belonged to it" were those comprised
within the inner belt of exclusive jurisdiction.
6.94. The H.C.M. makes no reference to the
explanation~ of the protest given by the
Foreign Minister of Honduras. These are referred to
in the E.S.C.M.
(71)' Understandably. Honduras could
n0t have anticipated what was to be said in the
E.S.C.M.; but as the explanation by the Honduras
Foreign Minister i~ quoted by the Court in the 1917
Judgment (72). it might have been expected that
Honduras would offer some comment in an attempt to
diminish the adverse impact of its content.
6.95. In addition. reference may be made to the
Statement of the President of Honduras made
to the Congress of Honduras on 1 January 1917. This
statement. the text of which has been found by El
Salvador subsequent to t,he filing of the E.S.C.M.
in the volume for 1917 of the Foreian Relations of
the United States, at pp. 834-835, (and not to be
71. E.s.c.M.: Para. 7.63.. p. 238.
72. A.J.I.L. Report: p. 716.confused with the Presidential çtatement of 3 Jaiiuary
of the following year referred to in the E.S.C.M.
nor with the statement of the Honduras Foreign
(73)
Minister also referred to in the E.S.C.M. (74))'
contains a paragraph that also sheds clear light on
the contemporary understanding bv Honduras of its
own protest. The President said:
"The action was Primarily based on the right of joint
dominion which the Salvadorean Government means to
exercise in the waters of the Bay of Fonseca. [sicl
[Tlhe Government of this Republic sent a protest to
the first named and to the Central American Court
of Justice in order to protect the rights which belong
to Honduras over the islands and waters of the Gulf.
beariiig in mind that the adjacent territorial sea
whicli. in accordance with the universal doctrine and
Our domestic law, is nothing but a continuation of
the national te-itory, subject. therefore. to the
exclusive sovereignty of the State- (emphases added).
6.96. lt is important that the Honduran Note of
1916 should be read in the manner in whicli
it was understood by both El Salvador and the Central
American Court of Justice in 1916 and 1917. There
is no legal merit in the attempt bg Honduras in 1989
retrospectively to accord an interpretation to its
message of 1916 that evidently does not accord with
the understanding at the relevant time of those to
whom it was addressed.
6.97. As to the declaration made by the President
of Honduras on 3 January 1918. El Salvador
thanks Honduras for making available a French
translation of a text said to be taken from "La
'Gaceta'. no. b858. Serie 480, 8 January 1918" (75)
73. E.s..c.M.:para. 7.45.; pp. 240-241.
74. E.S.C.M.: Para. 7.43.. pp. 238-239.
75. H.C.M. : P. 705, para. 2~.- particularly as scrutiny of the text as thus
translated shows that its words do not support the
interpretation that Honduras attempts to place upon
them. The important points to be drawn from the text
are these:
(i) First, there is no doubt that the President
accordecl the Central American Court of Justice the
same praise that he did the International Bureau:
it "fulfilled its mission with satisfactory results
and in accordance with its objectives";
(ii> Second, the Court
"recognised the rights of Honduras in the Gulf of
Fonseca, a recognition which was in perfect harmony
with the pi-otest of the government of this country
IHondurasJ against the claims of El Salvador in
relation to the limit of the territorial waters iip
to which the rule and sovereignty of Honduras extend".
These points are made in the E.S.M.
(76) '
6.98. The H.C.M. contends that the
(77)
presentation by El Salvador of this item
of material is distorted and incomplete. El Salvador
cannot see how this can properly be said. What really
matters is that the Presiderit of Honduras regarded '
the 1917 JudQment as being in perfect harmony with
the protest of fIonduras. Since the central feature
of the Judgment is its acceptance of a status of
CO-ownership for the whole of the Gulf of Fonseca
outside the zone of exclusive jurisdictioii,how could
the President have said there was harmony between
the protest and the Judgment unless he accepted the
condition of co-ownership outside the area of Honduran
territorial waters?
76. E.s.N.: para. 13.7..
77. H.C.M.: pp. 705-706, Chapter XIV, Para. 13.76.99. Nonetheless. despite both the objective
validity and applicability of the 1917
Judgment and the evidence of the acceptance of it
by Honduras. El Salvador is bound to ask itself: does
the re~udiation by Honduras of the legal status of
condominium for the Gulf in this case really advance
the case of Honduras or set back that of El Salvador?
Honduras. by rejecting the idea of condominium within
the Gu1f, excludes the only legal status for the Gu1f
that could form even the beginning of an argument
in favour of the existence of a common baseline
coincident with the closing line of the Gulf and from
which Honduras could claim an E.E.Z. in the Pacific.
As will presently be shown. the claim by Honduras
to the existence of "a community of interest" in the
region sufficient to generate Pacific Ocean rights
is untenable. There are good reasons why El Salvador
insists that the status of the Gulf is that of
condominium. Its Government is constitutionally obliged
to adhere to this position by the terms of Article
84 of the El Salvador Constitution of 1983 (the text
of which appears in the Annexes to the H.M. (78)'.
Moreover. the Government of El Salvador believes that
this constitutional statement accords with the correct
position in international law. But if El Salvador
is wrong in its position and Honduras is right. how
does that help Honduras? If within the Gulf each
littoral State has a zone of exclusive jurisdiction
equivalent (in the view of Honduras) to ter-ritorial
sea. and if outside that band of exclusive jurisdiction
there is no condominium in the remaining waters of
the Gulf, then the consequence is that the waters
of the Gulf must be delimited (though not in these
proceedings) in accordance with the rules of customary
78. H.M.: ~nnexes: 11.3.12, vol. I. p. 50 international law. Both sides are agreed that the
coasts of each State Qenerate pertinent maritime
rights. El Salvador maintains that at the very least
Conchagüita, Meanguera and Meanguerita belong to El
Sa1vador-. whi 1e the Fara 11ones belong to Nicaragua.
The evidence in support of this position is vil-tually
irrefutable. The result, in terms of delimitation.
is clear. There is no way at al1 in which the maritime
area of Honduras can "escape" to the south and
southwest of these islands or penetrate into the mouth
of the Gulf. A fortior-. there is no recognizable
1ega1 basis on which the closing line of the Gulf
can be taken as the base1ine upon which to construct
a common claim, whether bipartite tas between El
Salvador and Hondurasi or tripartite (as between El
Salvador. Nicaragua and Honduras), to, a territorial
sea and an E.E.Z. in the Pacific Ocean.
6.100. HOW, then. is the matter to be resolved?
In the submission of El Salvador there are
only two significant possibilities - neither of which
assists Honduras. The first alternative is that the
Court should accept the contention of El Salvador
that the legal status of the Gulf is that of
condominium. However, that status can only exist within
the Gulf itself. The fact that there is a condominium
in the waters of the Gulf does not convert the outer
limit of those waters into a common coast. Only real
coasts can support claims to maritime areas and the
only real coasts on the Pacific Ocean are those of
El Salvador and Nicaragua. Honduras. lacking a real
coast on the Pacific. is not entitled to aiiy share
of Pacific waters.
6.101. The second alternative is that the Court
should accept the contention of Honduras
that there is no condominium in the waters of the
Gulf. In that case, the waters in the Gulf would needto be delimited ialthough this is not the function
of these proceedings). The basis of such delimitation
woiild be the actual coasts of the Parties. The effect
of such an approach would be that the El Salvador
and Nicaraguan islands in the Gulf would cut Honduras
off from any entitlement to maritime areas outside
the Gulf.
6.102. The suggestion made in the H.C.M. that
(79)
the burden of proof rests upon El Salvador
to establish the existence of a condominium is not
valid. If the concept of burden of proof is to be
introduced into this case. there is only one way in
which it can make any seiise, namely, as a reflection
of the abnoïmality of the claim to Pacific Ocean areas
made by Honduras. The basic position. which is much
more than a prima facie one. is that geography excludes
any claim by Honduras to maritime areas in the Pacific.
If a different legal status is to be established for
these areas, the burden of proof rests fully upon
Honduras
(80)'
79. H.C.M.: pp. 707-708, Chapter XIV, Para. 25.
80. El Salvador relegates to the present footnote
its response to the H.C.M.: PP. 708-709.
where complaint is made of an eri'or in a
quotation made in the E.S.M.: Para. 10.9..
Honduras is undoubtedly right in identifying
the error. It must, indeed, to quote the
language of the H.C.M., be "annoying" to
find that the burden of responding to
atheir cogencyatis further increased byough the
mere error of transcription. But let Honduras
accidental. Moreat toththe point,wastheenterror
makes absolutely no dif ference to the thrust
of the argument in connection with which
the quotation was used. 3. "CHAPTER XV: THE RIGHT OF HONDURAS TO MARITIME
AREAS IN THE PACIFIC OCEAN. BEYOND THE CLOSING LINE
OF THE GULF OF FONSECA"
(A) "Refusa1 to accept that Honduras 'should be present
on the closinn line or any Part of that line"
6.103. In Section A of Chapter XV of the H.c.M.
(81)' which bears the title at the head
of this Section, Honduras appears to be making two
points - thouyh how they relate to the heading under
which they are placed is far from clear.
6.106. First. Honduras contends that the extension
in international law of territorial sea
From six to twelve miles assunied that the existing
rights of access to the high seas and t.he right to
an E.E.Z. would be maintained.
6.105. Even if that contention were correct it
woilld scarcely make any difference in the
present case. The situation of' Honduras is affected
not by the width of the territorial sea of El Salvador
and Nicai-agiinat the mouth of the Gulf where the
closing line runs between Punta Amapala and Punta
Cosigüina. The territorial sea which cuts Honduras
off from the outer part of the Gulf is the territorial
sea of El Salvador generated by the islands of
Conchagüita. Meanguera and Meanguerita, as well as
the territorial sea of Nicaragua as generated by the
Nicaraguan island of Farallones de Cosigüina. The
distance between the mainland of El Salvador and
Coiichagüita. between the latter .and Meanguera. and
between Meanyuera and Meanguerita in no case exceeds
81. H.C.M.: pp. 712-716. three nautical miles. while the distance from
Ueanguerita to Farallones and from the latter to the
nearest point on the mainland of Nicaragua in neither
case exceeds twice three nautical miles. Thus there
is no navigable passage in the Gulf of Fonseca which
does not pass through the territorial sea of either
El Salvador or Nicaragua even when regarded as limited
to three nautical miles.
6.106. This makes the discussion in the H.M. and
H.C.M. of the effect upon vested rights
of an increase in the width of the territorial sea
entirely irrelevant. But even if it did not, El
Salvador need only niake the point that there is no
rule of customary international 1aw or in the 1982
Law of the Sea Convention which inhibits a State from
taking the full benefit of a legitimate extension
of the width of its territorial sea or entitles other
States to protection from the disadvanta~es of sucn
an extension. Save in the two specific cases meritioned
in the H.M. (82), namely the use of the system of
straight baselines iAïticle 7 (6)) and the application
of the concept of aïchipelagic baselines (Article
47 (5)). There is absolutely no support for the
proposition advanced in the H.C.M. without any
(83) '
citation of authority. to the effect that there is
a general policy. applicable in every case where the
width of territorial waters is extended from three
miles to twelve miles. protecting existing rights
of.access of coastal States to the liighseas.
6.107. The second point made Ily Honduras (84) is
82. H.M.: p. 713.
83. H.C.M.: P. 713.
84. H.C.M.: p. 713. is that the assumption by El Salvador that
the boundary between El Salvador and Nicaragua in
the mouth of the Gulf and seawards of the closing
line is an equidistance line'is "not only speculation
but bad law". El Salvador is at a loss to understand
why this should be so. Where there are only two valid
claimants to maritime rights in an area with a
geographical configuration such as the one that exists
at the mouth of the Gulf and in the adjacent Pacific
coasts, equidistance would seem to be the only
appropriate test.
6.108. Honduras then purports to find another fault
in the argument of El Salvador. Invoking
the impermissibilitv of inconsistencies in the argument
of a partv (a two-edged sword which - as will be seen -
cuts blondrirasniore deeply than it does El Salvador).
Honduras argues that El Salvador cannot assert
(85)
the legal status of CO-ownership of the waters of
the Gulf without at the same time conceding that the
outer limit of those same waters must constitute a
baseline for the construction of' seaward maritime
areas owned in common by three States.
6.109. The reply of El Salvador to this argument
has already been given. The closing line
of the Gulf is not a straight baseline and it cannot
exclude the overriding effect of the geographical
configuration of the area which accords an exclusive
rôle to the coasts of El Salvador and Nicaragua.
6.110. Or, to put the point in another way. if
Honduras wishes to rely upon the exceptional
character of the condominium, it must show in theorigin and operation of this coridominium a basis for
extendiiig its impact beyond tliespecific geographical
are in whicti it exists. El Salvador can find nothing
in the situation that converts the CO-ownership of
the waters into a concept of a common straight baseline
aloiig the lirie of contact between the Gulf and the
Oceari. That line merely serves as the line of
termination of the exceptional right of Honduras within
the Gulf. Once ttiat exceptional right comes to .an
end, the force of the geographical factors as the
dominant generators of maritime rights reasserts itself
and EI Salvador and Honduras. as 'the on1y States with
actual coasts on the %acific Ocean. are thus alone
entitled to rights in it.
6.111. There is a fiirther reply that El Salvador
may give in ttiis coiinection - and this in
response to the anticipation shown by Honduras of
the possibilily that what has throughout these
pleadirigs been called "the closiiig lirieof the Gulf"
may not actually coincide with the outer limit of
the Gulf. Clearly. Honduras is apprehensive that the
outer Iimit of the condominium may lie landwards of
ttie fauces of the Gulf and thus be separated from
the "closing line" upon which Honduras constructs
its oceanic claim:
6.112. Honduras is right to feel this concern.
though only partly for the reason that
Honduras states. The real reason lies in the fact
that the outer 1imit of the Gulf of Fonseca accepted
by Honduras lies iiot, as loosely assumed and stated
in these pleadings, at the so-called closing line
uf ttie Gulf running betweeii Punta Amapala and Punta
Cosigüina. but rather to the nol'th and east of the
line di-awiifrom Piintachiquiria to Punta del Rosario.
This was the position repeated without expression
of dissent in the Note of Protest of the Ministerof Foreign Affairs of Honduras addressed to his
opposite number in El Salvador on 30 September 1916
(86)' On this basis, therefore, there is a clear
distinction between what may be called the inner
closing line - at which the rights of Honduras as
a CO-owner end - and the outer closing line across
the mouth of the Gulf.
6.113. Having thus attempted to establish a false
inconsistency in the position of El Salvador,
Honduras pretends that there is no iiiconsistency in
its own position (87)' But in truth there is a major
inconsistency in the position of Honduras. Honduras
is in effect claiming that its coasts generate a
territorial sea twice over: once within the Gulf,
immediately adjacent to the coasts of Honduras; and
again outside the Gulf along the Pacific side of the
closing line. True, this is not the impression conveyed
by the pleadings of Honduras so long as they deny
the status of common owner.ship to the Gulf. But once
Honduras shifts its ground and accepts the concept
of condominium for 'the purpose of claiming a share
in a territorial sea baseline coincidental with the
outer closing line of the ~uif. it creates a
fundamental and insuperable inconsistency in its own
position.
86. H.M.: Annexes: XIII.2.40, Vol. V, p. 2355.
The manner in which the French translation
of this Note is preserited in the H.M., and
in particular the location of the quotation
marks, makes it difficult to be sure whether
the statement was original to Honduras or
is otie that Honduras is trying to quote.
But whichever is the correct interpretation.
it is clear that Honduras expresses no
disagreement with it.
87. H.C.M.: pp. 723-729, Chapter XV, Para. 8. !B) "The contention ttiat Honduras is riot a coastal
---te of the Pacific Ocean"
6.114. Hondliras begins by recal 1ing the r-eference
in the H.M. (88) to what it regards as the
relevant case law. Honduras adds nothing to the
argument there set out. The inaccuracy of the Honduran
use of these authorities was demonstrated in the
E.S.C.M. (89)' Tliere is no need to repeat here what
was said there.
6.115. Next Honduras seeks to rebut the point
made b'y El Salvador in t.he E.S.M. that the
reference in the Honduras Decree of 17 January 1951
to the "Pacific Ocean" was not understood by El
Salvador. as amounting to a claim to waters of the
Pacific beyond the closiny line of the Gulf of Fonseca.
However. beyond the bold assertion that the position
of El Salvador in this respect "verges on the absurd"
and that "it is very cleai- that Honduras has been
laying claim to a continental shelf and an
epiçontinerital sea in the Pacific - and beyorid the
Gulf - ever.since 1950". Honduras produces no reasoned
response. Evidently Honduras has given no consideration
t.o tlie various instances to which El Salvador has
pointed earlier in tlie present Repl y as we11
(91)'
as in its earlier pleadings. that exemplify the use
by Honduras of the expression "Pacific Oceail" as the
equivalent of the Gulf of Fonseca.
6.116. Honduras has, therefore, not made out a
88. H.M.: pp. 723-729, Vol. 11. Chapter XX.
89. E.S.C.M.: Paras. 8.66.-8.73.. pp. 284-290
90. Beginniny at H.C.M.: p. 716. Para. 11.
91. See Paragraph 6.22. above. case for insisting that El Salvador should
also have protested against the reference in the 1950
Honduran Decree to the Pacific Ocean. The reference
was iinderstood by El Salvador to be one, in common
with other comparable practice of Honduras. to the
Gu1 f of Fonseca and, as such. called for no protest.
And it 1-emains an undeniable fact that Honduras did
not follow up that decree by any specific action
linking it to the Pacific Ocean outside the closing
line of the Gulf of Fonseca. 1t was oiily in 1974.
when the delegate of Honduras made the remarks at
U.N.C.L.O.S. III that are quoted in the E.S.M. (92).
that it became necessary for El Salvador to react
i
- and it did so immediately in the form of the response
by Mr. Galindo Pohl, also quoted in the E.S.M. (93>.
6.117. The paragraphs of the H.C.M. that follow
(94) refer to a number of developments that
are evidently intended not so much to show somefailure
on the part of El Salvador to pr-otest against some
pertinent action of Honduras as to demonstrate the
existence from 1978 oiiwards of a dispute between the
two countries embracing the claim by Honduras to
maritime areas beyond the closing line of the Gulf.
This then leads into a further attempt by Honduras
to show that Question Two in the Compromis must he
so intei-pretedas to request and authorize the Court'
to delimit as between El Salvador and Honduras areas
of the Pacific Ocean lying outside the closing line
of the Gulf.
92. E.S.M.: Para. 14.2.
93. E.S.M.: Para. 14.2.
94. H.C.M.: pp. 719 et seq.. Chapter XIII.
Paras. 13 et sea.. '6.118. The line of argument at this point ïetraces
an argument that the H.C.M. has already
developed some pages earlier and to which a
(95i
response has already beeii made in this ReplY (96j.
There is no need to retrace what has already been
sufficiently said.
(C) "The imuortance of aood faith: areclusion and
/
estoupel "
6.119. El Salvador regrets that Honduras has thought
it necessary to maiie an allegation of bad
Faith against El Salvador (97) ' Certainly, the
allegation does not advance the case of Honduras since
It assumes precisely what has .to be proved, namely,
that the correct interpretation of the Second Question
is that it covers delimitation as well as determination
of status.
6.120. El Salvador will not repeat here the
arguments that it has already developed
(98) to support its conclusion that the Second ~uistion
means exactly what it says. However. in the context
of a discussion about bad faith. El Salvador is
entitled to ask the following question: if the Second
Question was understood by ' Honduras to cover
delimitation as well as determination of status. how
Could Honduras in good faith have proposed and accepted
wording which was so manifestly different from that
H.c.M.: pp. 675-678, Chapteï xIII, Paras.
10-12.
96. See Paragraph 6.2.-6.72. above.
97. H.C.M.: See pp. 725-726 & 726-729. Chapter
XV, at the end of Para. 20 and the section
beginning ab Para. 21.
98. E.S.M.: Chapters 1 & VIII; E.S.C.M.: Chapters
1 & VIII. especially Paras. 8.2.-8.10..used in the First Question wheïe delimitation is
expi-esslycalled for?
6.111. 1t is t.0 he borrie in niiiidtIiaL the worcliny
of the Secorid Ouestioii as pr-oposed by
Honduras at the Foiirthmeetiny of t.lie Conimission or1
29 April 1986 anticipated almost esactly. the prescrit
wordiiig of that qiiest ion. 1f Hciiiduas believed that.
the words that it used meant something different aiid
larger than theiï normal meaning would convey, it
was. as a niatter of good faitti. IV to Honduras to
sav so. It iiever did. Nor was tliei-eany basis for-
Honduras to believe that El Salvador shaïed the
interpretatioii of Honduras other t-tianin the sense
that hoth parties weïe seebiny to reflect the original
wording of the General Peace Treaty of 1980. As is
stated in the Afficlavit filed hereiri by Sr. Ricardo
Acevedo Peralta it was no part of his
(99)'
intei-pi.etaioii of the Second Ouestion that it CO\-tred
deliiiiitationas well as detei-mination of status; and
if the interpretation riow advanced bv Hontliirashad
been put to him, he would have rejected it as
unacceptahle.
6.122. Indeed, if there is to be talk of "good
faith", El Salvador is bound to ask how
Honduras cati present to the Court as binding on El
Salvador. a proposa1 made bv El Salvador in the course
of negotiations, confidentially and under the most
explicit reservatioii that if coinplete agreement was
iiot reached "nothing would have probative value for
the Iitigation itself" (l)? Such A presentation by
Honduras cünnot be ïeconciled with the dictates of
99. E.S.R.: Annexes: p. 344
1. See Paragraph 6.&2. above.good faith. If the contention of Honduras were to
be accepted, Lt would mean that the Court would deprive
negotiation9 of the protection afforded them by the
rule that what Is sald or proposed ln negotiations
cannot be adduced in subsequent 1itigat ion as
evidencing the position taken by a party or as blnding
that party in any way. And if such protection 1s
withdrawn, then the ut1 1itv of negotiations as the
principal mode of settlement of disputes would be
reduced to near the Point of disappearance. Such a
developtuent would be to the detriment of al1 States
and. for that reason. El Salvador respectfully submlts
that the Court must not countenance it. SUBM SSI ONS
1. Delimitation of tl- Land Frontier
1. The Government of El Salvador ratifies the
petition ta the Chamber of the International
Court. of Justice contained in its Memhrial that the
Chamber delimit the land frontier between El Salvador
and Honduras in the disputed sectors in accordance
with the line iiidicated in the Submissions contained
in the Memorial. This petition was ratif/ed in the
Counter Memorial of El Salvador, which rebutted the
argumeiits contained in the Memorial of Honduras, and
is now ratified agairi in view of the fact that in
Chapters II. III & IV of this Reply El Salvador has
rebutted the arguments contained in the Counter
Memorial of Honduras.
II. The Juridical Status of the Islands
2. The Government of El Salvador ratifies the
petition to the Chamber of the International
Court Of Justice contained in its Menlorialas to the
juridical status of the islands. This petition was
ïatified in the Counter Memorial of El Salvador, which
rebutted the arguments contained in the Memorial of
Honduras, and is riow ratified again in view of the
fact that in Chapter V of this Reply El Salvador has
rebutted the arguments contained in the Coiinter
Memorial of Honduras.
III. The Juridical Status of the Maritime SDaces
3. The Governinent of El Salvador ratifies the
petition to the Chamber of the International
Court of Justice contained in its Counter Nemorial
as to the juridical status of the maritime spaces
in view of the fact that in Chûpter VI of this ReplyEl Salvador has rebutted the ai.guments contained in
the Counter Hemorial of Honduras.
In The Hague, 15 Decembeï 1989
Agent of the Coverntnent of
El Salvador LIST OF THE ANNEXES INCLUDEDIN TUE REPLY
OF EL SALVADOR
VOLUME 1
CHAPTER II PAGE
ANNEX 1
RECOPILATION OF THE LAW OF INDIES.
ANNEX 2
CASE CONCERNING THE ARBITRATION AWARD OF THE KING OF
SPAIN BETWEENHONDURAS AND NICARAGUA.
ANNEX 3
MEDIATION CARRIED OUT BEFORE THE STATE DEPARTMENT OF
THE UNITED STATESOF AMERICA IN THE DISPUTE BETWEEN
GUATEMALA AND HONDURAS.
ANNEX 4
BOUNDARIES BETWEEN GUATEMALA ANDHONDURAS. VOLUME II
1924 (PAGES4AND 22). PAGE
ANNEX 5
BOUNDARIES BETWEEN GUATEMALA AND HONDURAS. TOME II
1929 (PAGE23).
ANNEX 6
REPLY OF THE HONDUREAN REPRESENTATIONTO THE ALLE-
GATION OF GUATEMALA, 1932 (PAGE 92)..
ANNEX 7
REPLY OF THE HONDUREAN REPRESENTATIONTO THE ALLE-
GATION OF GUATEMALA, 1932 (PAGE 20).
ANNEX 8
MEDIATION CARRIEDOUT BEFORE THE STATE DEPARTMENT
OF THE UNITED STATES OF AMERICA IN THE DISPUTE BEE
EN GUATEMALA AND HONDURAS. VOLUME 1. LAND TITLES
(PAGE 129, 192 y 193).
ANNEX 9
THE TREASURY COUNCIL RECEIVED THE PETITION PRESEN
TED BY ANTONIO DE LA PORTILLA, 'NEIGBOUR OF SAN
SALVADOR, ABOURTHE SURVEYING OF THE LANDS OF SUM-
PUL.
ANNEX 10
PETITION FROM BARTOLOME MEJIAOF THE JURISDICTION
OF SAN MIGUEL RELATED TO THE SURVEYINGOF THE LANDS
IN THE VALLE DEL SUMPUL.CHAPTER III PAGE
ANNEX 11
THE GEOGRAPHICAL ACCOUNT OF THE COLONIAL PROVINCE OF 48
SAN SALVADOR BY MANUEL DE GALVEZ Y CORRAL, IN 1742.
ANNEX 12
REPORT PRESENTEDBY THE INTENDANT MAGISTRATE OF THE 57
COLONIAL PROVINCEOF SAN SALVADOR ANTONIO GUTIERREZ
Y ULLOA, PRESENTED IN 1807.
ANNEX 13
REPLY OF THE HONDUREAN REPRESENTATIONTO THE ALLEG -A 62
TION OF GUATEMALA, 1932. (PAGE 99).
ANNEX 14
MESSAGE FROM THE PRESIDENT OF THE REPUBLIC OF HOND -U 65
RAS, GENERAL OSWALDO LOPEZ ARELLANO.
ANNEX 15
FORMAL TITLEDEED TO THE COMMONS OF TOROLA, 1844. 69
ANNEX 16
FORMAL TITLE DEED OF 1711, IN FAVOUR OF JUAN BAU- 73
TISTA DE FUENTES, RESIDENT OF THE COLONIAL PROVINCE
OF SAN SALVADOR.CHAPTER III PAGE
ANNEX 17
LETTER SENT BY THE MINISTER OF WAR AND MARINE OF THE 8O
REPUBLIC OF EL SALVADOR TO THE MINISTER OF EXTERNAL
RELATIONS OF THAT REPUBLIC, ON 16 JUNE 1920.
ANNEX 18
LETTER FROM THE MINISTER OF WAR AND MARINE OF EL SAL 82
VADOR TO THE MINISTER OF EXTERNAL RELATIONS OF THAF
REPUBLIC, ON 4 JUNE 1920.
CHAPTER V
ANNEX 19
TITLE GRANTED TO PEDRO DE ALVARADO AS GOVERNOR AND 84
CAPTAIN - GENERAL OF THE COLONIAL PROVINCE OF GUATE-
MALA, ON 18 DECEMBER 1527. GENERAL ARCHIVESOF IN-
DIES. GUATEMALA 10.
ANNEX 20
LETTERS SENT BY THE VICEROY OF MEXICO DRAWNUP THESPA 92
NISH VILLAGES SUBJECT TO THE AUDIENCE OF GUATEMALA:
GENERAL ARCHIVESOF INDIES. PATRONATO,20 NO. 5 RA-
MO 21.
ANNEX 21
LETTER ADDRESSED TO HIS MAJESTY BY THE GOVERNOR PE-- 96
TION TO CONQUER THE ISLANDS OF THE SOUTH SEA ANDIZATO
POPULATE THE VILLAGE OF SAN MIGUEL WITHIN HIS JURIS-
DICTION. GENERAL ARCHIVESOF INDIES. GUATEMALA 9. CHAPTER V PAGE
ANNEX 22
LETTER SENT BY THE GOVERNOR PEDRO DE ALVARADO TO 104
THIS MAJESTY, REFERRING OF HIS ACTIVITIES TO PO-
PULATE THE VILLAGE OF SAN MIGUEL.
ANNEX 23
ROYAL ORDENANCE IN FAVOUR TO THE GOVERNORANDCAP
TAIN - GENERAL PEDRO DE ALVARADO, TO CONQUER
AND TO GOVERN THE ISLANDS IN THE COAST OF THE
SOUTH SEA, 16 APRIL 1538. GENERAL ARCHIVESOF IN
DIES, PATRONAT0 20 NO. 5 RAMO 9.
ANNEX 24
REPORT FROM PEDRO DE ALVARADO TO HIS MPJESTY CXXj
CERNING TO THE DEATH OF PEDRARIAS DAVILA AND
MENTIONING THE TWO VESSELS FOR THE FONSECA PORT
OF HIS JURISDICTION. GENERAL ARCHIVES OF INDIAS
ADMINISTRATIVE AFFAIRS, GUATEMALA39.
ANNEX 25
/
REPORT MADE BY THE LICENTIATE DON CRISTOBAL PE-
DRAZA PROTECTOR 0F.THE INDIANS AND BISHOP OF
HONDURAS ON 18 MAY 1539. GENERAL ARCHIVESOF G@
TEMALA 9.
ANNEX 26
REPLY TO THE PLEADINGS OF NICARAGUA TO THE KING
.OFSPAIN IN THE ARBITRATION BETWEEN NICARAGUA
AND HONDURAS TEGUCIGALPA, CALDERON PUBLISHING
AND PRINTING PRESS 1938.CHÀPTER V PAGE
ANNEX 27
MEDIATION CARRIEDOUT BEFORE THE STATE DEPARTMENT
OF THE UNITED STATES IN THE DISPUTE WITH GUATEMA-
LA AND HONDURAS. 1918 VOLUME 1 (PAGES 186 - 232 )
ANNEX 28
THE TOWN COUNCIL OF SAN MIGUEL SENT A LETTER TO
THE KING, SIGNED IN THE FONSECA PORT, ON 8 JUNE
1590. GENERAL ARCHIVESOF INDIES, GUATEMALA 44.
ANNEX 29
NOMINATION TO THE CAPTAIN LUCAS PINTO AS FIRST
MAYOR OF SAN SALVADOR AND LA CHOLUTECA.
NOMINATION TO DIEGO PAZ DE QUImONEZ, FIRST MA-
YOR OF SAN SALVADOR, SAN MIGUELAND LA CHOLUTE-
CA.
ANNEX 31
ROYAL CEDULA OF 21 JULY 1678, IN WHICH THE KING
RESOLVED NOT TO ACCEDE TO THE AGGREGATION 'IDTHE
BISHOPRIC OF HONDURAS, THE GUARDANIA FO NACAQME.
ANNEX 32
THE INHABITANTSOF NUESTRA SEmORA DE LAS NIEVES
OF AMAPALA OF THE PROVINCE OF SAN MIGUEL WITHING
THE JURISDICTION OF SAN SALVADOR. SHOULD P-..-
THEIR TITHES TO THE FIRST~~MAYORSHIP OF SAN ~AL-
VADOR IN 1745.CHHPTER V
PAGE
ANNEX 33
THE CORPORATION OFCOMAYAGUA ASKED THAT THE COMAYA
GUA ASKED THAT THE FIRST MAYORSHIP OF TEGUCTGALPA
SHOULD BE INCORPORATED INTO IT AND THAT THE JUDI--
CIAL DISTRICT OF SAN MIGUEL.
ANNEX 34
LETTERS FROM THE PRESIDENT OF THE AUDIENCE OF GUA-
TEMALA REFERRING TO THE DEFENSE OF SAN MIGUEL AND
SAN SALVADOR AND WAS ORDERED TO GO THERE, THE FIRST
MAYOR OF MINES OF TEGUCIGALPA,ANTONIO DE AYALA.
ANNEX 35
DIFINITIVE BOUNDARY TREATY BETWEEN HONDURASAND NI
CARAGUA. MINUTE II (PAGES 23 Y 24).
ANNEX 36
DOCUMENT STATED THAT DUTCH PIRATES THREATENED TO
ATTACK THE PORT OF AMAPALA IN THE JURISDICTION OF
THE FIRST MAYORSHIP OF SAN SALVADOR, IN 1643.
ANNEX 37
THE COMUNIQUE EXPRESSED THAT A SPANISH VESSEL
APPLIED FOR PERMISSION TO DISEMBARK IN THE PORT
OF AMAPALA, IN 1644. VOLUME , II
CHAPTER V PAGE
ANNEX 38
THE FIRST MAYOR REPORTED ON EVENTS WHICH HAD OCCUR 215
RED AT THE ENSENADA DE AMAPALA AND' ISLA DEL TIGRE
WITHING HIS JURISDICTION, IN 1688.
ANNEX 39
REPORT FROM THE PRESIDENT - GUARDIAN OF THE TOWN-
SHIP AND DISTRICT OF NUESTRA SERORA DE LAS NIEVES
OF AMAPALA, ON ACCOUNT OF THE PIRATES INVASIONS,
DATED 1697.
ANNEX 40
FRAIR JUAN BAUTISTA ALVAREZ DE TOLEDO, BISHOP
ELECT OF CHIAPAS AND GOVERNOR OF GUATEMALA 'MADE
REFERENCE TO HIS VISIT TO THE JUDICIAL DISTRICTOF
AMAPALA IN THE CITY OF SAN MIGUEL, SIGNED 1714'.
ANNEX 41
TITLE OF MASTER OF CAMP IN THE INFANTRY BRANCH IN
THE CITY OF SAN MIGUEL, CONFERRED ON JUAN JOSEPH
DE MOLINA, IN 1729.
ANNEX 42
THE INTENDANT OF THE PROVINCE OF HONDURAS, JOSE
TINOCO, INFORMED THE KING ABOUT THE GENERAL SITUA
TION OF.THAT PROVINCE IN 1819.CHAPTER V PAGE
ANNEX 43
FORMAL RECORD DRAWN UP BY THE MUNICIPALITY OF COMA-
YAGUA, ON 18 OCTOBER 1820.
CHAPTER IV
ANNEX 44
"THE EFFECTIVITES" .
CHAPTER VI
ANNEX 45
AFFIDAVIT FILED BY MISTER RICARDO ACEVEDO PERALTA.
ANNEX 46
MESSAGE OF CONSTITUTIONAL PRESIDENT-OF HONDURAS --C--
TOR FRANCISCO BERTRAND GIVENTO THE NATIONALCONGRESS
RELATED THE 1917 JUDGEMENT OF THE CENTRAL AMERICW
COURT OF JUSTICE.
ANNEX 47
MINUTES OF THE NEGOTIATIONS LEADINGUP TO THE CON--
CLUSION OF THE COMPROMIS BETWEEN EL SALVADOR AND HO N
DURAS IN 1986.
ANNEX 48
OPINION ON THE VALIDITY OF THE FORMAL TITLE DEEDS TO
COMMONS DURING COLONIAL TIMES.
Reply of the Republic of El Salvador